source: Caselaw Access Project

author: Roger, Ch. J.

license: Public Domain

text:
    The People, ex rel. The Mayor, Aldermen and Commonalty of the City of New York, Appellants, v. Dennis McCarthy et al., Composing the State Board of Equalization, Respondents.
    An order of General Term, quashing a writ of certiorari, issued to review the proceedings of the State hoard of equalization, is in the discretion of tlie court (Code of Civ. Pro., §2127), and is not re viewable here, except in a case where the General Term refrains from exercising its discretion, and grants the order upon the ground of want of power to issue the writ.

      It seems the price paid on private sale of real estate is not competent evidence of value, and a comparison of the difference between the consideration stated in transfers of real estate and the assessed valuation of such real estate in two counties of the State is not conclusive or cogent evidence to show that the assessed valuation in the one county is nearer the real value than in the other.
    The statutory scheme of valuation for purposes of taxation stated and explained.
    The fact that the State board of equalization, after giving’ a county full opportunity to present proof, information and argument, went into secret session when deliberating upon the equalization of assessments, excluding the representatives of the county from participation therein, and declined their assistance and advice in making such equalization, does not justify a charge of misconduct against the board.
    Nor is it j ust ground for such a charge against the State assessors, that, in seeking information as to the value of real estate in the county, they did not accept offers of assistance and advice tendered by the county tax and assessment officers.
    (Argued June 23, 1886;
    decided July 27, 1886.)
    Appeal from, order of the General Term of the Supreme Court, in the third judicial department made February 5,1886, the nature of which and the material facts are stated in the opinion.

      Burton N. Harrison for appellant.

      Certiorari was the proper remedy. (Mayor, etc., v. Davenport, 92 N. Y. 611, 613; Bellinger v. Gray, 51 id. 610; Code of Civ. Pro., §§ 2140, 2141; Lawton v. Com'rs of Highways, 2 Cai. 182 ; State v. Middlesex, 39 N. Y. 516; People, ex rel. v. Bd. Fire Com'rs, 100 id. 85.) The order quashing the certiorari is appealable to this court; and this court should now entertain the appeal and review the case. (People v. Stillwell, 19 N. Y. 532; People, ex rel. v. Bd. Assessors, 39 id. 81, 89; People, ex rel. v. Ferris, 36 id. 219; Code of Civ. Pro., § 2141; People, ex rel. v. Bd. Fire Com’rs, 100 N. Y. 85.) If the board, having the certified returns before it, made a determination different from that which should necessarily have been made, if those returns only were considered, without any evidence whatever before them to sustain the determination actually made, it erred. (Code of Civ. Pro., § 2140.) On such a proceeding the court need not necessarily reduce the aggregate valuation ; it could even increase in a proper case, if the facts warrant; or the court itself can equalize. (Code, § 2137; Ky. R. R. Tax Cases, 115 U. S. 31; Laws of 1874, chap. 351; Laws of 1879, § 9, chap. 312; Code of Civ. Pro., § 2141; People, ex rel. Kent, v. Commissioners, 100 N. Y. 82.) The certiorari must be heard upon the writ and return, and the papers upon which the writ was granted. (Code of Civ. Pro., § 2138.) The State of Mew York, with reference to general State taxes, deals not with individuals, but with counties as ■ representing areas of taxation. (92 N. Y. 614-17.) To have addressed the writ to the comptroller, otherwise than it is addressed, would have made it bad, as being multifarious. (People v. Walter, 68 N. Y. 409.) The action of the board and. that of the comptroller are separate, not joint; if both are to be reviewed, they shpuld be reviewed separately, not together ; but if a further proceeding against the comptroller be necessary, it may be instituted against him separately. (People v. Mayor, etc., 19 Hun, 441, 458 ; People, ex rel. v. Supervisors,, 51 N. Y. 446.) The statute intended that, after examining the values certified and returned, to the comptroller by the several counties, the board of equalization should have no jurisdiction to “revise ” them by any changes whatever except upon knowledge or information of facts which required such changes in order to effect the just relation between, the several counties which is to be accomplished by “ equalizing” their valuations of real estate and on such a certiorari as this, such knowledge or information shall be set forth in the return itself — it is jurisdictional, and cannot be supplied by intendment. (People, ex rel. v. Soper, 7 N. Y. 432; People, ex rel. v. Goodwim, 5 id. 572; People, ex rel. v. Smith, 45 id. 481-2; People, ex rel. v. Hurlburt, 46 id. 113; People, ex rel. v. Knowles, 47 id. 419-20; People, ex rel. v. Smith, 45 id. 776-7.) On the return and the uncontradicted allegations of the petition, the board of equalization in 1885 had no jurisdiction to add any thing to the valuations returned to the comptroller from the county of New York. (24 Hun, 112 ; 38 id. 46.)

      D. O' Brien, attorney-general, and D. Magone, for respondents.
    An appeal is not allowable from a decision of the Supreme Court, quashing a writ of certiorari. (People v. Suprs. of Greene, 82 N. Y. 275; People, ex rel. Marsh, v. Delaney, 49 id. 655; People v. Suprs. of Allegany, 15 Wend. 206; People v. Stilwell, 19 N. Y. 533 ; People, ex rel. Haneman, v. B'd T. Com'rs, etc., 85 id. 655 ; Jones v. People, 79 id. 51; People, ex rel. Purvis, v. B. and P. Comm. N. Y., 86 id. 639; Bate v. McDonald, 97 id. 646; People v. Thompson, 99 id. 641; Woerishoffer v. R. R. Co., id. 398; In re Holbrook, id. 542; People, ex rel. Murphy, v. French, 92 id. 310.) The State board of equalization had jurisdiction of the subject-matter and persons of the relators, as shown by their own papers. (Mayor, etc., v. Davenport, 92 N. Y. 611.) Having jurisdiction of the person and subject-matter confessedly, and as appears, also, from the relator’s own papers, having performed correctly all its ministerial functions, its judgment as to valuations can be annulled only by an abuse of its judicial powers. (Mayor, etc., v. Davenport, 92 N. Y. 612; Code, § 2140 ; Beckwith v. N. Y. C. R. R. Co., 64 Barb. 299; Morss v. Sherill, 63 id. 21; People v. B'd Fire Com'rs, 82 N. Y. 361.) The so-called “ proof and papers ” which the relators claim to have exhibited to the State board of equalization were not properly before it. (Laws of 1859, § 8, p. 704; Mayor, etc., v. Davenport, 92 N. Y. 612.) The State board of equalization were authorized and required to hear the proofs of the relators, they had the right to reject the testimony offered, and that rejection is not reviewable on certiorari. (People v. Hair, 29 Hun, 125 ; People v. State B'd Assessors, 22 Week. Dig. 453.) The action of the Special Term in granting the writ and stay was improvident, for the reason that it stayed the imposition and collection of a tax necessary for State purpose. (Laws 1859, § 8, p. 704; King v. King, 2 T. R. 234; People v. Suprs. Allegany Co., 15 Wend. 198, 210; Lawton v. Comm. of Cambridge, 2 Caines, 182 ; In re Mt. Morris Square, 2 Hill, 28; People v. Com. Council of Utica, 65 Barb. 9, 22; People v. Stilwell, 19 N. Y. 531-2; Kilburn v. St. John, 59 id. 26; People v. B'd of Aldermen, 10 Abb. N. C. 34; West. R. R. Co. v. Nolan, 48 N. Y. 518; People v. Assessors of Albany Co., 2 Hun, 583, 591; Susquehanna B'd v. Sup. Broome Co., 25 N. Y. 312, 315; Sheridan v. Andrews, 52 id. 450; 92 id. 613.) The writ of certiorari at bar directed to the State board of equalization came too late to review the alleged grievances of the relators. The board had lost jurisdiction entirely of the matter when they “ deposited their certified statement of the amount of assessment for each county,” in the comptroller’s office. (People v. Comm., 9 Hun, 609; People v. Assessors, 82 N. Y. 275 ; People v. Comm., 43 Barb. 494; People v. Walter, 68 N. Y. 263; People, v. B'd Suprs., 34 Hun, 266.) It does not help the relator’s case at all that other counties in the State are valued too low. (People, ex rel. Suprs., v. Hadley, 1 Abb. N. C. 441; 92 N. Y. 608.) The certiora/ri was not directed to the proper parties to bring back the State board’s certificate for review. (Code, § 2129.) As the return of the respondents negatived every material allegation of the petition of the relators, the decision of the Supreme Court in favor of the respondents was right and should be affirmed. (People, ex rel. Sims, v. Fire Com'rs., 73 N. Y. 473; People, ex rel. McCarthy, v. French, 25 Hun, 111.) A party assailing an assessment as excessive must make it appear conclusively that the method- by which the assessors arrived at the result complained of was incorrect, and that the assessment does not represent the fair value of the property assessed. (People, ex rel. West. F. Ins. Co., v. Davenport, 91 N. Y. 574.) The relator, as a corporate body, cannot have a standing in court to vindicate the individual rights of the tax payers of the city and county of ETew York. They have no interest as such in maintaining this proceeding. (Town of Guilford v. B’d of Suprs., 18 Barb. 635 ; affirmed, 13 N. Y. 147.)
   Roger, Ch. J.

This is an appeal by the relator, from an order of the General Term of the Supreme Court, for alleged error in quashing a writ of certiorari issued to the State board of equalization, to obtain a review of its proceedings in equalizing appraisements of property in the State between the several counties for purposes of taxation, during the year 1885. The-writ was applied for under the provisions of the Code of Civil Procedure, which, by express provision, makes its allowance discretionary with the court. (§ 2127.) Such an order is not reviewable by this court. If. the court in making the order had refrained from exercising its discretion in passing upon the question presented, and had quashed the writ, upon the ground of a want of power to issue it, or had granted it in a case not authorized by law, this court could properly have reviewed the questions, presented by an appeal from such determination. (People, ex rel. Second Am. R. Co., v. Board of Com’rs of New York, 97 N. Y. 37, 42.) But in a case where that court has exercised its discretion with respect to the allowance or denial of the writ, and has refused to grant it on the ground that it ought not under all the circumstances of the case to have been issued, this court has no jurisdiction to review its determination, and so it has been repeatedly held. (People, ex rel. Haneman, v. Board of Tax Com'rs of New York, 85 N. Y. 655 ; People., ex rel. Vanderbilt, v. Stilwell, 19 id. 531; People, ex rel. Davis, v. Hill, 53 id. 547.) In the opinion referred to in the order, for the grounds of the decision of the court below, that court alleged no want of power to authorize the writ, but stated many, and, as we think, sufficient reasons why, upon all of the facts of the case, the writ ought not to have been issued. It follows from these views that the appeal should be dismissed.

We might well rest our decision altogether upon this ground and refrain from any further expression of opinion, upon the questions presented, but since the appellants contend that this appeal is taken by the supposed invitation of this court, conveyed in its opinion in Mayor, etc., v. Davenport (92 N. Y. 604, 611), and considering the gravity and importance of the questians involved, and the zeal and earnestness with which they have been presented by the appellant,' we have thought it not inappropriate to comment briefly upon some of the grounds of complaint stated in the relator’s petition.

If it be true, as alleged therein, that systematic injustice has been done to the city of Hew York in the equalization of assessments among the several counties of the State by the State board of equalization, and that such result has been produced collusively, unlawfully and by a sinister and selfish combination and conspiracy of the members of said board against the petitioners and tax payers of the city and.county of Hew York, to benefit themselves severally and their several friends and neighbors,” etc., at the expense of the tax payers of Hew York, then a great public crime has been committed, and a wrong done which calls upon the proper authorities, for prompt investigation and redress. Such a charge should not have been lightly or inconsiderately made, and if made at all, should at least have been sustained by plausible proof, to shield its authors from deserved censure in making it.

A careful examination of the facts stated in the relator’s petition and of the proof submitted therewith, has led us to the conclusion that there was no adequate foundation for the charges, and that they have been based wholly upon a misconception, of the force of the evidence adduced in their support, and of differences of opinion between it, and the State board, as to the proper method to be pursued, in investigating and determining questions of estimate and valuation by that body,

The principal ground upon which the charge is predicated, is the claim that the assessed valuation of real estate in Hew York, approximates more closely its real value, than obtains in the other counties of the State, and .that, therefore, a proper equalization would reduce the valuation of property in that city, instead of increasing it. This claim is attempted to be supported, by comparing the consideration, inserted in the deeds of certain selected transfers of real estate, in the several counties of the State, with the assessed valuations of the same property and the assumption that the average amount of such prices and valuations as thus compared, conclusively established the ratio of assessment to value prevailing in such counties. We do not think that this assumption, even if it were based upon a comparison of all of the transfers in a particular locality, or even of such as could be conclusively shown to have been fairly made, can be maintained. In the county of Hew York the instances of such sales, reported in the relator’s petition are quite numerous, and cover a period of time extending over nearly twenty years, although the assessed valuations with which they are compared, are confined to the year 1884. These instances of sales were selected, from an almost inexhaustible number by the agents of the relators, and show great disparity in the proportions existing between their several assessed valuations, and the prices inserted as the consideration in their respective deeds. A large number of instances appear where the assessed valuations are much larger than the prices apparently obtained for the land, reaching occasionally three and four times the amount specified in the deeds; and on the other hand still greater disparity is shown between the prices obtained in many cases, and the assessed valuations, in some instances amounting to six times the amount of the assessment. It is thus quite apparent that a partial or even careless process of selection, would seriously affect the weight of such statements, as evidence, and render them particularly objectionable, when made by a party interested in producing a particular result. The duty of making the selections in the city of Hew York was wholly intrusted to an individual describing himself “ as an attorney and counselor at law,” and his specialty as that of the examination of titles to real estate.” His mode of procedure in making the table of prices was to omit therefrom “ such cases as showed a nominal consideration only, and indefinite and clearly inconsistent statements of consideration and assessments, and cases where the assessment was made of property ‘ buildings in progress.’ ” Such a rule of selection, guided by no knowledge of the facts, and influenced by vague and indefinite inferences, evidently affords the widest scope for the production of any result it might be desired to reach. The selections in the several counties o*f the State outside of New York were also made by agents of the relators, residing in such counties, and although made in apparent good faith, and fortified generally by the affidavits of the persons making them, as to their belief in the impartiality of the reports, they could not be accepted as conclusive, or even cogent evidence, of the facts stated, by an impartial tribunal. The assumption founded upon such evidence is, we think, altogether erroneous, and cannot be supported upon any known principle of law, or justice, in the appraisement of property for purposes of taxation. It certainly is directly in conflict with the scheme of appraisement provided by the statutes of the State, and we believe with settled rules of valuation.

There would seem to be no reasonable objection to the reception and consideration by the State board, of the information furnished to them by the relator, to be accorded such weight and influence, as they might deem it entitled to, and we have no reason to suppose that this consideration was not given .to it; but we think the relator has ascribed to the information fllered, an importance altogether disproportionate to its real Value, when it claims that it shall be regarded, as decisive evidence upon questions of value.

The sums inserted in the deeds referred to, were not authenticated in such a manner as to make them evidence of the actual consideration, even if the price paid on sales of real estate between individuals, should be deemed admissible at all as evidence of value. We think it quite clear, however, that such price is not in any view competent evidence of value. (Bouvier’s Ins. 1224.) No rule of law requires the true consideration paid upon a transfer of land to be inserted in conveyances of real estate, and it is within the common knowledge of all conveyancers that the amount stated therein, is often determined by fanciful, capricious and arbitrary considerations, which render it utterly unreliable as evidence of value. It is frequently depressed by forced and unnatural sales, and as often enhanced, by fictitious values placed upon property trans-f erred, in exchange or deeded in settlement of disputed claims, or given from consideration- of affection, liberality and duty, and is at the best but the opinions of the grantors and grantees of its value, or a declaration of the value placed by them upon the property. Such prices have usually been held inadmissible as evidence of value in actions relating to property, for the reason that they are liable to be influenced by too many causes, aside from the actual value, to be regarded as competent evidence of that fact. (Roe v. Hanson, 5 Lans. 305.) Prices obtained upon public sales are, for obvious reasons, considered some proof of the value of the property sold, and are receivable as evidence upon the question of value. (Campbell v. Woodworth, 20 N. Y. 499.) The usual method, however, of proving value in legal proceedings, is by the testimony of witnesses, expressing their opinions under oath as to such value, based upon their knowledge -of the subject-matter, and familiarity with the circumstances bearing upon the question. (Clark v. Baird, 9 N. Y. 183; Greenl. Ev., § 440, n.; Whart. Ev., §§ 447, 448, 449; Lawson’s Expert Ev. 435; De Witt v. Barly, 17 N. Y. 340.) Indeed the relator’s petition seems to nullify its own claim, and carry its own refutation.

When applied to by the State assessors for an inspection of the records of transfers of real estate, kept by them in Hew York, with a view of informing their j uagments, from that source of information, the officers of its department; of taxes and assessments gave irrefutable reasons,- why such records should not be resorted to, as evidence of the value of its real estate. They said that such record “of itself alone, taken as a whole and without discrimination or clear scrutiny into the facts of each particular case, is not a safe guide in ascertaining the relation of assessed valuations to the values intended by the statute to be considered by the assessors,” etc., and “ that in the city of Hew York, transfers of real estate are rarely made, except by the intervention of brokers who are paid by commissions or percentages upon real or assumed amounts at which the sales are made, and that of late years many of the transactions are not for cash, but'are by exchange of the lands transferred for other lands situated whether in the city of New York or the country, and that in such cases the alleged selling prices recited in the instruments of transfer are frequently, if not always, misleading.” After such a confession by the relator of the unreliability of such evidence, it seems quite unnecessary to prolong the discussion, and with a few suggestions as to the general character of our statutory scheme of valuation which seems to be wholly misconceived by the relators, we will omit further, consideration of the subject.

While every opportunity is afforded by the laws of the State, to parties interested in such questions, to present their claims and complaints, by petition or otherwise, to the various tribunals, engaged in perfecting the valuations of property, no method is provided, by which contending parties with conflicting interests, can appear before these bodies and have their respective rights and interests, heard and determined, according to common-law rules of evidence and practice. Special provision is made by chapter 269 of the Laws of 1880, to review, by certiorari, any assessment made in any town, ward, village or city of the State, which is claimed to be illegal, erroneous or unequal, and upon the trial of such certiorari by the court to receive evidence, and consider the same in the determination of the questions involved. So, also, it is provided that appeals may be taken from the determination of boards of supervisors in equalizing assessments among the towns of the respective counties to the State assessors, before whom a trial shall be had, and evidence taken upon the issues made by such appeal. (Chap. 312, Laws of 1859; chap. 49, Laws of 1876.) chaps. 80 and 269, Laws of 1880. A determination made by either of these tribunals, in such proceedings, may properly be reviewed by the court upon certiorari, as the evidence upon which it is based becomes a part of the record, and is subject to legal rules and exceptions.

Aside from these special cases, the theory of the statute leaves all questions of value to be determined by the instructed judgments of the several officers appointed to make assessment, and gives them abundant opportunity to inform themselves of all necessary facts, by any means which their sense of duty dictates, to qualify them for the performance of their duty. Each town, city and ward is provided with local officers, whose duty it is to make diligent inquiry as to the taxable property situated withi n their several jurisdiction s, and hear and determine the complaints of its owners, and appraise its value, according to their j udgment. The same rule of valuation obtains throughout the entire State, and various officers, supposed to be qualified for the performance of their duty by knowledge, integrity, experience and judgment, founded upon personal examination and inspection, are selected tó investigate and value the taxable property in their respective localities, according to the statutory rule of actual values. (§§ 8, 9, 17, 20, art. 2, tit. 2, chap. 13, part 1, R. S.) These valuations, when made, are returned to the respective boards of supervisors of the several counties, whose duty it is to review them, and if, for any reason, such valuations appear to them to be to be unequal or unbalanced, as between the several towns of the counties, to correct such inequalities and equalize such valuations, so that those of each town shall bear a fair and just relation, to those of other towns in the same county. To guard against injustice arising from inequalities in value, among the counties, theState board of equalization,composed of theheads of the principal executive and legislative departments of the State Grovernment, associated with the three State assessors, is provided, whose duty it is to review the assessments, returned from the several counties, and so correct them, if necessary, as to make the assessed valuation of real property in each county, equal in proportion, and to bear the same relation to its actual value, as that which obtains in other counties. (Chap. 312, Laws of 1859.) To aid in this important and responsible duty, it is provided that the State assessor’s shall visit each county in the State at least once in two years, and make personal inspection of the real property of such counties, and, by diligent inquiry through the examination of witnesses, or such other method as commends itself to their judgment, to acquire information of facts and circumstances bearing upon the questions of value and appraisement, not only with a view of their own instruction, but also to prepare and present a digest in writing, of such information as they deem important to the State board of equalization, for their instruction and guidance, in-the performance of the duties intrusted to them. The duty of making such digest, however, is not compulsory upon the assessors, but is, by the statute, left discretionary with them to perform or not, according to their view of its necessity. They are to digest only such facts as they deem important, and, if they omit to make such digest, we must assume that they did not consider it necessary to do so.

It is not claimed that the State assessors have neglected to perform the duty imposed upon them, in visiting the various counties of the State, and making diligent inquiry as to the value of real estate therein, and the ratio of assessment to value prevailing in the several counties. Although the information thus obtained might not have been digested in writing, it was still available to inform their own judgments, and to be made the subject of oral communication to, and discussion by, the board of equalization, when acting upon the questions to be adjudicated.

The law assumes that the several officers charged with the duty of determining the values of property, for the purposes of taxation, in the State are either competent, from their own knowledge and experience, to properly discharge such duty, or that they will, by voluntary action, fit themselves for its due and proper performance. No special education is required to enable a witness to testify,as to the value of real estate. It does not involve any question of science or skill, and no reason exists why any person of ordinary intelligence and judgment, cannot qualify himself to estimate with reasonable accuracy, the value of such property, by making special in-_ quiry and examination respecting it, wherever it may be situated. (Lawson’s Expert Ev. 436; Swan v. County of Middlesex, 101 Mass. 173.)

The valuation of property is necessarily a matter of opinion among men, and must, under all circumstances, be finally determined by the judgment of individuals, and the scheme of the statute seems to be, to leave its decision to the officers selected for that purpose, and to make their determination conclusive evidence of such value, for the purposes of taxation. The law does not specify the degree of knowledge or information which the members of the State board shall possess, to entitle them to discharge their duty, and the only statutory condition to the exercise of their authority, seems to be the possession by them, of the assessment-rolls, returned by the several counties of the State..

Except for the provision of the statute authorizing parties Avhose property is assessed, to appear before the town, ward or city' assessors, and make affidavit as to the circumstances and value of property assessed to them respectively,— no provision is made for the hearing of such parties, by any of the administrative bodies engaged in perfecting the valuation of taxable property, and it is to be implied by irresistible inference, therefore, that the law contemplates that such bodies shall proceed in the performance of their duties, upon their own knowledge, information and judgment, and so far as they may be deficient 'therein that they will, in their own way, inform themselves of such facts, as it may be necessary to know, in order to discharge their duties intelligently. While there is no want of power in .the courts to review such determinations by certiorari, yet a judicial review of conclusions based mainly, if not exclusively, upon the mental operations, and the individual knowledge and qualifications, of the persons composing the tribunals, referred to, is obviously impracticable if not impossible. Reasons founded upon the personal knowledge and experience of individuals, or conclusions reached by the exercise of their intellectual faculties, cannot be recorded and reproduced, in such a manner as to enable an appellate tribunal intelligently and fairly to review, the correctness of their judgment. Inherent and insuperable difficulties exist, in the very nature of the process by which conclusions are reached, which renders any appellate jurisdiction over their determination, impracticable and ineffectual. There must, from necessity, reside somewhere, the power of making a final disposition of questions of value for the purposes of taxation, and the State has made the judgment of the members of its board of equalization, the ultimate determination of such value; anda court has not the power to substitute its own opinion, for that of the tribunal, specially authorized by law to form and declare one.

Certain instances of alleged misconduct on the part of the State assessors, and of the members of the State board of equalization, are recited in tile petition which call only'for passing remark. Among the most prominent of these are the allegations that the State board .went into secret session, as it is called, when deliberating upon the equalization of assessments, and excluded the relators from participation therein, and -that such board declined the assistance and advice of the relators in making such equalization, and rejected their offer to make out and furnish a table of equalization for such board.

It is not claimed that the relators had any want of opportunity to present such proof, information and argument, as they desired while the board continued in open session, and before it retired for deliberation and judgment.

It is further complained that the State assessors in seeking information as to the value of real estate in New York, did not accept the offer of assistance and advice, tendered by the officers of the relator’s department, of taxes and assessment to the extent that they were willing to contribute.it, and instead thereof, prosecuted their inquiries independently and sought such sources of information as were approved by their own judgments, instead of those of the relator’s assessment officers. It is conceded in the petition that this was done after the officers of the department of taxes and assessments had objected to furnish the assessors with the record of transfers kept in their department as hereinbefore stated, and after they had also objected to the consideration by the State assessors of the difference, between the assessed valuation and the real value of such well-known properties as the Astor House, and the Fifth Avenue Hotel, in determining the ratio of assessment in New York. The petition then proceeds to state that the said “ State assessors remarked that they should talk on the subject with one or more or all of several individuals then named by them, but who are not officers or employes of your petitioners."

It is also alleged that in some of the counties in which members of the State board reside, the valuations were reduced, while in others it is admitted they were increased. It seems quite incredible that these facts should have been deliberately advanced by intelligent and candid parties, as the basis of charges of official misconduct and corruption against high officers of State acting in a judicial capacity, but wegijhinlc the statement made presents a fair synopsis, of all of the facts and circumstances recited in the petition, as the foundation oft the charges. The claim suggested that one, or all of the numerous parties interested should be allowed to be present, and to participate in the judicial deliberations of a tribunal, appointed by law to adjudicate upon disputed facts and inferences, and between interests so vast and conflicting, or that such party should be permitted to dictate or dispute in its deliberation, with it as to the grounds of its judgment, or the sources of its information, is quite too absurd to call for serious refutation or notice.

In conclusion it is proper for us to say that while upon the facts presented, we see no legal reason for supposing that injustice has been done to the relator by the equalization for the year 1885, yet such injustice may in fact exist, and it is incumbent upon the tribunal making such equalization in the future, by the presentation of facts bearing upon the question, or otherwise, to remove all serious doubts as to the equity and fairness of the judgments pronounced by it. It is doubtless impossible in questions depending so much upon mere opinion, and the discordant judgments of men, and involving such conflicting interests, that perfect uniformity of opinion, in any result that may be reached, can be secured; but the general sense of right and justice of the community at large may be safely relied upon to finally redress any wrong or injustice, which adequate proof shows to exist.

The appeal should be dismissed, with costs.

All concur; Rapallo and Earl, JJ., in result.

Appeal dismissed.


text:
    The People of the State of New York, Respondent, v. William Bossford, Appellant.
    (Argued. March 5,1886;
    decided March 23, 1886.)

      Harlem J. Swift for appellant.

      George T. Quinby for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    James D. Ferguson, Respondent, v. The Massachusetts Mutual Life Insurance Company, Appellant.
    (Argued March 5, 1886 ;
    decided March 23, 1886.)

      Frederic G. Ingalls for appellant.

      Francis Hernán for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed. .


author: Andrews, J.,

text:
    Thomas Hayes, Respondent, v. The Bush & Denslow Manufacturing Co., Appellant.
    (Argued March 9, 1886 ;
    decided March 23, 1886.)
    The following is the opinion in this action, in full:
    “The plaintiff’s son, about fifteen years of age, was employed in the defendant’s factory, and while operating a stamping machine, sustained an injury to one of his fingers from its being caught between the dies of the machine. This action was brought to recover damages for the injury. The right of the plaintiff to recover was presented by the trial judge to the jury in two aspects: First, under the act, chapter 122 of the Laws of 1876, and second, on the ground of the defendant’s negligence in permitting the boy to use a defective machine. The court charged the jury that if they should find that the business in which the boy was employed was dangerous, and that the plaintiff was not cognizant of the danger of the employment, and did not consent that the boy should beset to work with the machine, the defendant was liable under the statute, irrespective of any question of negligence on its part; but- that if the jury should find that the employment was not dangerous, then they were to determine the other question, viz.: Whether the machine was defective, and whether, knowing of the defect, the defendant negligently permitted the boy to use it, thereby causing the injury. Upon the conclusion of the charge the defendant’s counsel requested the court to charge, ‘that if the jury believe the employment was dangerous, and that the defendant used proper precautions by notice and instruction concerning it, the plaintiff cannot recover.’ The court replied: ‘I decline to charge that. I charge on the contrary that if this was dangerous to life and limb, as I have defined to you, then it comes within the condemnation of the statute, and then nothing can protect the party from liability except the absolute consent of the plaintiff.’ The record then states, ‘ defendant excepts.’
    “ It is conceded that the charge made in, response to the request of the defendant’s counsel was erroneous under the recent decision of this court in Hickey v. Taaffe (99 N. Y. 204). But the sufficiency of the exception is challenged on the ground that it relates both to the refusal to charge, and to the charge as made, and that the request to charge was properly refused, because it took no account of the alleged negligence of the defendant in permitting a defective machine to be used, which it is claimed would be an affirmative ground of recovery, although proper notice and instruction for the management of the machine had in the first instance been given.
    “ The doctrine is invoked that where there is a single exception to two propositions, one of which is correct, and the other erroneous, the exception fails as to both. But we think the doctrine is inapplicable to the exception in question.
    “ The real point intended to be brought by the request to the attention of the court was not that notice and instruction as to the use of the machine would alone necessarily exempt the defendant from the charge of negligence, but that an absence of negligence on the part of the defendant would be a defense to a liability based on the statute, although the employment was dangerous.

      “ The defendant, in other words, sought to induce the court to modify its charge that the defendant was liable if the employment was dangerous irrespective of negligence. It is plain that the request was so understood by the court, and in response thereto the court reiterated the proposition which it had before charged, that it was wholly immaterial to the maintenance of the action under the statute, what precautions had been taken by the defendant, or whether there was any negligence on its part, provided the dangerous character of the employment was established, and the plaintiff was not privy to the employment. The exception was we think well taken, and the judgment should, therefore, be reversed.”

      Theodore F. Hascall for appellant.

      Charles J. Patterson for respondent.
   Andrews, J.,

reads for reversal and new trial.

All concur.

Judgment reversed.


author: Roger, Ch. J.,

text:
    John C. Provost, Respondent, v. John M. McEncroe, Appellant.
    Where, at the close of the evidence on a trial, both parties asked the court to direct a verdict in their favor, and the court directed a verdict for plaintiff, to which defendant excepted, but made no request to be allowed to go to the jury, held, that as the parties had thus treated the case as presenting questions of law only, and as there was evidence to support the ruling, the judgment could not be assailed by showing that there were questions of fact arising on the evidence.
    (Argued March 12, 1886;
    decided March 26, 1886.)
    This action was upon four promissory notes executed by defendant. The notes were renewals of other notes similarly executed. The defense was that the original notes were made by defendant for the accommodation of the payee, to be used for a special purpose, of which plaintiff had knowledge when he received them, but that they were misappropriated by the payee, of which fact defendant was ignorant when he renewed them.
    The following is an extract from the opinion :
    “At the close of the evidence the plaintiff ásked the court to direct a verdict in his favor, and the defendant requested a similar direction in his, own behalf. The court ordered a verdict for plaintiff, to which the defendant excepted, and this is the only exception in the case raising any material question.
    “ The defendant made no request to be allowed to go to the jury upon questions of fact, and both parties treated the case as presenting .questions of law alone. Under such circumstances, if there was evidence supporting the conclusions found by the trial court, the judgment rendered thereon cannot be successfully assailed by showing that there were questions of fact arising on the evidence which were not submitted to the jury. By omitting to request the submission of such questions and acquiescing in the determination thereof by the court, the defendant has waived any objection to the mode of trial and must stand upon the exceptions taken. (Winchell v. Hicks, 18 N. Y. 558; Calligan v. Scott, 58 id. 670.)
    “ The trial court, in disposing of the case, stated that it did so in the manner stated upon the ground that the proof did not establish the fact of a misapplication of the notes by the person to whom they were intrusted by the defendant, and we agree in that view of the case.”
    The balance of the opinion is taken up with an examination and discussion of the evidence.

      L. Laflin Kellogg for appellant.'

      Jesse Johnson for respondent.
   Roger, Ch. J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    Horace V. Howland v. Jeremiah Krom et al., Ambrose Raymond et al., Claimants, Appellants, Royal Mack et al., Claimants, Respondents.
    (Submitted March 12, 1886 ;
    decided March 26, 1886.)

      J. W. Beehley and Henry W. Conklin for appellants.

      Chester M. Elliott for respondents.
   Agree to affirm ; no qpinion.

All concur.

Judgment affirmed.


text:
    Samuel P. Dauchy et al., Appellants, v. William H. Tutt, Respondent.
    (Argued March 15, 1886;
    decided March 26, 1886.)

      Samuel D. Morris for appellants.

      Maston Wiles for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    Joseph S. Spinney, Respondent, v. Francis B. Thurber et al., Appellants.
    (Argued March 13,1886;
    decided March 26, 1886.)

      H. Arlington for appellants.

      George A. Black for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    Joseph Munster, Respondent, v. The Brooklyn Cross-Town Railroad Company, Appellant.
    (Submitted March 13, 1886;
    decided March 26, 1886.)

      William W. Bykman for appellant.

      Andreio W. Kent for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


author: D.anforth, J.,

text:
    Arthur C. Bigelow, Respondent, v. James Legg et al., Appellants.

      It seems that in an action to recover damages for the refusal of a vendee to accept goods, as required by his contract of purchase, the measure of damages is the difference between the market value of the goods at the time of the breach of the contract, and the price at which the vendee agreed to take them; and where, after refusal to accept, and after notice to the vendee, the goods are sold by the vendor at auction, the price realized may properly be taken into consideration in fixing the market value.
    Custom or usage cannot control the legal rules applicable to the construction of a contract, and evidence that by a custom a contract means something different from what its terms clearly import, is inadmissible.
    (Submitted March 12, 1886;
    decided March 26, 1886.)
    This action was brought to recover damages for an alleged breach of a contract of sale by plaintiff and purchase by defendants of a quantity of wool. The principal question on the trial was as to the terms of the contract. The jury found in favor of plaintiff’s version. It was not claimed here that the evidence was insufficient to authorize a recovery,. _ A motion was made upon the minutes for a new trial, on the ground that the verdict was against the weight of evidence and excessive, and an appeal was taken from the order denying the motion. The following is an extract from the opinion :
    “ So far as it depends upon the weight of evidence it is not reviewable in this court. (Young v. Davis, 30 N. Y. 134; Barrett v. Third Ave. R. R. Co., 45 id. 628.)
    “ As to the damages, the court charged the jury, that if their verdict was for the plaintiff it should be the difference ‘ between the market value of the wool at the time of the breach of the contract and the price at which the defendants had agreed to take it.’ This is not only the general measure of damages in such cases, but no exception was taken to the charge in this respect, and it became the rule by which both parties were bound. The refusal of the defendants to take the wool was on the twelfth of January; it was sold at auction on the nineteenth, after notice to the defendants, and the court charged that the price then realized might be taken into consideration in fixing the market value. Complaint is now made of this direction. It was not excepted to at the trial. It was proper in itself. The price obtained after such default, upon a resale, within a reasonable time, although at auction, is evidence of the market value of an article and to be allowed such weight as the circumstances of the sale entitle it to. (Gill v. McNamee, 42 N. Y. 44.)

      “ In the course of the trial the plaintiff introduced in evidence, without objection by defendants, a sales note dated ‘ Boston, Janua/ry 10, 1883,’ in these words:

      “ ‘Sold for account of Mess. A. C. Bigelow & Co., Boston, ■ To Mess. James Legg & Co.,
    , Maple ville,
    R I.
    30 | 35,000 lbs. Michigan X fleece wool.
    „ Like 30 bags shipped Jan’y 8th, 1883.
    Wool to be handled by Mills & Coffin.
    At 35-J c. p. lb.
    Fare.
    Terms net cash.
    MILLS & COFFIN,
    Brokers.’
    “ This note was in duplicate. A copy was sent by the brokers to each party on the day of its date. The defendants’ counsel offered to show that this sales note was a mere memorandum, which, according to the custom of brokers and dealers in wool, amounted to a proposition which might be accepted or rejected by either side, and which, until rejected or accepted by both, was left open. This was objected to, the objection sustained, and an exception taken by the defendant. We think it cannot prevail. The terms of the note, however comprehensive, are of no importance, unless the persons signing it were in fact the brokers or agents of the party for whom they professed to act, nor unless the contract expressed by those terms was one which they were authorized to make. If that in question was of such character, no usage could control the rule of law applicable to its construction.”

      Alex. Thain for appellants.

      Frederic A. Ward for respondent.
   D.anforth, J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    Joseph Colson, Respondent, v. Bertsey Reich, Appellant. J. Clarence Hawkins, Respondent, v. Bertsey Reich, Appellant.
    (Argued March 15, 1886;
    decided March 26, 1886.)

      A. Schoonmaker for appellant.

      Wilmot M. Smith for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgments affirmed.


text:
    Adelaide S. Smith, Respondent, v. Patrick Dempsey et al., Appellants.
    (Argued March 15, 1886;
    decided March 26, 1886.)

      Isaac Lawson and Frcmklin A. Paddock for appellants.

      Nathaniel G. Moak for respondent.
   Judgment reversed and case remitted to the Special Term for the determination of the motion for a new trial, on the ground that it had no power to annex to the order reducing the recovery a condition that it should be operative only in case the reduced amount should be paid, without costs to either party upon the appeal; no opinion.

All concur.

Judgment accordingly.


text:
    Daniel T. Hedges, Respondent, v. William S. Williams, Appellant.
    (Argued March 15, 1886;
    decided March 26, 1886.)

      John Sessions, for appellant.

      Mortimer C. Addoms, for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


author: Per Curiam mem.

text:
    John Clark, Respondent, v. The Manhattan Railway Company, Appellant.
    (Argued March 16, 1886;
    decided March 26, 1886.)
    This was an appeal from an order of General Term affirming an order of Special Term, granting a motion to suppress a deposition taken de bene esse.

    The motion to suppress was based on the ground that the deposition was read over to and subscribed by the witness in the absence of and without notice to the plaintiff’s attorney.
    The following is the mem. of opinion :
    “ It is not claimed that any harm or prejudice came to the plaintiff because the deposition was read to and subscribed by the witness in the absence of his counsel. We have carefully considered all the facts appearing in the affidavits and are of opinion that plaintiff’s counsel must be held to have waived his right to be present at or to have notice of the reading of the deposition to the witness on the Monday after it was taken, and that, therefore, the court erred in suppressing it.
    “ The orders of the General and Special Terms should be reversed and the motion denied, with costs.”

      Edward S. Sapallo and Howard Townsend for appellant.

      Ghauneey S. Truax for respondent.
   Per Curiam mem.

for reversal of orders of General and Special Terms and for denial of motion.

All concur.

Ordered accordingly.


text:
    Henry Patton, as Assignee, etc., Appellant, v. Charles B. Farley, Sheriff, etc., Respondent.
    (Argued March 16, 1886;
    decided March 26, 1886.)

      Joseph A. Burr, Jr., for appellant.

      James Z. Bishop for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    Edward Van Orden et al., Appellants, v. Samuel J. Tilden, Respondent.
    (Argued March 16,1886 ;
    decided March 26, 1886.)

      Samuel Hand for appellants.

      Mornay Williams for respondent.
   Agree to dismiss appealno opinion.

All concur.

Appeal dismissed.


author: Finch, J.,

text:
    Joseph Emrich, Appellant, v. Lucy E. White, Respondent.
    (Submitted March 1, 1886;
    decided April 13, 1886.)
    This action was brought to compel a specific performance of a contract for the purchase and sale of certain real estate.
    The following is the opinion in full:

      “ The parties to this action entered into a contract for the sale and purchase of real estate, by the terms of which the plaintiff was to pay therefor the sum of $9,000 by assuming an outstanding incumbrance of $3,000 and paying the balance in cash, the deed to be delivered and the contract performed on the ensuing twentieth day of July at a place named. Before the contract was signed the character of defendant’s title was fully explained. The plaintiff was informed that she took as-devisee under the will of John H. White, by a provision in the following terms, viz.: 6 After all my lawful debts are paid and discharged I give, devise and bequeath all my estate, real, personal and mixed, to my beloved wife, Lucy E. White, for her sole use, benefit and behoof forever.’ The plaintiff was further informed that the personal estate of the testator had proved insufficient to pay his debts, and that these to a very serious amount remained undischarged, and for this reason the defendant’s counsel, who conducted the negotiations, while expressing his belief that the title would be good, declined to agree to give general covenants of warranty and bound Ills client only to give a deed of bargain and sale with covenant against her own acts, and in that form and after such full explanation the contract was signed. It would seem, therefore, that the agreement contemplated a sale and purchase of the title which the defendant in fact possessed and clouded by a possible defect on account of which the price to be paid was seriously reduced; unless that inference is modified by the further stipulations signed on the same day but after the execution of the contract. These apparently contemplated that on the day for consummating the agreement the plaintiff might accept the deed tendered or conclude to reject it though his right to do so was not conceded but denied. If he did reject the deed, 'and if thereupon the defendant chose to sue for the purchase-money which was left to her free choice, then if she succeeded in the action interest on the agreed purchase-money was to be waived until the date of that decision; but if the plaintiff succeeded he was nevertheless to pay the taxes of 1880 and all assessments becoming a lien after the date of the contract. These stipulations indicate a difference of opinion as to the legal effect of the contract signed which might end in a litigation with, an unknown result, hut nothing in them changed the legal effect of that contract as it stood, or the rights of the parties under it. They related wholly to the emergency of a suit which might possibly be brought but which the defendant was under no obligation to bring.
    “ On this state of facts the courts below have held that plaintiff’s refusal to accept the deed tendered put him in default, and that he could not maintain the present action to compel a specific performance with compensation for. the defect in the title. In answer to this the plaintiff contends that his rejection of the deed was purely formal, and made to enable the defendant to bring the action referred to in the stipulation. But very little in the case supports that contention. The complaint makes no such claim. On the contrary, it alleges explicitly that the plaintiff rejected the offered deed upon the ground of a defect in the title, and there is nothing in the stipulation which affected his duty to perform his contract or refuse to do so at his peril and of his own sole choice. It is then said that the demand of the purchase-price as $9,000 was too much. If a demand was needed, it was sufficient. Nobody could or did misunderstand it. The defendant did not say or mean that $9,000 should be paid in cash, but that it should be paid as required by the contract. The criticism is purely technical, and has no merit in it. The further contention is made that performance at the day was waived by after negotiations. Such negotiations did take place, but they consisted of repeated efforts on the part of defendant’s counsel to induce the plaintiff to perform, which he steadily refused, until the effort ended by a notice on the second of September, that defendant would give but two or three days for a final answer, and then after waiting a week with no reply the defendant’s counsel formally closed the door by demanding the cancellation of the contract. Two days after that this action was brought for a specific performance of the contract, which the plaintiff had steadily repudiated, and refused to perform. Whatever may be his remedy at law, if upon the facts he can have any, it is certain that he is not entitled to the intervention of equity, and shows no reason why an action, at law for damages would not- afford him adequate redress. The plaintiff declares in his brief that he is now and was at the time of the trial willing to accept the title as it stands He should have readied that conclusion sooner. After bringing this action to obtain compensation for its defects and steadily refusing to accept the deed, until time has, perhaps, cured all imperfections, he ' cannot equitably ask that his default be ignored, and that he be allowed to have a good title for the price of a defective one.
    “ The judgment should be affirmed, with costs.”

      Samuel Untermyer for appellant.

      Elial F. Hall for respondent.
   Finch, J.,

reads for affirmance.

All concur.

Judgment affirmed.


author: Huger, Ch. J.,

text:
    R. Cornell White, Respondent, v. The Old Dominion Steamship Company, Appellant.

      It seems that proof of the admission, by one of the parties to an action, of a distinct fact which in itself tends to establish a cause of action or defense, is not rendered inadmissible because made during negotiations relating to a compromise, unless it is expressly stated to be made without prejudice ; but if the admission is of such a nature that the court can see it would not have been made except for the purpose of the negotiations and under an agreement fairly to be implied from the circumstances, that it was not to be used to the prejudice of the party making it, it is not error to exclude the evidence.
    The repetition, under objection, of improper evidence already in the case unobjected to, is not an error authorizing a reversal.
    (Argued March 16, 1886 ;
    decided April 13, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made May 12, 1884, which affirmed a judgment in favor of plaintiff, entered upon a verdict.
    This action was brought to recover damages for alleged negligence on the part of defendant m the performance of a contract to tow the hull of the steamboat Hoohaway from Norfolk to New York.

      The argument in the case was mainly upon the facts. As to them the court say:
    “ The claim is made by the appellant, that as to several of the issues involved in the merits of the dispute^ questions of law are presented by undisputed evidence in the case ; but we are of the opinion, after a careful reading of the whole case, that this claim is unfounded and that every such question presented upon the appellant’s points was one of fact upon which the evidence was contradictory. It would be quite a vain and unprofitable task to enter into what must necessarily' be, if attempted, a lengthy discussion of the facts in the case and which must necessarily terminate in the proposition that such questions were exclusively for the consideration of the jury and exempted thereby from review in this court.”
    The opinion then continues as follows:

      “ There are, however, several questions relating to exceptions taken to the admission and exclusion of evidencesn the trial which have been the subject of some discussion in our consultations and to which we deem it profitable briefly to refer.

      “ The first of these is an exception to the exclusion by the court of an offer to prove certain facts upon the cross-examinatian of the plaintiff by defendant’s counsel which was rejected by the trial court upon the ground that it called for proof of an admission drawn from the party during a negotiation for a settlement of the controversy and was, therefore, inadmissible. The offer was as follows ; that the plain tiff ‘stated that he saw the customary signals up before the Rookaway was taken in tow, but that he considered it a matter of no consequence because he had seen them up repeatedly before when no storm followed.’
    “ One of the acts of negligence on the part of the defendant which the plaintiff claimed authorized a recovery of the damages occasioned to him by the loss of the Rookaway was that of going to sea in the face of an easterly storm after notice thereof by the cautionary signals and we have no means of determining the fact whether the jury did not base their verdict to some extent upon this act of negligence rather than others claimed to be proved. It is true that but little stress was laid upon this act in the course of the trial and but little time was taken in the ‘examination of witnesses upon it, but still the fact remains that the question was in the case, was left to the jury by the court, and might have been the basis of their verdict. When, however, this evidence was offered, it appeared in testimony that the plaintiff had already sworn to the fact that he did see the cautionary signals before the Rockaway was taken in tow, and so far as any material fact is embraced in the offer it was to prove an admitted fact and was, therefore, immaterial.

      “ It also appeared that the alleged admission was'made during the course of a negotiation for a settlement to which the plaintiff had been invited by the defendant’s board of directors:
    “We are of the opinion that the character and substance of the things offered to be proved did not bring them within the exceptions to the rule excluding such admissions. There is no doubt but that the rule is well established in this country that the admission of a distinct fact which in itself tends to establish a cause of action or defense, is not rendered inadmissible from the circumstance that it was made during discussion relating to a compromise, unless it is expressly stated to be made without prejudice ; bnt if the admission is of such a nature as that the court can sec it would not have been made except for the purpose of producing the objects of the negotiation, and under an agreement that could fairly be implied from the circumstances that it was not to be used afterward to his prejudice, it is not error for the court to exclude the evidence. The rule referred to is founded upon public policy, and with a view of encouraging and facilitating the settlement of legal controversies by compromise, which object is supposed to be obstructed by the fear entertained by litigants that such a negotiation may bo converted into a trap to inveigle the unwary into hazardous admissions. The law, therefore, excludes such admissions as appear to have been made tentatively or hypothetically, but admits those only which concede the existence of a fact. Stephens on Evidence states the rule to be that they are inadmissible ‘1 if made under circumstances from which the judge infers that the parties agreed together that evidence of it should not be given.” (Page 52.) Wharton’s most recent work on Evidence says : “ An implied admission of liability, made a part of the negotiations for a compromise, expressly for the purpose of peace (whether such admission be made under the technical proviso without prejudice or not), will not be received in evidence against the party making it, when its object was merely to suggest a scheme of settlement.” (§ 1082.) In Mead v. Degolyer (16 Wend. 632, 638), it was held that an admission by the defendant to a person employed to draw np an account between the parties with a view to settlement, that “ he had agreed to pay the plaintiff $11 per one thousand feet if he would deliver all the timber originally contracted for,” was made for the purpose of effecting a settlement and inadmissible, Cowen, J., delivering a learned dissenting opinion, which was quoted from in appellant’s brief. In Hartford Bridge Co. v. Granger (4 Conn. 142), Hosmer, Ch. J., says : “ The question to be considered is what was the view and intention of the party in making the admission, whether it was to concede a fact hypothetically in order to effect a settlement or declare a fact really to exist.”
    The reason why the admission of a special fact in the course of a compromise negotiation is allowed to be proved rests upon the obvious grounds of the improbability of a party admitting a fact going to his prejudice, intentially or hypothetically, unless it really existed, but as to mere opinions and loose expressions indicating the opinion of the party as to liability or exemption therefrom, they seem to come within the reasons of the rule excluding such admissions. The admission received in Marvin v. Richmond (3 Denio, 58), was that of the plaintiff in the action made upon an application by the defendant for terms of settlement. The plaintiff immediately refused to settle, saying substantially that he had no interest in the controversy and would have nothing to do about a settlement. It is quite clear that such a declaration made at such a time was not induced under the expectation that it was protected by the fact that negotiations for a compromise were pending, and that the declaration was competent for the reason that no negotiations for a settlement were in fact being prosecuted. The learned judge writing in that case gives illustrations of the character of admissions which are not protected by the rule, such as the admission of a particular item in an account consisting of a number of items. If this case is authority at all upon the question, it cannot extend further than to allow proof of the admission of a specific fact made during compromise negotiations. In Moore v. Hitchcock (4 Wend. 292, 298), an admission by a party that a certain item of account which he had never legally assumed to pay was properly charged against him was held to be the admission of a right and not of a fact, and not to bind the party making it. (See, also, Murray v. Coster, 4 Cow. 635.)
    “ In this case the rejected proof was as to the opinion entertained by the plaintiff of the validity of one of the grounds of negligence alleged by him, and it might very well be that for the purpose of establishing a basis upon which to commence or continue the discussion of the terms of a compromise he should be willing to narrow the points for consideration or argument by tentative admissions as to the theory of the claimed liability. We think that it was no error for the trial judge to hold, under the circumstances of this case, that the admission in question was made under an implied agreement that it was not thereafter to be used against him.
    “ It is further urged by the appellant that it was error to allow the declaration of Captain Couch, made after the loss of the Rock away, as to the cause of such loss to be given in evidence. There is no sufficient objection to such evidence. Similar evidence to that complained of had already been given by the witnesses before any objection was attempted to be made. Subsequently, when the witness was asked ‘ What occurred after the loss ? ’ a general objection of incompetency and immateriality was made and an exception taken to the ruling admitting the question. Some unimportant testimony was then given in answer to this question, when the plaintiff’s counsel again asked, ‘ What about going into the Delaware \ ’ No objection was made to the inquiry, and the witness then repeated what he had before testified to without objection on this subject. Even it the objection had been properly made the repe-' titian of evidence already in the case unobjected to would not have prejudiced the right of the defendant or affected the result.

      “ Many other questions are raised by the appellants as to the admissibility and exclusion of evidence and upon the instructions of the court, but we think, so far as there is any importance in them, they have been sufficiently and satisfactorily answered in the very careful, learned and' exhaustive opinion delivered in the court below, and need no further discussion by us.
    “.The judgment should be affirmed.”

      R. D. Benedict and Frank D. Sturges for appellant.

      Luther R. Marsh for respondent.
   Huger, Ch. J.,

reads for affirmance.

All concur.

Judgment affirmed


text:
    Rudolph G. Salomon, Respondent, v. Adolph Sternfield et al., Appellants.
    (Argued March 10, 1886;
    decided April 13, 1886.)
    Decided on the facts.

      JM. L,. Townsend for appellant.

      A. R. JDxjett for respondent.
   Finch, J.,

reads for affirmance.

All concur.

Appeal dismissed.


text:
    Edith E. Kerr, Appellant, v. James Bryar et al., Respondents.
    (Argued March 15, 1886;
    decided April 13, 1886.)

      Charles E. Rxishmore for appellant.

      A. jW. Lamb for respondent.
   Agree to affirm on opinion in Quackenbos v. Kingsland (ante, p. 128).

All concur.

Judgment affirmed.


text:
    Charles E. DeKay, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
    (Argued March 19, 1886;
    decided April 13, 1886)

      Lewis E. Carriov appellant.

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

All concur.

Judgment affirmed.


text:
    John W. Gillies et al., Appellants, v. Augusta Kreuder, Impleaded, etc., Respondent.
    (Argued March 19, 1886;
    decided April 13, 1886.)

      William McCauley for appellant.

      George W. Weiant for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


author: Earl, J.,

text:
    The New York and Brooklyn Ferry Company, Appellant, v. John H. Moore et al., Respondents. The New York Ferry Company, Appellant, v. The Same, Respondents.
    (Argued March 22, 1886;
    decided April 13, 1886.)
    These were actions to recover moneys alleged to have been received by defendant, John H. Moore, for tolls while in the employ of plaintiff as ferry master, and to have been converted by him and invested in real estate, or deposited in his own name and in the name of his mother,, in various savings banks, who were made defendants. The actions were consolidated and tried together. Plaintiff’s evidence was to the effect that the father of defendant, John H. Moore, was a day laborer, his mother a washerwoman, and, up to the death of the former, they were apparently in straitened circumstances. Said defendant entered the employ of the plaintiff in the first entitled action in 1866 as a night watchman; he had served in the army during the war; his bounty money and part of his pay he sent to his mother, Avho deposited it in a savings bank in their joint names. The amount of such deposits, January 1, 1867, Avas $699.65. After his return and before his employment by plaintiff he drove a truck, his Avages being $7 per week. When he applied to plaintiff for employment he represented himself and mother as very poor and unable to live on his wages. His salary at first Avas $50 per month. He was appointed ferry-master in 1870 and remained in their employ until 1883, a portion of the time receixdng $75, and a portion $85 per month. Soon after entering such employment lie and his "mother began to live in better style and to deposit money in various savings banks, depositing each year more than the amount of his salary. At the time of his discharge he had on deposit in six savings banks, in his own name or in the name of himself and mother, xbout $30,000, and had invested $15,350 in real estate. He had no other business and no other apparent means of earning money than his employment. On several occasions he was seen by witnesses, just before leaving the ferry-house at the close of his day’s labor, to talce money from the money drawer and put it in his pocket and, put the balance of the money in the drawer in a bag to be taken to plaintiff’s office. When asked at the time of his discharge he denied that he ever had any bank account or savings bank book, and made other false statements. A warrant was procured, upon which he was arrested. He attempted to escape from the officers, probably to get into "his house before he was arrested, but, before he could get there, was arrested; whereupon he offered to give the officers $500 if they would let him go into the house for a moment. On being arrested four savings hank books were found in one of his pockets, and the reasonable inference for his anxiety to get into the house was to conceal them. Plaintiff’s receipts at the toll-house for the month after Moore’s discharge were much more than for the same month the year preceding, although there was no more travel. Moore did not offer himself as a witness in his own behalf. The Special Term found that Moore had collected and received large sums for plaintiffs, which he did not pay over but fraudulently converted, amounting at least to $22,869.68, and chaz’ged the same as a trust upon the deposits and the real estate. The General Term reversed the judgment “ on questions of law only,” on the ground that there was no evidence warranting the findings that plaintiff had lost any money, or that Moore had wrongfully retained or embezzled any. Held error; that the evidence was sufficient to sustain the findings of the Special Term and justified the judgment.

      'William G. Be Witt and Joseph A. Burr, Jr., for appellant.

      James M. Smith for respondent. •
   Earl, J.,

reads for reversal of order of General Term and affirmance of judgment of Special Term.

All concur.

Judgment accordingly.


text:
    Walter H. Mead, as Substituted Trustee, etc., Respondent, v. John Riley, Appellant.
    (Submitted March 24, 1886 ;
    decided April 13, 1886.)

      Alexander B, Johnson for appellant.

      Henry H. Anderson for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    Amelia Smither, Respondent, v. Elias L. Bissell et al., Appellants.
    (Argued March 24, 1886 ;
    decided April 13, 1886.)

      Adelbert Moot for appellants.

      O. F. Tabor for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v. Miguel Chacon, Appellant.
    (Argued March 25, 1886 ;
    decided April 13, 1886.)
    The defendant was indicted for and convicted of the crime of murder in the first degree.

      The following extract from the opinion presents the only point.discussed by the court:
    “Monroe Williams, the husband of the victim, was, the principal witness for the prosecution. He was the only person, besides the defendant, who saw the killing and who testified to wliat took place at the time. He testified that he and his wife stood near each other,’ and that the defendant fired three shots — two at him and one, the fatal shot, at her. tlpon his cross-examination by defendant’s counsel, Williams was asked questions and gave answers as follows: ‘Why do you tell this jury that the two first shots were fired at you, and that that last shot was fired at this .poor girl who is dead ? A. Because I was in the bed-room door and that was the shot that struck her.’ Q. ‘ Have yon any other reason to say that the third shot was fired at your wife, except you moved your position? A. No reason more than he had threatened to kill her, and that was his only opportunity.’ On motion of defendant’s counsel the court struck out this answer. Q. ‘Now, sir, did you ever hear this man make a threat against your wife ? A. Not in my presence.’ On motion of defendant’s counsel the court also struck out this answer. Q. ‘ Now, I again ask you this: you have testified to this jury that the first two shots were fired at you ? A. Tes, sir. Q. Now, sir, can you give to this jury any reason why they were fired at you ? I ask of your own knowledge, can you give us any reason, aside from the,'fact that you had stepped one side, for telling us that he fired that last shot at your wife, yes or no ? A. The only „reasons I could give is that he has threatened to take her life, and that was his only opportunity and he fired at her.’ The counsel for the defendant moved to strike out this answer, and the court denied the motion, and he exempted. Q. ‘ I again ask you if you ever heard him make any such threat? A. Not in my presence.’ The counsel for the defendant again moved to strike out the evidence as to the threat, and the court denied the motion, and he excepted. These two exceptions are now claimed by the counsel for the defendant to have been well taken, and to point out a serious error for which this judgment should be reversed. We think otherwise. As to the first exception, the witness was asked to answer the question yes or no, and when the defendant’s counsel observed that he was not answering the question in that way, and was proceeding to give the same answer which had once been stricken out, he should have stopped the witness and ar rested the answer. lie could not lie by and speculate on the chances of first hearing what the witness would testify to, and then, when he found the testimony unsatisfactory, move to strike it out. (Quin v. Lloyd, 41 N. Y. 349.) Whether the court will, under such circumstances, strike out an answer given * generally rests in its discretion, which is not re viewable. As to the second exception, the answer was fairly a response to the question; it was substantially that he had never heard the threat.

      “ A still further answer to both of these exceptions is that the evidence was not of the least importance and could not in our judgment have harmed the defendant. The defendant bought the pistol and cartridges the day before the killing. One witness testified that about two hours before the shooting she saw the defendant load a revolver which he had in his hand, put it in his pocket and then go into the apartment occupied by Williams and his wife. Another witness testified that about a week before the shooting she saw the defendant have a pistol and heard him say that he bought it to kill Mrs. Williams with. Still another witness testified that in February before the shooting he heard Mrs. Williams tell defendant that her husband, who had for some time been absent, expected to return, and he then said that if he came back he would kill both him and her. lie tried to conceal himself after the shooting, and after his arrest said to two police officers, as they testified, that he killed her because she did not keep her promise to live with him. The defendant as a witness in his own behalf, however, testified that he fired the three shots at Mr. Williams in self-defense, and accidentally and unintentionally hit Mrs. Williams, and he denied the threats and confessions testified to by the witnesses for the prosecution. The case against the defendant was so strong and his murderous intent and his threats were so fully proven that evidence that Williams had heard of the threats, particularly after the court had just stricken out similar evidence as hearsay, could not have influenced the verdict; and the refusal to strike out the evidence, therefore, furnishes no reason for a reversal of the conviction. (Code of Crim. Pro., § 542, etc.) ”

      Charles S. Spencer for appellant.

      De Lancey Nicoll for respondent.
   Earl, J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    Sarah A. Vingut, Appellant, v. The Setauket Presbyterian Church et al., Respondents.
    (Argued March 26, 1886;
    decided April 13, 1886.)

      John J. Maclclin for appellant.

      A. A. Spear for réspondents.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Carl F. W. Busch et al., Respondents, v. Mary Busch, Appellant.
    (Submitted March 26, 1886 ;
    decided April 13, 1886.)

      John H. Bergen for appellant.

      Francis B. Chedsey for respondents.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Maretta L. Stebbins, Respondent, v. William Breese, Appellant.
    (Argued March 26,1886;
    decided April 13, 1886.)

      Geo: W. Ray for appellant.

      Albert F. Gladding for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    John O. Murdock, Appellant, v. Lewis S. Abbott et al., Executors, etc., Respondents.
    (Argued November 23, 1885;
    decided April 20, 1886.)

      Isaac JB. Maynard for appellant.

      William Toumans for respondents.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed


text:
    Samuel L. M. Barlow et al., Appellants, v. Maria J. Myers, Impleaded, etc., Respondent.
    (Argued February 11,1886;
    decided April 20, 1886.)

      William G. Choate for appellants.

      Brown dk Garfield for respondent.
   Agree to affirm; no opinion.

All concur, except Rapallo and Earl, JJ., dissenting.

Judgment affirmed.


text:
    Henry Winthrop Gray, Respondent, v. George T. Green, Impleaded, etc., Appellant.
    (Argued February 12,1886;
    decided April 20, 1886.)

      Samuel Hand for appellant.

      Osborn E. Bright for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Lizzie A. Wood, Respondent, v. Stiles M. Wood, Appellant.
    (Argued April 13,1886;
    decided April 20, 1886.)

      Geo. EL. Stevens for motion.

      B. It. Heyward opposed.
   Motion to dismiss appeal granted, without prejudice to the right of the appellant to apply to the Supreme Court for any relief to which he may be entitled.


text:
    Edgar M. Payn, Respondent, v. Charles H. Field et al., Appellants.
    (Argued April 12, 1886;
    decided April 27, 1886.)

      Bobert Payne for appellants.

      Worthington Frothingham for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


author: Per Curiam

text:
    James Maclaren Respondent, v. Emeline A. Percival, Impleaded, etc., Appellant.
    (Argued April 13,1386;
    decided April 27, 1886.)
    This was an action tofforeclose a mortgage, executed by defendants, Danie Gr. Peroival, and Emeline A., his wife, upon lands owned by the latter.
    The following is the mem. of opinion .
    “ The appellant claims that there was no consideration for the mortgage in question, and relies upon the evidence, which shows that the defendant had no knowledge of the purpose and object of the mortgage at the time of its execution, and that the mortgage was delivered as collateral security for the payment of a past indebtedness. Appellant further claims that she was a mere guarantor and that a contract of guaranty must be supported by sufficient consideration.
    “ The respondent’s counsel insists that the consideration was the extension of the time of payment, on the day of the receipt of the mortgage, upon three of the fifteen notes which had been given by the firm, of which defendant’s husband was a partner. The referee found that these notes were made and delivered on the 16th of October, 1878. The evidence shows a receipt for these notes, bearing date on the 28th of December, 1878, signed by the plaintiff, and just preceding the signature was a memoranda to the effect that the time of the payment of the three notes was extended. It would thus seem that the time of payment was extended on the date of the receipt and of the giving of the mortgage, and the proof shows that the extension was given upon the execution and delivery of the mortgage.
    “Another instrument attached to the said receipt shows a large indebtedness to the plaintiff at' that time, and that the mortgage was received as collateral security for the payment of the botes named. The two writings must be read together as forming one agreement, and may be interpreted as containing a recital that the time was extended in consideration of the collaterals mentioned in the last receipt which was annexed.
    “ This was a good consideration for the execution of the mortgage. The creditor was to be benefited and the debtor placed to some inconvenience by the extension of the time of payment of the three notes. This question, however, is fully discussed in the opinion of the General Term by Learned, P. J., and, therefore, it is not necessary to enlarge upon the subject.

      “ There was no proof that the mortgage was diverted from the purpose for which it was intended. The defendant was not told the purpose for which it was to be used, and hence it could not have been used for a different purpose than that for which she was told it was intended. There is no ground for claiming that there was no valid or legal delivery of the mortgage to the plaintiff. The defendant allowed her husband to take it evidently to do with it as he pleased and he had a right to deliver it to the mortgagee named therein .for the purpose for which it was executed.
    “ The presumption is that the notes for which the mortgage was executed as collateral had not been paid, and the burden of proof was on the defendant to show otherwise, if such was the fact.
    " The order of the General Term éhould be affirmed, and judgment ordered for the plaintiff, upon the stipulation, with costs.”

      James Spencer for appellant.

      J. Scmford Potter for respondent.
   Per Curiam

opinion for affirmance of order and for judgment absolute against defendant.

All concur.

Judgment accordingly.


text:
    Robert J. Graves, Respondent, v. Phœbe L. Soovil, The Mercantile Trust Company, Appellant.
    (Argued April 13, 1886;
    decided April 27, 1886.)

      John S. Hill for appellant.

      Benjamin Estes for respondent.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


text:
    In re Petition of Bennett J. King et al., to vacate an assessment.
    (Argued April 13, 1886;
    decided April 27, 1886.)

      D. J. Deem for appellants.

      John C. Shaw for respondent.
   This case presented the same question, and was argued and • decided with In Re Petition of the Manhattan Railroad Compamy (ante, p. 301).


text:
    Amanda Lewis et al., Respondents, v. Person D. Ogden et al., Appellants.
    (Submitted April 14,1886;
    decided April 27, 1886.)

      E. Countryman for appellants.

      S. D. Holliday for respondents.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed


text:
    Nicholas Ottenot, Appellant, v. The City of Buffalo, Impleaded, etc., Respondent. Charles R. Rauch, Appellant, v. The City of Buffalo, Impleaded, etc., Respondent.
   These cases presented the same question, and were argued and decided with Reining v. The City of Buffalo (ante, p. 308)


text:
    Polydore Duclos, Respondent, v. William T. Cunningham et al., Appellants.
    Where a broker, employed to effect a sale of property, has found a purchaser of sufficient responsibility willing to take upon the terms named, he has performed his contract and is entitled to his commissions.
    If a broker is required to furnish the vendor with the name of the purchaser as a condition precedent to his right to recover commissions, when the vendor interposes no objection on that ground but absolutely dis-affirms the sale, he thereby waives the right to insist upon the condition.
    (Argued April 15, 1886 ;
    decided April 30, 1886.)
    This action was brought to recover commissions alleged to have been earned by plaintiff as defendants’ broker, in effecting a sale of a quantity of prunes.
    The following is an abstract from the opinion:
    “ On being advised thereof (of the sale), defendants repudiated the contract on the ground that the plaintiff had no authority to sell at any other time than on the day when the contract was entered into, stating that they were not sellers-on the day of the sale under seven and three-quarters cents.
    “ The defendants insist, that the telegram sent by the plaintiff to them as to the sale, not having stated the name of the purchaser, the minds of the parties did not meet and no valid contract was made which was binding on the parties. We think there is no force in this position. No such objection was taken at the time by the defendants, and had it been, the diffi-. culty no doubt would have been obviated at once by the plaintiff disclosing the name of the purchaser. Even if ordinarily a broker is required to furnish the name of the purchaser as a condition precedent to his right to claim commissions on the sale, as the defendants interposed no objection on that ground and absolutely disavowed the sale, they waived the right to insist upon any such condition. The rule no doubt is that when a broker, employed to effect a sale, has found a purchaser willing to take upon the terms named and of sufficient responsibility, he has performed his contract and is entitled to the commissions agreed upon, and the rule claimed, that the minds of the parties did not meet, has no application.”

      Gharries Edward Souther for appellant.

      James M. Smith for.respondent.
   Per Curiam mem.

for affirmance.

All concur.

Judgment affirmed.


text:
    Henry R. Lounsbury, Respondent, v. Henry H. Hayden, Appellant.
    (Submitted April 15,1886;
    decided April 30, 1886.)

      Henry W. Hayden for appellant.

      George G. Holt for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    Manassah Briggs et al., Appellants, v. Robert I. Brown, Respondent.
    (Argued April 15, 1886;
    decided April 30, 1886.)

      L. B. Bunnell for appellants.

      William Peet for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Lester W. Babcock, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    (Submitted April 16, 1886;
    decided April 30, 1886.)

      Forbes, Brown <& Traoy for appellant

      W. F. Gilbert for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Jonathan Champlin, Respondent, v. The Village of Penn Yan, Appellant.
    (Submitted April 16,1886;
    decided April 30, 1886.)

      John T. Know for appellant.

      John Gillette, Jr., for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment .affirmed.


text:
    Clara A. Abbey, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    (Argued April 16, 1886 ;
    decided April 30, 1886.)

      Albert H. Harris for appellant.

      John H. White for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


author: Danforth, J.,

text:
    Mortimer E. Serat, Respondent, v. The Utica, Ithaca and Elmira Railway Company, Appellant.
    A wrongful conversion of property does not deprive the owner of his title, he may transfer the title to another, who, upon demand and refusal- of the person in possession of the property to surrender the same, may maintain an action against him for a conversion.
    (Submitted April 16, 1886 ;
    decided April 30, 1886.)
    The following is the mem. of opinion in this action:
    , “ The plaintiff sought, in this action, to recover damages for the conversion, by the defendant, of certain trestle-works, constructed for the unloading and distribution of coal. The answer put in issue the material allegations of the complaint. The trial court found, upon evidence, to the sufficiency of which no objection is made, that, prior to the month of January 5 isés, a copartnership existed between the plaintiff Swift and Seth Serat, under the name of the "Valley Coal Company; that it constructed a trestle-work, in pursuance of a contract between the firm, the defendant and a [certain other railway company, but upon such conditions that the materials used in' the construction of the trestle-work remained, at all times, the personal property "of the firm, with the right to remove the same at any time; that, in J anuary, 1883, the defendant wrongfully took possession of the materials and trestle-work and converted them to its own use; that afterward, on the 10th of July, 1883, two of the copartners, Seth Serat and Swift, assigned and transferred to the plaintiff their right, title and interest in the material and timber used in said trestle-work, and afterward, before the commencement of this action, and on the 12th of July 1883, the plaintiff demanded of the defendant the trestle-work and materials and the possession of the same; that the defendant refused to give up the works or the material thereof, or to allow the plaintiff to remove the same.

      “ The learned trial judge found that the property was worth $1,500; that it belonged solely to the plaintiff, and that the defendant was guilty of a conversion in refusing to allow the plaintiff to remove the same as demanded. He, therefore, directed judgment for this amount, with interest from the 12th of July, 1883. It has been affirmed by the General Term.
    “Upon this appeal the appellant raises two questions, first, whether there can be a second conversion of property ; second, whether the findings of fact above referred to, support the conclusion of law made by the trial judge. Neither question admits of doubt. The defendant’s wrongful act in January, 1883, did not change the title to the trestle-work, and although its then owners—the Valley Coal Company—might have sued for its conversion, they did not, nor were they bound to do so. Instead of that, two of its three owners chose to sell their interest in the property to the third, and he, after demand, brought this action. The previous wrong on the defendant’s part was no excuse for its failure to surrender the property when demanded, and the action was well brought by its then owner. As against the defendant at any rate, the property has ceased to be a partnership asset. For any thing within the record, the appeal is without excuse, and the judgment should be affirmed.” ■ ,

      Brown da Armstrong for appellant

      Gabriel L. Smith for respondent.
   Danforth, J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    Albert M. Kalbfleisch et al., Respondents, v. The Long Island Railroad Company, Appellant.
    (Argued April 27, 1886;
    decided April 30, 1886)

      Alfred 'O. Chapin for appellant.

      William AT. Dykman for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    Adolph Schloss et al., Respondents, v. Abraham Wallach et al., Appellants.
    (Argued April 27, 1886;
    decided April 30, 1886.)

      Leonard Bronner for appellants.

      Alexander Blumensbiel for respondents.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    Michael J. Dady, Respondent, v. Thomas McCann, Appellant.
    (Argued April 27, 1886;
    decided April 30, 1886

      Nathaniel O. Moak for appellant.

      Jesse Johnson for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.