author: Rapallo, J.,

text:
    Samuel K. Schwenk et al., Appellants, v. Robert Naylor, Respondent.
    A false and fraudulent representation, made with intent to deceive, as to material facts which necessarily affect the value of shares of stock in a corporation, constitutes a cause of action against the person making it, where by means thereof he has induced another to purchase such shares.
    It is not essential to the right of action that the money advanced on the faith of the representation was paid to the party making it, for his individual benefit; his liability is the same, although the money was ad- • vanced for the benefit of the corporation.
    By false and fraudulent representations on the part of defendant as to the title of a corporation to certain real estate which defendant had conveyed to the corporation by warranty deed, plaintiff was induced to purchase a portion of the stock of the corporation. Defendant had in fact no title to a portion of the premises; he subsequently acquired title but conveyed it to a third person. In an action to recover damages for the fraud, the court nonsuited the plaintiff upon the ground among others that by the warranty in the deed the corporation, when defendant acquired title, became, by estoppel, the owner of the equitable title to the land in dispute, and that as the corporation was in possession there could be no bona fide purchaser from defendant. The evidence as to possession by the company was indefinite. Held, that such a ground for the nonsuit was untenable; that a disputed and doubtful equitable title was not the equivalent of the clear and undisputed legal title plaintiffs had the right to require, and that it was error to hold that no damages could be sustained by the substitution of the one for the other by means of a fraud.
    (Submitted February 1, 1886;
    decided June 1, 1886.)
    This action was brought to recover damages for alleged fraudulent representations by means whereof plaintiffs were induced to purchase from defendant two-thirds of a mill property in Florida, or of the capital stock of a corporation, to which said property had been conveyed by the defendant who was the owner of all of the capital stock.
    The alleged false representations were to the effect that the corporation had title to about thirty-three acres of land in Florida, having thereon a large and valuable saw-mill with a frontage of over two thousand feet on Turtle harbor, with large and commodious wharves, that it was the owner of a dock extending in length two hundred and fifty feet, and a tramway leading from the mill to the dock, and the land upon which said tramway and dock were situated, which dock and tramway were necessary for the successful operation of the mill. The consideration of the transfer was $15,000, which it was agreed was to be used by defendant in operating the mill. The complaint alleged, and the testimony showed that the lands of the corporation only included a small portion of the dock and tramway, and did not include all of the land which defendant represented and pointed out as belonging to it. At the close of plaintiffs’ evidence, the court on defendant’s motion dismissed the complaint.
    The following is an extract from the opinion:

      u The judge presiding at the trial granted the motion, assigning as reasons that the representations were not made concerning the stock, but concerning the length of the water front and the size of the dock; that upon these representations the plaintiffs parted with their money, not to the defendant for his individual benefit, but to him to be used in the improvement of the company’s property, and the money was so used; that it was not proved that all the representations were untrue, and therefore the only remedy the plaintiffs had was to rescind and. recover back their money on a tender back of the stock; that they could not sue in affirmance of the contract and for partial damages, because it was necessary in such a case, as in the case of a warranty, that the false or fraudulent representations should have been made concerning the article for the inferiority of which the recovery is sought; that the sale in this case was of the stock, and as the representations were not made concerning the stock, there was no cause of action for false and fraudulent representations ; that as to the length of the dock the plaintiffs could see for themselves before they parted with any money and need not have been misled, and as to the deficiency in the water front the evidence was insufficient to establish the fraudulent character of the representations at the time they were made, as the parties might well have been mistaken as to the boundaries.
    “We think that although the interests purchased by the plaintiffs were conveyed to them by means of a transfer of the stock, the contract was in substance for a sale of two-thirds interest in the property, the defendant representing himself as holding the entire interest, in the form of stock. The contract of sale states in terms that the defendant agrees to sell and the plaintiffs agree to purchase one undivided third interest each, in ‘ all that mill and machinery therein, unfinished tug, real estate and all other property at Apalachicola, Franklin county, Florida, belonging to said Naylor on the following terms.’ A list of the property was furnished and attached to the contract, and one of the conditions was that the property in the list should be found at the mill. The contract recited that this property was represented by stock in the company which had been formed for the purpose of operating the mill, the sole control of which was in the hands of Naylor, and that the stock of that company was to be equally divided between the three parties. That mode of transferring the interests sold did not, however, change the substance of the transaction, which was a sale of two-thirds interest in the property described.
    “ It is quite immaterial, however, whether the sale was of the property or of the stock. A false and fraudulent representation as to the property of a corporation, of material facts which necessarily affect the value of shares of stock therein, constitutes a cause of action against a party inducing another by means of such fraudulent- misrepresentation to purchase such shares quite as sufficient as if the purchase had been of the property of the company with regard to which the representation was made. Nor is it material in either case that the purchase-price of the property, or the money advanced on the faith of the representation, be paid to the party making it, for his individual benefit. If known to be false and made with intent to deceive and defraud the person who is thereby induced to pay out his money, the person guilty of the fraud is liable to respond in damages, on the same principle on which one person is held liable in damages for fraudulently giving a false recommendation by which another is induced to give credit to a third party.
    “ In the present case, however, the money advanced by the plaintiffs was proved to have been paid to the defendant, and there is no evidence showing what disposition he made of- it, but even if he did expend it in the improvement of the company’s property, he reaped an individual benefit to the extent of at least one-third of it, as he was the owner of one-third of the stock of the company, and according to his own statements, the effect of the advance was expected to be to make his stock, which; without the improvements, was worthless, yield a large profit, and he had a strong personal interest in inducing the plaintiffs to make the advance.
    “ The next ground of nonsuit as to the dock cannot be sustained. The plaintiff Kilpatrick saw the dock, but it is not correct to say that he could not be misled. According to his testimony he was misled. What he saw was a long dock running southerly from the mill, with a tramway extending its entire length. To the extent of* about two hundred and fifty feet it was in good repair, but beyond that a part had been carried away, leaving piles still standing, and beyond the two hundred and fifty feet the defendant pointed out to him a water front of about eight hundred feet which he represented to belong to the mill property and to be on the mill side of the city line, while, according to the defendant’s own admission to the witness Storkey, only about fifty feet of this wharf and water front belonged to the company and the rest was claimed by the defendant to belong to him by virtue of a purchase made by him subsequent to the sale to the plaintiffs, and for this property he declared to the plaintiffs, in 1882, that he would compel them to pay $50,000, and stated to them that he had conveyed it to another party to prevent them getting it.

      “ The representation on which the property was sold was well calculated to mislead, as the two hundred and fifty feet of wharf was still standing, and the residue of the water-front pointed out was marked by physical, objects, while, as testified to by Kilpatrick, there was nothing on the land to indicate the city line, and if he had examined the deed from the plaintiff to the company, put in evidence, he could not have discovered from its description any thing except that the property was bounded on the south by the city line, of the location of which he knew nothing except what was represented by the defendant, the description in the deed being by section numbers. Kilpatrick was only two days at Apalachicola, and could not be presumed to know the location of the city line. He suggested to the defendant, at that time, that he would like to employ a lawyer to examine the records, but the defendant said that he had all the papers straight, and it was all right and he had a perfect title; that he had paid his money and knew what the property was. Under these circumstances we are of opinion that the plaintiff had the right to rely upon the representation of the defendant as to the extent and boundary of the property. All that by the terms of the contract he had undertaken to do was to see that the property was there as repre* sented. He saw it before him, but was not bound then and there to examine the title, especially when the defendant professed to know all about it and the extent of the property. (Whitney v. Allaire, 4 Denio, 554, 555; Allaire v. Whitney, 1 Hill, 485; Beardsley v. Duntley, 69 N. Y. 577.)
    “ The last ground of nonsuikwas that as to the deficiency in the water front the evidence was insufficient to establish the fraudulent character of the representations at the time they were made; that the difficulty arose from the boundary line, and as to that the parties might well be mistaken.

      “We think that, under the evidence, this was eminently a question for the jury. The evidence of the statement of the defendant (which the jury might infer was made for the purpose of deterring Kilpatrick from employing a lawyer), that he had the papers all straight and had a perfect title and had paid his money'"and knew what the property was, was pertinent to this point, and, coupled with the facts that when in September, 1881, the property deficient was put up for sale in Florida under the decree of the Probate Court, he knew enough to buy it, and his admission, testified to by JCdward W. Kilpatrick, that he knew that there was a portion of the land which he represented to the plaintiffs as belonging to the property that did not belong to it, without any qualification as to the time when he had such knowledge, his taking the trouble to consult a lawyer when he bought the deficient property as to whether he could hold it against the company, and his resorting to the plan of conveying it away to prevent the company getting it, and his threat to compel the plaintiffs to pay $50,000 for it. These circumstances, unexplained as they, are in the ease as now presented to us, tend to show bad faith on the part of the defendant, and to make out a strong chain of evidence for submission to the jury on the questions of guilty knowledge and fraudulent intent.

      “At General Term a new and different ground, not assumed by the judge at the trial, was taken for affirming his conclusion. The principal point, not already answered, was that the plaintiffs had not shown any damage from the false representations ; that there was no proof, and the description in the deed from Naylor to the company, unexplained, did not show, that the land in dispute was not contained in the deed; that the company was in possession of the land in dispute (which fact was not clearly shown) ; that there was no substantial testimony; that the company did not own the two thousand feet of water front and the wharf, as represented, except the fact of the subsequent purchase by Naylor.
    “ These points are sufficiently answered by the testimony of Storking and the admissions of Naylor, but the main ground taken by the court is, that by the implied warranty in the agreement of purchase of November 11,1880, and the express warranty in the deed from Naylor to the company, the company became, by estoppel, the owner of the equitable title to the land in dispute, and that the consideration of the last conveyance to Naylor having been paid with the money of the company, or of the plaintiffs (a fact of which there was no proof) made him the trustee for -the one whose money was paid; that although he had admitted that he had conveyed away the property, there could be no bona fide purchaser from him, because the possession of the company was notice of its rights, and the purchaser would take subject to that notice.

      “ This seems to us a rather strained argument by which to sustain what, upon the case as presented, in the absence of any explanation, the jury might have pronounced a gross fraud.
    In the first place, the evidence as to possession by the company of the disputed premises is very indefinite. It does not show what, if any, business was carried on at the mill, or to what extent the company was in possession of or occupied the water front. But whatever possession there was, was through Naylor, who did not leave the property till December, 1881, which was after his purchase of the water front. Up to that time he was the apparent possessor of the property, and there is nothing to show that the rights of the company, or that he was its representative, were generally or at all known in Apalachicola. The company was a private corporation organized in New York, and it is, to say the least, very doubtful whether, under the circumstances, the possession of Naylor would be notice to the world of any rights but his own, and whether there could not have been a bona fide purchaser from him. To hold that a disputed and doubtful equitable title, such as is suggested in the opinion of the General Term, is equiva-: lent to a clear and undisputed legal title, and that no damage could be sustained by the substitution of the one for the other by means of a fraud, is going further than we are inclined to follow.”

      A. JR. JDyett and Joseph FeWreteh for appellants.

      Win. J5. Futney for respondents.
   Rapallo, J.,

reads for reversal and new trial.

All concur.

Judgment reversed.


source: Caselaw Access Project

license: Public Domain

text:
    James A. Morris et al., Respondents, v. The New York Central and Hudson River Railroad Company, Appellant.
    (Argued March 1, 1886;
    decided June 1, 1886.)

      Samuel JRomd for appellant.

      F. Countrymam, for respondents.
   Agree to affirm; no opinion.

All concur, except Finch, J., dissenting.

Judgment affirmed.


text:
    Henry Wehle, Appellant, v. Albert Karutz, Respondent.
    (Argued March 8, 1886;
    decided June 1, 1886.)

      Samuel Hand for appellant.

      A. Simis, Jr., for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    The Forty-second Street and Grand Street Ferry Railroad Company, Respondent, v. The Thirty-fourth Street Railroad Company, Appellant.
    (Argued March. 16, 1886;
    decided June 1, 1886.)

      Joseph 8. Auerbach for appellant.

      Freling R. Smith for respondent.
   Appeal dismissed on opinion in In re Thirty-fourth St. R. R. Co. (ante, p. 343).


text:
    Matilda W. Stevens et al., Appellants, v. John Webb, Respondent.
    (Argued March 26, 1886;
    decided June 1, 1886.)

      J. Mitchell Tyng for appellants.

      Francis Lynde Stetson and FramMvn A. Paddock for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    The People, ex rel. Oscar J. Brown, Appellant, v. The Board of Supervisors of the County of Onondaga, Respondent.
    (Argued March 13, 1886;
    decided June 1, 1886.)

      Oscar J. Brown appellant in person.

      Louis Marshall ds Worman Rime for respondent.
   Agree to affirm on opinion of Vann, J., below.

All concur.

Order affirmed.


text:
    Susan S. Francklyn, Appellant, v. Long Island City et al., Respondents.
    (Argued April 19, 1886;
    decided June 1, 1886.)

      Frank E. Blackwell for appellant.
    . J. Ralph Burnett for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Marx Ottinger et al., Respondents, v. Louis Strasburger, Appellant.
    (Submitted April 19, 1886;
    decided June 1, 1886.)

      Ba/oid L. Walter for appellant.

      F. R. Minrath for respondents.
   Agree to affirm; no opinion.

AH concur.

Judgment affirmed.


text:
    In the Matter of the Final Accounting of William I. Preston, Assignee, etc.
    (Argued April 19, 1886 ;
    decided June 1, 1886.)

      Charles M. Hall for appeHant.

      Ira Leo Bamberger for respondent.
   Agree to affirm ; no opini

All concur.

Judgment affirmed.


text:
    Charles Zucker, Respondent, v. George M. Lynch, Appellant.
    (Argued April 19, 1886;
    decided June 1, 1886.)

      Samuel Round for appellant.

      John D. Townsend for respondent.
   Agree to affirm; no opinion.

All concur.

J udgment affirmed.


text:
    Alexander Buderus, Respondent, v. Henry Immen, Appellant.
    (Argued April 19,1886;
    decided June 1, 1886.)

      John R. Baüy for appellant.

      Alexander Thain for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    James J. Phelan, Appellant, v. Edward Schell, Respondent.
    (Submitted April 19, 1886;
    decided June 1, 1886.)

      P. & D. Mitchell for appellant.

      Joumes Otis Royt for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    The Emigrant Industrial Savings Bank, Respondent, v. Thomas J. Clute, Impleaded, etc., Appellant.
    (Submitted April 19, 1886 ;
    decided June 1, 1886.)

      T. J. Glute, appellant in person.

      B. Skaats for -respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Martha A. Glidden, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    (Submitted April 20, 1886 ;
    decided June 1, 1886.)

      Glose <& Robertson, for appellant.

      0. Wheaton and W. I. Thorn for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed;


text:
    Henry D. Tucker, Respondent, v. Eliza A. Staunton et al., Appellants.
    (Argued April 20, 1886;
    decided June 1, 1886.)

      Alfred Ely for appellants.

      Henry D. Tucker respondent in person.
   Agree to affirm; no opinion.

All concur.

J udgment' affirmed.


text:
    James A. Mosher, Respondent, v. Matthew P. Campbell, Appellant.
    (Argued April 20,1886;
    decided June 1, 1886.)

      Amasa J. Parker for appellant.

      Jacob B. Decker for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    The German-American Bank, Respondent, v. Georgeanna J. Guenther, Appellant.
    (Argued April 20, 1886 ;
    decided June 1, 1886.)

      J. 8. Homer for appellant.

      Adelbert Moot for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


author: Earl, J.,

text:
    James Mingay et al., Appellants, v. Henry B. Hanson et al., Respondents.
    The restrictions contained in the charter of the village of Saratoga Springs (§ 61, chap. 220, Laws of 1866) against the expenditure of money and the creation of a village debt were subsequently repealed as to the water commissioners of said village. (Chap. 557, Laws of 1868; chap. 763, Laws of 1872.)
    (Argued April 20, 1886 ;
    decided June 1, 1886.)

      . This action was brought by plaintiffs, as tax payers of the village oh Saratoga Springs, to restrain the individual defendants, as water commissioners of said village, from carrying out a contract with defendant, the Holley Manufacturing Company, on the ground that the debt and expenditure thereby incurred were in violation of the village charter.
    The following is the mem. of opinion :
    “ The restrictions contained in the charter of the village of Saratoga Springs (Laws of 1866, chap. 220, § 61), against the expenditure of money and the creation of a village debt, were repealed as to the water commissioners of the village by subsequent legislation (Laws of 1868, chap. 557; Laws of 1872, chap. 763), and hence the debt and expenditures complained of in this case were legal and unassailable by the plaintiffs. The reasons for our conclusions are so well stated in the opinions delivered at the Special and General Terms in the case of People, ex rel. v. Leary (17 Week. Dig. 116), that it is not required that they should be re-stated here.

      “ The judgment should be affirmed, with costs.”

      Matthew Hale and John It. Putmam for appellants.

      Eseh Gowen and G. 8. Lester for respondents.
   Earl, J.,

reads mem. for affirmance.

All concur.

Judgment affirmed.


text:
    Francis J. Hanly, Respondent, v. Edward Roche, Appellant.
    (Argued April 21, 1886;
    decided June 1, 1886.)

      John P. Reed, Jr., for appellant.

      Edward G. Ripley for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Henry Austin, Respondent, v. James Gillespie et al., Appellants.
    (Submitted April 31, 1886;
    decided June 1, 1886.)

      I). JEL. Holies <& Son for appellants.

      Carey, Jewell de Rumsey for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    Caroline Horton et al., Respondents, v. The New York Central and Hudson River Railroad Company, Appellant.
    (Argued April 31, 1886 ;
    decided June 1, 1886.)

      James JE. Crluch for appellant.

      Adelbert Moot for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Annie Wakeman, Respondent, v. Frederick Paulding Dodge et al., Appellants.
    (Argued April 33, 1886;
    decided June 1, 1886.)

      A. R. Dyett for appellants.

      A. J. Vanderpoel for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    . John Higgins, Respondent, v. John Cameron et al., Appellants.
    (Argued April 23, 1886;
    decided June 1, 1886.)

      Allen McDonald for appellants.

      John W. Govert and John J. Gleason for respondetit.
   Agree to affirm; no opinion

All concur.

Judgment affirmed.


text:
    Tamer J. Cowdrey, Respondent, v. Samuel Keefer et al., Appellants.
    (Argued April 23, 1886;
    decided June 1, 1886.)

      William B. Tullis for appellants.

      William J. Ma/rrin for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Elias Q. Horton, Respondent, v. Coffin S. Brown, as Executor, etc., Appellant.
    (Argued April 23, 1886;
    decided June 1, 1886.)

      Samuel Hand for appellant.

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

All concur.

Judgment affirmed.


text:
    Henry Samson et al., Respondents, v. Joseph Freedman, Appellant.

      It seems an account stated is not conclusive upon either party; it is simply prima facie correct and may-he impeached for fraud or mistake.

      It seems also, in an action upon an account for goods sold, defendant may recoup damages for breach of warranty where he can show that subsequent to the stating of the account he discovered that the goods were not up to the warranty.
    (Argued September 23, 1886;
    decided June 1, 1886.)
    The following is the opinion in this action:
    “ This action was brought to recover a balance claimed to be due upon an account stated. The answer to the complaint is substantially a general denial.

      “ There is not much dispute about the facts and they are substantially as follows: The plaintiffs were partners carrying on a business in England, and the defendant was a merchant doing business in the city of Eew York. At various times during the years 1880 and 1881 the plaintiffs and defendant had dealings with each other consisting of sales of merchandise by plaintiffs to defendant, on credit, and of sundry payments to plaintiffs by defendant on account thereof. On the 1st of July, 1880, there was a balance due the plaintiffs from the defendant, upon their dealings, of £1,440 11s. 4d, sterling, and on the twenty-seventh day of the same month, the plaintiffs shipped to the defendant, upon his order, nine cases of goods, which reached Eew York on the ninth of August and were put in the custom-house. These goods were invoiced at the agreed' price of £679 8s. 6d, and were taken from the custom-house by the defendant as follows: Four cases October 4, 1880, and one case at each of the following dates in 1881: May 25, August 27, September 6, October 5 and Eovember 5. On the 4th day of January, 1881, the plaintiffs sent to the defendant, by mail, a written statement of their account against him, in which he was charged with the balance due plaintiffs July first, and the invoice of goods shipped July twenty-seventh and some items of interest and expenses, and he was credited with two payments of £500 each made in August and Eovember, and which showed a balance due the plaintiffs of £1,169 and 8d. The account was inclosed in a letter in which the defendant was requested if he found it correct to carry the balance forward to the new account in conformity, and to return the conformation inclosed, which was as follows: ‘ I beg to acknowledge the receipt of your account current, showing a balance of £1,160 8d, per 31st December, 1880, in your favor, which I transfer to the new account in conformity.’

      “ [Date and signature.]

      Cl The defendant received these papers by mail in due course, but did not sign or return the proposed conformation. Subsequently the agent of the plaintiffs, in the city of New York, called upon the defendant in reference to the account, and on one of the occasions, the defendant told him that he had remitted the whole amount of the account except about £40 due for interest, and that he had requested of plaintiffs a statement. After receiving the account on the 15th day of January, 1881, the defendant sent to the plaintiffs £500, which he requested to have placed to his credit. On the twenty-first day of February, he sent to them another sum of £500, and requested to have the same placed to his credit, and in his letter inclosing the draft, he said : ‘ There are still a few pounds due you, providing the goods still on hand (and I have quite a lot there still from your shipments), are up to the contract. I shall withdraw them shortly and determine all about it.’ On the twenty-third day of March he wrote a letter to the plaintiffs, notifying them that, upon investigation, the entire invoice of goods shipped July twenty-seventh was inferior to the samples upon which the goods were bought, and that he demanded as damages £84714s. Id, and that the goods were held subject to then* order on the payment of that sum. The defendant at no time disputed the correctness of the account, and never made any objection thereto except the one stated in his letter of March twenty-third.
    “ The sole question for our determination is whether there was an account stated. We think the court at General Term did not err in holding there was. The goods had been subject to the control and inspection of the defendant for five months before he received the account. He had had four cases of them in his actual possession for three months. The account was a short one composed of few items. Immediately after its receipt, he paid ¿6500 thereon, a portion of which was necessarily applicable to the goods last shipped. More than a month later, he sent another payment upon the account in which he acknowledged that there was a balance still due, provided the goods •still on hand were ‘ up to the contract.’
    “ There was no express agreement upon the account by a mutual looking over the same. But the law raises from such facts an implied agreement to the correctness of the account. (Lockwood v. Thorne, 18 N. Y. 285, 292; Stenton v. Jerome, 54 id. 480, 484; Quincey v. White, 63 id. 370, 377; Young v. Hill, 67 id. 162, 172; Sharkey v. Mansfield, 90 id. 227.) An account thus stated is not conclusive upon either party, but is simply prima facie, presumptively correct and may be impeached for any error induced by fraud or mistake. Even by what was said in the letter containing the last payment, the defendant asserted that the account was correct, and the only right he reserved was to impeach it if the goods, were not up to the contract. That right he would have had if it had not been expressly reserved. If he could show that, upon subsequent examination, he discovered for the first time that the goods were not up to the contract, he could have alleged the facts in his answer, and have recouped his damages. The plaintiffs did not place the defendant at a greater disadvantage by suing him upon an account stated than they would' if they had sued him upon an open account for the goods sold, claiming the balance due, because by neither form of action could they cut off his counter-claim for breach of warranty, which was the only defense left to him, the goods having been received by him.
    “ A stipulation appears in the record allowing the defendant to amend his answer by setting up his damages, or to commence an action to recover his damages, plaintiffs’ attorney agreeing to accept service of process in such action, that action and this to be tried at the same time before the same referee. The defendant did not avail himself of that stipulation, and it is, therefore, a just inference that he had no cause of action against the plaintiffs, and that, therefore, no injustice has been done to him by holding that there was a stated account, and thus that thé balance claimed .was grima faaie presumptively due the plaintiffs.
    “ We think the order of the General Term should be affirmed, and judgment absolute ordered against the defendant with costs. ”

      MeVoille H. Regensbergar for appellants.

      James Dunne for respondent.
   Earl, J.,

reads for affirmance of order and for judgment absolute against"defendant on stipulation.

All concur.

Order affirmed, and judgment accordingly.


author: Dahfoeth, J.,

text:
    Mary O'Connor, Respondent, v. Lawrence Conzen, Appellant.
    (Argued April 33,1886 ;
    decided June 1, 1886.)
    The simple question presented herein was as to whether the evidence was sufficient to sustain the judgment.

      Nathaniel C. MoaTc for appellant.

      Oha/rles J. Patterson for respondent
   Dahfoeth, J.,

reads for affirmance.

All concur.

Judgment affirmed


text:
    In the Matter of the Application of David W. Schoonmaker, a creditor, for Letters of Administration, etc.
    (Submitted April 36,1886;
    decided June 1, 1886.)

      Sidney E. Shelbourne for appellant.

      Fisher A. Baker for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Mary P. Murdfeldt et al., Appellants, v. The New York, West Shore and Buffalo Railway Company, Respondent.
    (Argued April 36,1886;
    decided June 1, 1886.)
    This action was brought to compel the specific performance of a covenant in a deed, by which defendant agreed to construct and maintain a passage-way under its railway. Also to recover damages for alleged trespasses. As to the first cause of action the court say:
    “In view of the difficulty in constructing a useful passage under the railroad, and the inutility to plaintiffs of such passage if constructed, it was certainly within the discretion of the court below, in the exercise of its equitable jurisdiction, to deny specific performance of defendant’s contract to construct the passage, and leave the plaintiffs to their remedy for damages for breach of the covenant. (Trustees of Columbia College v. Thatcher, 87 N. Y. 311.) ”
    As to the second cause of action the court held there was no evidence of any trespasses committed by defendant; also that but one of the plaintiffs, who was tenant for life (the other plaintiffs owning the remainder), was entitled to damages, if any had been proved.

      E. A. Brewster for.appellants.

      A. S. Oassedy for respondent.
   Earl, J.,

reads for affirmance.

All concur.

Judgment affirmed


text:
    George T. Binder, Respondent v. Frank Timony, Appellant.
    (Argued April 26, 1886;
    decided June 1, 1886.)

      Francis LavTdn for appellant.

      Cephas Brainerd for respondent.
   Agree to affirm ; ho opinion.

All concur.

Judgment affirmed.


text:
    George W. Watson, Respondent, v. Hooper C. Barrett, Appellant
    (Argued April 26, 1886;
    decided June 1, 1886.)

      Joseph A. Shoudy for appellant.

      Theodore F. Miller for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    In the Matter of the Application of the New York, Lackawanna and Western Railway Company.
    (Argued April 27, 1886;
    decided June 1, 1886.)

      This was an appeal from an order of General Term modifying, and affirming as modified, an order of Special Term removing commissioners appointed to appraise lands of Harriet Bennett.
    The proceeding was instituted in pursuance of a written contract between the petitioner, the railway company, and the appellants, bearing date the 24th day of May, 1883. By that contract the railway company agreed to purchase of the appellant, Harriet A. Bennett, the property known as the Union-elevator at Buffalo, and with due diligence to take proceedings under the general railroad law, for the purpose of ascertaining the value of the premises and of the erections thereon, and the compensation to be paid therefor, and of obtaining the title in •fee thereto. It was stipulated in the contract that Eelson K. Hopkins, Robert Dunbar and Brigham Clark should be appointed commissioners in said proceedings, to ascertain the compensation which ought justly to be made by the company to the party or parties owning or interested in said property, and that the decision of the majority of them should be binding on both parties. It was further mutually agreed that the said commissioners should be governed, in estimating said valuation and compensation, by the rules of law applicable to proceedings under said statutes (“ excepting as they might be modified by this agreement ”), and that all rights of appeal given by law should be reserved to either party. It was expressly agreed that in said proceeding no damage should be allowed because of injury to the Bennett .elevator property, or any adjoining or adjacent premises, or any compensation allowed for any thing except the actual value of the premises and property described in the agreement. That, in ascertaining the compensation to be allowed, the commissioners should ‘e take into consideration the capability of the premises and property for any use what- ' ever,” and that they should determine such compensation without delay, and upon their own knowledge and information, as well as upon such evidence as might be produced before them.
    The contract then went on to provide that the value finally arrived at in said proceeding should “ be the fixed purchase-price” to be paid by the railway company. It prescribed the time of payment and of delivery of possession, and also provided for the execution and delivery by the appellant, Harriet A. Bennett, to the company of a deed, with covenants of seizin and for quiet enjoyment, conveying a perfect title to the premises, except as to certain incumbrances, for which allowance was to be made out of the purchase-money. The contract contained further stipulations respecting mutual accommodations in the use of their docks by the Union elevator and Bennett elevator properties, and various other stipulations, not affecting the main question presented upon this appeal, but to which it may be .necessary incidentally to refer.
    The proceeding for the appraisement of the property agreed to be sold was instituted by the railway company as it had agreed, and in October, 1883, in that proceeding thus in-stitnted, an order was made by the Supreme Court at Special Term, in the fourth department, appointing the three gentlemen, named in the contract, commissioners to appraise the property. They made a report in January, 1884, fixing the compensation to be paid at the sum of $469,375, which report was confirmed at Special Term, but on appeal by the company to the General Term, the order of confirmation was reversed, and the commissioners’ report was set aside. On that appeal an effort was made by the railway company to have new commissioners appointed, but the Supreme Court refused that reliefon the sole ground that it had not the power to grant it because the parties had by their contract agreed upon the commissioners.
    From that decision the railway company appealed to this court and the decision was sustained. (98 N. Y. 447.) The case then went back for a rehearing before the same commissioners and while that rehearing was pending before them, the railway company made a motion to the court at Special Term to vacate the order appointing the commissioners on the ground' of alleged misconduct on their part. The allegations of misconduct contained in the moving papers were of two classes, one of which was not sustained and was not in question here; the other was, in substance, that Commissioners Dunbar and Clark on the second hearing declined to be governed by the opinion of Beadley, J., who delivered the opinion of the General Term on the appeal from the order confirming the report of the commissioners. This refusal was regarded by the court below as misconduct which justified it in vacating the appointment of commissioners, and thus necessarily terminating the proceeding. In this opinion the learned judge laid down the rule that the owners were entitled to be allowed the fair market value of the property, and that that was the basis on which the estimate should be made and allowed, by the witnesses and the commission.
    On the second hearing before the commissioners evidence of David S. Bennett was received of a valuation based upon the probable earnings of a new elevator of a certain capacity if erected on the lot in question, based upon the past earnings of two elevators which were named, and upon projected connections with lines of transportation. After the examination of this witness had been concluded the counsel for the railway company moved to strike out his testimony so far as it assumed to give a value, in dollars, to the property in question. The grounds of the motion were specified, one of them being that the testimony on which the estimate was founded was inoperative and worthless under the decision of the General Term. The motion was denied, Commissioner Hopkins being in favor of striking it out, Commissioners Clark and Dunbar of retaining it, Commissioner Dunbar saying that he was inclined to receive the evidence and give it the weight which he thought proper.
    The question was raised at other stages in the case, and finally the commissioners were requested by the counsel for the railway company to rule on three propositions, viz.:

      “ First. There cannot be taken into consideration in arriving at the value of the property the probabilities, of a connection with the railroad of the petitioner as one element affecting that value.
    “ Second. That the opinion of the General Term in the proceeding is controlling upon the commissioners as to the principles which should govern them in making their award.

      “ Third. That the measure of the award is the fair market value of the property as it was at the date of the contract.”
    Commissioner Dunbar announced that he did not consider himself bound by the Supreme- Court decision, but did consider himself bound and sworn fo ascertain and determine the compensation which ought justly to be made by the company to the party or parties owning or interested in the property, and that he considered himself bound to do justice between the parties, and as much justice to the railroad company as to Mr. Bennett, as far as he knew. Commissioner Clark concurred with Commissioner Dunbar. This decision, it clearly appeared, had reference to that part of the opinion which held that the' basis of the appraisal was the market value of the property.
    The court here say: “The question for determination is, whether the commissioners, in declining to hold, in advance of any appraisal, that they were concluded on the point referred to, were guilty of misconduct, which authorized the court below to vacate the order appointing them, and thus terminate the proceeding.
    “ In respect to these matters, the position of the commissioners was peculiar. They were not acting merely as officers of the court, owing their appointment solely to it, but they had been selected by the solemn contract of the parties, and that contract established the principles by which they should be governed in making the appraisement. After the decision of the General Term on the first appeal had been pronounced, the case had come before this court, and it had adjudged that the provisions of the contract, so far as they bound the parties, were binding upon the court in carrying the contract into effect. Even if it should be conceded that the court had it originally in its power to decline to lend its aid to the carrying out of the contract, by refusing to appoint commissioners, and thus disabling the company from taking the first step which was essential to give vitality to the contract, it does not follow that after the court had entertained the proceeding and set the machinery in motion by which rights had accrued to the parties, it could, of its own volition, or in its mere discretion, terminate those proceedings, or require' them to be' conducted m a different manner or on different principles from those which had been agreed upon., On the former appeal to this court it was held that, notwithstanding the right of appeal was reserved to the parties, and notwithstanding that the statute authorized the court in ordinary cases, on the first appeal', not only to set aside the award of the commissioners, but to appoint new commissioners, yet that, in this case, it could not exercise the power to change the commissioners, because that would be a violation of one of the terms of the contract. The same principle applies in respect to the rules which should govern the commissioners in making their appraisement. The contract provided, in that respect, that they should be governed by the rules of law applicable to proceedings under the statute, except as they might be modified by the contract. One of these modifications was that no damages should be allowed because of injury to the adjacent premises. Could it be seriously argued that the court could, at the instance of the property-owners, have required the commissioners to allow such damages, because the 6 statute authorizes their allowance, or that it would be misconduct on their part, which would authorize their removal, to refuse to make such allowance if the court had, at some previous stage of the case, decided that it was proper ? Assuming that the learned counsel for the company is right in claiming that the general rule in condemnation proceedings is as he asked the commissioners to hold, c that the measure of the award was the fair market value of the property as it was at the date of the contract,’ and that this was a correct rendering of the opinion of the General Term, we come back to the question, whether the commissioners were bound so to decide in this case, in the face of the express stipulation of the contract, ‘ that in ascertaining and determining the compensation to be allowed, the said commissioners shall take into consideration the 1 capability of the premises and property for any use whatever, and that they shall determine such compensation upon their own knowledge and information as well as upon such evidence as may be produced before them.’ This language is much . more comprehensive than ‘ the market price ’ or ‘ market value ’ of the premises at the date of the contract, and shows that the real value was to be ascertained, predicated, not merely upon the condition of the property as it was at the date of the contract, or the uses to which it was devoted at that time, but upon its capabilities for any use whatever, and would fairly admit, as an element of value, evidence of the improvements of which it was capable and of the revenues which might, with reasonable certainty, be expected to be derived from the development of those capabilities. , The peculiar nature of the property might be such that it had no fixed market value, and the parties, therefore, agreed that the commissioners, who were persons of experience, acquainted with the means of rendering property of that description available, might take into consideration what it was capable of yielding with reasonable and judicious development and management. Of course, as just and reasonable men, it would not be expected that they would calculate as certainties profits which were speculative and contingent or variable, but the language of the contract certainly implies that they were not to be confined in their estimate to 8 the sum which it could be proved the property would bring if exposed for sale in the public market, or to a valuation based upon sales of other property in the vicinity. They were ■ selected and agreed upon by the parties as competent judges of the real value of property of the description which was the subject of inquiry, and it is not to be assumed that they would omit to make due allowance for contingencies and uncertainties, and to properly weigh the evidence -in connection with their own knowledge and information, to which, by the terms of the contract, they were expressly authorized to resort; and we are of opinion that, under the peculiar circumstances of this ease, it could not be held to be misconduct in them to refuse to commit themselves in advance to a rule of decision which would exclude from their consideration matters to which it was expressly agreed they might have reference in reaching a result.

      “ There is nothing in the case to show that, in declining to decide as required by the counsel for the company, they intended to be disrespectful to the court or arbitrarily to overrule the opinion referred to, or to be contumacious or perverse, but on the contrary, it would rather seem that they intended conscientiously to perform their duty conformably to the contract under which they were appointed.
    “ The contract was one which secured advantages to both parties, in return for rights which they surrendered. The railroad company evidently desired to acquire the property, and if it had been compelled to resort to proceedings in invitum it would have been open to the owners to resist thém, and to contest the questions whether. the property was required for railroad purposes, and whether the railroad company could in any event acquire more than a right of user. These points the owners surrendered by covenanting to give a deed in fee conveying a perfect title with covenants of seizin and quiet enjoyment, which no law could have compelled them to do. They also abandoned their claim for damages to adjacent property, which the law would have allowed, and they also agreed to withdraw the suits which they were then prosecuting against the company in relation to Dark Basin alley, and to assign to the company all their rights in that alley; also to convey to the company all their rights in lands in and adjoining the Evans ship canal, which the company were at the time seeking to obtain by proceedings under the railroad law. Various other arrangements for the mutual convenience of both parties were provided for in the contract, and the whole was based upon the assurance of a just compensation being made for the-Union elevator property by having it appraised by three gentlemen of experience, agreed upon by the parties, who were to value the property in the manner provided by the contract. To require those arbiters to adopt any different rule of valuation, after the contract had been partly performed, and when the company was in the enjoyment of some of the benefits which were to be granted to them on its performance, would be a subversion of the rights of the appellants under the contract, which is inadmissible.”
    The court also held that the motion made and granted before any award by the commissioners was premature, as it could not be known until an award was made what effect they would give to the evidence on the question of value, and there was nothing to show that they might not, in arriving at a decision, be guided by the opinion of the G-eneral Term, “ that the mere apprehension that the award will be excessive is not sufficient to justify their being prevented from making any. (.Livingston v. Sage, 95 1ST. T. 289.)” Also that the penalty of a second report was no answer to the objection that the application was prematuré, as if the commissioners were guilty of misconduct in making it, a motion to set it aside could be made. Also
      held that the order was appealable, as it affected a substantial right, i. e., “ it deprived the appellants of the fruits of their contract by rendering its enforcement impossible.”

      Geo. F. Comstock and Morris Morey for appellants.

      Sherman S. Foyers for respondent.
   Rapallo, J.,

reads for reversal of orders of General and Special Terms, and'for denial of application.

All concur, except Roger, Oh. J., and Earl, J., dissenting. Miller, J., absent.

Ordered accordingly.


text:
    Edward Brick, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    (Argued April 27, 1886;
    decided June 1, 1886.)

      W. 3. Adams for appellant.

      John 3. Gamp for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    Margaret Dunn, Respondent, v. The Star Fire Insurance Company of the City of New York, Appellant.
    (Argued April 27, 1886,
    decided June 1, 1886.)

      WilUam G. Wilson for appellant.

      Alfred J. Baker for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    John H. Burroughs et al., Appellants, v. Mary T. Folsom, Impleaded, etc., Respondent.
    (Submitted April 28, 1886;
    decided June 1, 1886.)

      JDe Witt C. Brown for appellants.

      Merritt E. Sawyer for respondent.
   Agree to affirm; no< opinion.

All concur.

Judgment affirmed.


author: Eabl, J.,

text:
    Anna M. House et al., Respondents, v. Joseph A. Eisenlord, Administrator, etc., Appellant.
    (Argued April 28, 1886;
    decided June 1, 1886.)
    This action was to foreclose a mortgage containing the interest clause, for default in paying a balance of interest.
    The following is the mem. of decision:
    “ There was no valid extension ot time for the payment of the small balance of interest, and there was no waiver or estoppel which precluded the plaintiff from bringing this action. While, under the circumstances of this case, a court of equity, in the exercise ot its discretion, might have dismissed plaintiff’s complaint, it was not bound to do so, and hence there was no error of law in refusing to do so. '
    “ Whether the defendant should have costs was in the discretion of the court below, and that discretion is not subject to review here.

      “ The rights of the defendant were sufficiently protected by the denial of costs to the plaintiffs and by the form of the foreclosure judgment entered.
    “ The judgment should be affirmed, with costs.”

      J. M Dewey for appellant.

      Nathaniel O. Moak for respondents.
   Eabl, J.,

reads mem. for affirmance.

All concur.

Judgment affirmed.


author: Danforth, J.,

text:
    Caroline Harbeck, Appellant, v. John H. Harbeck, Respondent.
    (Argued April 28, 1886,-
    decided June 1, 1886.)
    This was an action for .divorce on the ground of adultery. The only question litigated was as to whether the parties were husband and wife.
    The following is the mem. of opinion :

      “ The trial judge and the General Term have found against the plaintiff, and, notwithstanding a difference of opinion among the judges of the court below, we are constrained, after a careful consideration of the evidence, to sustain the j udgment which' followed the conclusion of the majority. That the union between the parties was, at first, illegal is conceded; if a change occurred, it was followed by no formal celebration, no'r is there evidence of any present agreement to take each other for husband and wife, and that they ever passed by contract or by mutual consent from the state of concubinage into that of marriage is made doubtful by the admissions of the plaintiff, proven by the testimony of her sister, by that of the defendant’s father, and by .other witnesses. If that testimony is true, it is difficult to find that she herself regarded the connection as matrimonial, or that its continuance depended upon any thing more binding than the inclination or will of the defendant. It is true that he assumed the character of husband and she of wife, and reported themselves in that relation' to their associates and others, and there was enough in their conduct, prima facie, to entitle each- to the civil rights which belong to the real character, but the testimony to which I have referred, and circumstances disclosed by others, raised a conflict in evidence which we cannot, as an appellate court, declare to- be insufficient to show that the assumption was unfounded. Such was the conclusion of the trial judge. His finding is that no contract of marriage was ever entered into between the plaintiff and defendant, and we cannot say it has no evidence in its support. In the face of that finding this appeal must fail.
    “ The judgment should, therefore, be affirmed.”

      'William F. FLowe for appellant.

      William Fullerton for respondent.
   Danforth, J.,

reads mem. for affirmance.

All concur.

Judgment affirmed.


text:
    Jochan H. Wittigschlager, Appellant, v. Henry G. Fisk et al., Respondents.
    (Argued April 29, 1886;
    decided June 1, 1886.)

      Samuel Oohen for appellant.

      F>. F. Watson for respondents.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Thomas Maddock, Respondent,v. Livingston B. VanKleeck et al., Appellants.
    (Argued April 29,1886 ;
    decided June 1, 1886.)

      David M. De Witt for appellants.

      Frederic B. Jennings for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Thomas Newman, as Receiver, etc., Respondent, v. Horace S. Hodge, Impleaded, etc., Appellant.
    (Argued April 29, 1886;
    decided June 1, 1886.)

      L. G. Hall for appellant.

      Henry M. Field for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Amelia A. Bartholomew, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    (Argued April 30, 1886 ;
    decided June 1, 1886.)
    This was an action for negligence.
    Plaintiff, a passenger on defendant’s road, after, as shé supposed, the train had stopped at the Rochester station, where she was to change cars, passed out with other passengers on to the platform of the car, and by a sudden jerk of the train was thrown from the platform and injured.
    The following is the mem. of opinion :
    ' “ The only ground of error alleged by the defendant is the exception taken to the following phrase in the judge’s charge :

      “ ‘ If the train appeared to have stopped, then for all practical purposes and for the consideration of this case, it had stopped.’ This phrase was followed and explained by this language : £ If from the evidence you shall say that when this woman stepped out upon- the platform, the train had stopped, or appeared to. persons of ordinary intelligence and observation to have stopped, following, as it did, the conceded announcement, the fact that an announcement had been made that the station had been approached, and by a sudden jerk, of which she had no warning, she was precipitated and received this injury, she has a right of action.’
    ££ There was no error in the portion of the charge excepted to. The plaintiff was in a strange place in the night-time, and upon her inquiry, as the train neared Rochester, the conductor informed her that she must change cars at the first place at which the train would stop; that £ Rochester ’ would be called and she must take the second right-hand train. Sometime after this the brakeman called £ Rochester, change cars.’ The train was then either stopped or slowed down so that to her, in the inside of the car, it appeared to have stopped. She was bound to act upon appearances, and after making the announcement, if the train was run so slow as to appear to a person of ordinary intelligence and observation to have stopped, ordinary care for the safety of the passengers required the train to be so run and managed as not to endanger their lives, and a sudden jerk, or start, without any warning, when the passengers were upon their feet moving toward the platform of the cars, was sufficient evidence of carelessness to impose liability upon the defendant. As to any one in the cars when the train appeared to have stopped, it was the same as if it had stopped, and the same duty rested upon the defendant to care for the safety of the passengers.
    “ The judgment should be affirmed, with costs.”

      Edward Harris for appellant.

      William 8. Oliver for respondent.
   Earl, J.,

reads for affirmance.

All concur.

Judgment affirmed.


text:
    The Dime Savings Bank of Brooklyn, Respondent, v. Franks Crooks, Impleaded, etc., Appellant.
    (Argued April 30, 1886;,
    decided June 1, 1886.)

      John H. Bergen for appellant.

      J. T. Marean for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Gustav Isaac et al., Appellants, v. The Denver and Rio Grande Railway Company, Respondent.
    (Argued April 30, 1886;
    decided June 1, 1886.)

      Samuel JJntermyer for appellants.

      John jK Burnll for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


author: Per Curiam, mem.

text:
    Samuel Seeley, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    (Argued April 27,1886;
    decided June 1, 1886.)
    This action was brought to recover damages for the destruction of plaintiff’s barn, which, he alleged, was set on fire by coal escaping from the smoke-stack of a locomotive passing on defendant’s road adjoining plaintiff’s premises.
    Defendant claimed that the fire was caused by one of two locomotives passing about the time of the fire, both of which were properly provided with fire-screens. It appeared, however, that other engines passed a short time prior to the fire, through the fire-screens of which holes had been cut" to make a better draft. The court here held the question was one of fact for the jury, and that defendant was properly found guilty of negligence.

      W. H. Adams for appellant.

      Stephen K. Williams for respondent.
   Per Curiam, mem.

for affirmance.

All concur.

Judgment affirmed.


text:
    Edward W. Tucker, Appellant, v. Martin Cooney et al., Respondents.
    (Argued April 23, 1886;
    decided June 1, 1886.)

      John C. Hunt for appellant.

      William G. Tracy for respondents.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Thomas McCarthy, Respondent, v. The Central Refining Company (Limited), Appellant
    (Argued April 29, 1886 ;
    decided June 1, 1886.)

      Sidney Ward for appellant.

      Thomas JE. Pearsall for respondent.
   Agree to affirm; no opinion

All concur.

Judgment affirmed.


author: Per Quriann mem,,

text:
    Maria Eno, Respondent, v. Rufus Diefendorf, Impleaded, etc., Appellant.
    (Argued April 39, 1886 ;
    decided June 1, 1886.)
    This was an action for an accounting between partners. Among other claims presented on the accounting were certain promissory notes executed by defendant. It was claimed here that said notes were barred by the" statute of limitations. As to this the court say :
    “ No such defense is properly presented in the defendant’s answer. The second and further answer sets up that the defendant has settled and paid plaintiff ‘ for all deal, accounts, matters and things he has ever had with plaintiff, and denies that he is indebted to her in any sum whatever, and that more than six years have elapsed since the matter and things mentioned in plaintiff’s complaint, or any of them, have become due.’
    “ This allegation contains merely a defense of payment, and is not a sufficient plea that the claims and demands' of the plaintiff are barred by the statute of limitations. There is no direct averment that the defendant intends to set up two defenses in one count of the ansiver. Even if there had been a sufficient statement of more than one defense, it would be in violation of the rule of pleading that defenses must be separately stated.
    “Aside, however, from this view of the subject, it is sufficient to say that there is no averment,in appropriate language that six years, before the- commencement of the action, have elapsed since the demands named were due, and hence they are not barred by the statute of limitations.
    “ Another answer to the claim is that the case is one where mutual accounts existed between the parties, and that some of the items accrued within six years before the commencement of this action.
    “ It may also be remarked that the evidence shows that payments were made by the defendant at-different times upon the account of the plaintiff, and thus the statute was prevented from running.”

      S. JV. Dad,a, for appellant.

      F. A. Iym,an for respondent.
   Per Quriann mem,,

for affirmance.

All concur.

Judgment affirmed.


author: Per Ouriam

text:
    Philip Rembe, Respondent, v. The New York, Ontario and Western Railway Company, Appellant.
    (Submitted April 80, 1886;
    decided June 8, 1886.)
    This was an action to recover damages alleged to have been caused by defendant’s negligence.
    The following is the mem. of opinion therein :
    “ The defendant at the time of the injury sustained by the plaintiff, to recover damages for which this action is brought, was constructing a portion of its road by laying down a track across a public highway in Rockland county and in restoring the highway by making a crossing over the tracks. The ground was level at this point and the ties were being laid upon the ground and the rails then fastened and the spaces between the rails filled in with plank. The top of the rails and the surface of the crossing were about eleven inches above the natural level of the ground. The planking was completed between the rails and two planks had been laid down on the end of each tie on both sides of the track, and then, to allow wagons to pass over, a plank was set aslant against these two planks on each side. A wagon had a short time before passed over in safety. Plaintiff came up with a high baker’s wagon and asked when he could get across. The foreman in charge of the work told him he would let him over as soon as he could. The plaintiff being somewhat deaf did not hear the reply. A second request was made to wait for a moment, but he did not heed it. He swears that he saw the planks there, and as far as he could see it was all right, and that is the reason he went on. Then the foreman requested one of his men to take the horse by the head and lead him over, which he did. When he had reached the opposite side and was passing down the sloping planks the horse started and ran against a post, when the man let loose, and then the horse ran across the highway against a telegraph pole and upset the wagon and injured the plaintiff. The horse had previously run away and on that day acted wild and skittish.

      “ The defendant had a perfect right to lay down its track across the highway but was bound to exercise proper care and skill in the performance of the work and to restore the highway, as far as practical, to its former condition so as to render it safe and not impair its usefulness. " While engaged in the work it was also the duty of the defendant to prevent any obstruction to persons passing, so far as that could be. done. If chargeable with negligence in this respect the defendant would be liable therefor if the plaintiffs’ negligence did not contribute to the result.
    “ These were questions for the consideration of the jury. There was evidence upon the trial showing that there were plank upon the opposite side of the railroad from where the plaintiff stood, standing on edge, which might have caused the plaintiff’s wheel to drop suddenly and thus frighten the horse. Whether this or the accelerated motion of the wagon caused the accident was a question for the jury, and also whether the manner in which the plank was located was negligence, was for their consideration. At the time of crossing one of the men at work had hold of the horse, as the testimony shows, and this also was for the jury to consider in determining the question as to the defendant’s negligence.
    “In view of the facts presented, and as the jury have found that the defendant was chargeable with negligence, their finding in this respect is conclusive against the defendant.

      “ As to the contributory negligence of the plaintiff, it is not entirely clear that he was in fault. Although he proceeded to drive his team across before he heard any response to his question he had reason to suppose be.might pass in safety.
    “ In fact one of the workmen took hold of his horse and might have stopped him if the passage had not been considered entirely safe, and it is not apparent that the plaintiff could not have passed in safety but for the condition of the plank.at the end of the crossing.
    “ The question whether he erred in his judgment or could in any way have avoided the accident by any greater degree of care than he exercised, was one for the jury to determine, and we cannot say that they erred in their finding that the plaintiff was not chargeable with contributory negligence.
    “ It may also be remarked that the plaintiff might not have seen the condition of the crossing at the side opposite from where he was, and he had reason to believe from the act of one of defendant’s workmen in leading the horse over, that the crossing was in a condition entirely safe.
    “ The judgment should be affirmed.”

      P. P. MeLenncm for appellant.

      Abram A. Demarest for respondent.
   Per Ouriam

opinion for affirmance.

All concur.

Judgment affirmed.


text:
    The People, ex rel. Christian Popp, Appellant, v. Stephen H. French et al., Respondents.
    (Argued June 1, 1886 ;
    decided June 8, 1886.)

      A. J. Dittenhoefer for appellant.

      David J. Dean for respondents.
   Agree to affirm; no opinion.

All concnr.

Order affirmed.


text:
    Henry A. Stevens, Appellant, v. Marcus L. Comstock et al., Respondents.
    (Submitted June 1, 1886 ;
    decided June 8, 1886.)

      John Laughlin for appellant.

      Charles A. Pooley for respondents.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


author: Rugeb, Oh. J.,

text:
    In the Matter of the Estate of Jacob H. Deyo.
    (Submitted June 1, 1886;
    decided June 8, 1886.)
    This was an appeal from an order of General Term affirming an order of a surrogate made in 1884, denying a motion to vacate and set aside a surrogate’s decree made in 1814, upon final accounting of executors, on the ground of mistake. The court here held that the evidence justified a finding that there was no mistake, also that it was. in the discretion of the court below to deny the motion on the ground of loches.'

      A. T. Clearwater for appellant.

      Lewis PLasbrouok for respondent.
   Rugeb, Oh. J.,

reads mem. for affirmance.

All concur.

Judgment affirmed.


text:
    Thomas P. Dwyer, Respondent, v. Orrin C. Hoffman, Appellant.
    (Submitted June 1, 1886 ;
    decided June 8, 1886.)

      Samuel H. Randall for appellant.

      Montague L. Ma/rks for respondent.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


author: Per Curiam mem.

text:
    Louisa Belter, as Executrix,etc., Respondent, v. Hannah Lyon et al., Appellants.
    (Argued June 1, 1886 ;
    decided June 8, 1886.)
    Decided on the facts.

      William J. Marrin for appellants.

      WilUam JS. Homblower for respondent.
   Per Curiam mem.

for affirmance.

All concur.

Judgment affirmed.


text:
    Solomon Stein et al., Appellants, v. Charles Griessman et al., Emil Oelbermann et al. (subsequent lienors), Respondents.

      Marie Gohen for appellants.

      William, B. Hornblower for respondents.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    'George B. Collyer, Respondent, v. Charles S. Collyer, as Administrator, etc., Appellant.
    (Argued June 1,1886 ;

    decided June 8, 1886.)

      Seaman Miller for appellant.

      Dennis McMahon for respondent.
   Agree to affirm ; no opinion.

All concur.

Order affirmed.


text:
    Daniel R. Liddy, Appellant, v. Long Island City, Respondent.
    (Argued June 1, 1886 ;
    decided June 8, 1886.)
    This was a motion to dismiss an appeal, for failure to file an, undertaking.
    The following is the mem. of opinion:
    “ Leave was granted the appellant to file an undertaking on this appeal, nunc pro tune, and such undertaking was filed, and notice thereof given to the respondent’s attorney, who resided at Long Island City, on August 7, 1885, by depositing the same, properly directed, in the post-office of the city- of New "York, where the appellant’s attorney resided.

      “ The proof shows that the respondent’s attorney excepted to the sureties, and mailed notice thereof to the appellant’s attorney, addressed to him at Hew York city, in the post-office at Long Island City, on the 17th day of August, 1885. This notice was properly served within ten days, even without the allowance of the double time authorized in case of the service of the precedent notice by mail (§ 798, Code of Civ. Pro.), and required the appellant to cause the sureties on his undertaking to justify, in order to-retain his appeal. This he did not do. (Code of Civ. Pro., § 1335.)
    “ The appeal should, therefore, be dismissed, unless the appellant perfect his undertaking within twenty days from the service of this order, and pay $10 costs of this' motion.”

      N. T. Payne for appellant.

      James M. lyddy for respondent.
   Per Curiam mem.

for granting motion, unless appellant perfect his undertaking as therein specified.

All concur.

Ordered accordingly.


text:
    George W. Flanders, Respondent, v. James B. White, Appellant.
    (Argued April 29, 1886;
    decided June 1, 1886.)

      I. jB. Bunnell for appellant.

      W. J. Osborne for respondent.
   Agree to affirm; no opinion.

All concur, except Rapallo and Andrews, JJ., who do not vote.

Judgment affirmed.


text:
    William McDonald, Appellant, v. The Mayor, Aldermen, and Commonalty of the City of New York, Respondent.
    (Argued May 31, 1886;
    decided June 15, 1886.)

      James A. Deermg for appellant.

      D. J. Dean for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Junius N. Petty et al., Appellants, v. Esther A. Sherwood, Respondent.
    (Argued May 81, 1886;
    decided June 15, 1886.)

      J. Woolsey Shepard for appellants.

      W. J. Stamford for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Abram Acker, Respondent, v. The President and Trustees of the Village of Sing Sing, Appellant.
    (Submitted May 81,1886;
    decided June 15, 1886.)

      Francis Larki/n and John Gibney for appellant.

      Samuel Watson for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


author: Danfobth, J.,

text:
    The Union Trust Company of New York, Respondent, v. William H. Olmsted, Impleaded, etc., Appellant.
    In an action to foreclose a mortgage, where part of the lands covered by it are in another State, the court has power to decree a sale of the whole, and may require the mortgagor to execute a conveyance to the purchaser.
    Where a provision for a conveyance is omitted from the judgment, the court has power after a sale to amend the j udgment by inserting therein such a provision.
    (Submitted June 1,1886;
    decided June 15, 1886.)
    This was an action to foreclose a mortgage executed by defendant, The Buffalo, Rochester and Pittsburgh Railroad Company, upon its road, a part of which is in the State of Pennsylvania. Judgment of foreclosure and sale in the ordinary form was rendered, and the mortgaged property was sold under it. In connection with motion to confirm report of sale, motion was made to amend the judgment by inserting therein a provision requiring the mortgagor to execute to the purchaser a deed of the mortgaged property. This motion to amend was denied at Special Term, but its order was reversed on appeal and motion granted by the General Term.
    The following is the mem. of opinion:
    “ The plaintiffs sought by foreclosure and sale to enforce a mortgage executed by the defendant corporation. The Supreme Court had jurisdiction over the cause of action and the parties, and. its decree is valid although part of the premises covered by it are in another State. Its writ may not be operative there, nor its judgment capable of execution as against that portion of the property, and for that reason the court might have required the mortgagor to execute a conveyance to the purchaser in order that the whole security offered by the mortgage should so far as possible be made effective.
      (Muller v. Dows, 94 U. S. 444, 450.) This was not done, but the power of the court was not exhausted, and what it might have ordered in the first instance, it could still require by amendment. The order appealed from goes no further than to carry out the intention of the parties to the mortgage, as ascertained by the decree — it relates to a matter within the jurisdiction of the court, and its exercise is not the subject of review.

      “ The appeal should, therefore, be dismissed.”

      McNemghton do Olmsted for appellant.

      Miller, PecTchcvm <& Dixon for respondents.
   Danfobth, J.,

reads mem. for dismissal of appeal.

All concur.

Appeal dismissed.


text:
    William H. Crowell, Respondent, v. Ephraim W Smith, Appellant.
    (Argued June 1, 1886;
    decided June 22, 1886.)

      Jacob B. Deeleer for appellant.

      A. P. Rich for respondent.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


text:
    Edmund Coffin, Jr., Appellant, v. John Scott et al., Respondents.
    (Argued June 7, 1886 ;
    decided June 8, 1886.)

      John O. Shaw for appellant.

      Devoid J. Dean for respondents.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    George W. Lord et al., Respondents, v. Spencer D. Richardson et al., Appellants.
    (Argued June 15, 1886;
    decided June 22, 1886.)

      William E. Ayres for appellants.

      Homer Weston for respondents.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    William E. James et al., Respondents, v. Spencer D. Richardson et al., Appellants.
    (Argued June.15,1886;
    decided June 22, 1886.)

      William E. Ayres for appellants.

      Homer Weston for respondents.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    Henry Day, Appellant, v. Albert Palmer Company, Respondent. Same, Appellant, v. Cornelia M. Palmer, Respondent.
    (Argued June 15, 1886;
    decided June 22, 1886.)

      George A. Strong for appellant.

      Frederick Seymov/r for respondent.
   Agree to affirm ; no opinion.

All concur.

Orders affirmed.


text:
    Arno H. Schoff et al., Respondents, v. Moses G. Rosenberg et al., Appellants. S. Parkman Dexter et al., Respondents, v. Same, Appellants.
    (Argued June 15, 1886;
    decided June 22, 1886.)

      Frank E. Snryith for appellants.

      Alex. JBlumensbiel for respondents.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    William S. Gray, Respondent, v. William J. Pollock, Appellant.
    (Argued June 15, 1886;
    decided June 22, 1886.)

      George W. Miller for appellant.

      Theodore EL. Friend for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    Theodore P. Gilman, Appellant, v. Joseph Byrnes, Respondent.
    (Argued June 15, 1886;
    decided June 22, 1886.)

      George W. Oa/rr for appellant.

      Stewart L. Woodford for respondent.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


text:
    In the Matter of the Application of Francis S. Turner, an Attorney.
    (Argued June 15,1886;
    decided June 22, 1886.)

      William Mitchell, Jr,, for appellant.

      Clifford A. H. Bartlett for respondent.
   Agree to dismiss appeal; no opinion.

All concur, except Rapallo, J., dissenting.

Appeal dismissed.


text:
    Frank G. A. Thompson, Executor, etc., Respondent, v. Charles L. Schmieder et al., Respondents, Isidor Straus, Purchaser, etc., Appellant.
    (Argued June 15,1886;
    decided June 22, 1886.)

      Myer S. Isaacs for appellant.
    . W. A. W. Stewa/rt for respondents.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    John S. Stubbs et al., Executors, etc., Respondents, v. Edward C. Ripley et al., Appellants.
    (Argued June 15, 1886;
    decided June 22, 1886.

      Eelson J. Waterbury for motion.

      Edward 'O. Bipley opposed.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    George L. Kingsland, Respondent, v. George H. Foster et al., Appellants.
    (Argued June 15, 1886;
    decided June 22, 1886.)

      Edward Bartlett for motion.

      George II. Foster opposed.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


author: Per Guriam mem.

text:
    In the Matter of the Application of the Commissioners of the State Reservation at Niagara, to take certain lands.
    (Argued June 15, 1886 ;
    decided June 22, 1886)
    This was a motion from an order of General Term which" affirmed the report of commissioners of appraisement, appointed under and in pursuance of chapter 336, Laws of 1883.
    The following is the mem. of opinion:
    “We think we are concluded by the decisions under the General Railroad Act from entertaining this appeal. There is no such difference between the language of that act and the language of the act under which these proceedings were instituted as to require or authorize a different construction of the two acts. There is no public policy and no reason for authorizing appeals to this court under the one act which do not apply to the other. Decisions which have been so long and uniformly adhered to should not now be departed from or disregarded.
    “ The appeal should be dismissed.”

      Ansley Wilcox for motion.

      Galvin FrOst opposed.
   Per Guriam mem.

for dismissal of appeal.

All concur.

Appeal dismissed.


author: Finch, J.,

text:
    The People of the State of New York, Respondent, v. James W. Clark, Appellant.
    (Argued June 4, 1886;
    decided June 25, 1886.)
    Asms from certain questions as to the reception and rejection of evidence in regard to which this court held, that if there were any errors in the ruling,-they were cured by the subsequent proceedings, the following extract from the opinion presents the questions discussed:
    “Ho error was committed in accepting the juror Fairbanks as impartial and competent and in directing the prisoner to be tried separately from the others indicted with him; nor in refusing to restrict and narrow the cross-examination of the defendant.
    “ Although the juror had an impression as to the guilt or innocence of the prisoner, he testified that he would be governed by the evidence, and his previous impression would not influence his-verdict. He added his belief that he could render an impartial verdict according to the evidence. And on further examination he said he would give the prisoner the benefit of every reasonable doubt and acquit him if such doubt existed. The juror was competent within the established rule. The right of the prosecution to try th'e prisoner separately is fixed by statute. (Code of Grim. Pro., § 462.)
    “ While the cross-examination of the prisoner was protracted and severe we do not discover that the limitations of the law were exceeded by asking if he had been accused or charged with any thing criminal or disgraceful. The general history and mode of life of the witness threw light upon his character, and his degree of intelligence and business experience, while his other dealings with the Ulster county tract bore .strongly upon his attempted explanation and were important facts in judging of its truth. How far such an examination may be' carried is necessarily very much in the discretion of the court and we do not think that such discretion was unwisely exercised, ”

      William G. Tracey for appellant.

      B. J. Shove for respondent.
   Finch, J.,

reads for affirmance.

A-ll concur, except Rugeb, Oh. J., not sitting.

Judgment affirmed.


text:
    James Gould, Appellant, v. John Nyce, Respondent.
    (Argued June 17, 1886;
    decided June 25, 1886.)

      J. F. Mosher for appellant.

      George V. Brower for respondent.
   Agree to affirm; no opinion.

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

Judgment affirmed.


text:
    The Third National Bank of Buffalo, Appellant, v. Lucien T. Cornes et al., Respondents.
    (Argued June 8, 1886;
    decided June 25, 1886.)
    The sole question in this case was one of fact, upon which the court hold the findings of the referee affirmed by the General Term to be conclusive.

      Adelbert Moot for appellant.

      Frank R. Perkins for respondents.
   Per Ouriam

opinion for affirmance.

All concur.

Judgment affirmed.


text:
    James H. Polley, Respondent, v. The City of Buffalo, Appellant.
    (Argued June 8, 1886 ;
    decided June 25, 1886.)

      Giles F. StiUwell for appellant.

      Adelbert Moot for respondent;
   Agree to affirm j no opinion.

All concur.

Judgment affirmed.


text:
    In the Matter of Proving the Will of Platt S. Lyon, Deceased.
    (Argued June 10, 1886 ;
    decided June 25, 1886.)

      A. P. Smith for appellant.

      JD. P. ILodson for respondent.
   Agree to affirm on opinion below.

All concur.

Judgment affirmed.


text:
    In the Matter of the Probate of the Alleged Last Will of Aletta Decker, Deceased.
    (Submitted June 10, 1886 ;
    decided June 25, 1886.)

      George A. Mott for appellant.

      Henry A. Monfort for respondent.
   Agree to affirm; no opinion.'

All concur.

Judgment affirmed.


text:
    Bridget Doughty, as Administratrix, etc., Respondent, v. The East River Ferry Company, Appellant.
    (Argued June 11, 1886 ;
    decided June 25, 1886.)

      William G. Ghoate for appellant.

      A. G. Vanderpoel for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    Mary Watson, as Administratrix, etc., Respondent, v. The Rome, Watertown and Ogdensburg Railroad Company, Appellant.
    (Argued June 11, 1886 ;
    decided June 25, 1886.)

      Edmund B. Wynn for appellant.

      Georye S. Klodh for respondent.
   Agree to affirm ; no opinion.

All concur.

Judgment affirmed.


text:
    John O. Hoyt v. The Continental Life Insurance Company, Horatio F. Averill, Petitioner, Appellant.
    (Argued June 11, 1886;
    decided June 25, 1886.)

      Horatio F. A verill appellant in person.

      Edward H. Hobbs, attorney for receiver, respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    Henry Bergh, Appellant, v. William R. Grace, Mayor, etc., Respondent.
    (Submitted June 15, 1886;
    decided June 25, 1886.)

      Nelson J. Waterbury, Jr., for appellant.

      John G. Shaw and D. J. Dean for respondent.
   Agree to dismiss appeal; no opinion.

All concur.

Appeal dismissed.


text:
    The People of the State of New York, Respondent, v. The State Bank of Fort Edward, John Osgood, Petitioner, Appellant.
    (Submitted June 15, 1886;
    decided June 25, 1886.)

      Edgar Hull for appellant..

      D. 8. Potter, for receiver, respondent.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


text:
    Mary J. Olmsted, Respondent, v. Benjamin F. Olmsted et al., Appellants.
    (Argued June 15,1886;
    decided June 25, 1886.)

      Galvin Frost for appellant.

      H. H. Wüzin for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    In the Matter of the Application of the Attorney-General, Respondent, v. The Western New York Life Insurance Company. In re claim of Henry Glowacki, Appellant.
    (Submitted June 16, 1886;
    decided June 25, 1886.)

      L. N. Bangs for appellant.

      L>. N. Lockwood for respondent.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


text:
    In the Matter of the Final Accounting of Gustav Gomprecht, as Assignee, etc.
    (Submitted June 15,1886;
    decided June 25, 1886.)

      Blumenstiel db Liirsch for appellant.

      Wm. B. Ilornblower and James Byrne for respondent.
   Agree to affirm; no opinion.

All concur.

Order affirmed.


text:
    David Levy et al Respondents, v. Robert Salomon, Appellant.
    (Submitted June 15, 1886;
    decided June 25, 1886.)

      Blumenstiel db Liirsch for appellant.
    Townsend, Dyett de Einstein for respondents.
   Agree to dismiss appeal on the ground that the opinion of Daniels J., at the General Term, demonstrates that there was jurisdiction to grant the order of arrest, and there is, therefore, nothing for review.

All concur.

Appeal dismissed.


text:
    John H. Riker, as Executor, etc., Respondent, v. St. Luke's Hospital, Impleaded, etc., Appellant.
    (Submitted June 14, 1886;
    decided July 27, 1886.)

      Wheeler JET. Peckham for appellant.

      John EE. Parsons and O. E. Traoy for respondent.
   Agree to affirm on opinion of General Term.

All concur.

Judgment affirmed.


text:
    Delia E. Pittman, Respondent, v. Henry Johnson, as Executor, etc., Appellant.
    (Argued June 16, 1886;
    decided July 27, 1886.)

      G. D. Prescott for appellant.

      W. T. EDunmore for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.


text:
    Margaret Kennedy, as Administratrix, etc., Appellant, v. The Manhattan Railway Company, Respondent.
    (Argued June 16, 1886;
    decided July 27, 1886.)

      E. EUery Anderson for appellant.

      Edward S. Papallo for respondent.
   Agree to affirm; no opinion.

All concur.

Judgment affirmed.