will be allowed to bring an action to vacate its charter, under Code Civil Proc. N. Y. § 1798 et seq.-In re Attorney General, (Sup.) 684. Construction of road. tition represents such majority, is within 7. A desire in the petition that the bonds be invested in stock of a railroad company is within the statute authorizing a desire that the bonds or the proceeds be so invested, and the variance does not affect the jurisdictional character of the petition. 2. Where land under water granted by patent, reserving to the state the right of re-entry until the land shall have been appropriated to the purposes of commerce by the erection of a dock thereon, is condemned by a railroad company after the erection of a dock, and before re-entry by the state, the company has the right to ob-Id. struct navigation to the extent required to build its road.-Kerr v. West Shore R. Co., (Sup.) 686. ance of railroad aid bonds, providing that 8. A petition of tax-payers for the issua certain quantity shall be issued when the 3. A bay over which a bridge is con- road is located through the town, authorstructed by the company having been preizes the commissioners, appointed in purviously navigable by flat-boats and scows suance of the petition, to postpone their only, and navigation by such boats not be-issue to a later stage in the progress of ing impeded by the bridge, the company the work, by contract with the company has sufficiently complied with Laws 1850, c. 140, § 28, subd. 5, requiring a railroad company to restore any water course intersected by its railroad "to its former state, or to such a state as not unnecessarily to have impaired its usefulness."-Id. 4. Obstructions to navigation by piles within the limits of the right of way must be removed by the company, and it cannot evade liability by showing that they were placed there by a contractor.-Id. -Id. 9. Under section 2, providing that the judge shall make such adjudication, and cause the same to be entered of record in the office of the clerk of the county, and the same effect as other judgments, it is that such judgment and record shall have not necessary that it specify any relief, or declare any amount; and the failure of the clerk to sign it. is a mere irregularity, not affecting the validity of the bonds.-Id. 10. The date of railroad aid bonds, prior to the constitutional amendment forbidding their issue, is not conclusive evidence on behalf of the holder, on the question of his bona fides, that they were issued before the amendment.-Id. 11. The levy, by town officers, of taxes to pay interest on railroad aid bonds does not estop tax-payers from contesting their validity.-Id. Remedies. 12. A town for which railroad aid bonds have been issued may sue in equity to restrain the payment of interest, and to require them to be delivered up and canceled, and need not await an action at law, and set up their invalidity as a defense.Id. 6. Laws N. Y. 1871, c 925, §§ 1, 2, pro vide that when a majority of the tax-pay ers representing a majority of the taxable property of a town shall make application by petition to the county judge, setting forth that they desire that the town shall create and issue its bonds to an amount 13. Where a county appropriates to its named, and invest the same, or the pro- own use moneys received from a town for ceeds thereof, in the stock or bonds of a state and county taxes paid by a railroad railroad company, the judge shall order company, instead of purchasing the railpublication of notice, and on the day ap- road construction bonds of such town, and pointed make an adjudication whether the investing in a sinking fund, as required by petitioners represent a majority of the tax Laws 1869, c. 907, as amended by Laws able property. Held, that where two such 1871, c. 283, the town may pursue a competitions, one calling for an amount in ad-mon-law or equitable remedy, and is not dition to the amount of the other, are pre- confined to the procedure by petition of a sented, each representing a majority of tax payer to the county judge complaining the taxable property, but the names there that the county treasurer has neglected his on in common not representing such ma-duty as prescribed by the latter act.jority, a single adjudication, that each pe- | Wood v. Board of Supervisors, (Sup.) 369.. 14. An action against a county for the them.-Town of Cherry Creek v. Becker, conversion of state and county taxes paid | (Sup.) 514. by a railroad company, instead of purchas- Taxation. ing railroad construction bonds of the town in which they were levied, or of investing in a sinking fund, may be brought in the name of the supervisor, as such, instead of in the name of the town.-Id. 15. The remedy by petition, provided for by act N. Y. 1871, to enforce the application of the moneys collected, not being made prohibitory or exclusive of other remedies, is merely cumulative, and the person aggrieved has his election to proceed either by action or petition.-Vinton v. Board of Supervisors, (Sup.) 367. Municipal aid-Constitutional law. 16. Laws N. Y. 1869, c. 907, § 4, amended by Laws 1871, c. 283, providing that all taxes, except for schools and roads, assessed on and paid by any railroad in a town which has issued bonds in aid of such railroad, shall be applied by the county treasurer to the purchase of certain bonds to be held by him as a sinking fund for the redemption of such aid bonds, does not violate Const. N. Y. art. 7, § 8, providing that "no moneys shall ever be paid out of the treasury of the state, or any of the funds under its management, except in pursuance of an appropriation by law," etc. The money in the hands of the county treasurer cannot be regarded as in the treasury of the state, nor belonging to any funds under its management. Following Clark v. Sheldon, 12 N. E. Rep. 341.-Id. 17. Nor do those acts violate Const. N. Y. art. 3, § 20, providing that "every law which imposes a tax shall distinctly state the tax, and the object to which it is to be applied, and it shall not be sufficient to refer to any other law to fix such tax or object." The acts in question simply specify what may be done with a tax which has been legally imposed. Following Clark v. Sheldon, 12 N. E. Rep. 341.-Id. * * 18. Under Laws N. Y. 1871, c. 925, S. 1, providing that acceptance of a subscription founded on a petition for the issuance of railroad aid bonds shall bind the company, and that non-compliance with any condition inserted in the petition shall not invalidate the bonds, a contract by the commissioners, whereby they subscribe the whole amount of bonds, to be delivered when the road is built through the town, on a petition authorizing them to subscribe, but providing that the final issue of bonds shall not be made till the road is completed,-accepted by the company,binds it, though the bonds are in escrow; and a subsequent constitutional prohibition of such aid by towns, before actual delivery of the bonds, does not invalidate railroad is to take into account the cost. 19. The proper method of assessing a location, and probable increase of business of the road, and when practicable 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, though 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.-People v. Assessor, (Sup.) 240. Rights of bondholders. 20. It is no defense to an action by a bondholder against a railroad, for the accrued interest on bonds secured by a mortgage on the defendant's property and franchise, that defendant has entered into an agreement for the consolidation of its property and franchise with another company, pursuant to the provisions of Laws N. Y. 1869, c. 917; as section 5 of that chapter provides that "the rights of all creditors of and all liens upon the property of either of said corporations, parties to said agreement, shall be preserved unimpaired, and the respective corporations shall be deemed to continue in existence to preserve the same. "-Gale v. Troy & B. R. Co., (Sup.) 354. Liability for negligence- Effect of lease. to one who is injured, while riding on the 21. A railroad company is directly liable train of another company operating over defendant's road, by reason of a defective or mismanaged switch maintained by defendant, towards the maintenance of which tain sum monthly.-Stodder v. New York the carrier company paid defendant a cerL. E. & W. R. Co., (Sup.) 780.* Accidents to trains. 22. Where cars were regularly, on the arrival of a certain train, sent onto a side track by a flying switch, and on one occasion went through a second switch, which there was no time to close, onto a second siding, killing horses employed in drawing cars, and there is evidence of an attempt to warn the train-men, and as to whether the train was ahead of time, the question as to the company's negligence is properly submitted to the jury.-Good v. New York, L. E. & W. R. Co., (Sup.) 419.* 23. An instruction that the omission of the engineer to observe the warning given did not constitute negligence on the part 25. Evidence is admissible of the defective condition of the track some time after the accident, though a new switch-stand had been put in, and several other parts replaced, there being evidence that these changes did not affect the particular defect suposed to have caused the accident.Stodder v. New York, L. E. & W. R. Co., (Sup.) 780. Accidents at crossings. 26. Deceased was driving a wagon on a dark and stormy night on a street crossed by three railway tracks. He crossed one about 40 feet from the others, and was signaled by a flag-man to stop. On each side of him was another wagon, and in behind him cars were being moved, and several engines were ringing bells, discharging steam, etc. He stopped until the train, which was slowly going west, backed past him on the nearest track, when one of the other teams crossed in safety, but he, following at once, was struck by a train on the third track, (defendant's road,) coming from the west, and killed. The evidence as to whether the flag-man signaled for defendant's train, or whether the bell was rung, was contradictory. The train approached at 8 or 10 miles an hour, the law allowing only a speed of 6 miles an hour. Deceased's view of the track in that direction was obstructed by a wagon with a high box, and by the train passing on the second track. Held sufficient evidence of negligence on the part of defendant to be submitted to the jury.-Enders v. Lake Shore & M. S. R. Co., (Super. Ct. Buf.) 719. 27. It cannot be said on the facts, as a matter of law, that the negligence of deceased contributed to the accident, as, while it was his duty to look for an approaching 28. Plaintiff was struck by an engine 29. The evidence being that plaintiff, an engineer of defendant, was leaving the shops to go home on a dark night, walking through the yard on the tracks, as was the custom of the employes, when he was struck by a yard-engine, going backwards, with no light on the rear end, and that he was well acquainted with tracks, and the customs of the yard, it is error to refuse an instruction that in walking on the track he assumed the risk of being injured by the ordinary operation of trains on defendant's road.-Williams v. Delaware, L. & W. R. Co., (Sup.) 435.* RAPE. What constitutes. 1. Defendant and three others forcibly separated prosecutrix from her escort, and the others ravished her. Defendant admitted that he put his hand on the escort's shoulder, and suggested that he take his girl and go home, and that he knew the intention of the others, but denied taking any further part in the separation, and alleged that he then left. Held that, as defendant was present aiding and assisting, his conviction was warranted, though he did not have intercourse with prosecutrix. -People v. Batterson, (Sup.) 376. Evidence. 2. While evidence as to prosecutrix's disheveled hair, frightened appearance, red face, and swollen eyes, and of her crying shortly after the occurrence, is competent, the admission of evidence that some days afterwards she threatened suicide is reversible error.-Id.* Real Estate Agents. See Factors and Brokers. RECEIVERS. Appointment. 1. Where the order of the New York su press trusts, that, if the trust in said deed was invalid, the legal title would vest in said association under said deed, and would pass by the receiver's deed.-People v. Stock-Brokers' Bldg. Co., (Sup.) 113. Records. REFERENCE. perior court appointing a receiver provides As evidence, see Attorney and Client, 2 that nothing therein contained shall affect the right of any receiver theretofore appointed over any property of defendant to act in accordance with the powers and duties conferred upon him, it does not conflict with a previous order of the supreme court appointing a receiver of defendant's property.-Thau v. Bankers' & Merchants' Tel. Co., (Super. Ct. N. Y.) 11. Rights and liabilities. Compensation of referee, see Trusts, 17-19. When ordered, see Executors and Administrators, 6. When ordered. 1. In an action for services rendered and advancements made as agent in charge of defendant's land, plaintiff made affidavit 2. A receiver appointed in another state. that his "accounts of his receipts and disby an order directing a resident member of bursements in said business are made up of a firm owning stock to assign it to the re-upwards of a hundred separate and disceiver, and to make him an attorney in fact to transfer the stock to himself, as receiver, on the company's books, acquires the legal title to the stock by the assignment and power of attorney, regardless of his title as receiver; and a court of New York will assist him to effect such trans--Shepard v. Eddy, (Sup.) 534. fer.-Weller v. J. B. Pace Tobacco Co., (Sup.) 292. 3. A receiver of a railway company, who, without any order of court, employs a person to manage an hotel owned by the company, and afterwards leases it to the manager, without any notice to a person who is furnishing the hotel with supplies, is individually liable therefor.-Sayles v. Jourdan, (Sup.) 827. Payment of taxes. 4. An application to compel a receiver to pay a tax on property in his possession must be made in the action in which he was appointed. In re Mallery, (Sup.) 437. Advice of court. 5. Where the court authorizes a receiver to rent premises to a tenant then in possession, at a fixed rate, and he does not accept the lease and pay the amount, and the receiver leases to others for a greater sum, the former tenant is not entitled to the excess.-McComb v. Clyne, (Sup.) 570. tinct items, each one of which will be the subject of investigation upon the trial." Held, a proper case for a reference under Code Civil Proc. N. Y. § 1013, providing therefor when the trial will require the examination of a long account on either side. 2. The right of trial by jury, guarantied by Const. N. Y. 1846, art. 1, § 2, extends only so far as that right was recognized at the time of the adoption of the constitution; and as it was then the authorized practice to direct a reference in cases involving the examination of a long account, and not requiring the decision of any difficult question of law, a reference of such a case cannot be objected to as unconstitutional.-Id. Practice-Amendment and vacation of order. 3. Plaintiff having been adjudged entitled to dower, an order was entered by a spe cial term justice, directing the referee to compute the amounts payable by the seving her dower, and for that purpose to take eral defendants as damages for withholdaccount of the rents and profits; the inquiry being restricted to the date of the deproperty had been sold, either before or cree, or the time when any part of the after the decree. Subsequently, on plain tiff's motion, and affidavit that the order was drawn under a misapprehension as to 6. A trustee in a deed conveying land the extent of her rights, another special upon a trust expressed but not defined term justice amended and enlarged the therein, the cestui que trust being an unin- order so as to authorize the referee to take corporated association, conveyed the land the account, without restricting it as to any to a corporation. By an order of court, a part of the property sold, to the time of receiver of the corporation, who was also sale. Held that, as it appeared that the receiver of the association, was directed to original order was the result of a mistake. sell the land. Held, under section 49 of and as neither the original nor the amend the New York statute of uses and trusts, the ment determined any right or liability of effect of which is to transfer the use to the either party, the amendment was proper. possession except in case of certain ex--Price v. Price, (Sup.) 796. Sale. 4. An order refusing to vacate an order of reference on the ground of irregularity in its entry having been denied, and no appeal taken, stands as the law of the case; and a later order, appointing a new referee, on the death of the first, must, on an appeal taken on the same grounds, be affirmed.Wait v. Van Demark, (Sup.) 265. Striking out testimony. 5. Where a referee adjourns in the midst of a cross-examination, which it does not appear that defendant was deprived of the opportunity of completing, if he had so desired, and the witness dies during the adjournment, defendant cannot complain of the refusal of the referee to strike out portions of the examination in chief, not covered by the cross-examination.-Curtice v. West, (Sup.) 507. Entry of judgment. He ment of his wife's funeral expenses. edge and was binding.-In re Haas' Estate, Effect of receipt. 2. 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.Baldwin v. New York Cent. & H. R. R. Co., (Super. Ct. N. Y.) 481. RELIGIOUS SOCIETIES. Pastor's salary. Laws N. Y. 1813, c. 60. 8, providing that the salary of a minister shall be ascer to elect trustees of the church, at a meettained by a majority of the persons entitled 6. Where in an action to establish a partnership, and for an accounting, a referee. appointed to hear all the issues, reports that plaintiff is entitled to an account, and is then appointed to take the account, judgment cannot be entered on filing the report without allowing time for exceptions, since the account, taken under the second ordering to be called for that purpose, and the of reference, is not within Code Civil Proc. N. Y. § 1228, providing that, where the whole issue tried by a referee is one of fact, judgment may be entered on filing the report.-Niebuhr v Schreyer, (C. P N. Y.) 413. 7. Under Code Civil Proc. § 1228, providing that "where the whole issue is an issue of fact, which was tried by a referee, the report stands as the decision of the court; except where it is otherwise expressly prescribed by law judgment upon such report, or upon the decision of the court upon the trial of the whole issue of fact without a jury, may be entered by the clerk as directed therein, upon filing the decision or report, "-the clerk has no authority to enter an interlocutory judgment on the report of a referee, except upon application to and direction by the court, especially where the report fails to settle the form of the judgment to be entered. — Maicas v. Leony, (Sup.) 831. RELEASE AND DIS- Of mortgages, see Mortgages, 9. salary when fixed shall be ratified by the trustees by an instrument under seal, imposes no limitation on the power of the church to contract for services, except that it prescribes an exclusive mode of determining the compensation to be paid; and, where the amount of compensation is not determined in the required manner, recovery may be had on the contract, as for services rendered, limited by the amount actually received by the church applicable to such payment.-Pendleton v. Waterloo Baptist Church, (Sup.) 383. REPLEVIN. Right to costs, see Costs, 1. Bonds. der Code Civil Proc. N. Y. § 1704, to pro1. An undertaking given by a sheriff un cure the return of property levied on by him, and replevied by a claimant, reciting that certain property specified in claimant's affidavit had been replevied, and that defendant desired its return, concluding in accordance with the statute, does not estop the sheriff, in an action by the claimant against him for the property, from proving that all the goods mentioned in the affidavit were not levied on, replevied, or returned to him.-Nowell v. Gilbert, (Sup.) 1. A husband entitled to a legacy of $2,-525. 256.58, due his deceased wife from her mother's estate, released the same nine days after his wife's death in favor of the other beneficiaries in consideration of $500 and the pay 2. Such an undertaking, if filed and used by the sheriff to procure the return of the property, though signed only by sureties, and not by him, would have the same ef |