strip, having such line for its center, six rods in width, reserving for her use a grade crossing, which the railway company undertook to make and maintain. The railroad was constructed, and the crossing provided. This proceeding was instituted, as appears by the petition, to extinguish such easement of the respondent, for the alleged reason that the company required the land so conveyed, and embracing that within the location of such easement, for "warehouses and tresties, and facilities for the handling and storage of coal and other freight, and their transfer from car to car, and for its other lawful purposes. Upon appeal from the order of the special term appointing commissioners, such order was, with some modification, affirmed; upon the assumption that, by the extinguishment of the easement so provided, it was not designed to deny to the respondent the right and means of a farmcrossing over the land so conveyed. 44 Hun, 194. The quantity of her land north of the railroad, and fronting on the highway, is two and sixty-nine onehundredths acres, and her buildings are upon it. South of such railroad, and of the land taken by the Erie & Lehigh Valley Railroad Companies, the quantity of her land is six and seventeen one-hundredths acres, making, together, eight and eighty-six one-hundredths acres retained by the respondent in her farm. The company does not by this proceeding seek or propose to take any additional land for its structures, but its apparent purpose is to erect them upon the strip so conveyed to it, and upon which the railroad was constructed. The commissioners awarded to her $900; and in their report say that in making such award they "regarded said Catherine Miller as having a right to a grade crossing from the northerly line to the southerly line of land deeded by her to the petitioner." No evidence appears to have been taken by the commissioners, other than such as they may have obtained by a personal view of the premises, of the damages she would suffer upon the assumption that a crossing over the land would be substituted for the one extinguished. The evidence of the witnesses produced at the hearing related solely to the value of the respondent's land; and to the value of that portion of it south of the railroad, in the event that the means of crossing to and from it over the land so conveyed are cut off and denied to her. It is difficult to see how the amount of the award was arrived at upon the assumption that the land-owner was to have a crossing over such railroad land for her use. The consequences to her property by the construction and operation of the railroad, or in the erection of structures for its purposes upon the land conveyed to the company, were not the subject of consideration in this proceeding; as they were disposed of or covered by the sale and conveyance of the land by the respondent to the company for the purposes of the railroad, subject only to the right of a grade crossing. Assuming that the commissioners had in view a crossing to be provided for her over the lands in making the award, it does not appear by any evidence, and is not represented by their report, how or to what extent it would be less useful or convenient for her than the one extinguished; and upon that assumption we fail to find in the papers before us any satisfactory support for the award.

There was some evidence tending to prove that, in view of the extinguishment of the easement in question, the respondent's land south of the railroads would have a greater value if it abutted on the street south of it, than it would have if shut off from it, as it was, by a narrow strip of land between the south line of her lot and the street. The counsel for the petitioner offered to show that he was the owner of that strip of land, and was then ready and offered to deliver to the respondent a deed already executed, conveying it to her, without the payment by her of any consideration, and offered such deed in evidence. To this evidence the respondent's counsel objected. It was excluded, and exception taken. The evidence was offered to prove that she then had the opportunity to connect the south end of her land with a street, in that manner to enhance its value, and thus tend to diminish the damages she would suffer by cutting off partially or wholly her means of passage across

the railroad from the northern to the southern portion of her land; and it cannot be said that such may not have been the effect, founded upon the estimated value of her property. With a view to the question of compensation, it was proper to show the existing or available facilities of going upon the land for the purposes of its use, and the value remaining of the premises after the extinguishment of the particular easement. But the adoption of the proposition in question would seem to lead to the conclusion that in a proceeding to condemn land, and upon the subject of compensation, such means as the petitioner should enable the land-owner to accept, as might enhance the value of the portion not taken of any parcel of land, would become the subject of consideration for the commissioners; and such means might be produced by a variety of supposable causes. The prevailing theory upon which compensation in such cases is estimated has reference to the condition in which the remaining property of the land-owner will be left, and how it will be affected by the appropriation of the portion taken for the public uses in view. This involves the consideration of the impairment of the conveniences and facilities relating to its legitimate use, as well as the depreciation in value occasioned by the severance from it of that taken. In this case the inquiry related to the consequences of denying to the respondent the easement which had been provided for her passage from one portion to the other of her land. It was competent to show the means she would have to reach the southern portion of the lot, and that she could do so by going the distance of one and three-fourths miles; and although it may have been a gracious act on the part of the petitioner to offer her a way from the street on to her lot at that end of it, by the conveyance to her of the intervening land, she was not required to accept it, nor is it seen how, on her refusal to do so, that fact was legitimately available as evidence in reduction of compensation. The consideration by the commissioners of such means for that purpose is not within the contemplation of the statute. Hill v. Railroad Co., 5 Denio, 206, affirmed 7 N Y 152; In re Railroad Co., 28 Hun, 426. To hold to the contrary would be the assertion of a rule not entitled to support as a precedent, as it would be the recognition of the right to urge in mitigation of damages in such cases whatever the land-owner may have had the opportunity to accept, which might be construed as a benefit to him in the value or use of his land not taken. It is not for the court to determine whether the respondent ought or not to have accepted the proposition made to her on the hearing. It was her right to decline to become the owner of the strip of land, and to refuse to have her land extended to the street. The motives of persons, in due exercise of their clear, lawful rights, are not usually the legitimate subject of criticism in legal proceedings. We have examined the other exceptions to the rejection of evidence, and think there was no error in that respect to the prejudice of the petitioner. It may be observed that the rule relating to the trial of actions at law is not in its strictness applicable to proceedings of this character. Upon the assumption that the respondent is denied the right to a crossing over the railroad, the amount awarded as compensation has the support of evidence; and in that view it cannot properly be determined excessive. In re Railway Co., 27 Hun, 116. The appraisal and report should be reversed, and a new appraisal had, unless the respondent elect to release her right or claim to a crossing over the land of the petitioner; and in that event the appraisal and report should be affirmed, without costs of this appeal to either party.

BARKER, P. J., and HAIGHT, J., concur. DWIGHT, J., dissents.

CHAFFEY V. EQUITABLE RESERVE FUND LIFE ASS'N.

(Superior Court of New York City, General Term. October 29, 1888.) INSURANCE-MUTUAL BENEFIT INSURANCE-ACTION ON CETIFICATE-RIGHT TO EXAMINE WITNESS BEFORE TRIAL.

In an action by the beneficiary on a certificate issued by a reserve fund life association, whereby it agrees to pay a certain sum on the death of assured, from the death fund, or from moneys to be realized by assessment to be made as therein provided, plaintiff is entitled to show that the death fund amounted to the sum agreed to be paid, or, if it did not, what amount an assessment would realize, and may have an order for the examination of an officer of the association before the trial, to ascertain whether he can testify to those facts.

Appeal from special term.

Action by Mary E. Chaffey against the Equitable Reserve Fund Life Association. Order vacating an order for the examination of an officer of defendant as a witness before trial; whereupon plaintiff appeals.

Argued before SEDGWICK, C. J., and TRUAX and INGRAHAM, JJ.
Wm. H. Arnoux, for appellant. McAdam & McAdam, for respondent.

PER CURIAM. This action is brought on a certificate or agreement issued by the defendant, whereby it agreed to pay to the plaintiff, within 90 days after the receipt of proof of death of Edward L. Chaffey, the sum of $10,000 from the death fund (thereafter defined) of the association at the time of such death, or from moneys that shall be realized by assessment, to be made as thereinafter provided. The answer alleges that at the time of the death of the said Edward L. Chaffey there was no money in the death fund applicable to the payment of the said claim, and that an assessment was made as provided in the certificate, which realized the sum of $3,393.90. It is evident that before the plaintiff can recover she must prove that the death fund amounted to $10,000, or, if it did not amount to that sum, what amount an assessment would realize, and that such evidence must be obtained from the officers and books of the defendant. From the nature of the case the plaintiff has not the information necessary to enable her to testify in relation to those facts, and it does not appear that there is any source from which the testimony could be obtained except from an examination of the officers and books of the defendant; and, as before stated, the testimony is material to sustain plaintiff's cause of action. Nor should the plaintiff be compelled to wait until the trial, and then depend upon a subpœna duces tecum. It is not certain that the secretary is the officer who has the necessary information, and the plaintiff should not be exposed to the risk of the failure of the officer subpœnaed to be able to testify. We do not wish to be understood as deciding that plaintiff is to have under this order a discovery or inspection of the books of the defendant. The books may be required to be produced as an incident to the examination of the witnesses, (Levey v. Railroad Co., 53 N. Y. Super. Ct. 267,) so as to make his examination effective. Plaintiff is entitled to such an examination, but not to a discovery or inspection of books and papers. We think the order vacating the order for the examination should be reversed, with costs and disbursements, and the motion to vacate denied, with $10 costs.

BALDWIN NEW YORK CENT. & H. R. R. Co.

(Superior Court of New York City, General Term. October 25, 1888.) RELEASE AND DISCHARGE-PERSONAL INJURIES-EFFECT OF RECEIPT.

Receipt of a release from all causes of action by a railroad company, from a person claiming to have been injured on one of its cars, is no admission of liability. Appeal from jury term; JOHN J FRIEDMAN, Judge.

v.2N.Y.s.no.16-31

Action by Charlotte A. Baldwin against the New York Central & Hudson River Railroad Company for personal injuries. Complaint dismissed, and plaintiff appeals.

Argued before SEDGWICK, C. J., and INGRAHAM, J.

Samuel H. Randall, for appellant. Henry H. Anderson, for respondent.

PER CURIAM. The action was for damages for alleged negligence of the servants of defendant in managing a horse car which the complaint alleged was owned and operated by defendant. The only proof given by plaintiff to show that the defendant was responsible for the negligence of the person driving the car in question was a release which the defendant received from the plaintiff from all causes of action which she might have against it. This release was not an admission of liability. At the most, it was an admission that the plaintiff had made a claim that the defendant was liable. In the course of plaintiff's case it was shown that the defendant was not the owner of, or in occupation or management of, the car in question. On the argument of the appeal it was claimed that the answer did not put in issue the averment of the complaint on this point. It appears, by the case, that the plaintiff did not take such a position upon the trial, and presented to the court a claim based upon the testimony produced by her. The court, on appeal, can only examine the action of the court below upon the matter actually presented upon the trial. Judgment affirmed, with costs.

NEER . OAKLEY et al.

(City Court of Brooklyn, General Term. October 22, 1888.)

1. PARTNERSHIP-FIRM AND PRIVATE INDEBTEDNESS-FRAUDULENT CONVEYANCES. In an action involving the validity of a mortgage of partnership property, executed by a member of the firm in the firm name, and at once assigned to his wife, who was the real creditor, where the testimony of the executing partner and the assignee tends to show that the loan for which the mortgage was given was made for the benefit of the firm, and not for the individual benefit of the executing partner, as against the other partner's denial of any knowledge of such indebtedness, the question of the firm indebtedness is property submitted to the jury.

2. SAME-EVIDENCE-ADMISSIBILITY.

Where a mortgage of firm property is made by one of the partners in the firm name, and is immediately assigned by the mortgagee to the wife of the partner executing the mortgage, evidence is admissible to show that the mortgage was made to secure a firm debt to the assignee, instead of the mortgagee.

3. SAME-AUTHORITY OF PARTNER-MORTGAGES.

One partner can in the firm name execute a mortgage of the firm property, to secure a firm debt, without consulting his partner.1

Appeal from trial term; N. H. CLEMENT, Judge.

This is an action brought by Fanny O. Neer against Charles B. Farley, sheriff of King's county, for the seizure and sale of certain personal property, consisting of livery stock, on execution issued on a judgment in favor of Oakley & Smith, and against Curtis & Neer, a copartnership composed of Joseph Curtis and Milton M. Neer, husband of the plaintiff. By order of court, Whitson Oakley and George W. Oakley, indemnitors, were afterwards substituted defendants in place of the sheriff. Plaintiff claims the property as assignee of a mortgage executed to one Van Pelt Palmer in the firm name of Curtis & Neer, "per Milton M. Neer." The defendants contend that the mort

1A partner has authority to mortgage the chattels of the partnership, to secure the payment of partnership debts, without the knowledge or consent of his copartners, Hembree v. Blackburn, (Or.) 19 Pac. Rep. 73; or to give a sealed power of attorney to confess judgment, in the firm name, where a seal is not necessary to such instrument, Alexander v. Alexander, (Va.) 7 S. E. Rep. 335. Respecting the power of a partner to bind the firm, in general, see note to Alexander v. Alexander, supra; Van Winkle v. Wilkins, (Ga.) 7 S. E. Rep. 644, and note.

gage was executed in fraud of creditors, and that it was therefore void as to them. It appears that, in 1883 or 1885, Joseph Curtis and Milton M. Neer entered into a copartnership for the purpose of buying and selling horses. Their united capital amounted to but $40, with which they bought their first horse. They afterwards procured credit with Oakley & Smith, from whom a large number of horses was purchased, which were paid for from time to time, as money could be procured for that purpose. Milton Neer testifies that when the firm commenced business he was otherwise engaged at $12 per week. In consideration of his giving up his employment, and giving his personal attention to the business of the firm, it was agreed that he should draw out from the concern $12 per week as salary; Curtis being a drummer for a cracker-house, and not being able to give any time to the business. There were no articles of copartnership, but it was expected each would contribute his share, when necessary, in order to meet payments. Neer testifies that on several occasions, when it was necessary for the firm to have money to defray expenses or make payments on horses or other stock, with the knowledge and consent of Curtis, he borrowed money from his wife, which money was all used for the benefit of the firm; that he borrowed it on the credit of the firm, and not on his personal credit; that he borrowed it with the understanding and intent that it should be a firm, and not a personal, debt. The money obtained from his wife was her own money, earned by her in the millinery business, and in keeping boarders. A portion of it was also obtained from her mother and from her father's estate. With the understanding that a mortgage by the firm of which he was a member could not be made directly to his wife, it was, by advice of counsel, made to Palmer, and at once assigned to the plaintiff. He further testifies that, though Oakley & Smith had pressed for payment of a large claim, the mortgage was made only for the purpose of securing a debt of the firm to his wife, and without any intent to save anything for himself as against his other creditors. The plaintiff testified that in taking the mortgage she had no intent to defraud creditors, but only desired to secure what the firm owed her; that the money was not loaned to her husband to help make up his share of the capital, but for the purpose of paying the debts of the firm. As to the sources from which she derived the money, her testimony corroborates her husband's. Joseph Curtis testified that it was understood between him and Neer that each should put in an equal amount of capital, and that they always endeavored to do so; that he never knew of any indebtedness whatever to Mrs. Neer, nor where Milton Neer obtained the money supplied by him, that Neer put into the concern only about $350, while his contributions amounted to about $3,000. The jury rendered a verdict for the plaintiff for the amount of her debt, and the court overruling a motion for a new trial, defendants appeal, assigning as error the submission of the question of the firm's indebtedness to plaintiff by reason of insufficiency of evidence; the admission of evidence to show that the mortgage was made to secure an indebtedness to plaintiff instead of Palmer, and contending that Neer could not, under the circumstances of the case, make a mortgage of partnership property, in the firm name, which would be valid as against his copartner or the creditors of the firm.

Argued before VAN WYCK and OSBORNE, JJ.

Benj. G. Hitchings, for appellants. Zimmerman & Jacobs, for respondent.

VAN WYCK, J. This action involved the validity of a chattel mortgage made by Curtis & Neer, per Milton M. Neer, one of the partners, on part of the firm assets, to one Van Pelt Palmer. The mortgage recites an indebtedness of the firm to Palmer of $190. The plaintiff, in support of the validity of the same, offered testimony, which was admitted against the objection of defendants, to show that Curtis & Neer were indebted to her, and not to Palmer, for money loaned by her to said firm; and that the mortgage was given