City Court of New York, February, 1896. [Vol. 15. Second. That the said amended complaint upon the face thereof does not state facts sufficient to constitute a cause of action. The first paragraph of the complaint ccntains an allegation of the mutual promise of marriage "on request" made by plaintiff and defendant. The second paragraph alleges the readiness and willingness of the plaintiff to fulfill her promise. The fifth paragraph alleges a request made by plaintiff on defendant to fulfill his promise, and his refusal to comply and consequent breach of his promise. These allegations made a good complaint of a cause of action of "breach of promise of marriage." The allegations in paragraphs third and fourth are set up in aggravation of damages. Wells v. Padgett, 8 Barb. 323. They do not constitute a cause of action in plaintiff "for seduction," because a person seduced cannot maintain an action for seduction. Hamilton v. Lomax, 26 Barb. 615. She can only maintain an action for personal injury when a rape has been committed upon her, and that action is given her by statute. Konig v. Nott, 8 Abb. 384, 388. The complaint contains but one cause of action. It follows, therefore, that the order appealed from must be reversed, with costs, and the demurrer overruled, with costs, and leave is given to defendant to answer plaintiff's complaint within six days after service of the order to be entered on this appeal on payment of said costs. VAN WYCK, Ch. J., concurs. Order reversed, with costs, and demurrer overruled, with costs, with leave to defendant to answer. Misc.] City Court of New York, February, 1896. THEODORE A. HAVEMEYER, Respondent, v. WALTER E. SWITZER, Appellant. (City Court of New York - General Term, February, 1896.) 1. PLEADING-ACTION UPON EXPRESS COVENANT TO PAY RENT. The complaint in an action upon an express covenant to pay rent need not allege that defendant occupied or enjoyed the premises nor the ownership of such premises. 2. SAME-PERFORMANCE OF CONDITIONS. Performance of the conditions of the contract on plaintiff's par need not be alleged where the complaint does not set up any of the conditions. 3. SAME. A complaint will not be held bad on demurrer because the term of letting is not definitely stated where such term can be inferred therefrom with reasonable certainty. APPEAL from judgment entered on order overruling demurrer to the complaint. Josiah T. Lovejoy, for appellant. Allan Lee Smidt, for respondent. SCHUCHMAN, J. This is an appeal from a judgment entered on an order overruling the defendant's demurrer to plaintiff's complaint as frivolous, and from said order. The action is brought on an express covenant to pay rent. In such an action the plaintiff need not allege in his complaint nor prove that defendant occupied or enjoyed the premises, nor the ownership of the premises let (Gilhooley v. Washington, 4 N. Y. 217); otherwise in an action for use andoccupation. Defendant claims that plaintiff should have alleged in his complaint a performance of all the conditions of the contract. on his part, pursuant to section 533 of the Code, and citing 101 N. Y. 328, but he fails to perceive that there are no conditions of the contract set up in the complaint, the contract of letting and hiring, the agreement to pay rent, merely are set forth. City Court of New York, February, 1896. [Vol. 15. The weak point in plaintiff's complaint is the fact that the term is not definitely stated, but with reasonable certainty it can be inferred therefrom that the term was for a year, and commenced on May 1, 1894. Order and judgment appealed from affirmed, with costs. MCCARTHY, J., concurs. Judgment and order affirmed, with costs. JAMES G. TIMOLAT, Respondent, v. THE S. J. HELD Co., Appellant. THE OAKLAND CHEMICAL Co., Respondent, v. THE S. J. HELD Co., Appellant. SERVICE (City Court of New York OF PAPERS ON ATTORNEY. General Term, February, 1896.) A deposit of papers into an attorney's office through a slit in the door, at a time when the office is closed, where there is no letter box in said office, is insufficient to constitute a service of such papers, and is not binding upon the attorney or his client. APPEALS from orders denying motions to set aside judgments. H. B. Wesselman, for appellant. W. R. Beach, for respondents. SCHUCHMAN, J. These are appeals from orders denying motions to set aside the judgments entered herein on November 9, 1895, on the ground that they were irregularly and improperly entered, because a stay of proceedings was in force at the time of the entry of said judgments granted in the same actions on a motion instituted by order to show cause "to vacate and set aside the service of the summons " on the ground that J. Julian Held, upon whom the summons was served, was not an officer of the defendant company at the time of the service. Misc.] City Court of New York, February, 1896. On The summonses were served on November 2, 1895. November 8, 1895, at six o'clock P. M., Justice Borry granted an order to show cause with a stay which was attempted to be served on November 9, 1895, at eight fifty-five o'clock a. M., at plaintiffs' attorney's office, by inclosing copies thereof, with affidavit upon which they were granted, in an envelope addressed to plaintiffs' attorney's office, and depositing them through a slit in the door of said attorney's office into his office. Plaintiffs' attorney had then no letter box in his office, and his office was closed. At nine-fifty A. M. of that day, plaintiffs' attorney, without having had any notice whatever of the stay as granted by the court, entered up judgments. Under this statement of facts I hold that the service of the orders to show cause with the stay was not served in compliance with subdivision 3 of section 797 of the Code, and was not binding on the plaintiff or his attorney. Livingston v. New York El. R. R. Co., 33 N. Y. St. Repr. 818. Considering in addition that defendant appears to have had no defense upon the merits of the causes of action and the motion to set aside the summons in which the stay had been given was afterwards, on a deliberate investigation by a referee, denied, and considering further that by vacating these judgments subsequent creditors would gain an undue advantage over these plaintiffs, it would be an injustice. instead of justice to reverse these orders. Orders appealed from affirmed, with costs. VAN WYCK, Ch. J., and MCCARTHY, J., concur. City Court of New York, February, 1896. [Vol. 15. CHARLES SCHRIEBER, Respondent, v. THE DRIVING CLUB OF NEW YORK, Appellant. (City Court of New York General Term, February, 1896.) ADJOINING OWNERS NEGLIGENCE OVERFLOW OF NEIGHBORING LAND. An owner of land who, by the construction of extra ditches, accumulates water in such quantities that an existing culvert cannot carry it off, but throws it on his neighbor's land, is liable for the damage occasioned thereby. APPEAL from judgment in favor of the plaintiff, entered upon a verdict. Wm. G. McCrea, for appellant. Thomas F. Byrne, for respondent. SCHUCHMAN, J. This is an appeal from a judgment entered on the verdict of a jury in favor of the plaintiff and against the defendant. No exception having been taken by either side to the charge of the court, it must be assumed to be correct. Appellant's attorney moved for a new trial on all the grounds specified in section 999 of the Code. Said motion was denied, an order was entered thereon and an appeal was taken from said order. This brings up for review the evidence adduced at the trial, and although contradictory, if enough is contained therein to sustain the plaintiff's cause of action (the jury being the sole judges of the facts of the case), the verdict must be sustained. The plaintiff claims that while he was the lessee of some garden land between One Hundred and Sixty-fourth and One Hundred and Sixty-fifth streets, west of Railroad avenue, in the city of New York, and while the defendants were the lessees of Fleetwood race track, which adjoined his land on the north, the defendants, by their carelessness or negligence, or some wrongful act on their part, in not keeping the drainage on their land in proper shape, order or repair, and in dig |