only allowed him five years in which to wind up the business, and therefore the general estate of the deceased partner was not liable for partnership debts contracted by the survivor.-Stewart v. Robinson, (Sup.) 309; Delemater v. Hepworth, (Sup.) 310. Rights of non-resident firm. 13. Under Laws N. Y. 1849, c. 347, plaintiffs, a foreign firm, consisting of C. and B. only, may use their firm name and style of "C., B. & Co. " in transacting their business through agents in this state, without violating Pen. Code N. Y. § 363, making it a misdemeanor to use the designation "& Co." when no actual partner or partners are represented thereby.-Cahn v. Gottschalk, (C. P. N. Y.) 13. PATENTS FOR INVEN- Royalty-Accounting. in suit were handed over to G., who kept them several months before plaintiff got them. It did not appear that they were canceled. At the same time plaintiff received from the bank an assignment of a judgment against G. Bros., reciting that the judgment was for a certain sum, but containing nothing to show that the notes were merged in it. The date of its rendition was prior to the maturity of two of the notes. Held, that the evidence showed a payment of the notes. and not a sale to plaintiff.-Geyer v. Brewster, (Sup.) 801. Application. 2. The question being whether a payment was to be applied on a land contract or on a note, it is not competent to ask one of the vendors and holders whether the money was in fact paid on the land contract, as the question calls for the witness' conclusion on the matter in dispute.-Doty v. Stanton, (Sup.) 417 PENITENTIARY. State and county institutions. 1. In an action for an accounting, where defendants have contracted to pay a royalty to plaintiff on her patent for illumi1. Laws N. Y. 1888, c. 586, prohibiting nating tiles made and sent away by them, the use of motive-power machinery, for to be used for making illuminated base- manufacturing purposes, "in any of the ments, and basement extensions, a finding penal institutions of the state," and the of the referee that areas are basement ex- employment of the convicts therein at certentions, within the meaning of the contain labor, applies only to the state-prisons tract, must be sustained, when the excep- and such other prisons and reformatories tion is general, and there is no suggestion as are constructed by the state, and at its that the tiles were not used in connection expense.-Bronk v. Riley, (Sup.) 266. with "illuminating covering" of areas.Hyatt v. Mark, (Super. Ct. N. Y.) 727. 2. The tiles being capable of various uses, and not indicating any special use, defendants cannot be required to show that those made and sold by them were not used for making illuminated basements and basement extensions, and in default of such showing to pay the royalty.-Id. 3. Objections to an account may be heard, opportunity being given to the opposite party to meet them, though not contained in the objections formally filed. -Id. PAYMENT. Of mortgage, see Mortgages, 10. 2. A penitentiary erected by a county. the management of which is vested in local and county officers, the money belonging to which is required to be deposited in the county treasury, and subject to the control of the board of county supervisors, is not a state institution, although prisoners from other counties may be confined in it under contract between the county or penitentiary officers and the state or the county sending such prisoners.-Id. Indictment. PERJURY. An indictment, alleging that defendant wickedly, falsely, feloniously, etc., testified What constitutes, see Justices of the Peace, 1. to certain matters specified, though not in What constitutes. 1. The notes in suit were loaned to G. Bros., and by them discounted at a bank, where they were protested for non-payment. Subsequently the same accommodation parties gave G. Bros. other notes, with which to take up and cancel the former. G., one of the firm, went with plaintiff to the bank; and, upon plaintiff's delivering to it a sum of money, the notes full compliance with Code Crim. Proc. N. Y $291, requiring it to contain proper allegations of the falsity of the matter on which perjury is assigned, will be sustained under section 684, providing that no departure from the form or mode prescribed by the Code in respect to any pleading renders it invalid, unless it has actually prejudiced the defendant, or tends to his prejudice, in respect to a substantial right -People v. Williams, (Sup.) 382. PLEADING. Amendment, see Trespass, 2, 3. Declaration or petition, see Action, 1, 2; Assumpsit, 1; Corporations, 11, 15-17; Death by Wrongful Act, 1, 2; Dower, 3, 4; Factors and Brokers, 3; Negligence, 7; Office and Officer, 1; Railroad Companies, 6-8. Declaration. 1. Under Code Civil Proc. N. Y§ 481, requiring the complaint to state plainly and concisely the facts constituting each cause of action, a complaint against a steam-ship company for negligence in transporting goods, which avers that defendant undertook to transport certain furs from and to points named, being paid therefor, and that it "so negligently and carelessly misbehaved itself" in the matter that plaintiff sustained damage, is insufficient, and a motion to make more definite should be granted.-Rubens v. Ludgate Hill S. S. Co., (Sup.) 30. Answer. 2. The complaint alleged that the parties entered into a copartnership under a written agreement, and that on its expiration it was continued by a new agreement on the same terms, and that a copy of said lastmentioned agreement is annexed to the complaint. Defendant admitted the first agreement, and that it was continued by a new agreement on the same terms, but denied that the agreement annexed was a true copy of it. No part of the answer expressly admitted the copartnership. Held that, reading the pleadings together, the copartnership was not admitted.-Haberkorn v. Hill, (Sup.) 243. Definiteness. him by defendant concerning the matters alleged, without giving the substance of either letters or conversations.-Duparquet v. Fairfield, (Sup.) 264. Amendment. 6. The action having been commenced and the pleadings filed in a justice's court. it is not an abuse of judicial discretion to refuse an amendment offered by defendant on a trial in the county court.-Fox v. Turner, (Sup.) 164. 7. An order amending the answer so as to conform to the proof is proper when made in the presence of both parties without objection.-Foster v. Easton, (Sup.) 772. Bill of particulars. 8. In an action to compel the trustees of a certain trust to transfer to plaintiff stock in such trust owned by him, the answer alleged that plaintiff, to advance his own business, to injure the companies constituting the trust, and to annoy defendants, had instituted suits against several of the companies, was stirring up litigation, and that his purpose in obtaining the transfer was to further harass them and extort money, and that he had offered to cease such litigation if a large sum of money should be paid for his business. Held, that as to the general averments, including no specific or particular things alleged against plaintiff, which have very little, if any thing, to do with plaintiff's rights, a bill of unnecessary. particulars was Rice v. Rockefeller. (Sup.) 867. 9. Plaintiff, in an action for legal services in a matter before the U S. treasury department, on a motion to require him to file a bill of particulars, filed an affidavit stating, in general terms, his services, for which he had charged a gross sum, and showing that he had filed three briefs with the commissioner of internal revenue, and presented him a written petition, and made and solicitor several times, made oral arguseveral oral statements to him, had appeared before the deputy-commissioner 3. In an action for personal property in a building leased by defendant, an answer the chattels named, under the lease, giving that defendant is entitled to possession of its date and parties, is sufficiently definite and certain.-Durant v. East River Elec-ments, and had seen the solicitor general tric Light Co., (City Ct. N. Y.) 389. Reply. 4. The fact that a reply is very loosely drawn is no reason for refusing an order directing defendant to furnish a bill of particulars of his counter-claim, since such a reply cannot be treated as a nullity.-Ennis v. Hosford, (City Ct. Brook.) 649. Verification. 5. A complaint, upon information and belief, is sufficiently verified by the attidavit of plaintiffs' attorney that he believes the allegations to be true, basing such information and belief upon letters received from plaintiffs, and admissions made to several times, and filed a brief with him. Held, that the affidavit itself should stand for a bill of particulars.-Thompson v. Knickerbocker Ice Co., (C. P. N. Y.) 18. Variance. 10. In an action for work performed, it is not error, under a general denial, to reject evidence offered by defendant to show that plaintiff was hired and had been paid by defendant's contractor.-Fox v. Turner, (Sup.) 164. PLEDGE. Rights of pledgeor. 1. A pledgeor's right to have ascertained she should deem the income insufficient for her support, she could designate any portion of the property for sale, and the executors, of whom she was one, should sell it, and pay the proceeds over to her absolutely as her own. Held, that the wife could not give a deed alone, but that the other executor must join.-Steves v. Wea the amount due on the obligation, and to | life-estate in his land, and directed that, if recover possession of the pledge on payment thereof, continues until his title is divested by a lawful sale, and passes to his assignee in bankruptcy; and neither Rev. St. U. S. § 5057, providing that all suits by or against an assignee in bankruptcy shall be commenced within two years after the cause of action accrued, nor the New York statute of limitations, affects such right.-ver, (Sup.) 321. Bailey v. Drew, (Sup.) 212.* Rights of pledgee. 2. Where a policy of life insurance is assigned to a holder of a note for security, he cannot sell the same, but can reimburse himself, when it becomes due, for whatever balance may be unpaid on the note.-Miller v. Magee, (Sup.) 156.* Rights of third persons. 3. Where plaintiff's stock was pledged by another without his knowledge or consent, and sold by the pledgee, it is error, in an action to recover a fund alleged to be the proceeds thereof, to award a part of it to the pledgeor's assignee for benefit of creditors, and the award cannot be sus tained by the possibility of claims to the fund by third persons whose securities were also pledged, all persons shown to have an interest in it being made parties.— Powers v. Savin, (Sup.) 835. 4. Neither can it be sustained on the ground that the rights of all parties to the fund in the hands of the assignee may be determined in future proceedings, where the judgment denies plaintiff's right absolutely, without reserving to him a right to institute further proceedings.-Id. Construction. POWERS. 4. A husband devised property in trust for his wife during life, with power in her to dispose of the same by will. By her will she gave her household furniture to W. for the use of her grandchildren; "also the use of all the residue of my property. of every description, for the maintenance of said children during minority: the residue to be equally divided among" them when the youngest should become 21 years old. She had substantially no property except the furniture. Held that testatrix intended to appoint under her husband's will.-Hogle v. Hogle, (Sup.) 172. 1. Dismissal for want of prosecution, after the death of defendant, is erroneous; the attorney's authority being revoked by his client's death, his interest in the costs will not sustain the dismissal.-Piering v Henkel, (City Ct. N. Y.) 413. 1. A power of attorney given in 1869, au2. It is improper at trial term to dismiss thorizing the making and giving of a prom- the complaint, as not sustained by the eviissory note, does not authorize a paymentdence, without specifying the defects in of one dollar on the note in 1881, to bar the plaintiff's proofs.-Falk v. Beeckman, running of the statute of limitations.-Mil-City Ct. N. Y.) 650. ler v. Magee. (Sup.) 156. Testamentary. 2. A power of sale of certain lands was given by will to certain trustees, who refused to serve, and a petition was submitted to the court, praying that certain persons be appointed "to hold the share set apart by commissioners in partition for the benefit of said S. and L., and to be held in trust for their benefit," such being the share which the will authorized to be sold. Held, that an order of the court appointing "such trustee" did not confer upon them the power of sale, which the original trustees would have possessed had they qualified.-Lahey v. Kortright, (Super. Ct. N. Y.) 230. 3. A testator bequeathed to his wife a 3. On a motion for a new trial, after verdict for plaintiff, the trial court has no jurisdiction to dismiss the complaint.-Ives v. Jacobs, (City Ct. N. Y.) 730. 4. Plaintiff having failed to give security for costs, defendants moved to dismiss the complaint, and also for a reference of certain counter-claims in their auswer. An order was entered reciting both applications, and adjudging that the motion should be granted, with costs. unless plaintiff, within 20 days, should file the security, and pay certain costs, which he failed to do. Held, that the order did not bind the court to direct a reference. It stayed plaintiff's proceedings, so that he could not reply to the counter-claims, and the court therefore properly denied the refer ence, and dismissed the complaint under Code Civil Proc. § 3277, providing for such dismissal when plaintiff fails to obey an order for security for costs.-Hinman v. Pierce, (Sup.) 861. Service of papers. 5. An objection to an order to show cause that it does not fix the time for its service, as required by Code Civil Proc. N. Y. § 780, is waived by an adjournment and subsequent argument upon the merits. Buford v. New York Iron Mine, (Super. Ct. N. Y.) 699. 6. Under a court rule requiring papers served or filed in an action to be indorsed pose for which the examination was asked. -Id. 11. In an action against a broker for moneys paid to him on his false representations that losses had occurred in alleged dealings in stock on plaintiff's account, where notices of the transactions were given to plaintiff, but a part of the notices have been lost, and some of the persons named in them have denied the transactions stated therein, an order directing the examination of defendant before trial is proper.-Dyett v. Seymour, (Sup.) 841. Prescription. Presumption. with the name and address of the attorney, Right to highway, see Highways, 1. Production of papers. 7 An order for the production of defendants' books for inspection should not be granted concurrently with an order for defendants' examination before trial; but, if it should subsequently appear that plaintiff cannot procure by the examination the information he is entitled to, he should have leave to renew his application for the production of the books.-Dyett v. Seymour. (Sup.) 842. In favor of holder, see Negotiable Instruments, 12. Of compliance with the law, see Corporations, 8. officer's performance of duty, see Hospital. reliance on surety, see I'rincipal and Surety, 1. sufficiency of transcript, see Appeal, 29. validity of trust, see Trusts, 4. PRINCIPAL AND AGENT. Insurance agents, see Insurance, 7, 8. Ratification. 8. Plaintiffs' affidavit stated that they sold goods to defendants: that afterwards, without plaintiffs' knowledge, their clerk wrote a letter to defendants, offering, as defendants allege, a modification of the contract, and under which defendants returned part of the goods; and that plaintiffs were entirely ignorant of the contents of the letter. The pleadings sustained these facts, and defendants did not allege the letter to be their affirmative defense. Held, that an order for discovery of the let-V. ter would issue.-Mason v. Smith, (Sup.) 355. Examination before trial. 9. Under Code Civil Proc. N. Y. § 873, providing that for reasons specified a party may obtain an order for the examination of the adverse party before trial, which shall be not less than 5 nor more than 20 days after the time fixed by the order for service, the special term cannot change the time for examination, fixed by an order by a judge, to a time more than 20 days from the time fixed for service by the judge.Balcom v. Adams, (Sup.) 255. 10. Such order should be vacated on appeal when it appears by the affidavits on which it was granted that plaintiff has no need of such examination to enable her to draw her complaint, that being the pur 1. Where defendant refused to accept certain realty which he agreed to purchase of plaintiff, unless certain deductions were made in the price, and the deduction was agreed to, and the deed delivered by plaintiff's agent, and plaintiff accepted the balance of the purchase price, he ratified the agent's acts, and is estopped to deny his authority to allow the deduction.-James Schmidt, (City Ct. Brook.) 649. Evidence of agency. 2. Declarations of a husband that he was acting as his wife's agent in buying lumber, together with the fact that the lumber was used, with the wife's knowledge, in building on her land, are insufficient to make her liable for the price.-Collins v. Fairchild, (Sup.) 153. PRINCIPAL AND SURETY. Presumption of reliance on surety. 1. In an action against the surety of a tenant, it will be presumed, in the absence of anything to the contrary, that the landlord agreed to let the premises in consideration of the promise of the tenant's surety, and it is immaterial that the instrument by which the surety is bound is dated two days before the lease.-Donaldson v. Neidlinger, (City Ct. N. Y.) 737. Discharge and release. 2. The fact that the landlord has not tried to collect from the tenant the rent due is not a defense in an action against the surety of the tenant.-Id. 3. A notice by a surety on a promissory note to the holder, who received the same with knowledge of the suretyship, that he must "make Daniel [the principal] come to time this fall," as it is "the best time for making money with farmers." is not such an "explicit notice or request to the creditors to take legal proceedings to collect the debt" as will discharge the surety on the subsequent insolvency of the principal. LANDON, J., dissenting.-Lawson v. Buckley, (Sup.) 178.* Promissory Notes. See Negotiable Instruments. Publication. Service by, see Writs, 8-7. PUBLIC LANDS. Second patent. 1. Where land under water is granted by patent, reserving to the state the right of re-entry until the land shall have been appropriated to commerce by the erection of a dock thereon, a subsequent patent to a railroad company for the land, on which the former patentee had not erected a dock, amounts to a re-entry by the state and divests his title.-Kerr v. West Shore R. Co., (Sup.) 686. 2. The grant of lands under water for railroad purposes being authorized by Laws 1850, c. 140. § 25, the decision of the state officers in issuing such subsequent patent cannot be reviewed in an action between the company and the former conditional patentee.-Id. Land under navigable lakes. 4. B. obtained, in 1873, a deed conveying land, by metes and bounds, "210 feet, to the beach of Lake Ontario," with the use, with others, of the beach on the end of the lot, and of a private street. Relator obtained a deed, in 1885, through the same grantor, to an adjoining lot, described by said lake:" reserving to the grantor and metes and bounds; "thence easterly along others fishing and bathing privileges. By a later deed, he obtained all the rights of their common grantor to the beach in front of his lot, and the private street. In 1885, B. obtained another lot, adjoining his first purchase, and bounded "along the shore of the beach along the land before conveyed the lake," and granting a right of way over to him. Held, that B.'s recognition of an easement in 1885 shows that there was a strip between the boundary of the lot first conveyed to him and the lake over which B. only had an easement, and the owner of that strip alone has a right to a grant of the land under the water adjacent to it, under Laws N. Y. 1850, c. 283, § 1; and, as B. shows no deed conveying this strip to him or his grantors, he has no right to the land under the water adjacent to relator's lot. -Id. Cutting timber. 5. In an action to recover penalties for cutting timber on public land there being evidence that defendant said he owned the land in question, and that he was cutting timber there, and that the trees were cut on that lot, it is proper to submit the question to the jury whether defendant cut the timber himself, or whether one cutting on adjacent lands by his authority had, with out his sanction, cut the timber in question.-People v. Turner, (Sup.) 253. RAILROAD COMPANIES. Land grants, see Public Lands, 1, 2. Action to vacate charter. 1. Where a railroad company purchases at foreclosure sale the property and franchises of another company, whose roadbed is not finished; reorganizes under Laws N. Y. 1874, c. 430, which provide that such reorganization "shall become and be vested with * all the rights, privileges, 3. Laws N. Y. 1850, c. 283, § 1, provides that the commissioners of the land-office may grant land under the waters of navigable lakes to the adjacent land-owners, and that a grant to any other person shall be void. The commissioners gave notice that B. applied for the land under waters adjacent to lands claimed by him. The relator, claiming a portion of the land, filed a remonstrance, but the grant was made to as B. Held, that as the relator, not being the owner of the land under water, could not bring trespass or ejectment against B., and as, in any event, this decision might be a bar, certiorari will lie to review it.-Burnham v. Jones, (Sup.) 148. * and franchises" belonging to the corporation owning the property so sold, "and shall be subject to all the provisions, duties, and liabilities imposed by the general railroad act and its amendments, except so far * inconsistent herewith, and with the last-named rights, privileges, or franchises:" and fails to complete the railroad within the time limited by the general railroad act and amendments, under which the corporation owning the property was organized,—the attorney general |