author: Earl, J.,

text:
    The People, ex rel. Wallkill Valley Railroad Company, Respondent, v. Nathan Keator et al., Assessors, etc., Appellants.
    Where upon a copy of a judgment served was indorsed the name of the attorney with his post-office and business address, and below was indorsed a notice of judgment signed by the attorney without giving any address, held, that this was a sufficient compliance with the rule of practice (Rule 2), requiring papers served to be indorsed or subscribed by the attorney, with his address, etc.
    For the purposes of an appeal, a judgment in proceedings by certiorari to review an assessment under the act of 1880 (Chap. 269, Laws of 1880) is to be considered as an order, and an appeal to this court must be taken within the time prescribed for appeals from orders, i. e. sixty days,
    (Argued December 8, 1885;
    decided December 15, 1885.)
    The following is the opinion herein:

      “ This is a motion to dismiss an appeal to this court on the ground that it was not taken within the time prescribed by law.
    “ The relator conceiving itself aggrieved by the assessment made by the defendants as assessors of the town of Rosendale, Ulster county, procured a writ of certiorari to review the assessment under the act (Chap. 269 of the Laws of 188G). Upon the return of the writ a hearing was had at the Special Term where the assessment was reduced. The defendants then appealed to the General Term, where the decision of the Special Term was affirmed and a judgment of affirmance was entered on the 22d day of July, 1885, and notice thereof was given to the attorney for the defendants on the same day. From that judgment the defendants appealed to this court, on the 20th day of November, 1885. The defendants claim that their time to appeal was limited only by section 1325 of the Code of Civil Procedure, under which, if applicable, they had the right to appeal at any time within one year after the judgment was entered. The relator claims, however, that the appeal was regulated by section 7 of the chapter above referred to, which provides that “ appeal may be taken by either party from an order, judgment or determination under this act as from an order, and shall be heard and determined in like manner,” and hence that the appeal should have been taken to this court within sixty days after service upon the attorney for the appellants of a copy of the judgment appealed from and a written notice of the entry thereof. We think the contention of the relator is right and that the motion should be granted.
    “ Chapter 269 provides a new and complete system for reviewing upon certiorari and correcting errors of assessors; and all the provisions of the act show that it was the intention of the legislature that the proceedings should be speedily conducted and speedily brought to a termination. Section 8 provides that the assessment-roll shall be finally completed and filed, and notice thereof given on or before September first in each year, and section 2 provides that the writ shall not be granted unless application therefor shall be made within fifteen days after the completion and delivery of the assessment-roll and notice thereof given as provided in the act; that the writ shall not stay the proceedings of the assessors or other offi • cers to whom it is directed, or to whom the assessment-roll may be delivered, to be acted upon according to law. Section 3 provides that the justice granting the writ shall prescribe in the writ the time within which a return thereto must be made, which shall not be less than' ten days. Section 1 provides that all issues and appeals in any proceedings instituted under the act shall have preference over all other civil actions and proceedings in all courts. Section 8 provides that if final judgment shall not be given in time to enable the assessors or other officers to make a new or corrected assessment for the use of the board of supervisors at their annual session, and it shall appear from the judgment that the assessment was illegal, erroneous or unequal, then there shall be audited and allowed to the petitioner, and included in the next year’s tax levy and paid to the petitioner the amount with interest thereon, in excess of what the tax should have been as determined by the judgment.
    It was undoubtedly expected by the law-makers, that as the writ was required to be procured in September, the proceeding would be brought to a determination in time for the action of the supervisors at their succeeding annual meeting, and such must generally be the result. The provisions of section 1 accomplish three things : 1. That all issues and appeals instituted under the act shall have preference over all other civil actions and proceedings in all courts. 2. That every final decision under the act for the purpose of appeal shall be treated as an order, and hence that an appeal to this court shall be placed on the order calendar and not be subject to the delay which might occur if it were required to be placed upon the general calendar; and, 3. Appeals to this court must be within the time specified for appeals from orders, to-wit: Sixty days, rather than one year. The provision is that appeal may be taken as from an order, and shall be heard and determined as an appeal from an order. We do not think that this is merely permissive, and that an appellant has the option to appeal either under the Code or under the section named. The provision is apart of the whole scheme, and was intended to provide the precise way in which an order, judgment or determination under that act could be reviewed. If that section is not to receive this construction, then great delay might ensue the decision of the General Term. The appellant might wait a year before bringing his appeal and then some time might elapse before it could get upon the calendar of this court so as to entitle it to the preference given by that section. We think the plain purpose of the act, as well as the public convenience, requires that we should give the construction contended for by the counsel for the relator.
    “ It was, however, claimed on the part of the appellants, that their time to appeal was not limited by a proper notice.
    “ The counsel for the relator served upon the appellants a copy of the order of the General Term affirming the decision of the Special Term with a notice on the back thereof, stating that it was a copy of the order and when and where it was filed and entered. That notice was signed £ P. Cantine, attorney for respondents/ without in any way indicating his post-office address or place of business. In pursuance of the order of the General Term the relator’s costs were taxed and a formal judgment of affirmance, and for costs, was entered on the twenty-second day of July, and a copy of that judgment was served upon the appellants’ attorney, and on the back of it was indorsed the title of the cause and 1P. Cantine, attorney for respondents, office and post-office address, Saugerties, Ulster Co., N. Y./ and below that, signed by the same attorney without his post-office and business addresses, was a notice stating that the paper served was a copy of a judgment of affirmance with costs, and giving the date and place of its entry in the clerk’s office of Ulster county.

      “ The judgment referred to in that notice was the judgment appealed from, and if rule 2 of the general rules of practice of the Supreme Court applies to an appeal to this court, the motion was a full and precise compliance with that rule, because it was indorsed on the back with the name of the attorney with his post-office and business address. The notice was, therefore, sufficient to limit the appellants’ time for appeal, and the appeal not having been brought within sixty days, the time prescribed fo.r an appeal from an order to this court, it was too late and it should be dismissed, with costs.” .

      Peter Cantine for motion.

      A. T. Clearwater opposed.
   Earl, J.,

reads for dismissal of appeal.

All concur.

Appeal dismissed.


source: Caselaw Access Project

author: Rapallo, J.,

license: Public Domain

text:
    Daniel Lord, Jr., as Trustee, etc., Respondent, v. The Yonkers Fuel Gas Company et al., Appellants.
    The “franchises, privileges, rights and liberties," which under the act of 1878 (Chap. 163, Laws of 1878); a manufacturing corporation is authorized to mortgage, to secure the payment of a debt, upon consent of the requisite number of stockholders, and which are not included in a consent to mortgage the real and personal estate of the corporation, are the corporate rights and franchises which became vested in the company by virtue of its organization as a corporation. Those terms do not include patent rights, licenses, easements, or privileges acquired by the company after its incorporation, either from individuals or other corporations ; these are in the nature-of property, and are, therefore, included in a consent to mortgage the corporate property.
    (Submitted December 8, 1885;
    decided December 15, 1885.)
    This was a motion to correct the remittitur herein.
    The case is reported, 99 N. Y. 548. It was there held that a mortgage executed upon consent of stockholders to mortgage the real and personal estate of a manufacturing corporation, so far as it purported to include the franchises, privileges, rights or liberties of the corporation, was invalid and inoperative, and these were directed to be excluded from sale on foreclosure of the mortgage.
    The following is the mem. of opinion on the motion :
    “ ‘ The franchises, privileges, rights and liberties, ’ directed to be excluded from the sale are those referred to in chapter 163 of the Laws of 1878, which we understand to be the corporate franchises and rights which became vested in the company by virtue of its organization as a corporation under the general law. We do not understand that these include patent rights, licenses, easements or privileges acquired by the company since its incorporation, either from individuals or corporations; these are in the nature of property of which the company had the power to dispose, and it was not the intention of the court to direct that they be excluded from the sale. The remittitur follows the language of the act of 1878, and we do not think that it needs amendment. These views are sustained by the following cases cited by the respondent. (Bridgeport v. N.
      Y. & N. H. R. R. Co., 36 Conn. 255 ; Chicago R. R. Co. v. People, 73 Ill. 511; Morgan v. Louisiana, 3 Otto, 223.) The motion should be denied, without costs.”

      Ralph E. Prime for motion.

      Calvin Erost opposed.
   Rapallo, J.,

reads mem. for denial of motion.

All concur.

Motion denied.


text:
    James F. Hall, Respondent, v. Benjamin F. Chandler, Appellant.
    (Argued December 2, 1885;
    decided December 22, 1885.)

      Leslie W. Russell for appellant.

      John W. Kellogg for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    The Kerosene Lamp Heater Company, Appellant, v. John F. Rathbone et al., Respondents.
    (Argued December 2, 1885;
    decided December 22, 1885.)

      B. F. Lee for appellant.

      EseJc Cowen for respondents.
   Agree to affirm; no opinion.

AJI concur.

Judgment affirmed.


text:
    James W. Smith et al., Appellants, v. City of Brooklyn, Respondent.
   This case presented the same questions and was argued and decided with Steers v. City of Brooklyn, ante, p. 51.


text:
    George A. Kent et al., Respondents, v. Leonard Friedman, Appellant.
    Where an executory contract for the sale of goods is with warranty, that they shall be good, sound, and all right, and equal to a sample shown, an acceptance of the goods after opportunity to examine them does not preclude the purchaser from claiming and recovering damages for breach of the warranty.
    (Submitted December 4, 1885;
    decided December 22, 1885.)
    The following is the mem. of opinion herein :
    “ This action is to recover damages for breach of warranty upon an executory sale of tobacco by the defendant to the plaintiffs. The facts as found by the referee, upon sufficient evidence, must be taken as true that the sale was by sample, the defendant representing that the sample was a true sample of the tobacco sold, and that the tobacco was not only as good as the sample, but good, sound, and all right. Upon these facts a breach of warranty and damages being proved, the only defense open to the defendant was the acceptance of the tobacco by the -plaintiffs. That such a warranty survives acceptance has been repeatedly decided by this court, the last time in Brigg v. Hilton (99 N. T. 517). In that case there was an ex-ecutory contract for the sale of cloths by samples which were sound and perfect, the plaintiffs representing that the cloths were of similar fabric and similar quality, equal in every respect to the samples; and it was held that acceptance by the defendants of the cloths, after opportunity for their examination, did not preclude them from claiming and recovering damages for breach of the warranty. That case is not distinguishable from this and must control our decision.

      “We have considered all defendant’s exceptions to rulings upon questions of evidence, and are satisfied that they point out no prejudicial error.
    “ The judgment should be affirmed, with costs.”

      Alex. Gumming for appellant.

      D. 8. JEtioha/rds for respondents.
   Earl, J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    James C. Fitzpatrick, Appellant, v. The New York and Manhattan Beach Railway Company, Respondent.
    (Argued December 7, 1885;
    decided December 22, 1885.)

      F. R. Ooudert for appellant.

      Alfred C. Chapin for respondent.
   Agree to reverse order on dissenting opinion of Judge Brady at General Term.

All concur.

Order reversed and judgment affirmed.


text:
    John C. Monty, Respondent, v. William H. Bloomingdale, Appellant.
    (Argued October 7, 1885;
    decided January 19, 1886.)

      Isaac La/mson for appellant.

      Lyman H. Fforthup for respondent.
   Agree to affirm; no opinion.

All concur, except Danforth, J., not voting.

Judgment affirmed.


author: Finch, J,,

text:
    The People of the State of New York, Respondent, v. Patrick Kiernan, Appellant.
    (Argued November 25, 1885;
    decided January 19, 1886)
    The defendant was convicted of murder in the first degree. Upon the trial a challenge to the array of jurors was interposed by his counsel. The portion of the opinion in reference thereto is as follows:

      “ The prisoner’s challenge to the array was made in writing; issue taken by the district attorney upon its alleged facts-; that issue tried by the court; and the challenge overruled. It averred, as the error in drawing the panel of additional jurors ordered by the court, “ that the names of such jurors were not drawn from the box or boxes by the court directed publicly, in open court, in the presence of the court as by law provided.” The broadest possible construction of this language would result in an averment of but two facts; one that the names of additional jurors were not drawn from the box directed by the court; and the other, that they were not drawn in open court. The mode of drawing is prescribed in detail by the Code of Civil Procedure. (§ 1035, etc.) There are three boxes provided for the ballots, on which are the names of the jurors selected to serve for three years. Box number 1, at the beginning of the three years term, contains the names of all the jurors liable to be drawn. Box number 2 as terms are held, contains the names of jurors who have been drawn and served. And box number 3 contains duplicate ballots of the trial jurors selected who reside in the city or town where a trial term is appointed to be held. So that box number 1 is the ordinarysource of supply, and box number 3- is provided for an emergency when there is no time to call jurors from a distance. As the terms proceed the names of jurors who have served are placed in box number 2, so that the contents of boxes 1 and 2 are continually changing. If during the three years the ballots in box number 1 become exhausted the drawing goes on from box number 2, until the new lists are transmitted. (§ 1051.) When additional jurors are found necessary at a term of the court an order is made “ requiring the clerk of the county to draw and the sheriff to notify any number of trial jurors specified in the order which the court deems necessary.” (§ 1058.) In the present case that order was made and entered, containing all the prescribed requisites. By the next section (§ 1059) the mode of obeying the order is fixed. “ The clerk must thereupon forthwith bring into court all the boxes wherein ballots containing the names of trial jurors are deposited as prescribed in this article; and must, in the presence of the court, publicly draw from such box or boxes as the court directs the number of trial jurors specified in the order.” It is now said that all the boxes were not brought into court. No such omission was alleged in the prisoner’s challenge. That specified no irregularity from the absence of requisite boxes, and no evidence upon the subject was needed or produced. There was no such issue, and no proof to maintain it. If the statements of the clerk that “ only one box was brought into court ” and that “ there is only the one box to bring in and draw from,” establish that the other two were not already in court, and were not brought in, the irregularity would be purely formal, and work no possible harm to the prisoner, if the court selected the box. The clerk testified that the one hundred and fifty additional jurors required by the order were drawn by him “in open court,” and “from the box directed by the court.” The irregularities alleged in the challenge were thus directly disproved, and justified the court in overruling it. It is contended, however, that the court did not direct from which box the names should be drawn. The clerk swears that such direction was given, and he obeyed it. If none was given, except by the formal order entered, that was sufficient. It identified the box to be brought in and drawn from as the one u containing the names of trial jurors for said court.” This language must be construed to mean the box of ordinary supply and containing the names of all the trial jurors liable primarily to serve at that term of the court, and that could only have been box number 1. It could perhaps be said that the order might have referred to either of the others, and so was ambiguous. But conceding so much, the court must have understood its own order, and the drawing having occurred in its presence and with its assent, must have been from the box intended and directed. We do not think that any irregularity was established.”
    The remainder of the opinion is taken up with a discussion of the facts; the court holding that the testimony justified the conviction.

      Benjamin W. Downing for appellant.

      John Fleming for respondent.
   Finch, J,,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    Peter DeBaun, Appellant, v. Frank E. Bean et al., Respondents.
    (Argued December 4, 1885;
    decided January 19, 1886.)

      George W. Weiant for appellant.

      J. A. Hylamd for respondents.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Luther A. Wing, Respondent, v. Erastus Rapalee, Appellant.
    (Argued December 4, 1885;
    decided January 19, 1886.)

      J. F. Parkhwrst for appellant.

      M. Bumsey Miller for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


author: Finch, J.,

text:
    Robert J. Dean, Respondent, v. Henry D. Van Nostrand et al., Appellants.
    (Argued December 7, 1885;
    decided January 19, 1886.)
    Decided upon the facts.

      William G. Wilson for appellants.

      Edward 8. Hatch for respondent.
   Finch, J.,

reads for affirmance.

All concur, except Rucee, Oh. J., not voting.

Judgment affirmed.


author: Andrews, J.,

text:
    The Belgian Glass Company, Respondent, v. Theodore Pabst et al., Appellants.
    The parties entered into a contract by which defendants agreed to sell the goods manufactured by plaintiff on commission. Plaintiff guaranteed to . supply defendants with goods to at least the value of a sum specified, and in case of failure so to do defendants were entitled to the agreed commissions on that sum. Either party had the right to terminate the agreement by giving to the other a year’s notice. In an action to recover proceeds of sales in defendants’ hands, the referee found that plaintiff was led, by acts and assurances of defendants, to believe that they would only charge commissions thereafter on actual shipments, and were induced thereby to refrain from giving notice of a termination of the agreement. Held, that defendants were estopped from claiming thereafter commissions under the guaranty in the contract.
    (Argued December 7, 1885;

    decided January 19, 1886.)
    This was an action to recover a balance alleged to be in defendants’ hands ; the proceeds of goods sold by them as agents for plaintiffs. Defendants claimed that the sum retained was commissions to which they were entitled to under the contract between the parties. The substance of the contract is stated in the head-note. The following is an extract from the opinion.
    “ The court is asked to reverse the judgment in this case, on the ground that the finding of the referee that the defendants were estopped from claiming the guaranteed commission on the deficiency of shipments in 1876, under the contract of June 3, 1872, is unsupported by any evidence. The referee found in substance that the plaintiff was induced by the acts and conduct of the defendants to forego, in January, 1875, the giving of a year’s notice of the termination of the contract, the right to do which, at any time, was reserved therein, upon the belief that they would not claim commissions, except on actual shipments made by the plaintiff. If notice of the termination of the contract had been given at that time, the question presented on this appeal could never have arisen.
    “ We think there can be no doubt in point of law, that if the defendants induced the plaintiff to believe that they would not thereafter claim commissions, except on actual shipments, and that in reliance upon such assurance, made in words or by conduct equivalent to words, the plaintiff forbore to give notice, the doctrine of equitable estoppel applies, not perhaps working in a strict sense a modification of the contract.”
    The remainder of the opinion is taken up with a discussion of the evidence, the court reaching the conclusion that it justified the finding of the referee.

      William H. Waring for appellants.

      Frederick R. Ooudert for respondent.
   Andrews, J.,

reads for affirmance.

All concur.

Judgment affirmed.


author: Danfobth, J.,

text:
    John E. Styles, Respondent, v. John B. Fuller, Appellant.
    The rights of parties in a legal action are to be determined as they were at its commencement, unless some event happening subsequently and affecting those already in issue is presented by supplemental pleading.
    Where, therefore, the answer in an action was a general denial, and defendant on the trial offered to prove that after the commencement of the action plaintiff was adjudged a bankrupt and the cause of action passed to Ms assignee, which offer was rejected. Held no error.
    (Argued December 7, 1885;
    decided January 19, 1886.)
    The following is the mem,, of opinion herein:
    “This suit was commenced in June, 1876. The complaint stated a good cause of action, and the answer of the defendant was in substance a general- denial. The verdict of the jury upon the issues thus found was in favor of the plaintiff, and sustained his allegations. To defeat a recovery the defendant on the trial offered to prove that in May, 1877, the plaintiff was adjudged' a bankrupt, and the alleged cause of action passed to his assignee. The offer was properly rejected. The rights of parties to a legal action are to be determined as they were at its commencement, unless some event, happening subsequently, and affecting those already in issue, is presented by supplemental pleadings to the court. Here the matter offered in evidence was not pleaded, and for that reason, if no other, was properly excluded. No other question is presented to justify this appeal. It should, therefore, fail and the judgment be affirmed.”

      Edwin G. Davis for appellant.

      Wm. E. Macrae for respondent.
   Danfobth, J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    Caleb W. Loring, Executor, etc., Respondent, v. Amos Binney et al., Respondents, James M. Jackson, Appellant.
    (Argued December 8, 1885;
    decided January 19, 1886)

      Hem’y H. Man for appellant.

      William, Watson for respondents.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


text:
    In the Matter of the Opening of Riverside Park, etc.
    (Argued December 8, 1885;
    decided January 19, 1886.)

      James A. Peering for appellants.

      Alexander B. Johnson for respondent.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


text:
    In the Matter of the Estate of Burgess Cluff, Deceased, Edward E. Tower, Executor, etc., Appellant.
    (Argued December 8, 1885;
    decided January 19, 1886.)

      JD. C. Calvin for appellant.

      Edward B. Whitney for respondent.
   Agree to dismiss appeal; no opinion.

AH concur.

Appeal dismissed,


text:
    Henrietta T. Flagg, Respondent, v. The Manhattan Railway Company, Appellant.
    (Argued December 9, 1885;
    decided January 19, 1886.)

      Edward S. Rajpallo for appellant.

      W. P. Prentice for respondent.
   Agree to affirm'; no opinion.

All concur, except Rapalló, J., taking no part.

Judgment affirmed.


text:
    J. Morris Childs et al., Appellants, v. Horace F. Kendall, as Assignee, etc., Respondent.
    (Argued December 10, 1885;
    decided January 19, 1886.)

      Alexander T. Goodwin for appellants.

      Waters, McLennan <& Dillaye for respondent.
   Agree to affirm order and for judgment absolute on stipulation.

All concur; no opinion.

Order affirmed and judgment accordingly.


text:
    Henry C. Demming, Respondent, v. Edward M. Parrott, Appellant.
    (Argued December 10, 1885;
    decided January 19, 1886.)

      Henry Bacon for appellant.

      Thomas G. Evans for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    Eliza Ann Longendyke et al., Respondents, v. Charles Anderson, Appellant.
    (Argued December 11, 1885;
    decided January 19, 1886.)
    The following is the opinion in this action in full:
    “ The sole question in this case is whether the plaintiffs are the owners by a sufficient and effective grant of a right of way over the lands owned by the defendant. The action is brought in equity and aims to establish the right claimed, and to reptrain any interference or obstruction. The course of the trial takes out of the case any title by prescription or flowing from user, and unless we can trace a title by grant which has passed to the plaintiffs, the judgment is wrong and there must be a new trial.
    “ The premises of both parties are situated in what was the Loveridge patent in 1686, and a portion of which became the property of Dennis and Jacobus Hegeman who, in 1760, released to each other and held to some extent in severalty. Jacobus conveyed to" Spawn & Burger, and Dennis to Paulus Smith. The premises covered by these conveyances are shown upon a map put in evidence, which is conceded to be substantially correct. By that it appears that the tract owned by the Hegemans was nearly in the shape of a parallelogram, extending westerly from the Hudson river to what is called the Kalckberg; but narrow at the western end and growing steadily wider by the spread of its northern and southern lines as the river is approached. By these conveyances, Spawn & Burger on the one hand, and Paulus Smith on the other, became the owners of the Hegeman tract, partly in severalty and partly as tenants in common. The principal dividing line between them ran north and south through nearly the middle of the tract ; Spawn & Burger on the east and Paulus Smith on the west; and their respective premises extending entirely across the parallelogram, and so blocking Smith’s access to the river, and Spawn & Burger’s to the Kalckberg. But these grantees took also from Hegemans two parcels which were held by them in common ; one in the north-east corner of the parallelogram and lying on the river, and one in the' south-west corner at the Kalckberg. Smith could not get to his river lot, except by crossing Spawn & Burger’s lot, and the latter could not get to the Kalckberg without crossing the lands of Smith; so that a way open to both parties from the river-to the hill, was a matter of necessity. Accordingly, we find that the respective deeds reserved .a right to each to cross the lands of the other by -a way- or road which ran from near the canoe place on thé river to the Kalckberg. It is described as £ liberty for a road in -the most convenient manner,’ and the existing emergency renders it highly probable that such a way substantially through the middle of the tract was established and used. By the death of Paulus Smith, his lands passed to his son Frederick, who retained the right to the river, and was burdened with the corresponding right to the hills. Before his death, as appears by the recital in one of the deeds, Paulus Smith divided with Spawn & Burger the two lots on the river and at the Kalckberg, so that thereafter each held his portion in severalty instead of in common. The two lots of Smith are numbered on the map as No. 3 and No. 6; the former lying on the hill and the latter on the river. In 1774, Frederick Smith conveyed to Johannes Sax, and Margaret, his wife, the south half of his main farm and an undivided half of No. 3 and No. 6, and at the same time conveyed to Nicholas Trumpbour and Elizabeth, his wife, the north half of the main farm and a moiety of No. 3 and No. 6. Both parties claim title under Frederick Smith through these deeds; the plaintiffs under Sax, and the defendant under Trumpbour. The latter chain of title seems to be substantially complete, but in the former there is a break, no conveyance proved showing a transfer from Sax to Abram Post, from whom plaintiffs’ title came. Assuming, as we deem probable, that such difficulty might be surmounted, it becomes important to consider whether the deed of Frederick Smith to Sax gave him any right of way over the north half conveyed to Trumpbour. The first provision relates wholly to the burden resting upon the land by reason of the right of way belonging to Spawn & Burger. In severing the land burdened, Smith evidently desired and sought to equalize the burden between his grantees; and so he provides in each of the deeds, ‘ always saving and reserving a road for Philip Spawn and Johannes Burger, their respective heirs and assigns, from the landing place at G-reen Island to the Kalckberg; and if one-half of the road cannot conveniently be laid on the northernmost moiety or half part, and the other half on the southernmost moiety or half part, in that case the parties holding said parts are to allow land in compensation to the parties who shall bear the greatest half of the road, so much as is above the one-half, so that it may always be understood, and it is the intent and meaning of these presents that each half lot shall bear half the road, or allow land in compensation of the same.’
    “ It is apparent from this provision that the right of way which belonged to Spawn & Burger over the Smith lot had either not been specifically located or was intended to be changed so as to impose equality of burden upon the severed parcels. If the road ran along the line it was merely a right of way for Spawn & Burger. Nothing else was reserved. Sax got no right upon Trumpbour’s land, and the latter none upon the premises of the former. Each simply owned the fee up to his own line. If each used it, as is quite probable, it was by mutual assent or common sufferance, and not by virtue of a reservation which only recognized and provided for the right of others than themselves. We pass now to other parts of the deed to see if Sax acquired any interest in Trumpbour’s land occupied by Spawn & Burger’s easement. The conveyance adds, “ with full and free liberty to and for the said Johannes Sax, his heirs and assigns to have a free landing to Hudson river, to erect a storehouse, land goods, store wood, stack hay, and fence the same; and also to have a canoe at a place called the canoe place; * * and also free liberty of passing and repassing at all times into, through and out of the said last-mentioned lot No. 6, to and from the said canoe place with horses, wagons and other carriages ; and also to the like liberty of passing and repassing at all times as well over and through lot No. 5 as lot No. 4, of the said division to and from the said lot No. 6, and common landing.’’ Recurring again to the map, we find that lots 4 and 5 were respectively the lots of Spawn & Burger. The rights thus conveyed to Sax, and the same were given to Trnmpbour, secured to him, first, a landing on the river and a right of way from that landing to lot No. 6. This right was a burden only upon Spawn & Burger’s land. And second, the deed conveyed to Sax and Trunrpbour respectively a right of way across lots 4 and 5 to lot 6, and the landing. This again conveyed the easement in Spawn & Burger’s lands, lying to the eastward, and between Smith and the river, and purported to give neither to Sax or Trnmpbour any right, one in the lands of the other. These deeds, it will be observed, make no mention of a right of way for either Sax or Trumpbour westward to the Kalckberg ; and the reason becomes apparent when we examine the map. Sax needed no such right, for his south half adjoined Bo. 3, and access to his moiety of it was wholly within his own discretion. Trumpbour could reach it at the intersection where his south-west corner and the north-east corner of Bo. 3 became identical. In so doing he would cross the corner of Sax to which his deed gave him no right, but which might possibly be a way of necessity. And both parties could avail themselves of the right given across lots 4 and 5, without either trespassing upon the land of the other. It is difficult to see, therefore, how reserving a right of way to Spawn & Burger along the line between Sax and Trumpbour could give to either of the latter a right not granted in the land of the other. It did not pass under the word “ appurtenances.” Even if, at the date of their deeds, the road existed along the line, which the conveyances make somewhat improbable, the right of way would only be Spawn & Burger’s and an appurtenance of their lands. This right of way in Smith and before severance was in no sense an easement since he owned the fee, and passed and repassed by virtue of his ownership; when he severed that ownership there was no easement of his to pass. He might indeed create one, but a nail-continuous easement, like a right of way, will pass only by words sufficient to create a new easement and annex it to the newly-made dominant tenement, and the word “appurtenances ” is not sufficient. (Parsons v. Johnson, 68 B. Y. 66.) We do not see, therefore, how Sax’s deed gave him any right in the lands of Trumpbour. We have read carefully and given much consideration to the view taken by the ' learned trial judge. The whole forcé of that argument lies in the assumption that as to the adjoining owners the road along the line existing solely for the benefit of third parties was held by such owners as tenants in common. That is untrue in point of fact. Each owned in severalty and in fee his own half of the road, and so far as it was an easement it belonged wholly to Spawn & Burger, to whose lands alone it was appurtenant; and Sax and Trumpbour could not be tenants in common in an easement which they did not own at all. Very probably, the parties would use the road for their own convenience, hut, as against each other, this would be by sufferance, and not b}r a right lying in grant.
    “ There is a,further difficulty in the plaintiffs’ case. Assuming still that they held under Smith.notwithstanding the break in their chain, they took their title through a deed given to Nicholas Trumpbour, Jr., in 1807, by Abram Post, and a conveyance from the former in 1822, to the predecessors in title of the plaintiffs. But while Nicholas Trumpbour, Jr., owned the south parcel, and in 1810, he became the owner .under the will of Elizabeth Trumpbour, who was the surviving grantee in joint tenancy of Frederick Smith, of an undivided one-fourth of the north parcel, and thereupon, by a full covenant deed, without reservation or condition, conveyed all the undivided fourth part of the north parcel. If, then, he had an easement in that part of the road lying on the north parcel he should have reserved it if he did. not mean to part with it. It is difficult to see how after this conveyance with covenants of warranty he could still claim an easement in the land, his entire right in which passed by his deed. And if he could not claim it his grantees could not.
    “ For these reasons we feel constrained to send the case back for a re-trial.
    “ The judgment should be reversed; ,ncw trial granted; costs to abide the event.”

      li. F. Andrews and Joseph Ualloeh for appellant.

      Fred Werner for respondents.
   Finch, J.,

reads for reversal and new trial.

All concur, Andrews, J., on first ground stated in opinion.

Judgment reversed.


text:
    Barretts, Palmer & Heal Dyeing Establishment, Respondent, v. W. Moore Wharton et al., Appellants.
    (Argued December 14, 1885;
    decided January 19, 1886.)
    This was an action to recover the contract-price for dyeing a quantity of plain bunting. Defendants set up in their answer that the work was unslcillfully done and as a counter-claim sought to recover the damages occasioned thereby.
    The referee and the General Term agreed that the evidence substantiated defendants’ claim, that the work was unskillfully done, and that defendants sustained damage by reason thereof, and were entitled to counter-claim the loss, also that the true measure of damages was the difference at the date of delivery of the dyed buntings between their then market value and the market value of the same goods skillfully and properly dyed. To establish the latter, defendants proved actual contracts of sale negotiated by them sufficient to have exhausted the entire stock if it had been in all respects merchantable and equal to the represented and sample gradé. Held, that “ such a sale and disposition of the goods at wholesale and in large quantities and during the ordinary market season for such goods was clearly within the contemplation of the parties.”
    The General Term differed with the referee as to the sufficiency of the evidence to establish the market value of the goods as they were returned. The court here, after a review of the evidence, concurred with the referee;

      Francis Lynde Stetson for appellants.

      John A. Taylor for respondent.
   Finch, J.,

reads for reversal of order of General Term and for affirmance of judgment entered on report of referee.

All concur.

Order reversed and iudgment affirmed.


text:
    Patrick Duffy, Appellant, v. The New York and Manhattan Beach Railway Company, Respondent.
    (Argued December 14, 1885;
    decided January 19, 1886.)

      Samuel D. Morris for appellant.

      Alfred C. Chapin for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


author: Ruger, Ch. J.,

text:
    The People of the State of New York, Respondent, v. Daniel T. Donovan, Appellant.
    The provision of the Code of Criminal Procedure (§ 527, as amended by chapter 360, Laws of 1882), authorizing the appellate court to order a new trial in a criminal action, although no exceptions were taken on trial, applies only to the Supreme Court; this court has no authority to review the judgment unless exceptions have been duly and properly taken.
    (Argued December 16, 1885;
    decided January 19, 1886.)
    The defendant was convicted of the crime of murder in the second degree.
    The points presented upon the appeal appear in the following extract from the opinion:
    “ Upon, the argument of this appeal, no exception to any ruling of the trial court was pointed out by the appellant’s counsel as a ground for a reversal of the conviction of the defendant, and after a careful examination of the case and exceptions, we are satisfied that none was taken which authorize a reversal.

      “ The appellant urges that upon a consideration of the whole case, if the court should be of the opinion that injustice had been done to the defendant, it is authorized by section 527 of the Code of Criminal Procedure to order a new trial.

      “We have frequently decided that the powers conferred by that section were intended to be exercised by the Supreme Court alone, and that we have no authority to review a judgment in a criminal action, unless exceptions have been regularly and properly taken to the rulings of the trial court.”

      Charles H. Meed for appellant.

      DeLancey Nicoll for respondent.
   Ruger, Ch. J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    Lucy A. Michelson, Appellant, v. Elisha S. Fowler et al., Respondents.
    (Argued December 16, 1885;
    decided January 19, 1886.)

      A. P. Smith for appellant.

      Cornelius E. Stephens for respondents.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Robert H. Crandall, Appellant, v. The Board of Education of Union Free School District No. 1 of the Town of Boonville, Respondent.
    (Argued December 16, 1885;
    decided January 19, 1886.)

      Edwin H. Misley for appellant.

      Bentley & Jones for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Thomas Nelson, Individually and as Trustee, etc., et al., Respondents, v. John V. Purdy et al., Appellants.
    (Argued December 18, 1885;
    decided January 19, 1886.)

      Reginald, Hart for appellants.

      E. P. Johnson for respondents.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Maria Merritt et al., Respondents, v. The Village of Port Chester et al., Appellants.
   This case presented the same questions and was argued and decided with Tingue v. Village of Port Chester (ante, p. 294).


author: Per Curiam mem.

text:
    The People, Appellant, v. Arthur Cipperly, Respondent.
    (Argued December 21, 1885;
    decided January 19, 1886.)
    Reported below, 37 Hun, 324.
    Decided on grounds stated in dissenting opinion of Learned, J., in court below.

      D. Cady Herrick for appellant.

      Eugene Burlingame for respondent.
   Per Curiam mem.

for reversal of judgment of General Term and for affirmance of judgment of Special Sessions.

All concur.

Judgment accordingly.


text:
    Leon Rheinstrom, Respondent, v. Bernard Midas, Appellant.
    (Argued December 22, 1885;
    decided January 19, 1886.)

      Otto Ilorwitz for appellant.

      Jeroloman do Arrowsmith for respondent.
   Agree to dismiss appeal; no opinion.

All concur

Appeal dismissed.


text:
    George Streat, Respondent, v. V. Henry Rothschild et al., Appellants.
    (Argued December 22, 1885;
    decided January 19, 1886.)

      Michael M. Forrest for appellants.

      Wm. King Hall for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    Henry Clews et al., Respondents, v. Cornelius Reilly, Appellant.
    (Argued December 22, 1885;
    decided January 19, 1886.)

      Charles J. Patterson for appellant.

      Poyal S. Crane for respondents.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


text:
    William Scholle, Respondent, v. Jacob Scholle et al., Joseph McGuire, Purchaser, etc., Appellants.
    (Submitted December 22, 1885;
    decided January 19, 1886.)

      Weekes c& Forster for appellants.

      Alexander B. Johnson for respondent.
   Agree to affirm on opinion of Freedman, J., in court below.

All concur.

Judgment affirmed.


text:
    In the Matter of the Application of the Staten Island Rapid Transit Railroad Company to acquire title to lands, etc.
    (Argued December 22, 1885;
    decided January 19, 1886.)

      James MoNamee for appellant.

      Albert B. Boardman for respondent.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


text:
    The People of the State of New York v. The Knickerbocker Life Insurance Company, Albert Lee Hunt, Claimant, etc., Appellant.
    (Submitted December 22, 1885;
    decided January 19, 1886.)

      Raphael J. Moses, Jr., for appellant.

      Edward IS. Hobbs for receiver, respondent.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


text:
    William M. Baxter, Respondent, v. Robert Colgate et al., Appellants.
    (Argued December 22, 1885;
    decided January 19, 1886.)

      Nelson Smith for appellants.

      J. Tracey Langan for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


author: Per Curiam

text:
    Catharine J. Wise, Respondent, v. The Phœnix Fire Insurance Company of Hartford Connecticut, Appellant.
    Where items o£ an account or claim are numerous, and therefore difficult to be retained in the memory, the court, in its discretion, may permit a witness to refer to memoranda, proved to be correct both _ as to items and value.
    (Argued December 23, 1885;
    decided January 19, 1886.)
    This action was upon a policy of fire insurance covering household' furniture. Plaintiff was called as a witness in her own behalf to prove the loss ; she was allowed, as such witness, to refer to the schedule attached to the proofs of loss, for the purpose of refreshing her memory.

      “ There was no error in permitting the plaintiff, while under examination as a witness, to refer to the schedule attached to the proof of loss, for the purpose of refreshing her memory. (Howard v. McDonough, 77 N. T. 592.) This schedule, which was made up a few days after the fire, was sworn to be correct both as to items and values, and to be made up from actual knowledge. Where the items are numerous, and, therefore, difficult to be retained in the memory, the court in its discretion may permit a reference to memoranda proven to be correct, both as to items and their values. To hold otherwise might make a party’s rights dependent upon unusual strength' of memory.”

      Charles A. Fowler for appellant.

      Howard Ghipp, Jr., for respondent.
   Per Curiam

opinion for affirmance.

All concur.

Judgment affirmed.


text:
    The People, ex rel. The New York and Harlem Railroad Company, Respondent, v. The Commissioners of Taxes and Assessments of the City and County of New York, Appellant. The Same, Respondents, v. The Same, Appellant.
   These cases presented the same question and were argued and decided with People, ex rel. v. Comm’rs (ante, p. 322).


text:
    George W. Long, Appellant, v. The Millerton Iron Company, Respondent.
    (Argued December 22, 1885;
    decided January 26, 1886.)
    This was an action to recover damages for the cutting and carrying away of certain timber. The parties' had made a contract for the sale of standing timber on lands described in the contract. On the trial plaintiff offered to prove acts, statements and declarations of .the parties at the time, and after the making of the contract, showing that the timber in question was not understood by the- parties to be covered by the contract. This was objected to and excluded. Held no error ; that the contract was clear and unambiguous, and reserved none of the timber, and that, therefore, oral evidence was inadmissible to change or to explain it.

      James Lansing for appellant.

      Esek Cotoen for respondent.
   Earl, J.,

reads for affirmance.

All concur, except Rapallo, Andrews and Danforth, JJ., dissenting.

J udgment affirmed.


text:
    Jonas Phillips, Appellant, v. John L. Taylor, Respondent.
    (Argued December 9, 1885;
    decided January 26, 1886.)
    Decided on the facts.

      John E. Parsons for appellant.

      John A. Mopes for respondent.
   Rapallo, J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    The People of the State of New York, Appellant, v. Thomas Phillips et al., Respondents.
    (Argued January 19, 1886;
    decided January 26, 1886.)

      Edward W. Hatch for appellant.

      Tracy G. 'Becker for respondents.
   Appeal dismissed on argument.


text:
    James E. Ostrander, Respondent, v. John Weber, Appellant, Robert Loughran et al., Respondents.
    (Argued January 19, 1886.
    decided January 26, 1886.)

      S. L. Stebhins for appellant.

      J. N. Piero for respondents.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    James G. Ross, Appellant, v. Samuel P. Wigg, Appellant. Alexander R. Christie et al., Respondents, v. Samuel P. Wigg, Appellant.
    (Argued January 19, 1886;
    decided January 26, 1886.)

      W. H. Kenyon for appellants.

      W. A. Poucher for respondents.
   Agree to affirm on opinion below.

All concur.

Order affirmed.


text:
    The Manufacturers and Traders' Bank of Buffalo, Respondent, v. Harry H. Koch, Appellant.
    (Argued January 19, 1886;
    decided January 26, 1886.)

      William P. Kip for appellant.

      John G. Milburn for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    The People, ex rel. Alfred P. Wright, Respondent, v. The Common Council of the City of Buffalo, Appellant.
    (Argued January 19, 1886;
    decided January 26, 1886.)

      Herman Hennig for appellant.

      Ansley Wilcox for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    George H. Ball, Respondent, v. The Evening Post Publishing Company, Appellant.
    (Argued January 19, 1886;
    decided January 26, 1886.)

      John, G. MiZburn for appellant.

      Frank 0. Ferguson for respondent.
   Agree to dismiss appeal; no opinion.

■All concur.

Appeal dismissed.


text:
    Charles W. Durant, Jr., Respondent, v. William P. Abendroth, Impleaded, etc., Appellant. Abraham Van Dolan, Respondent, v. The Same, Appellant.
    (Argued January 19, 1886;
    decided January 26, 1886.)

      Wm,. Henry Arnoux for appellant.

      Carlisle Norwood, Jr., for respondent.
   Agree to affirm; no opinion.

All concur.

Orders affirmed.


text:
    Daniel Ackerman et al., Appellants, v. Charles C. De Lude, Respondent.
    (Argued January 19, 1886;
    decided January 26, 1886.)
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    William C. Veght, Administrator, etc., Respondent, v. Florence Slocum et al., Appellants.
    (Argued January 19, 1886;
    decided January 26, 1886.)

      Wm. B. Slocum for motion.

      Andrew Fallon opposed.
   Motion to dismiss appeal granted unless within twenty days from order, the appellant furnishes the undertakings required by law, with $10 costs.

All concur.


text:
    The People of The State of New York, Respondent, v. Edward Seeley, Appellant.
    (Argued January 18, 1886;
    decided February 2, 1886.)

      W. Henry Davis for appellant.

      W. H. Shaffer for respondent.
   Agree to affirm ; no opinion-

All concur.

Judgment affirmed.


text:
    Thomas Maloney, Appellant, v. The Brooklyn City Railroad Company, Respondent.
    (Argued January 18, 1886;
    decided February 2, 1886.)

      Charles J. Patterson for appellant.

      Winchester Britton for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Alden B. Stockwell, Appellant, v. Joseph Richardson, Respondent.
    (Argued December 14, 1886;
    decided February 9, 1886.)

      Samuel Hand for appellant.

      Aaron J. Vanderpoel for respondent.
   Agree to affirm on opinion below.

Danforth, Earl and Finch, JJ., dissenting.

Judgment affirmed.


text:
    Orville Dingee, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    (Submitted January 19, 1886;
    decided February 9, 1886.)

      Close da Robertson for appellant.

      A. J\ Adams for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    John Fay et al., Respondents, v. John T. Lynch, Impleaded, etc., Appellant.
    (Argued January 19, 1886;
    decided February 9, 1886.)

      W. F. Durnnmg for appellant.

      John W. Weed for respondents.
   Agree to affirm on opinion below.

All concur.

Judgment affirmed.


author: Danforth, J.,

text:
    E. L. Doughty et al., Respondents, v. The Manhattan Brass Company, Appellant.
    (Argued January 20, 1886;
    decided February 9, 1886.)
    This was an action to recover damages for an alleged breach of a contract for the sale of a quantity of hoop-brass.
    The following is the opinion.:

      u The contract upon which the plaintiffs rely is contained in letters written by one or the other party, and the only question upon this appeal is whether their true construction discloses an agreement valid under the statute of frauds. (2 E. S., tit. 2, p. "2, chap. 7, § 3, subd. 1.) The appellant’s contention is that ‘ the contract relied upon is not contained in any note or memorandum subscribed by the defendant,’ and as I understand the argument, it rests mainly upon the assumption that the only reference to price is contained in a postscript to the defendant’s letter, of September 12, 1879, and that this postscript is not subscribed.
    “ The defendant was a maker of brass hoops, and the plaintiffs, as manufacturers of cedar ware, required that article. Business relations had existed between them for several years, and on the 12th of September, 1879, the defendant wrote concerning certain orders already received, giving some general information relating to the present and probable future price of brass, and duly subscribed the same. Below the signature were these words: 1P. S. Will make price for November and December 17c. lb.’ It is plain that the signature was intended to authenticate the paper, and in such case it is immaterial upon what part it is placed, whether at the beginning or the end, or in the middle. The postscript was an afterthought, but it was verified as effectually for the purposes of correspondence as if written in the body of the letter to which it was added, and into which by reference it may be deemed incorporated. In response to this letter, the plaintiffs, under date of September 15, 1879, gave a written order signed by them for ‘ two tons of eleven-sixteenths hoop brass November 1, two tons December 1,’ and under date of September seventeenth the defendant wrote: £ Your order for November and December to hand and booked.’
    ££ In another written communication dated October 6, 1879, and sent to and received by the plaintiffs, the defendant said: £We will not fail to ship one thousand pounds per week or more until your order is filled.’ These writings were subscribed by the defendant. If the letter of September twelfth stood alone as containing the contract, it would be necessary to hold that it was not subscribed within the intent of the statute (James v. Patten, 6 N. Y. 9); but all the letters above referred to are so connected by their contents as together to constitute a note or memorandum for the sale of four tons of hoop brass at seventeen cents per pound, to be delivered one-half November first, and the other half December first. The proposal and final acceptance import a consent of both parties, and create an obligation on the part of the plaintiffs to take and pay for the same, as delivered. It is said, however, by the learned counsel for the appellant that the order of September fifteenth was indefinite, because it did not specify the required thickness of the hoop, nor a stipulated time of payment. It is apparent, however, that earlier orders had been given and in part filled, and the one in question called for the same article but at a different price. If otherwise, however, there was neither ambiguity in the contract nor any difficulty in performing it according to its terms. No term of credit was bargained for, and although the complaint alleges that by the agreement payment was to be made on the first of the month after the goods were received, that allegation was not proved, and the question presented was simply one of variance between the complaint and proof which the trial court might properly disregard. We think the note or memorandum sufficient to express a contract. The verdict of the jury, upon evidence sufficient for their consideration, establishes the breach, of that contract by the defendant and damages incurred by the plaintiffs in consequence of it.
    "We find no error, therefore, in the judgment appealed from and think it should be affirmed.”

      S. B. Brownell for appellant.

      E. More, Jr., for respondents.
   Danforth, J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    Cornelius Fitzpatrick, Respondent, v. The Forty-second Street and Grand Street Railroad Company, Appellant.
    (Argued January 20, 1886;
    decided February 9, 1886.)

      Ereling H. Smith for appellant.

      P. Mitchell for respondent.
   Agree to affirm; no opinion. •

All concur.

Judgment affirmed.


text:
    Edward W. McGinnis et al., Appellants, v. Henry Smythe, Respondent.
    (Argued January 22, 1886;
    decided February 9, 1886.)
    Decided on the facts.

      Norman Melliss for appellants.

      E. More for respondent.
   Earl, J.,

reads for affirmance.

All concur, except Ruder, Ch. J., dissenting, and Rapallo, J., not voting.

Judgment affirmed.


text:
    Francis B. Brewer, Respondent, v. The Union Pacific Railroad Company, Appellant.
    (Argued January 22, 1886;
    decided February 9, 1886.)

      A rternus H. Holmes for appellant.

      JB. F. Watson for respondent.
   Agree to affirm on report of referee.

All concur, except Danforth, J., not voting.

Judgment affirmed.


text:
    Juliet R. Lockwood, Appellant, v. William M. House, Respondent.
    (Argued January 22, 1886;
    decided February 9, 1886.)
    The nature of the action is shown in the following extract from the opinion:
    “ This action was brought to recover possession of an executed deed which had vested title in the plaintiff, but remained unrecorded in the hands of the defendant, to whom it had been intrusted for safe-keeping. The complaint alleges the execution and delivery of the deed in controversy and plaintiff’s ownership of the land described in it; the deposit of the instrument with defendant for safe-keeping merely ; a demand of its return and a refusal to surrender; that it remained unrecorded; and that, in doubt of the defendant’s responsibility, harm might result from a possible conveyance by him. The relief asked was to recover possession of the deed ; for damages resulting from the detention ; and an injunction restraining a conveyance. _ It will be observed that the action goes on the assumption that the defendant had actually executed and delivered the deed, so that, by force of it, title had passed to the plaintiff, and the action is nothing else than an effort -to recover possession of a muniment of title withheld by a mere bailee. ’ It is impossible to turn such an action into one to compel a conveyanee, or for the specific performance of an agreement to convey. Not only does the pleading fail to .set out any such agreement and consequent duty, but what it does allege is utterly inconsistent with any such theory, for it asserts that the conveyance had been already made, and the duty, if any, fully performed. The plaintiff’s proof corresponded with the pleading.”
    Defendant’s proof, however, was to the effect that the deed was never delivered, but that it was to be held by him until certain payments were made, and upon this issue of fact the finding was for the defendant. The court here say that this finding was conclusive of the action, and that any further question as to whether defendant ought to have conveyed or could be compelled in equity to convey was not in the case.

      Austen G. Fox for appellant.

      F. Quackenbos for respondent.
   Finch, J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    In the Matter of the Petition of Ulrich Maurer for the Custody of William Maurer, an Infant.
    (Argued January 27, 1886;
    decided February 9, 1886.)

      M. L. Towns for appellant.

      Stephen S. Jacobs for respondent.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


text:
    William Allendorph, Respondent, v. John A. Wheeler, Impleaded, etc., Appellant.
    (Argued January 25, 1886;
    decided February 9, 1886.)
    The questions presented in this case were as to the reception and rejection of evidence; they were disposed of principally in view of the facts.

      George P. Lawton for appellant.

      James Lansing for respondent.
   Earl, J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    Louis Casper, Respondent, v. Edwin Wallace et al., Appellants.
    (Submitted January 25, 1886;
    decided February 9, 1886.)

      Blumensiiel & Hirsch for appellants.

      Stern da Myers for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


author: Per Quriam mem.

text:
    William H. Catlin, Respondent, v. Alembert Pond et al., Appellants.
    (Argued January 26, 1886;
    decided February 9, 1886.)
    This was an action for false imprisonment.

      Plaintiff was arrested upon an execution against the person, issued by defendants Pond French, as áttorneys for the other defendant. The execution was vacated as having been illegally issued. ...
    The following is the mem. of opinion:
    “ The court charged the jury that there was no proof of malice justifying themin giving one cent beyond the actual damage sustained by the plaintiff; and that the evidence upon which they were to base their verdict was that the plaintiff was under arrest four hours under a mistaken claim of right, "and what is a fair compensation for that, théy were to give him and no more. That the right to compensation was made up of the loss of time and the insult and humiliation that was put upon him by the arrest. That is a part of the actual1 damage the plaintiff is entitled to, and must be fixed by the jury.
    “ The defendants excepted to that portion of the charge relating to the subject of insult and humiliation.
    “ The jury found for the plaintiff in the sum of $2,500 damages. • '
    “ Assuming that they had the right to award damages for the insult and humiliation to which the plaintiff was subjected, it was still their exclusive right and province to determine whether the plaintiff had or had not suffered these injuries. It seems to us that the charge of the court is fairly subject to the criticism that it asserted1 in unqualified and imperative terms the existence of these elements of damages and quite imperatively required the jury to make an assessment upon that account.
    ‘1 The question of fact as to whether there was such insult and humiliation or not was practically withdrawn from the consideration of the jury and determined by the court. Under this charge it was quite possible that they supposed they were not at liberty to find that insult and humiliation did not exist, and yet, upon the evidence in the case, it seems to us that they might properly have determined that question either way without justifiable censure.'
    “We think, not only that the charge was liable to be misconstrued by the jury, but that the amount of the verdict renders it quite probable that they were misled in this respect by the charge.
    - -“ The opinion of the learned judge writing at General Term seems to indicate that the court were of opinion that the damages awarded by the jury were excessive, but for some unexplained reason they still affirmed the judgment. -
    “ Although we might be of the opinion that the General Term erred in refusing to grant a new trial upon the ground of excessive damages, we are not at liberty to review the order affirming the judgment for that reason; but in seeking the cause for a result which seems so inconsistent with the circumstances and justice of the case, w.e cannot overlook the disapprobation of the verdict expressed in the opinion below.
    • “The judgment should, therefore, be reversed and anew trial ordered, costs to abide event.”

      Samuel Hand and Edgar T. B?'aekett for appellants.

      Marshall P. Stafford for respondent.
   Per Quriam mem.

for reversal and new trial.

All concur.

Judgment reversed.


author: Per Ouriam mem.

text:
    The People, ex rel. Adon Smith, Jr., as Committee, etc., v. The Commissioners of Taxes and Assessments of the City of New York et al., Respondents.
    The provision of the act of 1880 (§ 6, chap. 269, Laws of 1880) providing for the review and correction -of assessments, which declares that costs shall not be awarded against assessors whose proceedings may be reviewed under the act, only relieves the assessors from costs upon the hearing at Special Term. Costs of appeal are to be given or withheld in the discretion of the court. (Code of Civ. .Pro., § 3239.)
    (Argued February 2, 1886;
    decided February 9, 1886.)
    This was a motion to amend the remittitur herein so far as it awarded costs against the respondents.
    The case is reported in 100 N. Y. 219.

      The following is the mem. of opinion :
    “We think the statute now referred to by the respondents (Laws of 1880, chap. 269, § 6) only relieves the assessors from costs upon the hearing at Special Term, on return to the certiorari. An appeal from the determination there made is a dif" ferent matter, subsequently provided for, and directed to be heard and determined in like manner as an appeal from an order. (Laws of 1880, supra, § 7.) In such a case costs are to be given or withheld in the discretion of the court (Code, § 3239), and they were so awarded.
    “ The motion to amend the remittitur is, therefore, denied, with costs.”

      D. J. Dea/n, for motion.

      William Mem opposed.
   Per Ouriam mem.

for denial of motion.

All concur.

Motion denied. "


text:
    Peter Bowe, as Sheriff et al., Appellants, v. John H. V. Arnold, Individually, and as Assignee, etc., et al., Respondents.
    (Argued January 27, 1886;
    decided February 12, 1886.)

      Walter Howe for appellants.

      John H. V. Arnold for respondents.
   Agree to affirm on opinion of Daniels, J., in court below.

All concur.

Judgment affirmed.


text:
    Letitia Hosford, Respondent, v. Frederick Kelsch, Appellant.
    (Argued January 27, 1886;
    decided February 12, 1886.)

      M. L. Towns for appellant.

      James J. Rogers for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    James Talcott. Appellant, v. Walter S. Pierce et al., Respondents.
    (Argued January 27, 1886;
    decided February 12, 1886.)

      William P. Chambers for appellant.

      John E. Parsons for respondents.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Ambrose S. Cassidy, Respondent, v. Robert Jenkins, Appellant.
    (Argued February 1, 1886;
    decided February 12, 1886.)

      George FI. Yeaman for appellant.

      Rastus S. Ransom for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Elizabeth A. L. Hyatt, Appellant, v. George W. Tice, et al., Respondents.
    (Argued February 1, 1886;
    decided February 12, 1886.)

      George W. Van Slyck for appellant.

      George H. Yeaman for respondents.
   Agree to affirm on opinion below.

All concur.

Judgment affirmed.


text:
    Clarissa Dale, Respondent, v. David Main, Appellant.
    (Argued February 1, 1886;
    decided February 12, 1886.)

      G. P. Hoffman for appellant.

      Quentin McAclami for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Alfred T. Baxter, Respondent, v. Isaac N. Hebberd, Individually, and as Assignee, etc., Appellant.
    (Argued February 2, 1886;
    decided February 12, 1886.)

      Winchester Bi'itton for appellant.

      Frederic A. Ward for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    Daniel S. Gardner, Respondent, v. Edwin R. Meade, Appellant.
    (Argued February 2, 1886;
    decided February 12, 1886.)

      George W. Miller for appellant.

      Edmund A. Conner for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    In the Matter of the Examination of the Books of the Surrogate of Westchester County.
    (Argued February 2, 1886;
    decided February 12, 1886.)

      Cal/oin Erost for appellant.

      Wilson Brown, Jr., for respondent.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


text:
    Julia E. Blackman, Respondent, v. Eliza Wheeler, Appellant. Same, Respondent, v. Same, Appellant. Same, Respondent, v. Same, Appellant.
    (Argued February 2, 1886;
    decided February 12, 1886.)

      A. B. Conger for appellant.

      Myron G. Bronner for respondent.
   Agree to dismiss appeals ; no opinion.

All concur.

Appeals dismissed.


text:
    Morris Newman, Appellant, v. George A. Reynolds, Respondent.
    (Argued February 2, 1886;
    decided February 12, 1886.)

      P. J. Joachimsen for appellant.

      Benno Loewy for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    John V. Rector, Appellant, v. Ridgewood Ice Company, Respondent.
    (Argued February 2, 1886;
    decided February 12, 1886.)

      S. W. Rosendale for appellant.

      Nathaniel G. Moah for respondent.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


text:
    Nicholas Albert et al., Respondents, v. Albert Back et al., Appellants.
    (Argued February 2, 1886;
    decided February 12, 1886.)

      A. Bhimenstiel for appellants.

      8. F. Kneelo/nd for respondents.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


text:
    Thomas E. Joyce, Respondent, v. Elizabeth F. Spafard, Appellant.
    (Argued February 2, 1886;
    decided February 12, 1886.)

      F. G. Fmcke for appellant.

      Wm. E. Harter for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    Davis W. Shuler, Respondent, v. Margaret L. Maxwell et al., Appellants.
    (Argued February 2, 1886;
    decided February 12, 1886.)

      Edward J. Maxwell for appellants.

      M. L. Stover for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    Buffalo Lubricating Oil Company, Limited, Respondent, v. The Standard Oil Company of New York et al., Appellants.
    (Argued February 2, 1886;
    decided February 12, 1886.)

      Thomas G. Outerbridge for appellants.

      Adelbert Moot for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    Clara B. Allen, Appellant, v. Walter S. Allen, Respondent.
    In a civil action the fact of adultery may be established by proof of such facts and circumstances, as, under the rules of evidence, are competent to be proved, and which satisfy the mind of the tribunal required to pass upon the question of the truth of the charge. It is not necessary to satisfy the mind beyond a doubt, or to.lead the judgment as a necessary conclusion to the determination that adultery has been actually committed.
    No different standard of judgment applies to such a case from that which in ordinary transactions guides the conclusions of intelligent and conscientious men.
    (Argued January 28, 1886;
    decided March 2, 1886.)
    This was an appeal from an order of General Term reversing a judgment in favor of plaintiff and granting a new trial.
    The action was by a wife against her husband for a separation on the ground of cruel and inhuman treatment. The answer set up a cause of action against the plaintiff, and claimed judgment for an absolute divorce on the ground of adultery, as authorized by section 1770 of the Code of Civil Procedure.
    The court here, after a consideration of the evidence, concurred with the General Term that the evidence was sufficient to sustain the answer. The following is an extract from the opinion:
    “ The referee, in his formal findings, found that the evidence did not establish the adultery charged. He states, in his opinion, that it failed to satisfy his mind beyond doubt that the intercourse between the plaintiff and Gove was criminal; that while the evidence to sustain a charge of adultery must, in most cases, be largely circumstantial, yet the circumstances must be such as to satisfy the mind of the actual fact of adultery, and ‘ must lead the judgment not only by fair inference, but as a necessary conclusion, to the determination that adultery has been actually committed.’ We do not understand this to be the true rule, although it has support in the language of this court in Pollock v. Pollock (71 N. Y. 137), which, however, was unnecessary to sustain the judgment in that case. The expression in Pollock v. Pollock was probably founded upon the language of Sir William Scott, in his opinion in the leading case of Lovenden v. Lovenden (1 Hagg. Cons. 1), in ydiich after stating as a fundamental rule, that it is not necessary to prove the actual fact of adultery, proceeded: £ In every case almost the fact is inferred from circumstances that lead to it by fair inference, as a necessary conclusion.’ It is clear that Sir William Scott did not mean that adultery could only be established by circumstances from which no other possible conclusion could be drawn, for it is seldom that circumstantial evidence is of such a character that another inference than that to which the circumstances naturally lead cannot be suggested or is inconceivable. In another part of his opinion, the learned judge declares more fully the rule in respect to circumstantial evidence: £ The only general rule,’ he says, £ that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion ; for it is not to lead a rash and intemperate judgment, moving upon appearances that are equally capable of two interpretations ; neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man.’ It is plain from this language, that the learned judge did not, in the former part of his opinion, intend to lay down the rule that the fact of adultery could not be found upon circumstantial evidence, unless the circumstances admitted of no other possible conclusion.
    "We understand the rule to be, that in a civil action, the fact of adultery may be proved by such facts and circumstances, as under the rules of law, are legal evidence, admissible in a court of justice, which clearly satisfy the mind of the tribunal which is required to pass upon the question of the commission of the act. In weighing the evidence and considering the facts and circumstances, great care is necessary, on the one hand, not to be misled by circumstances reasonably capable of two interpretations, into giving them an evil rather than an innocent one, nor, on the other, by refusing to give them their plain and natural significance on the theory that a different standard of judgment applies to such cases, from that which in ordinary transactions guides the conclusions of intelligent and conscientious men. The circumstances must be considered separately, and also as a whole. The single threads of circumstance may be weak, but united, they often lead, with assured conviction, to the. final fact which is the subject of the investigation. ( Williams v. Williams, 1 Hagg. Cons. 299; Durant v. Durant, 1 Hagg. Ecc.-748; 2 Greenl. Ev., §§'40, 41.)” ■

      Matthew Hale for appellant.

      Arthur L. Andrews for respondent.
   Andrews, J.,

reads for affirmance of order, and for judgment absolute on stipulation.

All concur.

Order affirmed and judgment accordingly.


text:
    Henry Knight et al., Respondents, v. The New York and Manhattan Beach Railway Company, Impleaded, etc., Appellant.
    (Argued February 3, 1886;
    decided March 2, 1886.)

      Samuel E. Brown for appellant.

      Lewis J. Morrison for respondents.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Alice Lake, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    (Submitted February 3, 1886;
    decided March 2, 1886.)

      James F. Gluck for appellant.

      'William C. Watson for respondent.
   Agree to affirm; no opinion.

AH concur.

Judgment affirmed.


text:
    Erastus B. Searles, Respondent, v. Manhattan Railway Company, Appellant.

      It seems that where, in an action to recover damages for injuries alleged to have been caused by defendant’s negligence, it appears that the injuries were occasioned by one of two causes, for one of which defendant is responsible, but not for the other, plaintiff must fail if the evidence does not show that the injury was the result of the former cause; if under the testimony it is just as probable that it was caused by the one as the other, he cannot recover.
    (Argued February 3, 1886;
    decided March 2, 1886.)
    This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence.
    Plaintiff was riding upon a ear on the street under defendant’s elevated road, in the city of New York, when a hot cinder fell from a locomotive'passing overhead, and struck him in the eye.
    The following is the mem. of opinion:
    “ There was sufficient evidence to show that the plaintiff’s eye was injured by a cinder lodged therein; that the cinder came from a locomotive upon defendant’s railway, and that the plaintiff was free from contributory negligence. But there was an utter failure of evidence to show that the accident occurred from any fault, negligence or unskillfulness on the part of the defendant. The defendant had the right to operate its railway over the street by steam, and to generate steam by the use of coal, and any damage necessarily caused by the careful and skillful exercise of its lawful rights could impose no obligation upon it. To maintain his action, therefore, the plaintiff was bound to give evidence legitimately tending to show that the damage to his eye was caused in consequence of some negligence or unskillfulness chargeable to the defendant.
    “ The undisputed evidence shows that all the appliances used upon defendant’s locomotives to prevent the escape of sparks and cinders were skillfully made and were the best known. There was no evidence that any of such appliances were defective or out of order. On the contrary, the proof tended to show that they were in order. The mere proof of the escape of cinders was not sufficient, as the evidence showed that their escape could not be avoided and was inevitable. According to the proof cinders from one of defendant’s locomotives could come only from the smoke-stack or ash-pan. There is no claim that the defendant is liable for this accident if the cinder came from the smock-stack ; but the claim is that it came from the ash-pan because it was out of repair. But there was no evidence that the ash-pan was out of repair, or that the cinder came from it. When the fact is that the damages claimed in an action were occasioned by one of two causes, for one of which the defendant is responsible and for the other of which it is not responsible, the plaintiff must fail if his evidence does not show that the damage was produced by the former cause. And he must fail also if it is just as probable that they were caused by the one as by the other, as the plaintiff is bound to make out his case by the preponderance of evidence. The jury must not be left to mere conjecture, and a bare possibility that the damage was caused in consequence of the negligence and unskillfulness of the defendant is not sufficient.
    “ The judgment should, therefore, be reversed, and, a new trial ordered, costs to abide event.”

      Edward 8. Rapadlo for appellant.

      Lewis J. Morrison for respondent.
   Earl, J.,

reads for reversal and new trial.

All concur, except Danforth, J., dissenting, and Sapallo, J., taking no part.

J udgment reversed.


text:
    Henry Newman, Respondent, v. Emil Greeff et al., Appellants.
    (Submitted February 3, 1886;
    decided March 2, 1886.)
    This was an action to recover damages for alleged breach of a contract for the sale and delivery by defendants to plaintiff of a quantity of buttons.
    The defense was based principally upon the ground that the contract was made by defendants as agents for third parties, not as principals. The contract was embodied in letters written by defendants acknowledging and stating the particulars of verbal orders received from plaintiff. The counsel submitted the question on what the court here considered sufficient evidence to the jury. The following is an extract from the opinion:
    ■ “ Upon this appeal the counsel for the appellants assumes that the defendants were commission merchants and agents for manufacturers, and in the light of that knowledge and the language of the letters, contends that the character of the transaction was one of agency merely. What the plaintiff knew was, under the testimony, for the jury to say, and we are unable to find in the letters any conclusive evidence showing that the defendants intended to act otherwise than as principals. In the first place they sign as principals. Then they say “ we report your order,” and this, in view of the fact testified to, that the plaintiff had given the order verbally, and Chapman had made a memorandum of the articles and prices, may mean ‘ report the order’ for the information of the plaintiff, as in Brigg v. Hilton (99 N. Y. 517), they add, £ goods to be put up in bulk; delivery as soon as possible.’ Thus the contract imports a personal obligation.

      “ The cases cited by the appellant do not require a different conclusion. In Cobb v. Knapp (71 N. Y. 348), the agent disclosed no principal, and was held liable. In Southwell v. Bowditch (Law Rep., 1 C. P. Div. 100, on appeal, 374), it was plain on the face of the writing that the defendant was not acting for himself, but for 1 principals,’ that phrase qualifying the contract. In Metcalf v. Williams (104 U. S. 93), the defendant was sued personally upon a check signed by him, with the addition of 1 Y. Pres’t,’ his name of office, and it was held that he was not personally liable. In each there was enough on the face of the papers to indicate that the person signing acted as agent, and it appeared that the one with whom he dealt had knowledge of that agency.
    “ In the case before us the signature is the firm name of the defendants, and whether the words used in the bodies of the letters are susceptible of an interpretation which would indicate a different relation to the contract on the part of the signers, is at most ambiguous. Evidence was, therefore, admissible and was received, to fix its true character. And the jury have found as a fact that the defendants did act, and were understood by the plaintiff to act in the transaction as principals, and not as agents. No exception was taken to the judge’s charge under which they found their verdict, and it must be deemed con-, elusive.”

      W. Z. Lamed for appellants.

      Stern c& Myers for respondent.
   Agree to affirm; opinion by Danforth, J.

All concur.

Judgment affirmed.


text:
    Edward Kelly et al., Appellants, v. Frances A. Geer, Respondent.
    (Argued February 3, 1886;
    decided March 2, 1886.)
    This action was upon a covenant in á deed from plaintiff to defendant, who was a married woman, and her son, Harvey M. Geer; it was embodied in the habendum clause in the deed, of which the following is a copy:
    “ To have and to hold the above granted premises unto the said Frances A. Geer, for and during the minority of her son, Harvey M. Geer, and until the said Harvey M. Geer shall arrive at the age of twenty-one years, and unto the said Harvey M. Geer, and his heirs, to his and their own use in case he shall arrive at the full age of twenty-one, but in case the said Harvey M. Geer shall decease before he arrives at the age of twenty-one years, then unto the said Frances A. Geer and her heirs and assigns, to their own use forever, subject, nevertheless, to a mortgage made by the parties of the first part, to Alfred B. Hash, for the sum of $3,500, which the party of the second part assumes and agrees to pay as part of the consideration money.”
    The defendant, after her son became of age, joined with him in a deed of the land to one Murphy.
    The following is the mem. of opinion:

      “ The only asserted basis of defendant’s liability upon the assumption clause in the deed is the fact of her joining at a later period in a conveyance of the property to Murphy. It is abundantly proved that her husband, without authority from her, and without her knowledge, took the deed in her name as grantee with a covenant contained in it to pay the outstanding incumbrance. Her liability could only spring from an acceptance of that deed, evincing her consent to an adoption of the' covenant contained in it; but the finding is that she never accepted the deed and had no knowledge of its existence.until at least the date of the deed to Murphy, and at that date had no knowledge of the contents of the conveyance to her. The proof of these facts is made more probable by the further fact' that the real grantee was her son, who advanced the purchase-money, but, being a minor at the time, assented to the arrangement which joined his mother with him as grantee, but limited her title to his minority. It is easy to see how this might have been done without authority or knowledge of the defendant, since the real aim of the transaction was a purchase by the son and for his own use. He reaped the entire benefit of the transaction, as it was undoubtedly intended that he should; collected and received all the rents and profits; and at his majority became sole and absolute owner. Outside of the one act of the defendant in joining with her son in his conveyance to Murphy, she was entirely free from any act or word of assent which could make the unauthorized covenant her own. Her signature to that conveyance is thus the sole fact upon which the liability asserted can be based. That cannot affect her upon the ground of ratification, for the proof shows her entire ignorance of the contents of the deed to her, or the existence of any covenant whatever. It is argued that when asked to join with her son in the deed to Murphy she must have known that some title or right was supposed to have been vested in her, and so she must have inferred the existence of a deed to her. That may be, but was hardly a necessary inference which we ought to say she must have drawn ; and at all events the inference falls short of any conscious ratification of a covenant of which he had no knowledge, and which as an element of her action or a subject for her consideration did not exist. This view of the case is met by the appellant’s contention that she was bound to know and so must be charged with knowledge upon the principle that one cannot take the benefit of a contract and at the same time repudiate it and the agency by which it was effected. But the defendant took no benefit from the contract. She received none of its fruits. She had no title of any sort when she joined in the deed to Murphy ; received nothing for her signature which was needless ; and simply quit-claimed a right which she did not have for the satisfaction of the purchaser. She stood, on that day, a total stranger to the title. If she had then been informed that she was named as grantee in the deed to her son, and that it contained a covenant to pay the outstanding mortgage, she could have done no more than barely to repudiate the unauthorized covenant. She could not have conveyed back to the vendors, for time had vested the complete and absolute title in her son, and she had nothing to convey. She could return nothing to the vendors and could take nothing from them, by joining in the deed to Murphy. That act neither benefited her nor harmed her vendors, and was purely formal, without practical consequences in either direction. We think it was properly held that she incurred no liability.
    “The judgment should be affirmed, with costs.”

      Charles E. Patterson for appellants.

      Henry A. Merritt for respondent.
   Finch, J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    Eliza Allison, Appellant, v. The Village of Middletown, Respondent.
    (Argued February 4, 1886;
    decided March 2, 1886.)
    This action was brought to recover damages for injuries sustained by plaintiff, alleged to have been caused by defendant’s negligence in permitting ice to accumulate on a sidewalk of one of its streets whereon plaintiff stepped, slipped, fell and was injured.
    The plaintiff was nonsuited on the trial.
    The following is the mem. of the opinion :
    “We think the case should have gone to the jury. It is claimed that the proof shows that the plaintiff was not on the sidewalk wdien she slipped, but was on the open space adjacent, in front of the house, over which she was passing to reach the walk. The most that can be said in support of this contention is that on her re-examination the plaintiff stated that the place where she fell was about three or four feet from the steps of the house, and the evidence shows that it was five feet or more from the steps to the inner line of the sidewalk. But on the same re-examination she also testified that the place of the accident was four or five feet from the curb. Both statements could not be true. The walk was seven feet wide, and if the plaintiff fell within five feet of the curb, she must have been upon the sidewalk at the time. Her testimony on her original examination was distinct that she slipped and fell on the sidewalk. Her subsequent evidence, taken together, was not necessarily inconsistent with her former testimony. It was for the jury to determine, upon her whole evidence, whether she was upon the walk, or outside of it, at the time of the accident.

      “ There was also sufficient evidence to go to the jury upon the question of the defendant’s negligence. The jury would have been justified in finding that the village had negligently allowed the ice, formed from the wastage of the pump and the discharge from the leader on the house, to accumulate and remain, rendering the walk unsafe. The jury was the appropriate tribunal to determine the case, and the nonsuit was, we think, improperly granted.” ■

      T. A. Bead for appellant.

      W. F. O'Neill for respondent.
   Andrews, J.,

reads for a reversal, and new trial.

All concur.

Judgment reversed.


text:
    Edward D. McCarthy, Respondent, v. Robert Bonynge, Appellant.
    (Argued February 4, 1886;
    decided March 2, 1886.)

      Thomas Allison for appellant.

      La Boy 8. Gove for respondent.
   Agree to affirm, on opinion of Daly, Ch. J., in court below.

All concur.

Judgment affirmed.


text:
    David C. Carleton, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.
    (Argued February 5, 1886;
    decided March 2, 1886.)

      H. B. Philbroolc for appellant.

      P. Henry Laeombe for respondent.
   Judgment affirmed by default.


text:
    David Griffin, Respondent, v. George K. Otis, Appellant.
    (Submitted February 6, 1886;
    decided March 2, 1886.)

      Archibald 8. Sessions for appellant.

      Samuel E. Fain-field for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    Charles S. Griffin, Respondent, v. Cornelia C. Gray et al., Appellants.
    (Argued February 5, 1886;
    decided March 2, 1886.)

      J. W. Rayhill for appellants.

      O. D. Prescott for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.