Reversing S. C., 8 W. Dig., 300.

Action to charge the separate estate of a married woman with a check given by her attorney. Plaintiffs gave their checks payable at sight to the order of defendant's husband, and received from him her check for it, drawn by him as attorney for his wife, payable several days in the future. It appeared that defendant had a separate estate consisting of houses and lands, and that she kept a separate bank account; that she had deposited with the bank where she kept her account a power of attorney authorizing her husband "to make, sign, indorse, and accept all checks, notes, drafts, and bills of exchange for" her and There was no evidence that the check was given for defendant's benefit or her separate estate, or in her business, or that plaintiffs supposed it was so given, or that the husband had assumed to act or had acted without or beyond the scope of the power of attorney.

in her name.

James E. Wheeler, for applt. Samuel J. Crooks, for respts. Held, That defendant was not liable upon the check; that the onus was upon plaintiffs to show that the drawing of the check by the husband was within the power delegated to him by defendant, and that it was in a transaction and for a consideration in respect of which the disabilities of defendant as a feme covert were removed and she at liberty to contract and assume liabilities as if she were a feme sole; that the acts authorized by the power of attorney had respect to the defendant's separate estate, as

to which she had the statutory ability to contract; that it did not authorize the husband to create a debt or charge defendant's separate estate for a debt although contracted for the benefit of the estate; that the bank was not authorized to pay a check if defendant was without funds to meet it, and had it done so defendant's separate estate would not have been charged with its payment; that if defendant in person had drawn the check and delivered it to plaintiffs upon the same consideration, it could not have been charged upon her separate estate without proof that the debt was contracted for the benefit of her estate. The law does not authorize the presumption and courts cannot assume without evidence that a simple contract, without anything on its face to indicate the fact, was made for the benefit of a married woman.

Also held, That the management of defendant's landed property, the receipt of the rents and income and disposing of them was not a trade or business within the meaning of the statute enabling a married woman to carry on a trade or business; that statute has respect to business pursuits-mechanical, manufacturing, or commercial.

A married woman may make contracts and create debts in or about any trade or business carried on by her, and make her separate estate chargeable therefor by law-she may also create an express charge upon her estate upon and for other contracts and debts, or as security for others, but it must be created in terms and by writing. 58 N. Y., 80; 42 Id., 614.

Judgment of General Term, affirm

ing judgment for plaintiffs on report of referee, reversed and new trial granted.

Opinion by Allen, J. All concur, except Rapallo, J., not voting, and Folger and Miller, JJ., absent.

ANTE-NUPTIAL CONTRACT. N..Y. COURT OF APPEALS. Pierce, individually and as admrx., respt., v. Pierce et al., applts.

Decided November 13, 1877.

An ante-nuptial contract will not be enforced against the wife when it appears that she has been overreached and deceived, or induced

by false representations to enter into a contract which does not express or carry out the real intention of the parties. In such case every presumption is against the validity of the contract, and the burden of proof is upon the husband or his representatives to uphold it.

Plaintiff entered into an ante-nuptial agreement with her deceased husband, by which he agreed, in case the marriage took place, that he would pay her $500 for her sole and separate use, and she agreed, in consideration of the " money paid to her," that said money should be in full satisfaction of her dower, and bar her from claiming the same or any share of her husband's personal property. The evidence showed that plaintiff executed this contract under a belief, created by the declarations of the deceased, that it contained mere beneficial provisions in her favor. It was also shown that the contract was not read over by her; that the deceased always kept it in his possession and under his control, and when questioned upon several occasions assented to its containing the other beneficial provisions supposed by plaintif.

W. Gleason, for applts.
J. H. Maynard, for respt.

Held, That the contract was void, and plaintiff was not barred by it from claiming dower in the real estate of her husband and her share as his widow in the personal property ; that an ante-nuptial contract will not be enforced against the wife where the circumstances show that she has been overreached and deceived, or induced by false representations to enter into a contract which does not express or carry out the real intention of the parties; that the relationship of parties about to be marr is one of mutual confidence, and far different from that of those dealing with each other at arms length; 57 Penn., 120; 64 Id., 122; 10 Al., 278; 1 N. C. (Bush Eq.)., 278; 5 Sneed, 49; 6 N. Y., 268; 34 Id., 167; 45 Barb., 478; that in such a case every presumption is against the validity of the contract, and the burden of proof is cast upon the husband or his representatives to uphold the same.

Judgment of General Term, modifying decree of surrogate, affirmed. Opinion by Miller, J. All concur except Rapallo, J., absent.

CONTRACT. AGENCY. RE

CEIPT.

N. Y. COURT OF APPEALS. Barkley, respt., v. The R. & S. RR. Co., applt.

Decided November 13, 1877. Although a contract for the sale of personal property is void under the statute of frauds, if the goods are delivered and accepted, the vendor is bound to pay for them at the contract price.

A principal is bound by the acts of his agent

until notice of the termination of the agency is given.

to another company, a receipt for a part payment by the lessee, for goods delivered after the lease, will not discharge the lessor from its liability for the balance.

ant.

A portion of the wood was delivered, which was inspected and measured by W., defendant's woodbuyer and measurer, and paid for by defendant. The balance of the wood was delivered after defendant had leased its road to the D. & H. C. Co. There was no change of employees on the road, and it was managed and operated after the lease apparently as it had been before. The wood was inspected, measured, and accepted by W. The vendor had no notice of the lease, or that the agency of W., for defendant, had terminated until afterwards. John B. Gale, for applt. Irving Browne, for respt. Held, That although the contract was void under the statute of frauds, the wood having been delivered as agreed, and defendant having accepted it, it was bound to pay for it at the contract price; that the accept ance by W. of the wood delivered after the lease bound defendant; that the vendor had a right to assume that the agency of W. for defendant continued until he had notice to the contrary.

It appeared that the vendor accepted from the D. & H. C. Co. part payment for the wood delivered after the lease.

COSTS.

GENERAL

TERM. SECOND DEPT. Ernst C. Snyder, applt., v. Charles Collins, respt.

Decided December, 1877.

Where, upon appeal to General Term, a new trial is ordered, costs to abide event, the event upon which the costs of appeal depend is an event which shall entitle the successful party to costs by law.

Where upon such new trial the plaintiff recovers less than fifty dollars he is not entitled to costs of the appeal.

Appeal from order directing retaxation of costs. The plaintiff brought an action against the defendant for assault and battery and false imprisonment. At the first trial he was nonsuited. Upon appeal to the General Term the nonsuit was set aside and a new trial granted, "costs to abide event."

Upon the second trial the plaintiff obtained a verdict for $10. Upon this verdict he taxed the costs of the appeal to the General Term and entered judgment. The Special Term ordered the retaxation of the costs, and directed that there shall be no more costs than damages included in the judgment.

C. A. S. Van Nostrand, for applt. J. H. Stanbrough, for respt. Held, no error; the event upon which the costs of the appeal depended was an event which should

entitle the plaintiff to costs by law. That event never happened to him to an extent greater in all than $10. Order affirmed with costs and disbursements.

Opinion by Barnard, P. J.

PROMISSORY NOTE. SURETY. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Vervalen et al., respts., v. Eckerson et al., applts.

Decided December, 1877.

A surety on a promissory note is bound without any consideration moving to him.

Action on a promissory note. The

given, was extended that defendant who was surety is discharged. This is very unsubstantial. The time of payment of the original note was not extended. The note was paid and surrended. Besides, the defendant who makes this defense was not on the original note. He is on the new one and it is only in respect to this new one that the plaintiffs owe him any duty.

The time of payment of the new note has never been extended. Judgment affirmed with costs. Opinion by Dykman, J.

$2,343.34.

The consideration for the note consisted in part of an old note held by plaintiffs against one of the defendants and in part of an indebtedness of defendants to plaintiffs. The defense was want of consideration and that one of the defendants was a surety. The plaintiff recovered judgment and the defendants now appeal. A. B. Conger, for applts. Wheeler & Brown, for respts.

Held, That neither of these defenses is made out. Even if one of the defendants were a surety as to a part of the consideration it is immaterial in this case. It requires no consideration to move to a surety on a promissory note to render him absolutely liable on it.

The defense shadows forth the idea that because the time of payment of a note of one of the defendants, held by the plaintiffs, on which one of the other defendants was surety, and to pay which the new note was in part

N.

MENT.

Y. SUPREME COURT. GENERAL
TERM. SECOND DEPT.

Furman v. Furman et al.

Decided December, 1877.

An application for leave to discontinue a partition suit after judgment is addressed to the discretion of the Court. Where the plaintiff was misled by one of defendants and thereby induced to institute the suit, he will be allowed to discontinue where no rights gained under it will be prejudiced.

Plaintiff and his sister, a defendant, are remainder men under the will of their mother. Their father, also a defendant, is the life tenant. This action is for the partition of the estate and has proceeded to judgment, and the premises have been advertised for sale. The defendant appeals from an order allowing plaintiff to discontinue. The plaintiff alleges that he has been misled by his father. That neither he nor his sister intended to have the premises sold, but that his father represented to him that it was

desirable to make it possible to sell

AGENCY. RATIFICATION.

which end this action was necessary. He therefore consented to have this action brought in his name, left the entire charge of it to his father, and was surprised to find the property advertised for sale. This the father denies, and insists that the plaintiff knew all from the beginning.

P. S. Crooke, for applt.
Chas. N. Black, for plff.

TERM. SECOND DEPT. Chesebrough, respt., v. The North 2d St. & Middle Village RR. Co., applt.

Decided December, 1877.

It is a question of fact and not of law whether a corporation has, subsequent to its organization, ratified acts of agents done before it was so organized.

July 28, 1870, the Winfield Rail

defts.

Held, We are not called on to decide where any censure should rest. The papers show clearly that there has been considerable misunderstanding on the part of the plaintiff. He and two of his sisters think their interests will be prejudiced by the further progress of the action. The father wishes the action to proceed, but he is life tenant and should not be allowed to prevail against the wishes of the remainder men as to the ultimate disposition. The right of the plaintiff to discontinue before judgment is absolute with one or two exceptions. After judgment, the application for leave to discontinue is addressed to the discretion of the Court, and is or is not allowed in the exercise of this discretion in full view of the rights and equities of the parties.

The plaintiff seeks to protect his interest in the premises by discontinuing this action. No rights gained under it will be prejudiced by this course and it should be allowed.

railroad over certain streets in the city of Brooklyn. On the same day this company made an agreement with Elwell & Green to lease to a company which they were to organize the tracts and franchises of the Winfield Company for ninety-five years. Elwell & Green agreed to organize a company to be called The North 2d St. & Middle Village RR. Co., and to pay to the Winfield Company $30,000 in stock of the new company for the privileges granted. They further agreed if at any time the new company should issue mortgage-bonds covering these tracks and franchises, that then the holders of any part of this $30,000 of stock should receive, in return for such stock held by them, a like amount in these bonds. Defendant was organized in pursuance of this agreement, and Elwell & Green transferred to it all the rights and privileges. A few days after the Winfield Co. executed the lease, and received the $30,000 of stock therefor. After this the plaintiff, who had meanwhile become possessed of $16,000 of this said stock, applied to the defendant to have it

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