authorizing the recovery of damages as | compensation for the pecuniary injuries resulting from the decedent's death to the person or persons for whose benefit the action is brought, " damages are implied from an allegation of the wrongful act, and no other allegation of damage is necessary.Id. DECEIT. Who may sue. Effect. 3. 3 Rev. St. N. Y. p. 2196, § 147, providing that conveyances of land, in the actual possession of another, claiming under an adverse title, shall be absolutely void, does not apply to a case where both parties claim under a common grantor, and the party in possession, by mistake in the construction of his deed, holds land not embraced therein.-Harris v. Oakley, (Sup.) 305. DEMURRAGE. Construction of charter-party. Defendants, who were building a railroad, obtained the incorporation of a construction company, which was never organized, and was irresponsible, and procured A provision in a charter-party that “25 contractors to contract with its pretended running days are to be allowed the said agent by false representations that money merchants (if the ship be not sooner dishad been obtained in Europe with which patched) for loading the vessel at port of to build the road. The chief engineer, as loading, and for the discharge with the agent of defendants, drew drafts on the usual quick dispatch," does not allow the agent of the construction company, for merchant freighters 25 days for dischargwork done under the contract, and hading, in addition to 25 days for loading, the them cashed at a bank where they had done business before, by exhibiting the contract with the construction company, and detailing the statement made that money had been obtained in Europe. Held, that the bank's assignee of the drafts, could sue for the fraudulent representations.- Kelly v. Gould, (Sup.) 600. Dedication. Of highway, see Highways, 2. DEED. cargo; and such freighters are liable for demurrage for the time they retain the vessei beyond the period required for the usual quick dispatch.-Baldwin v. Stamford Manuf'g Co., (Super. Ct. N. Y.) 13. DEPOSITION. Ex parte, see Affidavit. When commission allowed. An open commission to take the testimony of witnesses is properly refused where the witnesses have already been examined under a commission, with interrog See, also, Fraudulent Conveyances; Mort- atories, and the only object sought is to gages; Vendor and Vendee. examine them further as to facts to which their attention has been directed, and to Construed as mortgage, see Mortgages, 1-3. obtain certain books; there being nothing Description, see Boundaries, 1, 2. to prevent a further examination under a DESCENT AND DISTRIBU- See, also, Executors and Administrators; Collateral inheritance tax. 1. Act N. Y. 1887, c. 713, entitled "An act to amend Laws 1885, c. 483, which is entitled 'An act to tax gifts, legacies, and collateral inheritances in certain cases,"" does not so repeal the earlier act that proceedings for collecting taxes which accrued under it cannot be maintained under the later act.-In re Arnett's Estate. (Sup.) 428. 2. Under Code Civil Proc. N. Y. § 2731, authorizing a creditor or person interested in the estate, though not cited, to appear at the accounting of an executor and become a party to the special proceeding, the people may appear and claim payment of the collateral inheritance tax imposed by | from justice, and mandamus will not lie to the tax act of 1885, as amended by act of compel the board of supervisors to allow 1887, making such tax payable to the treas- a claim for such expenditures by him.urer of the county for the use of the state, People v. Board of Supervisors, (Sup.) 351. making it due at decedent's death, and reCompensation. quiring that it be deducted by the executor before paying legacies.-Id. Collateral inheritance tax-Appraisement. 3. The board of supervisors is expressly prohibited from allowing such claim by Pen. Code, § 51, which prohibits any officer of the state from asking or receiving any fees or compensation for services rendered or expenses incurred in procuring an extradition, except on an employment by the governor; it expressly appearing that the services in this case were not so rendered. 3. Under Laws N. Y. 1887. c. 713. imposing a tax on certain legacies, etc., and providing in section 13 that, "in order to fix the value of the property subject to the payment of the tax," the surrogate shall appoint an appraiser, who shall ascertain-Id. and report the fair market value of the property, the appraiser must report all the property liable to tax, and should not report the exempt property.-In re Astor's Estate, (Sur. N. Y. Co.) 630. 4. The appraiser should mail notices to all persons known to him as having an interest in the property, and a report showing that the only persons whose names appear in the order of appointment were notified is insufficient.-Id. 5. An appraiser's report, showing that he had appraised "all the property of the deceased made known to him by the executor," is insufficient, as he should appraise all the property liable to the tax.-Id. 6. The report should also show that the property was appraised at "its fair market value," in accordance with the provisions of the act.-Id. DIVORCE. Abandonment. 1. A husband left his wife, announcing his intention never to live with her again, and testified, in an action for a legal separation, that he would not resume his relation of husband to her, and would not live in the same house with her. He had furnished her with certain sums of money for her support and that of her two infant children, and had visited her apartments every day to see the children, but all relations between himself and her had been abandoned by him. Held, that there was an abandonment, which entitled the wife to a separation from bed and board, and the custody of the children, with proper provision as to the husband visiting them. -Clearman v. Clearman, (Sup.) 356. Pleading. 2. Under Code Civil Proc. N. Y. § 1770, as amended by Laws 1881, c. 703, which provides that a cause of action against the plaintiff and in favor of the defendant, arising under either of the articles enumerating the grounds of divorce, may be interposed, in connection with a denial of the allegations of the complaint, as a counterclaim to an action for divorce; and section 509, which requires a defendant deeming himself entitled to an affirmative judgment in his answer,-the adultery of the plainon his counter-claim to demand the same tiff may be set up as a counter-claim to an action for a limited divorce on the ground of cruel and inhuman treatment, and an affirmative judgment thereon demanded.— Van Benthuysen v Van Benthuysen, (Sup.) 238. 3. The objection that the answer setting up such counter-claim does not allege that the adultery was without the connivance, privity, or procurement of defendant, can not be raised on demurrer.-Id. 2. Rev. St. N. Y. pt. 1, c. 12, art. 7, § 89, providing that it shall be the duty of the district attorney to conduct all prosecutions for crimes and offenses cognizable in the courts of oyer and terminer, jail delivery, and general sessions in his county, does not authorize him to institute and 4. In an action for divorce on the ground prosecute at the expense of the county pro- of adultery, unexplained evidence that deceedings for the extradition of fugitives | fendant, with another man and two wo Evidence. men, left a beer saloon in New York city, | to an action for divorce, a daughter is not and went to a house of ill fame, where to be assigned to the custody or company they remained about an hour, and the evi- of her mother pending the action, it is dence of a cabman that he had carried to error for the court, upon refusal of the and left at the house persons whom he father's attorneys to act with the mother's knew "did not belong there," is sufficient attorneys in selecting a place of residence to sustain a judgment for plaintiff.-Van for her, to direct that she be maintained at Name v. Van Name, (Sup.) 77. her father's expense at the hotel where the 5. In an action for divorce on the ground mother boards. BARTLETT, J., dissenting. of adultery by the wife, the uncorroborat--Beadleston v. Beadleston, (Sup.) 814. ed testimony of an alleged accomplice, who is shown to have threatened her with exposure if she did not pay him money, and who, though entertaining resentment See Gifts, 5, 6. against her after a disagreement, is stated to have returned letters written to him by her, is entitled to little weight, and a finding that a visit made by him at her home was on her invitation cannot be sustained by his evidence alone. - Beadleston v. Beadleston, (Sup.) 809. Donatio Causa Mortis. DOWER. Devise in lieu. rected them to pay his widow $1,500 per annum, and provide her with suitable apartments during her life. Held, that such provisions were in lieu of dower, and put the widow to her election.-Sullivan v. McCann, (Sup.) 193.* 1. Testator devised all his property to his executors in trust to collect the rents and profits during the life of his son, with 6. Evidence that defendant after attir-power to convey the real estate, and diing herself to leave her summer hotel, and while the carriage was waiting, was talking with witness in the hall, when her alleged paramour appeared, and she went into his room, and remained 5 or 10 minutes, leaving witness standing in the hall, after which she came out, bade witness good-bye, and went away, is not sufficient to sustain a finding of adultery, though the alleged paramour, whose general testimony appears incredible, testifies that adultery then occurred.-Id. 7. Evidence that one with whom no adultery is attempted to be shown was discovered on one occasion in the room of defendant when she was sick, using language, and guilty of conduct, improper, but not amounting to criminal intimacy, is not admissible.-Id. Review. 8. A reference will be ordered to take further proof, on an application to set aside a decree of divorce, after a lapse of nine years, the plaintiff having since remarried, where defendant's papers explain the delay, and show that process was never served on her, and that she was in Europe at the time of the alleged adultery, and plaintiff's answer is not full; no explanation being given of the absence of affidavits by the witnesses on the trial, nor anything to show the efforts to find the person alleged to have served the sum mons.-Linn v. Linn, (Sup.) 578. Costs. 9. Where there is reason to believe that both parties to a divorce suit have, through the aid of detectives employed for that pur pose, obtained false testimony, no costs will be allowed.-Beadleston v. Beadleston, (Sup.) 809. Custody of children. 2. A testator directed his executors to pay his wife an annuity and provide suitable apartments for her. She commenced no proceedings for assignment of her dower within one year after testator's death, but accepted the annuity, and selected, with the approval of the executor, apartments in one of the houses left by testator. Held, that her right to dower was defeated, under Rev. St. N. Y. pt. 2. c. 1. tit. 3, § 14, providing that when a woman shall be entitled to an election she shall be deemed to take the provision of the will, unless within one year after the death of her husband she shall enter on the lands to be assigned to her for dower, or commence proceedings for the recovery or assignment thereof.-Id. Action to recover-Pleading. 3. Under Code Civil Proc. N. Y. § 1597, providing that in an action for dower the occupant must be made defendant; and section 1599, providing that, in an action to recover dower in a distinct parcel of land. all persons in possession may be made defendants, though they possess or claim title to different portions in severalty,causes of action for dower in two distinct parcels of land occupied by different perstated and numbered.-Peart v. Peart, sons, are separate, and should be separately (Sup.) 322. 4. A complaint which first sets forth the provisions of the will of deceased purporting to devise two parcels of land, and aft erwards alleges that, upon the death of deceased, the several lots of land descended to 10. Where, by stipulation of the parties his heirs at law, would be conflicting upon 8. Plaintiff having alleged, and the evidence showing, that defendant had erected a gate across the entrance to the alley for the purpose of excluding persons not using it with his permission, equity will interfere to remove the gate, and it is immaterial that plaintiff might open the gate himself, so long as his right to use the alley is disputed and resisted by defendant.-Id. 4. As to the part of the alley covered by the building, there was no allegation that Its use was necessary to the enjoyment of plaintiff's property, nor did it appear that it was necessary. Held that, it being evident that an award of damages would be sufficient remuneration, and there being no allegation that defendant was not responsible for any damages that might be recovered, and the building being an expen sive structure, equity would not order its removal, though wrongfully erected.-Id. 5. In an action for failure to maintain an opening to an hotel across a certain strip of land, the jury were properly charged that, though defendant built a fence across such strip of land, if he maintained the required gateway plaintiff could not recover. Avery v. New York Cent. & H. R. R. Co., (Super. Ct. Buf.) 109. Damages. 6. In an action for injury to hotel property by the obstruction of an easement across a strip of land between the hotel and the depot, it appeared that the jury had before them the capacity of the hotel, its furniture and surroundings, the manner in which it was conducted, and the sources of its patronage, for many years; that the reservation of right of way and free access across such strip of land was regarded at the time it was made as a valuable appurtenant right; that such right of way had been entirely barred for 83 days, after which time a gateway was erected, through which people were allowed to pass under railroad regulations. Plaintiff testified that with such right of way the hotel was worth $12,000 per annum, and without it was valueless; and that the receipts from a restaurant attached shrank from $1,900 to $700 per month. Two former trials of the action had resulted in verdicts for plaintiff of $20,000 and $6,000, respectively. Held, that a verdict of $10,000 for plaintiff would not be set aside BECKWITH. C. J., dissentas excessive. ing.-Avery v. New York Cent. & H. R. R. Co., (Super. Ct. Buf.) 101. Conduct of elections. 1. Under Consolidation act N.Y. §§ 1866, 1882-1884, relating to the registration of voters, and the method of voting and holding elections in New York city, and in view of Laws 1886. c. 314, amending Consolida tion act, § 1841, which provides that inspectors of election shall call the attention of voters to irregularities in the indorsements on their ballots, and give an opportunity to correct the same, a citizen cannot present himself more than once at the polls for the purpose of voting, but must when his turn is reached vote once for all at that election.-Simpson v. Brown, (Sup.) 571. Contest-Appeal. 2. On motion by a candidate for office for a mandamus to the board of canvassers to adopt a certain one of two statements of the canvass of votes of a district, the opposing candidate moved for permission to but subsequently a further order that he appear and be heard, which was granted. appeared and was made a party was refused. Held, that he could not appeal from could, a reversal would establish no right, an order granting the writ, and that, if he and no benefit would result.-People v. Board of Canvassers. (Sup.) 561. 3. As appellant received all he asked for termination did not require his presence unon his first motion, and as a complete deder Code Civil Proc. N. Y § 452, providing for bringing in a person where a complete determination cannot be had without his presence, and where one not a party has an interest which may be affected by the judgment, and as by section 3343, subd. 20, the latter condition of section 452 does not apply to a special proceeding, and as he would not be concluded by the determination, and is therefore not within section 1296, allowing an aggrieved person, not a party, but entitled to be substituted as a party, to appeal, the order refusing to allow him to be made a party will not be reversed. -Id. EMINENT DOMAIN. Right to exercise the power. 1. The New York Elevated R. Co., hav. ing by Laws N. Y. 1875, c. 595, acquired all the rights, powers, privileges, and franchises of the West Side & Yonkers P. R. Co., which it had purchased, and which by Laws 1866, c. 697, and Laws 1867, c. 489, was vested with all the powers relative to ac quiring real estate, conferred upon railroad companies formed under the general railroad act, (Laws 1850, c. 140,) and acts amendatory thereof; and having subsequently, through the action of the rapid transit commissioners, pursuant to Laws 1875, c. 606, § 36, acquired the right to construct and operate its East-Side lines, and become vested with the same power to condemn real estate for those purposes that it already had for the purposes of its WestSide lines; and the Metropolitan Elevated Ry. Co. having been granted all the rights and privileges, and made subject to all the provisions, of chapter 140, by Laws 1872, c. 885, except as modified by that act, such companies have all the powers, in regard to acquiring real estate for the purposes of their incorporations, which are given by chapter 140, and the amendments thereof, to corporations formed under that law; and, in taking legal proceedings to acquire real estate, they may follow the mode of procedure prescribed in that chapter, and the amendments thereof.-In re Metropolitan E. Ry. Co., (Sup.) 278. 2. A railroad corporation, whose road is leased to another company, may nevertheless exercise the right of eminent domain. -Id. Property subject to. 3. The term "real estate, as used in Laws N. Y. 1850, c. 140, vesting in railroad companies power of eminent domain, covers all incorporeal hereditaments, easements, rights, and privileges necessary to the construction and operation of an elevated railroad.-Id. 4. A railroad corporation may condemn real estate over which its road was built at the time the condemnation proceedings were instituted.-Id. 5. Condemnation proceedings may be maintained as to parcels the owners of which have sued the companies for damages.-Id. stands does not prove that stations of smaller size would adequately accommodate the traveling public, and does not prevent the company from acquiring title, by condemnation, to the real estate on which the stations are built.-Id. Procedure. 7. Under Laws N. Y. 1850, c. 140, §§ 22, 28, providing that a railroad company, before constructing any part of its road, shall make a profile of its route, and give the occupants of land to be taken 15 days' no tice, during which they may apply for a change of route, and that for road purposes a limited strip of land may be taken, and, at points where cuts or embankments are necessary, enough more to insure their safety, no new profile is necessary before taking necessary additional land of one who did not apply for a change of route.In re South Brooklyn R. & T. Co., (Sup.) 613. 8. The petitions for appointment of commissioners to assess damages for the taking of real estate for purposes of the road. as provided for by that chapter, described the real estate to be taken as "so much of the privilege. easement, or other interest in said street as is taken, appropriated, or interfered with by the construction and maintenance of the elevated railroad of the petitioner. Held, that the petition did not authorize the acquisition of "land," within the meaning of Laws 1876, c. 198, § 2, requiring notice by publication to be given of the application for appointment of commissioners to assess the value of land contained in any street or avenue in which the owners of adjoining lands on the line of the street or avenue claim the fee or a right of property, and which is sought to be taken for the purposes of a railroad; and hence the court had jurisdiction of the proceeding, although the service by publication was not made.-In re Metropolitan E. Ry. Co., (Sup.) 278. 9. The companies, shortly before filing their petitions, served written offers to purchase upon the owners of some of the parcels; mailed offers to owners of other parcels; left offers as to other parcels with some person upon the premises, which in some cases came to the notice of the owners; and all these offers were declined, or taken no notice of, or the counter-offer was considered exorbitant. Most of the owners had already sued for damages, and in their verified complaints had placed the value of the property at sums which the companies considered grossly extravagant. Held that, as the estimates of value centertained by the owners and the companies differed so widely as to render it almost certain that the offer to purchase would be rejected, the efforts made by the com |