adultery of the plaintiff. This is set up as a defense, and also as a counterclaim, and upon it the defendant asks the usual judgment in actions for an absolute divorce for adultery. To this counter-claim the plaintiff interposes a demurrer, and assigns as cause: First, that it is not a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action; second, that it appears upon the face of said counter-claim that it does not state facts sufficient to constitute a cause of action; third, that said counter-claim or defense is insufficient in law upon the face thereof, and does not entitle the defendant to the relief or judgment demanded therein.

Prior to the enactment of chapter 703 of the Laws of 1881, amending section 1770 of Code of Civil Procedure, it seemed well settled on authority that the defendant in an action of this character could not set up the adultery of the plaintiff as a counter-claim, and demand judgment for the dissolution of the marriage contract. Henry v. Henry, 27 How. Pr. 5; McIntosh v. McIntosh, 12 How. Pr. 289; Terhune v. Terhune, 40 How. Pr. 258. By the enactment of that amendment, a radical change was effected in the provisions of section 1770. As the section stood before the amendment, a cause of action which would justify an absolute divorce under the provisions of article 2 might be set up as a counter-claim in an action brought under the provisions of that article; and so, when a cause of action existed which would justify a limited divorce under article 3 it might be set up as a counter-claim to an action brought under that article. That was the effect of section 1770 as it stood before the amendment of 1881. By that amendment the words in said section, "the same article," were stricken out, and the words, "either of said articles," were substituted in their stead, so that facts which before the amendment were good as a counter-claim to one of said actions were extended to and became good as a counter-claim to either of said kinds of actions when accompanied by a denial of the allegations of the complaint. While it is not quite clear how the amendment of section 1770, above referred to, can be made to harmonize with subdivision 1 of section 500 of the Code, which required the counter-claim to arise out of the contract and transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action, and it is not easy to see how the charge of adultery bears any such relation to an allegation of cruel and inhuman treatment, yet the legislature, having so declared its enactments, must be respected and observed by the courts. It follows, therefore, that the allegations of adultery in the answer, if properly made, constitute a counter-claim on which the defendant may demand judgment for an absolute divorce. The answer in this case, having alleged the counter-claim in connection with a denial of the allegations of the complaint, according to the provisions of section 1770, as amended, and also demanding an affirmative judgment by reason of the counter-claim, as required by section 509 of the Code of Civil Procedure, is not for that reason subject to the objections raised by demurrer in this case. Nor is it an objection that can be raised on demurrer that the recriminatory charge or counter-claim in the answer does not allege that the adultery was without the connivance, privity, or procurement of the defendant. That allegation is not a fact necessary to constitute a cause of action. While technical good pleading may require such an allegation, the allegation, if omitted, may be supplied by the proof of the party on the trial. I am of the opinion that the demurrer in this action is not well taken, and must be overruled. The defendant is entitled to an interlocutory judgment overruling the demurrer, with costs of demurrer, with leave to the plaintiff to reply within 60 days on payment of cost of demurrer, and in default of which the defendant may have final judgment on the demurrer.

PEOPLE ex rel. FITCHBURGH R. Co. v. ASSESSOR et al.

PEOPLE ex rel. BOSTON, H. T. & W. R. Co. v. SAME. (Supreme Court, Special Term, Albany County. June 30, 1888.) RAILROAD COMPANIES-TAXATION-ASSESSMENT.

The proper method of assessing a railroad is to take into account the cost, location, and probable increase of business of the road, and when practicable to take the average net earnings of the whole road, including branches, feeders, etc., for a series of years, capitalized at 5 per cent., which, divided by the number of miles of main track, gives the value per mile for taxable purposes; and this rule applies, although the road for the given years comprised a number of distinct roads, since consolidated under an agreement fixing a greater value per mile than that arrived at by this method, it not appearing that the consolidation has increased its earning capacity.

On certiorari to an assessment.

Actions by the people on the relation of the Fitchburgh Railroad Company against the assessors of the towns of Hoosic, Pittstown, and Schaghticoke, and same on the relation of the Boston, Hoosac Tunnel & Western Railroad Company against the same.

T. F. Hamilton, for relator. C. E. Patterson, for defendants.

MAYHAM, J. The relators, by certiorari, seek to review and modify the assessment of their railroad by the assessors of the above-named towns, under the provisions of chapter 269, Laws 1880. The case shows that the main tracks of the railroad in the different towns are assessed at the rate of $30,000 per mile, and that in some instances the parallel line of the track acquired by the relator is assessed at the same rate, making what is claimed by the relator at the rate of $60,000 per mile for the double track, under the assessment of 1887, which this certiorari seeks to review. The contention of the relators is that the assessors, in making the assessment, did not adopt the approved legal method of assessing railroads, which, they insist, should be determined from the average net earnings of the railroad, for a series of years, capitalized on the basis of 5 per cent. per annum, and divided by the aggregate number of miles of main track, and the relator insists that the assessors wholly ignored and refused to take into account that method of assessment. The defendants insist and attempt to show by their proof that they estimated and assessed the value of the railroad in their respective towns at its full, fair value, as required by statute, and took as evidence to justify such assessment the price which the relator allowed for such roads in their consolidation agreement. The true method to be adopted by assessors is to ascertain and assess real property at its full, fair value, as the same would be appraised in the payment of a just debt by a solvent debtor. Chapter 57, Laws 1884. In determining that value, the assessors may, in assessing railroad property, take into account the cost, location, feeders, probable increase of business, and may and should also, if practicable, ascertain the aggregate net earnings of the railroad which they may capitalize and consider in determining such full, fair value. People v. Hicks, 105 N. Y. 198, 11 N. E. Rep. 653. And in making this estimate it is manifest that the assessors cannot be confined to any particular portion of the railroad. In the above case the supreme court, at general term, say: "The estimate of value of any portion of the road cannot be intelligently made without some knowledge or informa tion of it as a whole, and its business earnings and ordinary expenses. Railroads are constructed with a view mainly to revenue and profit upon investments, and hence the productive capacity and its earnings are matters for consideration in the estimate of value." People v. Hicks, 40 Hun, 601.

In the case now under consideration it seems from the evidence of the assessors themselves that they paid but little or no regard to the earning capacity of the railroad, although it appears that sworn tabulated statements

were presented to them, and filed with them on or before grievance day, and before the completion of the assessment rolls. From these tables, put in evidence in the manner which seems to be approved in the case above referred to, the value per mile of the main line of said railroad appears to be $13,455.07. And this estimate does not seem to be challenged or controverted by any evidence on the part of the defendants. It is true that this estimate, based upon the capitalization of net earnings, embraces a period prior to the act of consolidation, and yet it embraces the same roads, with substantially the same connections, though operated as independent lines, and there seems to be no adequate reason in the proof that the consolidation has materially increased the earning capacity of said roads above their net aggregate earnings before the consolidation. Nor can I see that the price specified in the articles of consolidation of these roads with the Fitchburgh Railroad Company should be controlling, as an admission of the value of said railroads thus consolidated. The consideration for such consolidation consisted of stock and bonds, and could hardly be considered as representing cash values for a definite and certain amount; and while the assessors might properly consider the facts connected with the consolidation, so far as they bore legitimately upon the question of value, they were in nowise controlling, as evidenced by the act of the assessors themselves. The earning capacity would seem to furnish a better and more approved test of value. People v. Weaver, 67 How. Pr. 477. In the case of People v. Wilber, 9 N. Y. St. Rep. 159, the assessment of a portion of the railroad now under consideration came before this court on certiorari. In that case the assessors of the town of Hoosic assessed the relator's railroad at $21,762.58 per mile, and this court, on certiorari, reduced the assessment to $10,000 per mile; and Justice PECKHAM, in delivering the opinion of the court, says: "Upon the law as laid down in some of the late cases in the supreme court, there is no doubt but that one of the chief factors, in determining the value of a railroad, for the purposes of assessment, is the earning of the company, or its capacity to do business." And the learned judge reiterated the rule laid down in People v. Barker, 48 N. Y. 70, that assessors, in assessing a railroad, are not required to assess it in isolated pieces of land, but each piece of property is to be estimated in connection with its position, its incidents, and the business profits to be derived therefrom. Treating the determination of the case of People v. Wilber, above referred to, as a determination of the assessed value, entitled to some consideration by the defendants, and that determination, taken in connection with the undisputed proof of the net earnings of the railroad, and the capitalized value per mile as indicated by such net earnings, and at the same time keeping in view the possible increase of business and net earnings by reason of the consolidation, I can find no warrant in the evidence before me for assessing their railroads at the average rate of $30,000 per mile, and am forced to the conclusion from the evidence that such assessment is excessive and erroneous, and should be set aside, and the assessments in the several towns be reduced, and fixed at the rate of $14,000 per mile. There is nothing in the evidence that would justify the conclusion that the assessors have acted in bad faith in making these assessments.

MURPHY v. SWEEZY.

(Supreme Court, Special Term, New York County. August 24, 1888.) WRITS-SERVICE OF PROCESS-Privilege-DEFENDANT IN CRIMINAL CASE.

A non-resident, who comes into the state simply to answer a criminal charge, is entitled to immunity from service of civil process while awaiting examination, under a bail-bond conditioned for his appearance at any time when called on, the examination having been postponed on account of the inability of the complaining witness to attend.

v.2N.Y.s.nos.7-10-16

At chambers.

of arrest.

Motion to set aside service of summons, and vacate order

Action by Annie L. Murphy, by her guardian ad litem, against Field W. Sweezy, for damages for breach of promise to marry, and assault. From the affidavits in support of the motion it appeared that while defendant was at his home, in Indiana, the sheriff told him he had received a request from the police authorities of New York city to arrest defendant upon a charge of criminal seduction and abortion, and that he proposed to arrest him until requisition papers could be procured, and that thereupon defendant consented to come to New York city without requisition papers; that he arrived in New York on Sunday, July 29th, and on the following morning gave himself up to the authorities, and was arraigned upon the said charge, to which he pleaded not guilty, and demanded an examination; that the examination was thereupon adjourned until such time as this plaintiff should be able to attend as a witness against him; that defendant gave bail July 31st, and was released from prison; that the examination has not taken place; that defendant came into the state solely to defend himself against said criminal charge. The summons was served, and the order of arrest executed, August 2d. The bailbond required defendant to appear at any time when called upon to proceed with said examination.

John O. Mott, for defendant. George W. Dease, for plaintiff.

PATTERSON, J. The service of the summons must be set aside, and the order of arrest vacated in this action. The defendant, a non-resident, came into the state simply to answer the charge made against him, and while he was necessarily here, waiting an examination, the papers in this action were served upon him. The immunity from service or arrest, under circumstances such as appear in this case, applies to a party as well as a witness, as appears from the remarks of ALLEN, J., in Person v. Grier, 66' N. Y. 126, referring to what was decided in Van Lieuw v. Johnson, (not reported;) Matthews v. Tufts, 87 N. Y. 568. It does not sufficiently appear that the proceedings be fore the magistrate were adjourned at the request of the defendant, but it seems that the adjournment was required by the inability of the complainant to attend, and I do not see how, in view of the condition of the bail-bond, it can be said that the defendant was allowed a reasonable time before service to leave the state. Motion granted.

(Supreme Court, Special Term, New York County. September 10, 1888.) DEPOSITION-OF WITNESS FOR USE ON MOTION-PRESENCE OF ATTORNEYS-Cross-ExAMINATION.

Under Code Civil Proc. N. Y. § 885, which provides that where a party intends to make or oppose a motion, and it is necessary for him to have the affidavit or deposition of a person, not a party, to use upon the motion, the court may make an order appointing a referee to take the deposition of that person, where the witness appears before the referee, refuses to answer on the advice of the opposing party's attorneys, but afterwards objection to the examination is withdrawn, and the attorneys disclaim, under oath, having interfered with its due course, they will be allowed to be present, but not to cross-examine the witness.

At chambers. Motion to compel witness to answer, and to exclude counsel for defendants from the examination.

Action by John Keenan against John O'Brien and another for a share in profits of certain contracts. Alfred J. Whitton, a book-keeper of the defendants, having refused to make an affidavit for use upon a proposed motion by the plaintiff, an order was procured for his examination before a referee, under Code Civil Proc. § 885, which provides that where a party intends to make or oppose a motion, and it is necessary for him to have the affidavit of a per

son, not a party, to use upon the motion, the court may make an order appointing a referee to take the deposition of that person. He appeared before the referee, but refused, by advice of defendants' attorneys, to answer various questions put to him by plaintiffs' attorney. Defendants also claimed the right to be present by counsel at the examination, and to cross-examine the witness, whereupon this motion was made to compel the witness to answer, and to exclude the defendants' counsel from the examination.

George Bliss, for plaintiff. Edward T. Lovatt and Chauncey S. Truax, for defendants.

PATTERSON, J. It was conceded on the argument that Mr. Whitton must answer the questions. The examination having proceeded thus far in the presence of the defendants' attorneys, there can be no reason for excluding them now. Their disclaimer, under oath, of having interfered with the due course of examination, is satisfactory. I do not think they are entitled to cross-examine Mr. Whitton. The whole proceeding is ex parte, and is made none the less so because the aid of the court has been invoked to require a person to make an affidavit who would not voluntarily do so. Brooks v. Schultz, 3 Abb. Pr. (N. S.) 124, is not a controlling authority. That case is also reported in the regular reports of the superior court,-5 Rob. (N. Y.) 656,; and the opinion of another judge who sat in the case there given is in conflict with that reported in 3 Abb. Pr. (N. S.) The defendants are not deprived of any right. They can procure from the person examined any atlidavit that may be necessary to explain or supplement what he states, and, if he refuses, they can compel him to make one without any interference on the part of the plaintiff.

HABERKORN v. HILL.

(Supreme Court, Special Term, New York County. September 11, 1888.) 1. PLEADING-ADMISSIONS-PARTNERSHIP.

The complaint alleged that the parties entered into a copartnership under a written agreement, (reciting its contents,) and that on the expiration of the agreement it was continued by a new agreement on the same terms, and that a copy of said last mentioned agreement is annexed to the complaint. Defendant admitted the first agreement, and that it was continued by a new agreement upon the same terms, but denied that the agreement annexed to the complaint was a true copy of such new agreement. No part of the answer expressly admitted the copartnership. Held that, reading the pleadings together, the copartnership was not admitted. 2. PARTNERSHIP-WHAT CONSTITUTES.

The first agreement expressly provided that the relation between the parties should not be one of partnership. By the new agreement plaintiff agreed to act under defendant's management, at such times and places, during theatrical seasons, as he might elect, and that she would not act under the management of any other person. The contract further provided that a correct account of the receipts and expenditures should be kept, the books to be open to plaintiff's inspection at all times, and that the personal expenses, except railway tickets, of each party should be an individual matter, but that all other expenses of the company should be deducted from the receipts, and the residue be equally divided between plaintiff and defendant. Held, that the agreement did not constitute a copartnership between the parties.1

Action for dissolution of partnership, accounting, etc.

Horatio C. King, for plaintiff. Howe & Hummel and George H. Forster, for defendant.

INGRAHAM, J. This action is brought for a dissolution of the copartnership between the plaintiff and defendant, and for an accounting. To entitle plaintiff to any relief in a court of equity it must appear that the relation be

'As to what constitutes a partnership, see Railway Co. v. Johnson, (Tex.) 7 S. W. Rep. 838, and note; Fertilizer Co. v. Reynolds, (Ala.) 4 South. Rep. 639, and note.