with a proper defendant before the Court the relator must be remitted. The writ must therefore be dismissed. Order appealed from must be reversed, but as the respondent is entitled to motion fees and disbursements, if any, no costs will be allowed Opinion by Brady, J.; Davis, P. to either party on this appeal. J., concurring. ALLOWANCE IN SURPLUS MONEY PROCEEDINGS. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Aaron H. Wellington v. The Ulster County Ice Company et al. Decided June 1, 1877. In proceedings as to the surplus moneys arising on sale of mortgaged premises; motion costs and referee's fees only can be allowed. Appeal from an order granting $75 for costs and disbursements to the attorney for the first junior mortgagce on a reference as to the surplus moneys. On the report of the referee, to whom it was referred to determine the respective claims of lienors to the surplus moneys arising upon a sale of the mortgaged premises, an order was made confirming the report of the referee and granting to the attorney for the first junior mortgagee $75 for costs and disbursements, besides $30 referee's fees. This appeal is by the second junior mortgagee to so much of the order as grants $75 to the attorney for the first junior mortgagee for costs and disbursements. Geo. R. Carrington, for applt. N. A. Halbert, for respt. Held, The appeal in this case is sustained by the case of McDermott v. Hennessy (9 Hun, 59), in which it was held, that on a proceeding of this kind, the motion costs and referee's fees only could be allowed. Opinion by Brady, J.; Davis, P. J., concurring. COMMON CARRIERS. CONVERSION. N. Y. COURT OF APPEALS. Magnin et al., applts., v. Dinsmore, Prest., &c., respt. Decided Sept. 18, 1877. Where a common carrier gives a receipt limit- C. B. Smith, for applts. Held, That the disclosure of the value of the goods was a condition precedent to the attaching of any liability to the carrier for merely ordinary neglect unaccompanied with any misfeasance or wilful act. What would be ordinary care in caring for a package of small value might come far short of it and be grossly negligent in respect of valuable package of jewelry and watches. The value of the property a MARRIED WOMEN. EVIDENCE. N. Y. COURT OF APPEALS. McVey, respt., v. Cantrell, applt. Decided Sept. 18, 1877. Where a married woman borrows money for the benefit of her separate estate, such estate is charged as soon as the debt is contracted, and the obligation cannot be affected by a subsequent diversion of the money to another purpose. is intimately connected with the ques-While parol evidence is inadmissible to show tion of negligence and the degree of care required from the bailee. There was no waiver of the clause limiting defendant's liability. There was no conversion of the goods. A mere non-delivery will not constitute a conversion, nor will a refusal to deliver, on demand, if the goods have been lost through negligence or stolen. Ang. on Car., §§ 431 -3; 2 Kern., 509; 4 Esp., 157; 2 Bur., 2825. Negligence alone would not show a misfeasance on the part of defendant, or an abandonment by it of its character as a carrier. The act which will deprive a carrier of the benefit of a contract for a limited liability, fairly made, must be an affirmative act of wrongdoing, not merely ordinary neglect in the course of the bailment. It need not necessarily be intentional wrongdoing, but the mere omission of ordinary care in the safe-keeping and carriage of the goods is not a misfeasance. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Allen, J. All concur, except Church, Ch. J., and Earl, J, not voting, and Rapallo, J., absent. Vol. 5-No. 5* an agreement to charge the separate estate of a married woman where the obligation sued upon is in writing, the intention to charge it may be presumed from the nature of the transaction. This was an action upon two promissory notes made by defendant, who is a married woman living apart from her husband and having a separate estate consisting of real estate. The notes in no way charged her separate estate. Plaintiff testified that the notes were given for money borrowed by defendant for the avowed purpose of paying interest on mortgages upon her real estate. The evidence on this point was conflicting. Defendant testified to the effect that the money for which the notes were given was used for the support of her family. The Court submitted to the jury the question whether the no ey was borrowed on defendant's representation that she desired it to pay interest on the mortgages, and the plaintiff relied on such representation, and charged that if this was the fact the jury might find for the plaintiff, and it was immaterial what the money was used for. Defendant's counsel requested the Court to charge that if the money was used by defendant for the support of herself and children, they must find for defendant. This request was refused, and defendant ex cepted. The jury found for plaintiff on the question submitted to them. H. H. Morange, for applt. Daniel T. Robertson, for respt. Held, no error; that the question was one of fact; that while parol evidence is not admissible to show an agreement to bind the separate estate of a married woman where the obligation on which the action is brought is in writing, the intention to charge the separate estate may be presumed from the nature of the transaction. 22 N. Y., 456. The separate estate of a married woman is held bound for a debt contracted for its benefit, not simply upon the theory that the money sought to be recovered has gone into and increased it or relieved it from a charge, but upon the ground that the parties must have intended that the estate should be bound for it. The obligation is created as soon as the debt is contracted, and cannot be affected by a subsequent diversion of the money obtained to purposes other than that of benefiting the estate. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Rapallo, J. All con cur. ASSESSMENTS. BRIDGES. N. Y. SUPREME COURT. GENERAL Decided Sept., 1877. The real estate of a toll bridge should be assessed and taxed in the town in which it is situated. The bridge of the Hudson River Bridge Company, at Albany, is not a toll bridge within the meaning of the Statute. 1 R. S., 389, § 6. Appeal from judgment for defendant on report of a referee. Defendants are trustees of a School District in the towns of Greenbush and North Greenbush, and this action is brought against them to recover damages for the seizure of a steam tug belonging to plaintiff, under a warrant issued by defendants for the collection of the School Tax. The property assessed was that part of plaintiff's bridge over the Hudson River which is within the towns of Greenbush and North Greenbush and certain lots or parts of lots in Greenbush, not used or required for bridge purposes. Up to the time of the assessment the bridge had been used exclusively for the passage over and across it of railroad trains, the railroad companies paying for the passengers and freight carried over. Since then it has been used also as a foot bridge, for which tolls are taken. Plaintiff claims that its bridge is a toll bridge, and that it can be taxed only in the City of Albany where its office is located. Matthew Hale, for applt. Held, That the real estate of a toll bridge should be assessed in the town. in which it is situated. Such is the rule in regard to all incorporated companies, 1 R. S., 389, § 6, and we do not think the concluding clause of that section was intended to create a different rule in regard to toll bridges. We think that clause refers to the place of taxation of personal property and to that only. Held also, That this bridge is not a toll bridge, within the meaning and intent of the statute. Also that the lots in Greenbush not used or neces sary for the construction or maintenance of the bridge, were liable to assessment and taxation in the same manner and to the same extent that a farm or store or house and lot own ed by the company would be. The migration of the treasurer, the removal of the toll house or the principal business office from one side of a stream to the other or from one town to another would not, and ought not to carry along the right of taxation of houses, lots or vacant real estate. Judgment affirmed with costs. may be sustained by the default of any of the collectors of the several wards of this city be charged to the said wards respectively, and added to the taxes of said wards this year," which was passed in pursuance of Chapter 80, Laws of 1837, authorizing it. It did not appear that any tax was imposed or collected under this resolution. At the time it was adopted a suit was pending against the collector and his sureties to recover the amount of the deficiency; the sureties were then solvent, and a few By the Court. Mem. by Board-days after secured the full amount of man, J. SURETYSHIP. N. Y. COURT OF APPEALS. Oakley, applt., v. The Mayor, &c., of N. Y., respt. Decided Sept. 18, 1877. Where the surety for a ward collector has given a bond and mortgage in discharge of his liability for a defalcation of said collector, he is not entitled to recover the the deficiency. O. P. Buel, for applt. Held, That there was no basis for plaintiff's claim; that even if taxes had been collected a second time, they would not inure to the benefit of the defaulting collector or his sureties. 2d. It did not appear that any such taxes had been collected. Judgment of General Term, affirın avails thereof where the amount of such de-ing judgment of Special Term dis falcation has been made good by taxation pursuant to the act of 1837, and especially so where the resolution of the Board of Supervisors authorizing such taxation has not been acted upon. missing complaint, affirmed. Opinion by Earl, J. All concur. This action was brought to recover NEW YORK CITY. LIABILITY the avails of a bond and mortgage given by plaintiff to defendant. It appeared that plaintiff, who was a surety of one of defendant's ward collectors, gave the mortgage in suit upon the defalcation of said collector in a settlement with defendant, and was discharged. It was proved that this settlement was made by plaintiff in ignorance of the following resolu OF. N. Y. COURT OF APPEALS. Decided Sept. 10, 1877. An action cannot be maintained against the City of New York for injuries arising from the unskilfulness of workmen employed by the Board of Public Instruction in making repairs to the building occupied by such Board. tion of the Board of Supervisors of When officers are elected or appointed to New York, passed Oct. 3, 1837: "Resolved. That all losses which perform a duty neither local nor corporate, and are independent of the corporation in their tenure of office and mode of discharg ing their duties, they are public or State officers, and no action will lie against the city for their acts or negligence. This action was brought to recover damages for injuries to plaintiff's property, by the flowing of water from the second story of a building which was leased by the former Board of Education of the City of New York. Upon the organization action lies against the corporation for their acts or negligence. 2 Dil. on Mun. Corps., § 772; 62 N. Y., 162. Judgment of General Term, reversing judgment for plaintiff and granting new trial, affirmed. Opinion by Miller, J. All concur, except Rapallo, J., absent. ATTACHMENT. DAMAGES. of the Department of Public Instruc- N. Y. SUPREME COURT. GENERAL tion it continued in its occupancy for Held, That this action could not be maintained against defendant; that as defendant had no authority to employ, manage, control, and direct the action of persons employed by the Department of Public Instruction, or to remove or discharge them for unskilfulness or neglect of duty, the rule of respondeat superior would not apply, 5 N. Y., 48 ; 8 Id., 222; 11 Id., 432; and even when such officers are elected by the municipal corporation, it is only when their duties relate to the exercise of corporate power, and are for the benefit of the corporation, that they are servants and agents within said rule; if they are only elected or appointed according to law to perform a duty neither local or corporate, and are independent of the corporation in the tenure of their office and mode of discharging its duties, they are public or State officers with such powers and duties as the statute prescribes, and no v. TERM. THIRD DEPT. V. Edwin B. Low, applt. Where property has been attached by a sheriff and delivered to a third person on his re- Appeal from judgment on verdict in favor of plaintiff, and from order denying a new trial. Plaintiff, who is Sheriff of Essex County, levied upon a quantity of stone belonging to one Edward L. Barrett, by virtue of a warrant of attachment issued in an action against said Barrett. An inventory and appraisal was duly made and the stone were then delivered to the defendant on his giving a receipt therefor, and undertaking to return them on demand, or pay their value. The stone were mostly cut stone, and were intended to be used by Barrett in doing mason work on the N. Y. & Canada RR. After the levy was made and receipts given, the defendant permitted one O'Brien to use the stone in doing the said mason work, and they |