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NEW YORK COURT OF APPEALS AB-
STRACTS.

ATTACHMENT-EQUITABLE INTEREST IN LAND.Under the Code of Civil Procedure, section 645, pro

upon by virtue of a warrant of attachment includes
any interest in real property, either vested or not
vested, which is capable of being alienated by the de-
fendant," the interest of defendant in possession of
land under a contract of purchase ou which he has
made partial payments, and under which he is entitled
to a conveyance on completing his payments, may be
levied on by virtue of an attachment, notwithstanding
under section 1253 such interest is not bound by the
docketing of a judgment. Second Division, Jan. 20,
1892. Higgins v. McConnell. Opinion by Landon, J.
9 N. Y. Supp.
Haight aud Brown, JJ., dissenting.
588, reversed.

entitled to claim in trust for her, and in every other event in trust for the estate of James Maybrick-just in the same way as if before the statute a policy had been taken out by James Maybrick, and he had by a separate instrument declared the like trusts of it. Now, it is to my mind illogical to make the crime ofviding that "the real property which may be levied one cestui que trust a bar to the claim of another, or of the trustees for that other cestui que trust; and if the supposed defense were to prevail we should so hold. If Mrs. Maybrick had inflicted a mortal, but not immediately fatal, wound on her husband, had then committed suicide, leaving him surviving, and his executors had claimed on his death, it appears to me that the crime which caused his death would have furnished no defense. In a word, I think that the rule of public policy should be applied so as to exclude from benefit the criminal and all claiming under her, but not so as to exclude alternative or independent rights. In Fauntleroy's Case, 4 Bli. (N. S.) 194, the plaintiffs were the assigns of the criminal, and were claiming through him. In the present case the plaintiffs are the assigns in law of the innocent husband, and are claiming through him. The authority therefore of that case goes to show that neither Florence Maybrick nor the administrator of her estate, who claims through her, can take any benefit. But that appears to me to throw no impediment in the way of a suit by those who claim with clean hands themselves and as assigns of the in nocent assured. In a word, it appears to me that the crime of one person may prevent that person from the assertion of what would otherwise be a right, and may accelerate or beneficially affect the rights of third persons, but can never prejudice or injuriously affect those rights. In my opinion therefore public policy prevents Florence Maybrick from asserting any title as cestui que trust of this fund, and thereby brings into operation the resulting trust in favor of the estate of the insured, and so enables the executors to maintain an action as plaintiffs without any taint derived from the crime committed by Florence May brick.

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tract was between the husband and the defendants. The husband died by the criminal act of the wife. The right of action upon the contract passes to the legal personal representatives upon his death.

I do not

doubt that the principle of public policy would pre-
vent the wife from recovering the amount of the pol-
icy money from them, and so reaping benefit from her
crime, because no trust can be enforced which contra-
venes the law. The simple answer to the defense set
up is that the executors are entitled to say that they
are suing for the benefit of the estate of the deceased
husband, and therefore no question of public policy
arises. It appears to me clear that such would have
been the case if the Married Women's Property Act,
1882, had not been passed. I agree with the master of
the rolls and Lord Justice Fry, that the effect of the
section of that act which has been referred to is to cre-
ate a resulting trust in favor of the husband's estate
which takes effect when by reason of the crime of the
wife the trust in her favor became incapable of being
performed in consequence of the rule of public policy.
The trust in favor of the wife must then be regarded
as struck out, and that being so, a resulting trust in
favor of the husband's estate arises. For these reasons
I agree that the appeal should be allowed.
Appeal allowed.

CONTRACTS-CONSTRUCTION-BREACH.- (1) A telegraph company contracted to deliver certain news reports of an average number of words per day, one-third thereof to be transmitted in the day-time and twothirds at night, to all the places named in a certain schedule, for a gross sum per month, the other party to have the right to substitute other places for those named, and if the reports were transmitted to "any greater number of places" than were enumerated in such schedule, then an additional payment should be made. The schedule contained thirty-eight different places. Held, that the company was bound, without additional payments, to transmit the day reports to thirty-eight places and the night reports to thirtyeight places, although the latter places were different from the former. (2) A telegraph company, having contracted with plaintiff to deliver certain news reports at a fixed compensation, sold its lines to another company, which, after carrying out the contract for a time, notified plaintiff that it repudiated the same and would thereafter collect the usual rates for similar matter. Subsequently however time was allowed plaintiff to ascertain whether his customers were willing to pay the increased rates. They having refused, he stopped delivering his reports to the company. Held, that there was a breach of the contract by the company, as at the expiration of the extension of time the parties stood precisely as they did immediately after the notice of repudiation. (3) Where an individual doing business under the style of an association contracts under that style with a company having knowledge thereof, he may sue the latter or its assignees for a breach of the contract in his individual name. Second Division, Jan. 20, 1892. Goodsell v. Western Union Tel. Co. Opinion by Haight, J. 9 N. Y. Supp. 425, affirmed.

CORPORATIONS-DISSOLUTION-VIOLATION OF CHARTER. (1) Where an action to dissolve a corporation is brought by the attorney-general in the name of the people, without a relator, the fact that the persons who applied to him to bring the action were the very offi cers whose neglect to perform their official duties constitutes the cause for dissolution, is no bar to the action. (2) The failure of a manufacturing corporation to make an annual report of the amount paid on its capital stock, as required by the Manufacturing Act of 1848, section 12, is cause for dissolving the corporation under the Code, section 1798, which declares that a corporation may be annulled whenever it offends against any provision of an act under which it was created, although the only penalty stated in said section 12 is that in case of its violation all the trustees of the corporation shall be liable for the corporate debts. (3) The General Manufacturing Act, section 10, provides that the capital stock of corporations formed thereunder

"shall be paid in, one-half in one year and the other half in two years from the incorporation, or the corporation shall be dissolved." Held, that in an action brought by the attorney-general by leave of court to dissolve a corporation, where it is proved that the corporation has violated said act, the court has no discretion to refuse a judgment of dissolution. Feb. 9, 1892. People v. Buffalo Stone & Cement Co. Opinion by Earl, C. J. Andrews, Finch, Gray and O'Brien, JJ., concur on the second ground.

CORPORATIONS -ORGANIZATION TAX

CONSOLIDA

TION. The consolidation of a New York railroad corporation with companies organized under the laws of other States, in accordance with the provisions of the Laws of 1869, chapter 917, is not an incorporation under the laws of New York, within the meaning of the Laws of 1886, chapter 143, requiring the payment of an organization tax. The constituent companies which were united to form the New York, Chicago and St. Louis Railroad Company, with the exception of the New York company of the same name, were not domestic corporations. Their corporate powers and life were derived from the Legislatures of other States. They were and are in no respect subject to the laws of this State, but wholly and exclusively to the laws of their domicile. It was under these laws that the respective roads were constructed and operated. The laws of their jurisdictions fixed their capital, and conferred and defined their franchises and powers, and their power to enter into any consolidation with other roads, either within or without the States which incorporated them, depended upon the affirmative grant of such power by the State creating them. The Consolidation Act of 1869, it is true, assumes on the consolidation not only of domestic corporations, but of corporations of different States, to transfer to and vest in the consolidated company formed under its provisions all the "rights, privileges, exemptions and franchises and property" of each of the constituent companies. But the Legislature of this State was impotent alone to accomplish this result. It could not vest the franchises, rights and property of the Pennsylvania, Ohio and Indiana companies in the consolidated company, nor authorize any change or conversion of the stock of the constituent corporations into the stock of the consolidated company, nor confer any exclusive authority for their consolidation. All it had the power to do, and all that the act of 1869 in effect did do, was to authorize the New York corporation, upon like couseut being given by Pennsylvania, Ohio and Indiana, to merge the franchises, property and interests of the several constitutents into what would practically be one corporation. When this was sanctioned by the Legislatures of the respective States, and the proper formal proceedings were taken, then and not till then could a new body be created. Whether the result would be a new corporation de jure is a mooted question. See Muller v. Dows, 94 U. S. 444; Shields v. Ohio, 95 id. 319; Railway Co. v. Berry, 113 id. 465; Nashua & L. R. Corp. v. Boston & L. R. Corp., 136 id. 356. But assuming that result to follow, the new corporation would owe its existence, not to the State of New York alone, but to the States of New York, Pennsylvania, Ohio and Indiana. It would not be in any strict or even just sense a corporation “incorporated by or under any general or special law of this State," within chapter 143 of the Laws of 1886. The Consolidation Act does indeed confer new corporate powers upon the New York corporation. Except for that act it could not have entered into the agreement of consolidation. So also it purports to grant corporate powers to the consolidated company. But it remains true nevertheless that concurrent legislation of the other States was essential to the completion

of the consolidation, and it is to be inferred from the agreed statement that similar legislation to the act of 1869 was enacted in the several States. We are of opinion that the proper and equitable construction of the act of 1886, imposing an organization tax ou railroads "incorporated under the laws of New York," does not bring the defendant within its provisions. This conclusion has support in the cases of State Treasurer v. Auditor-General, 46 Mich. 224; Railway Co. v. Auditor-General, 53 id. 79, and Railway Co. v. People, 123 III. 467. We desire to refer also to the dissenting opinion of Landon, J., in the court below. Jan. 20, 1892. People v. New York, C. & St. L. R. Co. Opinion by Andrews, J. 15 N. Y. Supp. 635, reversed.

EMINENT DOMAIN-RECORDING APPRAISER'S AWARD. - Where the original order confirming an award in proceedings to condemn land for railroad purposes was delivered to the county clerk by the railroad company, who caused it to be recorded at full length in a separate book kept for such orders, the company, in an action on the award, will not be permitted to claim that the recording should have been in the book of deeds, and of a certified copy instead of the original. Second Division, Jan. 26, 1892. Morgan v. New York & M. Ry. Co. Opinion by Brown, J. 7 N. Y. Supp. 731, affirmed.

INSURANCE - FIRE FORFEITURE-WAIVER-EVIDENCE.-A fire insurance policy payable to a mortgagee, provided that it should be void if the mortgage should be foreclosed without the company's consent. The mortgagee incurred a forfeiture by proceeding to foreclose, shortly after which he wrote to the company, saying that the suit was begun in ignorance of the condition, and asking consent, to which letter the company made no reply. A decree of foreclosure was obtained, and a few days after the premises were destroyed by fire. The assured declined to make proofs of loss, and those furnished by the mortgagee were rejected, because not executed by the assured, as required by the policy. Held, that neither the failure to reply to the letter of the mortgagee nor the implied demand for more authentic proofs constituted a waiver of the forfeiture. The failure to reply to the plaintiff's letter, or as was said by the General Term, "the neglect to refuse the consent as promptly as the occasion demanded," raised no inference that the defendant consented to the foreclosure action. Walsh v. Ins. Co., 73 N. Y. 5. The rule is now established however that if, in any negotiation or transaction with the assured after knowledge of the forfeiture, it recognizes the continued validity of the policy, or does acts based thereon, or requires the insured to do some act, or incur some trouble or expense, the forfeiture is waived. Titus v. Ins. Co., 81 N. Y. 410; Roby v. Ins. Co., 120 id. 510; Pratt v. Ins. Co. (N. Y. App.), 29 N. E. Rep. 117. While the later decisions all hold that such waiver need not be based upon a technical estoppel, in all the cases where this question is presented, where there has been no express waiver, the fact is recognized that there exist the elements of an estoppel. Brink v. Ins. Co., 80 N. Y. 108-112; Goodwin v. Ins. Co., 73 id. 480; Prentice v. Ins. Co., 77 id. 483. The plaintiff must have been misled to his harm, or the company must have done something which could be done only by virtue of the policy, or has required something from the assured which he was bound to do only at the request of the company, and which request could only be made under a valid policy. But none of these elements exist here. The plaintiff was not misled, not has his claim been prejudiced by any act of the defendant, and that which he was required to do was essential, under the contract, to the assertion of any cause of action upon the policy. The conclusion that under the circumstances disclosed in this case there was no waiver is in

accordance with the authorities. Ins. Co. v. Stevenson (Ky. Ct. App.), 8 Ius. Law J. 922; Fitzpatrick v. Ins. Co., 53 Iowa, 335, are directly in point. Desilver v. Ins. Co., 38 Penn. St. 130; Devens v. Ins. Co., 83 N. Y. 168-173; Putnam Tool Co. v. Fitchburg Mut. Fire Ins. Co., 145 Mass. 265. Second Division, Jan. 26, 1892. Armstrong v. Agricultural Ins. Co. of Watertown. Opinion by Brown, J. 9 N. Y. Supp. 873, reversed.

INSURANCE

-MARINE LOANS ON VESSEL INSURABLE INTEREST-PERSONAL OBLIGATION OF MASTER.

(1) Plaintiff advanced money on a vessel and its freight, and took from defendant a policy of insurance against the loss of the vessel from the dangers of the sea. Plaintiff also took from the master an instru

ment securing the loan on the vessel and its freight earnings, and providing that the owner or master should not take any other advances upon the vessel or its earnings at the port of loading, but that if they did they should be bound to return the present loan to the plaintiff, even though the vessel should be lost. The master violated this provision by procuring other advances at the port of loading. The vessel was lost. Held, that such subsequent loan being procured by the master without the knowledge or consent of plaintiff, its insurable interest in the vessel and freight was not impaired by reason of the violation of said provision, and that it might proceed against the master or owner or against defendant upon the policy of insurance, at its election. (2) Plaintiff's insurable interest in such case was not affected by any personal liability of the master in taking the subsequent advances. Jan. 20, 1892. Cassa Marittima v. Phoenix Ins. Co. Opinion by O'Brien, J. 12 N. Y. Supp. 811, affirmed.

one who was apparently but not in fact the lowest bidder, cannot be made binding on the city by acceptance of the materials, or by ratification by an officer or otherwise, except in the form prescribed by law. (3) In an action to recover on a contract with defendant city, let to plaintiff as the lowest bidder, the only question considered at the trial was fraud in the making of the contract. Held, on appeal, that plaintiff could not claim to recover the value of the materials furnished under the contract, which was found at the trial to be fraudulent and void. (4) The auditing of a claim by the board of audit of New York city, for the amount due on a contract with the city, does not estop the city from denying liability on the ground of fraud in the making of the contract. (5) To prove the inaccuracy of estimates of materials delivered by plaintiff under contract with defendant city, plaintiff's books, though containing other items, are admissible in evidence on testimony of employees of plaintiff in charge of such deliveries, and who kept the record in such books, that the entries were made at the time of the deliveries, and statements of such employees, based on such books, are also admissible. Jan. 20, 1892. Nelson v. Mayor, etc., of City of New York. Opinion by Earl, J. 5 N. Y. Supp. 688, affirmed.

NEGLIGENCE-DANGEROUS PREMISES-MASTER AND SERVANT.-(1) Chapter 462, Laws of 1887, declares that "fire-escapes shall be provided on the outside of all factories three or more stories in height," and that "stationary stairs or ladders shall be provided on the inside from the upper story to the roof as a means of escape in case of fire," and imposes penalties for violations of its provisions. Held, that operatives in such factories, who are injured because of an omission to provide such fire-escapes, may recover damages therefor. Willy v. Mulledy, 78 N. Y. 310. (2) The absence from such a building of any "stationary stairs or ladders on the inside from the upper story to the roof" does not constitute negligence where one of the outsido fire-escapes, consisting of an iron ladder, extends to the roof, and has been accepted by the factory inspector as a fit and suitable substitute for an inside ladder. (3) The owner of a factory, who has provided fire-escapes as required by said act, is not liable for the death of an operative caused by the burning of the building, although there is under the escape a chute through which a person dropping from the ladder would be likely to fall into the basement of the build

JUDGMENT-LIEN-EXECUTION-FRAUDULENT CONVEYANCE-RES ADJUDICATA.-(1) Sections 1251, 1255, 1379 and 1380 of the Code of Civil Procedure provide that a docketed judgment shall be a lien on land for ten years only; that the time during which the enforcement of the judgment is stayed by law is not part of the ten years; and that when a judgment debtor dies intestate, and no letters of administration are issued, execution cannot be issued till three years after his death. Held, that such three years do not constitute part of the ten years to which the judgment lien is limited. (2) Section 1380 provides that the three-year stay shall not apply to land conveyed by the judgment debtor in fraud of his creditors, and that any judgment creditor as to whom a conveyance made by his deceased judgment debtor shall be declared fraud-ing, and although access to the fire-escape is hindered ulent, by any court of competent jurisdiction, may enforce his judgment out of the property so conveyed as if the judgment debtor were living. Held, that such provision did not apply to a case where the conveyance, though alleged to be fraudulent, had not been so declared by a court. (3) An order allowing execution to issue upon a judgment against a deceased defendant, on the ground that he has fraudulently conveyed his property, is not conclusive upon the question whether the conveyance was fraudulent. Feb. 2, 1892.

In re Holmes. Opinion by Earl, C. J. 13 N. Y. Supp.

100, reversed.

by the presence of blinds on the adjoining windows, where it is shown that the decedent made no attempt to reach the fire escape, and that his death could not have been caused by the existence of the chute or the blinds. Feb. 2, 1892. Pauley v. Steam-Gauge & Lantern Co. Opinion by Finch, J. 16 N. Y. Supp. 820, reversed.

OFFICE-PREFERENCE OF VETERANS-MANDAMUS.— (1) An honorably-discharged Union soldier, who in 1890 was a clerk of the sheriff of New York city and county, compensated out of the sheriff's private funds, was not within the purview of the Laws of 1890, chapter 67, which provided that no person holding a position by appointment in any city or county, "receiving a salary from such city or county," who is an honorably

MUNICIPAL CORPORATION-CONTRACT WITH-FRAUD -EVIDENCE-ESTOPPEL.-(1) The facts that a bidder for a contract to furnish materials to a city secured the same, as the lowest bidder, by putting in an unbal-discharged soldier, shall be removed except for cause. anced bill; that the city officers, exercising the option given them by the contract, only called for those materials the price for which was in excess of the fair price, and in greatly-increased quantities, and that the advertised estimated amount of some of such materials was greatly less than the amount actually needed at the time, are sufficient to show fraud and collusion in the letting of the contract. (2) A contract to furnish a city with certain materials, fraudulently let to

(2) The provisions of the Laws of 1890, chapter 523, making the office of sheriff of the city and county of New York salaried, and requiring all fees received by him to be paid into the treasury, did not take effect until January 1, 1891, and therefore did not bring within the purview of the Laws of 1890, chapter 67, a clerk whose employment expired on December 31, 1890. (3) The Laws of 1890, sections 21 and 22, which took effect before the expiration of the clerk's employment,

and provided that the sheriff's assistants should be compensated out of the fees collected by the sheriff, if sufficient, or from appropriations by the city authorities, did not bring said clerk within the purview of the Laws of 1890, chapter 67. (4) Under the Laws of 1887, chapter 464, requiring that in every public department honorably-discharged Union soldiers shall be preferred for appointment, a mandamus to compel a sheriff to reinstate a clerk whose employment ended with the expiration of the preceding sheriff's term of office will not issue where the application fails to show that the clerk applied for the position before his successor was appointed, or that his successor was not himself an honorably-discharged Union soldier. Feb. 12, 1892. Sargent v. Gorman. Opinion by Maynard, J. 14 N. Y. Supp. 481, affirmed.

OFFICERS

SUBORDINATES - EXAMINATION UNDER CIVIL SERVICE LAWS.-A lamp inspector, whose duties are to keep a record of the number and location of all the street lamps in the city, the number unlighted every night and the reason therefor, to investigate all complaints relating to such lamps, and make report to the council, is a “subordinate officer or assistant," required to be examined for appointment under the civil service rules (Laws 1884, chap. 410, $8), and a resolution of the city council, authorizing the appointment or the hiring as such inspector of one who has not passed the examination required by law, is illégal, and the city will be restrained at the suit of a tax payer from entering into a contract with him or paying the salary agreed. Jan. 20, 1892. Peck v. Belknap. Opinion by Brown, J. 3 N. Y. Supp. 872, affirmed. id. 265, reversed.

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PARTNERSHIP-LIMITED-EVIDENCE-BOOKS OF AC

COUNT. Entries made in partnership books before the formation of a limited partnership by the former partners and another entering as a special partner, of which the latter is not shown to have knowledge, are inadmissible in evidence against him to show that the special partner had not paid his contribution in cash. It is the general rule that entries in partnership books made in the ordinary course of business are admissible in actions between the partuers, and that they are also competent in favor of third persons in actions against the partners, as in the nature of admissions by the partners of the facts stated. Lindl. Partn. 404: Bates Partn., § 978; 1 Phil. Ev. 449; 2 Whart. Ev., $1132. But the books of the prior firm were, as to Lindenmeyr, res inter alios acta. They were not competent against him on the principle of agency, or on the ground that he is presumed to have known their contents. Jan. 20, 1892. Kohler v. Lindenmeyr. Opinion by Andrews, J. 12 N. Y. Supp. 738, reversed.

PLEADING-EMINENT DOMAIN-RECOVERY OF COMPENSATION.-(1) Where the duty of a railroad company to pay, as well as the right of land-owners to sue for, an award made in railway condemnation proceedings, depended by statute upon the "recording" of such order, an allegation in the complaint, in an action by such owners to recover the award, that the order had been "entered" was sufficient as an averment that the same had been "recorded," taken in connection with a subsequent reference to the "record" of such order. (2) In such case the complaint was fatally defective in failing to allege that the award in question had never been paid. No authority exists, so far as I am able to find, except the case of Salisbury v. Stinsou, 10 Hun, 242, holding that a breach of the contract need not be pleaded, but all text-writers and reported cases hold to the contrary. 1 Chit. Pl. & Pr. 325-359; Com. Dig., tit. "Pleader," C, 44; 2 Wait Law & Pr. 318; 1 Wait Act. & Def. 394, 395, and cases cited; Witherhead v. Allen, 4 Abb. Dec. 628; Tracy v. Tracy

(Sup.), 12 N. Y. Supp. 665; Van Giesen v. Van Giesen, 10 N. Y. 316; Krower v. Reynolds, 99 id. 245. Second Division, Jan. 26, 1892. Lent v. New York & M. Ry. Co. Opinion by Brown, J. Follett, C. J., and Vann, J., dissenting. 7 N. Y. Supp. 729, reversed.

RAILROADS-ELEVATED-INJURIES TO EASEMENTSLOSS OF PRIVACY.-In an action against an elevated railway company to recover damages to easements the court erred in excluding from the consideration of the jury, as an element of damage, loss of privacy occasioned by the ability of defendant's passengers and employees to look into plaintiff's upper-story windows from the platform and stairs of defendant's station. The continued invasion of the privacy of the occupant of a building very likely would have the effect to reduce the rental value of it for some purposes. While it is true that the observation taken by the patrous and employees of the defeudants is not the act of the latter, the defendants have furnished the means and opportunity for those persons to invade the privacy of these rooms by looking into them through the windows, and it is by the invitation and procurement of the defendants, for the purpose of the business of the road, that people are at the station and on its platform. No reason appears why the defendants should not be responsible for the consequences of the loss of privacy thus occasioned so far as it depreciated the rental value of the rooms in the plaintiff's building. Those consequences detrimental to the rooms are the rational result of the maintenance of the road and the station, and are reasonably attributable to that cause. In Duke of Buccleuch v. Board of Works, L. R., 5 H. L. 418, the plaintiff, under lease from the crown, occupied certain premises known as the "Marlagn House," the garden of which extended to the Thames, where it was protected from the river by a wall, through which was a door and a causeway leading to the water. The defendants, under the Thames Embankment Act, constructed a road-way in front of the premises, and higher than the garden. It was there held that the loss of the use of the river frontage, and the consequent loss of privacy, increase of dust and noise occasioned by the erection of the embankment road-way, were subjects to be considered in estimating the damages to be awarded to the plaintiff. Second Division, Jan. 26, 1892. Moore v. New York El. R. Co. Opinion by Bradley, J. 8 N. Y. Supp. 329, reversed.

SALE-WARRANTY-ACTION FOR PRICE-COUNTERCLAIM ASSIGNMENT.-(1) By agreeing to sell and deliver 30,000 tons of "Powelton coal, of same quality and kind as furnished you during the past year," the seller warrants that the coal to be furnished shall be equal to that furnished during the preceding year. (2) Acceptance of the coal does not preclude the purchaser from recovering damages for breach of the warranty. Kent v. Friedman, 101 N. Y. 616; Brigg v. Hilton, 99 id. 517; Gurney v. Railroad Co., 58 id. 358. The cases of Iron Co. v. Pope, 108 id. 232; Studer v. Bleistein, 115 id. 316; Pierson v. Crooks, id. 539, and other cases of like character, are clearly distinguishable, inasmuch as one is a contract concerning a sale by sample, and the others were executory contracts for the manufacture and sale or delivery of goods of a particular description. In cases of the latter character, where the quality of goods is capable of discovery upon inspection, and where, after fuil opportunity for such inspection, the goods are accepted, and no warranty attends the sale, the vendee is precluded from recovering damages for any variation between the goods delivered and those described in the contract. (3) Where the seller has assigned his contract after partly executing it, and the assignee attempts to complete the contract, the purchaser, when sued by the assignee for coal delivered by him, may counter-claim the damages arising from

the Inferior quality of the coal furnished by the seller. Feb. 2, 1892. Zabriskie v. Central Vt. R. Co. Opinion by Ruger, C. J. 13 N. Y. Supp. 735, affirmed. SET-OFF-CLAIMS IN DIFFERENT RIGHTS.-An executrix and sole devisee and legatee, who has paid all the debts of her testator, may, in an action against her for services rendered her personally, set off a debt due by plaintiff to the estate of her testator, though there was never any publication of notice to creditors to present their claims. Second Division, Jan. 26, 1892. Blood v. Kane. Opinion by Follett, C. J. Bradley and Parker, JJ., dissenting. 6 N. Y. Supp. 353, reversed.

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TAXATION-DOMESTIC CORPORATION OPERATING IN

FOREIGN COUNTRY.—(1) A corporation organized under the laws of the State of New York, having its principal office in the city of New York, keeping its bank accounts there and employing a portion of its capital there in the payment of corporate expenses, is liable to taxation as a domestic corporation, though the whole of the business for which it was incorporated be prosecuted in a foreign country. The Laws of 1881, chapter 361, section 3, provide that every corporation organized under the laws of this State, or which is incorporated under the laws of any other State and is doing business in this State, shall be liable to taxation. Held, that the words "doing business in this State" referred only to foreign corporations, and imposed no restriction on the right to tax a domestic corporation not doing business in the State. In People v. Trust Co.,

96 N. Y. 387, the defendant, against which this Tax Law of 1880 was sought to be enforced, was a private corporation having an office in this State. It was there said of the tax that, "so far as section 3 imposes a tax upon corporate franchises, its operation must be confined to corporations created under our laws, and as to foreign corporations the tax is imposed solely upon business." "This tax," Judge Earl in that case observed, "upon the business of foreign corporations is a specific tax." That is to say, that as a specific tax, it may be imposed upon the business here of the foreign corporation as upon any trade, avocation or upon any specified article of personal property. What the Legislature intended by the enactment in question as to the corporations mentioned was to impose, not a property tax, but to assess all such, for the benefit of the State treasury, for the right of exercising the privileges which the State granted to them. So long as the corporation in fact exercises its franchises and does business, the State exacts from it the payment of a tax for the privilege of doing so. It is needless to discuss the power of the State to impose the tax. It is well settled by frequent decisions that the power to tax is essential to the existence of the government, and comprehends all objects within the jurisdiction of the State. The only limitation upon its exercise is such as may be constitutionally imposed. The imposition otherwise is unrestricted as to subjects and amount, and rests in the wisdom and in the sense of justice of the legislative body. Except in the case of a corporation whose powers of management and the exercise of whose chartered privileges may have been lawfully vested in another, every corporation described comes under the obligation to pay the tax levied under this law. What the language of the act subjects to its requirements are, quite plainly, such corporations as are

in the full exercise of their particular privileges, and hence are able to and therefore should comply with them. This subject of the object and intent of the statutes of 1880 and 1881 was carefully considered by this court in the case of People v. Insurance Co., 92 N. Y. 328, where it was distinctly held that the tax was conferred upon them, and that it was not a property upon the right of corporations to exercise the privileges

tax. The legislation of 1880 and 1881 was the creation of a new system of taxation of corporatious, and provided a new method of regulating the contribution by them to the payment of State expenses by assessments, not upon property, but upon privilege and business. The scheme is a complete and independent one. It is made just and perfect in this respect by the declaration in section 8 that the corporations, joint-stock companies and associations mentioned in the act as taxable shall thereafter be exempt from assessment and taxation for State purposes, except upon their real estate, and as therein provided, but shall in all other respects be liable to assessment and taxation as heretofore. People v. Telegraph Co., 98 N. Y. 67. A consideration of the provisions of this law, framed so as to bring all the domestic corporations, joint-stock companies and associations described under the obligation to pay a tax into the State treasury, to be assessed upon their franchises and business, and .exempting them from taxation otherwise for State purposes, except upon their real estate, and as in the law provided, warrants the conclusion that the liability is in no sense restricted to such as do business in this State, and that a just measure of liability is arrived at in those cases where the capital stock is partially employed in this State, by fixing the basis for the tax by the amount which is employed here. Jan. 20, 1892. People, ex rel. American Contracting & Dredging Co., v. Wemple. Opinion by Gray, J.

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TAXATION-ERRONEOUS ASSESSMENT-CERTIORARIEXEMPTIONS-MANUFACTURING CORPORATIONS-ELECTRIC LIGHT COMPANIES.-(1) Under Laws of 1889, chapter 463, which provide that the comptroller may revise an assessment made oy him, and that certiorari will lie to review the action of the comptroller on an application for such revision, certiorari will lie, though the Laws of 1881, chapter 361, provide that an appeal may be taken from the valuation made by the comptroller to a board consisting of certain officers, and the Code of Civil Procedure, section 2122, provides that certiorari cannot be issued where the determination can be adequately reviewed by an appeal to a court or to some other body of officers." (2) A corporation engaged in the business of generating and supplying electric currents for illuminating and other purposes is within the Laws of 1881, chapter 361, section 3, exempting from taxation "manufacturing corporations carrying on manufactures within this State." The mere appropriation or use of an article or thing which is furnished by nature is not a manufacturing operation. The liberation of natural gas from its hiding place in the earth, and its transportation through pipes to consumers, would not properly be called a manufacturing operation, but the production of illuminating gas, and its distribution to customers by means similar to the operation which the relator carries on, has been held by this court to constitute manufacturing, and a corporation organized for that purpose is a manufacturing corporation. Gas-light Co. v. City of Brooklyn, 89 N. Y. 469. So too we have held that the collection, storage, preparation for market and transportation of ice is not a manufacture, but the production, of ice by artificial means. People v. Ice Co., 99 N. Y. 181. When we attempt to establish the propo⚫ sition that the gas which lights one room is a manufactured product and the electricity which lights another

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