the losses and expenses of said company." Theu fol- any loss has been ascertained which requires an assessment to be made, then [the officers of the company] shall make an assessment, sufficient to pay such loss, upon all the property insured." The above quotations are taken from the opinion of Chief Justice Cole in the late case of Rundle v. Kennan, 79 Wis. 492, This mutuality of liability to assessment and obligation to pay pro rata for losses and expenses are the es on this bond, undertaking or promissory note, or insurance company. It is contended by the learned counsel of the respondent that such a company has no way of accumulating a cash fund, to be devoted to the objects of the corporation or to be treated as cash capital, by means of such assessments alone. By the authority of the above case the first premium may be paid in cash. Second, "at the time of effecting the insurance the persons insured shall pay a percentage in cash." Third, and "such other charges as may be re It would not be in the interest of the company or of the defendants to have the action suspended on either of the first two grounds of the demurrer, even if sufficient. The policy-holders, creditors and the defend-quired by the by-laws of the corporation." Here is a ants ought to know, as early as practicable, whether the bond can be relied on as an asset of the corporation. We shall therefore consider the important question whether the bond is valid, or ultra vires and void. We have been furnished with able briefs and arguments by the learned counsel on both sides on this question. The learned counsel of the appellants contend that this corporation, as a mutual insurance company, had no power by its charter to take this guaranty bond, and that therefore it is ultra vires. By the authority of Clark v. Farrington, 11 Wis. 306, this question may be twofold: First, was the power to take such an instrument for such a purpose expressly conferred upon the company by its charter? Second, was the taking of such a guaranty obligation the necessary or proper means of executing some power conferred. Madison, W. & M. P. R. Co. v. Watertown & P. P. R. Co., 7 Wis. 59. As said in this last case "it is not contended that the guaranty which the plaintiff acquired was expressly authorized by the charter." It certainly could not be contended that any such express power is conferred. If the power exist at all, it must be inferred from the general powers given. The principle governing this question, with its limitations and scope, is as well settled in the above cases and those following them in this court as anywhere in this country. Is this scheme or method of raising a fund to meet the losses and expenses of this company the necessary and proper means of accomplishing this object, and within the powers expressly granted? We are satisfied that it is not. It must be conceded that such an object is one of the legitimate objects to be accomplished by the company. The question so limited may easily be ap-stroyed, and the nature and legal character of the corplied when we understand the nature and legal character of a mutual insurance company, in view of the statute under which it is organized. It is not essential to the raising of such a fund that a premium note be taken, for "the members of the company would all be bound to contribute to pay the losses sustained by the company, and would form a mutual insurance company in the strict legal sense of these words," if even the first premium should be paid in money, instead of the taking of a premium note. The one thing absolutely essential to a mutual company is the obligation of the members to pay their pro rata share of the necessary expenses and losses of the company, and that they are bound to so contribute. All the members of the company assume this obligation, and are so bound, by virtue of section 1941 of the Revised Statutes, whether they pay the premium in cash in the first place or give premium notes. This section "authorizes an assessment to pay losses and expenses upon the property insured, without any exception. The effect of this provisiou is to make a cash policy-holder a member of the company, and liable to pay assessments for losses." That section provides that "whenever very large power to raise cash capital without resorting to such a guaranty bond. A mutual insurance company is not a business corporation for the accumulation of capital or profits. The members secure their profits and pecuniary advantages by their mutual insurance of each other, and if the expenses and losses, can be paid the full object of such a corporation would seem to have been attained. All the members are equally interested in the objects to be attained, and it is not supposed that they will make profit of each other beyond securing these objects. But the statute allows the accumulation of sufficient cash capital to answer all the purposes of such a limited corporation. It must not be overlooked that this is not a stock corporation. The mutuality of obligation, insurance and of all the advantages is the main and essential feature of such a corporation, that must not in any respect be wanting, superseded or impaired. When this principle of mutuality is violated in any essential particular of its business management, it so far ceases to be a mutual company. Rundle v. Kennan, supra. It follows therefore that if the money to be paid for all losses and expenses is to be raised through such a guaranty bond or by other extraneous means, and the members of the company are thereby exempted from assessments, and the payment of their pro rata shares of such losses and expenses proportionate to their insurance, this essential feature of mutuality is entirely destroyed, and the company ceases to be a mutual insurance company. If such a foreign resource is resorted to relieve the members partially, or some of them only, of such assessment, to that extent the mutuality principle is de poration subverted pro tanto, and the company ceases to be such a corporation as the law requires wholly or partially. It is not simply the substitution of other means than the law provides for the payment of losses and expenses, but it destroys the essential nature and legal character of the corporation as a mutual insurance company. The statute not only provides that the officers of the company "shall make an assessment sufficient to pay such loss," but the very nature of such a company makes this method of raising money to pay such losses and expenses imperative and indispensable. It follows also that such a guaranty bond is not the necessary or proper means for carrying out the objects and executing the powers of the corporation, which objects and powers are to pay losses and expenses, and the power to do so does not exist. These must be the clear, logical and legal conclusions drawn from the nature and legal character of the corporation. Not only has the company no legal power or authority to do this, but it is in violation of the law and illegal. The learned counsel of the respondent has cited no case that comes any where near sanctioning such a doctrine. The cases are neither in point nor analogous. On the other hand, the learned counsel of the appellants cite many authorities close in analogy with this, and several in point holding that the taking of such a security is not only ultra vires but void, while still executory. The case of Insurance Co. v. McKelway, 12 N. J. Eq. 133, is clearly in point. The company had similar powers. If losses occurred exceeding their means to pay, the company was to make assessments ratably on the members, according to the amount of each member's insurance. Instead of doing this they took guaranty money bonds, secured by mortgage, to the amount of $150,000, and an assessment was to be made thereon as provided in this obligation. In a suit on one of the mortgages it was held "that the corporation had no power to enter into the contract with the contributors to the guaranty fund, and that each contract was illegal and void, and could not be enforced in a court of law or equity." Held also, that the charter of the insurance company "makes its members mutual insurers, and constitutes a fund to meet losses, made upon premiums to be contributed by the members, and no other fund can be created for that purpose.' This case is cited approvingly in Morris & E. R. Co. v. Sussex R. Co., 20 N. J. Eq. 564, and Trust Co. v. Miller, 33 id. 160. In Pennsylvania R. Co. v. St. Louis, A. & T. H. R. Co., 118 U. S. 630, it is held that a lease by one company to the other, not authorized by the charter, was void as to both lessor and lessee. In this case Madison, W. & M. Plankroad Co. v. Watertown & P. Plankroad Co., 7 Wis. 59, above cited, is cited approvingly. In Central Transp. Co. v. Pullman Car Co., 139 U. S. 24, the firstnamed company leased its business and property to the last-named company, of another State. It was held that the contract was unlawful and void, because beyond the corporate powers of the lessor, and that no action could be maintained by the lessor on the contract to recover the sums thereby payable, even while the lessee had enjoyed the benefits of the contract. In Mill-dam Corp. v. Ropes, 6 Pick. 23, it is held that "if a corporation is created with a specific fund limited by the act, it cannot enlarge or diminish that fund but by license from the Legislature." An insurance company had no right to receive accessions to its funds from sources not authorized by its charter. Dietrich v. Association, 45 Wis. 79; Jemison v. Bank, 122 N. Y. 135; Bank v. Earle, 13 Pet. 588; Trust Co. v. Miller, supra; Insurance Co. v. Martin, 13 Minn. 59 (Gil. 54). When the Legislature had authorized the city of Milwaukee to raise and expend $100,000 on the harbor at that place, the city could not bind itself exceeding that limit, and the contract for such purpose is void for want of power. Hasbrouck v. City of Mil- | waukee, 13 Wis. 37. Where an insurance company is authorized to take the notes of its members for insurance, it cannot take the note of a third person for such purpose. Insurance Co. v. Davis, 12 N. Y. 569. Where a corporation had no power to loan money, a note taken for a loan is void. Beach v. Bank, 3 Wend. 573. Corporations can do business in no other way than prescribed by their charters. Loan Co. v. Helmer, 12 Hun, 35; City of Montgomery v. Plankroad Co., 31 Ala. 76; Bank v. Baldwin, 23 Minn. 198; Bank v. Harrison, 57 Mo. 503. Where the statute provides for the payment of losses and expenses by making assessments on the members, the company cannot adopt any other plan or means of doing so. This power being expressly given, and to be carried out in a particular way, excludes all other measures and resources. Matthews v. Skinker, 62 Mo. 329; Thomas v. Railway Co., 101 U. S. 71; Crocker v. Whitney, 71 N. Y. 161. There are cases where the contract may be ultra vires but not void, according to many authorities, where equitable estoppel or the full execution of the contract may deter the interference of the courts to afford relief, but this is not one of them. This contract is executory, and the court is asked to enforce it, and there are no equities to palliate such a radical departure from the powers conferred by the charter, and assumption of powers, not only foreign but which if executed would subvert the purposes and radically change the nature of the corporation. In such cases there is no conflict of authority that the contract effecting such change is not only ultra vires but void. All the cases of the Supremie Court of the United States, and a preponderance of the cases elsewhere, make no distinction between executory and executed contracts in declaring the contract absolutely void. But we are not concerned in that distinction. Reference may be had to many other cases in the brief of the learned counsel of the appellant. This contract is unquestionably void. The order of the Superior Court is reversed and the cause remanded, with direction to sustain the demurrer, and for further proceedings according to law. Phillips & Kleist (Gabe Bouck, of counsel), for respondent. ORTON, J. The facts of this case, so far as necessary to make the decision intelligible, are substantially as follows: Some time prior to the 5th day of October, 1889, the defendant, a resident of the city of Oshkosh, and the father of the boy Robbie Cameron, of the age of about eleven years, bought at the hardware store of Webb & Rundles, in said city, for his son Robbie, a metallic air-gun, called the "Daisy Air-Gun," to replace a wooden air-gun that Robbie had formerly had and used; and Robbie had played with and used this airgun to shoot at a mark, and perhaps small birds, about his home and in the neighborhood, for some time. On the date aforesaid, two neighboring boys, Bud Thompson, about the age of nine years, and Byron Harris, the plaintiff, of about the age of fourteen years, who, with Robbie, had been in the habit of visiting and playing with each other, came to play with Robbie at his home - Byron on stilts and Bud on a safety bicycle. Robbie was playing with his air-gun, and Bud let Robbie use his "safety" in exchange for the gun. Bud fired it several times, and finally aimed it at Byron, who said, "Stop; don't." Bud then rested the gun on a board, a part of a grape trellis, and aimed it again at Byron, who tried to move out of the way a little on his stilts, and Bud fired, and shot Byron in the left eye, by which it was destroyed. This kind of air-gun was usually loaded with BB shot, and the defendant bought his son Robbie a quantity of such shot, to be used with the gun. Robbie had played with other boys in the neighborhood with his gun, and other boys had used This kind of gun would shoot strong enough, near by, to kill or wound a small bird or dent a board, and as we know, destroy an eye. it. This court can take judicial knowledge of the nature and uses of this air-gun, as it can of "beer" (Briffitt v. State, 58 Wis. 39), or of “ gas" (Shepard v. Gas-Light Co., 6 id. 539), or of an express or freight "car" (Nicholls v. State, 68 id. 416). It may be properly said, both from the evidence and common knowledge, that this of a cross-bow, is called a "cross-gun -a plaything for boys. One of these will put out an eye, if so aimed; and so too as to many toys and playthings, perfectly harmless and inoffensive in themselves, but whose common use can be perverted into a dangerous use by design. There are very few of the most harmless toys which cannot be used to the injury of another. A pocket-knife, that a boy must have to whittle and make things with, may become, in the hand of a bad boy, a most dangerous instrument of wrong and injury. Every boy over the age of six years or less must have a "ball club," and a boy of ten or more can with it knock out an eye, or the teeth, or crush in the skull of another boy; and a hard "regulation ball" may put out an eye. Many of the toys for a baby may be used for injury. In all of these cases the thing in itself, and when used in the manner and for the purposes for which it was made, and when put to its ordinary or common use, is harmless, and yet may be used exceptionally for personal injury. It is easy to convert almost any good thing into an evil by improper use. What shall we say then of this toy gun? It is not dangerous in itself, and was not intended to be dangerous or to do mischief. It was designed for a mere toy or play thing for boys. It is commonly used as a toy and plaything by boys. The defendant bought it as a plaything for his boy. It is presumed that he bought it to be used in the natural and common way. He had no reason to expect that it would ever be used to shoot a boy's eye out. He is only responsible for the consequences which naturally, commonly and reasonably This case presents very important and unusual ques- follow its proper and natural use. He had no reason tions of law in connection with the facts, and they to expect that any boy would ever aim it at the face of have been presented to this court and discussed by another boy. To hold the defendant negligent in buyeminent counsel on both sides with great learning anding this toy gun, and that from the character of the ability. The two main questions are: First. Was the thing itself, and from his having reasonably expected defendant guilty of an act of culpable negligence, per therefrom that this mischief would occur, would open se, in buying this air-gun for his boy? Second. If so, an almost limitless field of liability in respect to all could he have reasonably anticipated or expected such toys and playthings for boys, purchased with the same a dangerous and improper use of it by the boy Bud harmless intention. This toy gun was made for such Thompson? If it is held that the defendant was not boys, and is commonly used by them by common conguilty of an act of negligence, per se, in so buying the sent. Is it a sufficient test of its dangerous character gun, then it becomes necessary to decide the second that it has once been used in this improper way, when question. We are clearly satisfied that it was not an in all the other numberless instances of its use it has act of culpable negligence on the part of the defend- been used only for innocent amusement, as it was inant. The act or fact must be such that negligence can tended to be? In any view that can be taken of this be directly and logically inferred from it. Wood v. device as a toy or plaything, but which can possibly Railway Co., 51 Wis. 196. The defendant's negligence be put to a dangerous use, it would be illogical and unmust be proved, and cannot be presumed. Chamber- reasonable to hold that the defendant was guilty of lain v. Railway Co., 7 id. 367; Steffen v. Railway Co., culpable negligence in buying it for his boy, and ought 46 id. 259; Denby v. Willer, 59 id. 240. The defendant's to have reasonably expected that such an unusual and negligence in buying this article for his son, and giv- extraordinary consequence would follow it. He is only ing it to him to use, must mainly depend upon the na- chargeable with ordinary care, such as fathers generture and uses of the thing itself. What is it? It is ally would exercise under like circumstances. Parish called an "air-gun." A gun, in the usual sense, is a v. Town of Eden, 62 Wis. 272. It was held in Haggerty "weapon which throws a projectile or missile to a dis- v. Powers, 66 Cal. 368, that the father was not liable for tance; a firearm, for throwing a projectile with gun- giving his eleven-year-old boy a loaded pistol to play powder." A weapon is "an instrument of offensive or with, and an accident happened by the boy's careless defensive combat; something to fight with." use of it. The court said in that case that we have Dict. A fire-arm is "a weapon which acts by the force been cited to no case controlled by the principles of the of gunpowder." Id. Our statute (§ 1, chap. 116, Laws common law that holds that the action, under such cir1882, and § 2, chap. 329, Laws 1883) provides: "It shall cumstances, can be maintained." In that case it was a be unlawful for any person to sell or use, or have in loaded pistol; in this a toy gun. In that case the dehis possession for the purpose of exposing for sale or fendant's son did the mischief; in this the defendant's use, any toy pistol, toy revolver or other fire-arm." boy did no harm with it. In Chaddock v. Plummer "It shall be unlawful for any dealer in pistols or re(Mich.), 50 N. W. Rep. 135, the defendant bought a volvers, or any other person, to sell, loan or give any similar air-gun, with similar shot, for his nine-year-old pistol or revolver to any minor in this State." These boy, and another boy found it in a storm-door, and prohibited pistols or revolvers must be fire-arms - the defendant's wife gave the boy some shot, and in that is, " weapons which act by the force of gunpow-firing it at a board on a frequented street the shot der." The air-gun or pistol is not prohibited. This glanced, and put out the plaintiff's eye. The court air-gun is not a gun, or a weapon, in the above signifi- held that it was not negligence per se for the defendcance of the words, but called a gun," imitative only ant to buy this toy gun, and place it in the hands of his of a real gun, to give it dignity to a boy, or to play sol- boy, nine years of age." In Poland v. Earhart, 70 Iowa, dier with. The bow and arrow, when put in the form 285, a storekeeper sold a revolver to a minor, fifteen Webst. 44 instruction that in cases of wanton or malicious as case, the jury having announced their failure to agree, on retiring a second time, the court did not err in say ing to them that there was no question about defendant's liability; that sooner or later plaintiff must have a verdict; that the only question was as to how much; that the jurors had the physical power to disregard the evidence, but that the only effect would be to put defendant to additional costs. Cranston v. Railroad Co., 103 N. Y. 614, distinguished; White v. Calder, 35 id. 183: Caldwell v. Steamboat Co., 47 id. 283. This case is unlike that of Cranston v. Railroad Co. Feb. 12, 1892. Connors v. Walsh. Opinion by Earl, C. J. 15 N. Y. Supp. 970, affirmed. DEFECTIVE BRIDGES PLEADING CONTRIBUTORY NEGLIGENCE-DUE PROCESS OF LAW.-(1) A complaint in an action for injuries caused by the fall of a bridge, which alleges the accident and the defective condition of the bridge, is not defective because it does not ex years of age, who accidentally fired it and injured him- at them, striking one of them in the face. Held, in self. The father of the boy sued the storekeeper, and an action for the assault, a sufficient foundation for an it was held that he could not recover, as the accident could not have been reasonably anticipated. It is suf-sault punitive damages might be given. (2) In such ficient for this case that it would not have been negligence if the defendant's own son had committed the act, because he could not have reasonably anticipated or expected such a result. We will not therefore cousider whether there was not the intervention of a new and independent cause for the injury in another boy committing the act. If he could have reasonably expected such a result, it must have been from the nature and character of this toy gun alone, for there was nothing else proved on which to predicate such an expectation. The question is whether the defendant was guilty of negligence in so buying the gun for his boy, not having any reasonable expectation of any such result. We have shown that the negligence of the defendant could not be inferred - First, from the nature of the air-gun itself; and second, from the fact that he ought to have reasonably expected such a result. His negligence cannot be inferred from what he did, or from any of the reasonably-expected consequences of it. The learned counsel of the appellant have not been able to find any case that bears any close analogy to this, where negligence of the defendant could be imputed under such circumstances. They however urge most vigorously, and cite many authorities to the point, that defendant's negligence in such cases is a question for the jury, and not for the court. That would be so where the question depended upon inany facts and circumstances from which different persons might reasonably draw different inferences or conclusions. But where the evidence, as in this case, is plain and positive, and admits of no doubt or controversy, the question of negligence is for the court as a question of law. Jalie v. Cardinal, 35 Wis. 118. facts in the case are not controverted. The whole case depends upon questions of law alone. There is nothing for the jury to find but legal conclusions and the amount of damages. Where, as here, the facts are undisputed, and there is no reasonable chance for drawing different conclusions from them, the question of negligence becomes one of law for the court. Elmore v. Hill, 51 Wis. 365. See other authorities cited in respondent's brief. The We are most clearly satisfied that it was the duty of the court to order a nonsuit of this case. The judgment of the Circuit Court is affirmed. NEW YORK COURT OF APPEALS AB- APPEAL-QUESTION OF LAW ON VERDICT SUBJECT TO OPINION OF GENERAL TERM.-An appeal to the Court of Appeals from a judgment on a verdict subject to the opinion of the court, where the General Term certifies that the record contains questions of law which should be reviewed, will not be considered if there is uo special case settled under direction of the General Term, containing a concise statement of the questions of law arising thereon, as provided by the Code of Civil Procedure, section 1339. Feb. 12, 1892. People v. Featherly. Opinion by O'Brien, J. CRIMINAL LAW--FORMER ACQUITTAL.-An acquittal on a charge of illegally selling liquor subsequent to a certain date is not a bar to a prosecution for illegal sales prior to that date. Feb. 9, 1892. People v. Sinell. Opinion by Andrews, J. 12 N. Y. Supp. 40, affirmed. pressly allege that the fall of the bridge and the injury to plaintiff were caused by such defective condition. (2) In an action to recover for injuries caused by the fall of a defective bridge, it appeared that the highway commissioner had examined the bridge a few weeks before, with plaintiff's aid, and had pronounced it safe; that heavily-loaded wagons had crossed it nearly every day, and that it stood open for public travel. Held, that the question of plaintiff's uegligence in going on it was for the jury, and a finding in his favor should not be disturbed. (3) In an action against a town for injuries caused by a fall of a defective bridge, it appeared that the plaintiff had been employed by the highway commissioner to assist in repairing the bridge, and about three weeks before the accident did some work thereon, and another day was set, four days later, to complete the work, at which time the commissioner was to have some props ready, and directed plaintiff, in case of his absence, to complete the work; that a storm prevented the work on the day set, and that no props were furnished, and nothing was done up to the time of the accident. Held, that plaintiff was not negligent in not going on with the work. (4) Chapter 700, Laws of 1881, making towns liable for the negligence of highway commissioners, on whom the duty is imposed of taking care of the highways, and over whom the towns have no control, is not unconstitutional, as a taking of property without due process of law. Feb. 12. 1892. Taylor v. Town of Constable. 15 N. Y. Supp. 795, affirmed, without opinion. EXECUTORS AND ADMINISTRATORS-ACCOUNTINGMISCONDUCT.—(1) A mortgage drawn payable to testa. trix was as matter of fact a part of a trust-estate in which she had only a life-interest. The administrator received payment of the same, and disbursed a portion of the proceeds in such capacity. Held, that the administrator had the right to receive payment and discharge the security, it being in terms payable to bis testatrix, and that, receiving the fund in his representative capacity, he was, in such capacity, bound to account for it, and his bond was liable therefor. (2) An administrator collected a nortgage payable to his testatrix, which in fact was a portion of a trust-estate in which testatrix had only a life-interest. Subsequently the administrator was ordered to pay over such fund to the substituted trustee of the trust, and was himself appointed such trustee on giving a bond in a required amount. He gave a bond for only half such amount. It did not appear that he ever made any transfer of such fund to himself as trustee. Held, that he was liable to account for the same as administrator. (3) Au administrator paid a portion of a trust fund due to infant beneficiaries to their mother. Held, that he was not entitled to credit for the same unless it appeared that such moneys were devoted to the support, maintenance and education of such infants. It is not enough that it appear that they were devoted to the support of the mother and children. (4) An administrator who collects funds be longing to the estate, and with knowledge thereof illegally disposes of the same, is rightfully deprived of commissions and charged with costs and allowances on a decree for an accounting. Feb. 9, 1892. In re Hobson. 16 N. Y. Supp. 371, affirmed, without opinion. INSURANCE--MUTUAL BENEFIT CHANGE OF BENEFICIARY-BY-LAWS OF SOCIETY.-A person holding a certificate of membership in a benefit society, which designated the holder's daughter as the beneficiary thereof, on his second marriage inserted, immediately after the daughter's name as beneficiary, the words "and my wife." The by-laws of the society provided: "A member in good standing may at any time surrender his relief-fund certificate, and a new certificate shall thereafter be issued, payable to such person or persons as the member may direct." Held, that such a certificate could only be made payable to any other person than the beneficiary therein mentioned by surrender to the society as provided by its by-laws, and that such member's wife, on his death, acquired no title to any part of its proceeds on account of decedent's alteration thereof in her favor. Feb. 12, 1892. Thomas v. Thomas. Opiniou by Maynard, J. 15 N. Y. Supp. 15, affirmed. MASTER AND SERVANT-REGULATIONS FOR PROTECTION OF EMPLOYEE-RISKS OF EMPLOYMENT.-An in jury to a railway brakeman while engaged in coupling cars, caused by a co-employee, having charge of an engine, backing it up against cars standing on a siding with such force as to drive them back upon one of the cars which the brakeman was coupling, is within the risks incident to his employment. Goodrich v. Railroad Co., 116 N. Y. 403; Byrnes v. Railroad Co., 113 id. 251; Appel v. Railroad Co., 111 id. 550; Harvey v. Rail. road Co., 88 id. 481. Feb. 12, 1892. Berrigan v. New York, L. E. & W. R. Co. Opinion by O'Brien, J. 14 N. Y. Supp. 26, reversed. where his position has been filled by another, who performed the duties thereof and was paid therefor by the city. Terhune v. Mayor, 88 N. Y. 248, followed. Feb. 9, 1892. Higgins v. Mayor, etc., of City of New York. Opinion by Gray, J. 14 N. Y. Supp. 554, affirmed. PLEDGE-BY EXECUTOR-LIABILITY OF PLEDGEENOTICE. (1) Where a bank makes a loan to an executor individually, taking as collateral security registered bonds which belong to testator's estate, the fact that the indorsement of registry on the bond immediately preceding the registry in the name of the bank is in the name of executors, is not sufficient to put the bank on inquiry as to the executors' authority to pledge the bonds. Feb. 12, 1892. Gottberg v. United States Nat. firmed. Bank. Opinion per Curiam. 16 N. Y. Supp. 45, af RAILROADS-ELEVATED-DAMAGE TO MARKET VALUE OF LANDS-BENEFITS.-In an action against an elevated railroad company for damages to the market value of lands not actually taken for its purposes, the court erred in excluding evidence of benefits accruing to such lands from defendant's road. Newman v. Railroad Co., 118 N. Y. 618, and Bohm v. Same, 29 N. E. Rep. 802. Second Division, Jan. 26, 1892. Odell v. New York El. R. Co. Opinion by Haight, J. 8 N. Y. Supp. 951, reversed. RELIGIOUS SOCIETIES INCORPORATION-FAILURE TO KEEP UP SERVICES.-(1) Under laws requiring the certificate of incorporation of a religious society to be made immediately after the meeting of the society for the purpose of incorporation, a certificate bearing date a month later than such meeting is not invalid. (2) In a proceeding by an incorporated religious society to compel payment of a legacy to itself, the objection that the society has lost its corporate existence by nonuser or failure to keep up its church organization is not available. Jan. 20, 1892. In re Trustees of Congregational Church & Society of Cutchogue. Opinion by O'Brien, J. 13 N. Y. Supp. 140, affirmed. SALE ACCEPTANCE- MANUFACTURED ARTICLES EVIDENCE. (1) In an action for the price of vans, evidence that they had been used by defendants for a long time, and were still being used, without any return, or offer to return, warrants the conclusion that defendants had accepted the vans as built in accordance with the contract. (2) Testimony that one of defendants was at plaintiff's shop every few days during the construction of the vans, and took charge of them, and called plaintiff's attention to the manner in which the panels should be constructed, precludes any recovery by defendants on the ground of a latent defect, in that the panels were not as thick as they should be for vans of such a size. (3) Where the time of the delivery of goods sold becomes material in an action for the price, and the defendants put in evidence their books con certain marks on the books near the entries becomes immaterial where the person who made the entries testifies that the entries were made before the marks were. Second Division, Feb. 9, 1892. Schuchman v. Winterbottom. 9 N. Y. Supp. 733, affirmed, without opinion. MUNICIPAL CORPORATIONS-CONTRACT FOR PUBLIC WORKS-FORFEITURE.-That a party who has made proposals for public work in New York city is the low-taining entries of the time of delivery, the meaning of est bidder, and knows that fact, does not constitute an award to him of such contract, within the Consolidation Act, sections 64 and 65, regulating the letting of work upon competitive bids, which provide that "if the lowest bidder shall refuse or neglect, within five | days after due notice that the contract has been awarded, to execute the same, the deposit made by him shall be forfeited to the city." Feb. 9, 1892. Erving v. Mayor, etc., of New York. Opinion by O'Brien, J. 16 N. Y. Supp. 612, affirmed. EMPLOYEES-PREFERENCE OF UNION SOLDIER. -A laborer in the employ of a city, who was dismissed and afterward reinstated under the Laws of 1887, chapter 464, providing for preference of honorably-discharged Union soldiers as employees upon public works, etc., cannot recover from the city wages for the time between his removal and reinstatement, SCHOOLS-SALARIES OF TEACHERS-APPROPRIATIONS -WARRANTS-MANDAMUS.-Chapter 6, section 4, Laws of 1887, which provides that the board of school commissioners of the city of Troy shall not contract to pay teachers a gross amount in excess of that allowed by the board of estimate for the school year, does not operate so long as the board keeps within such restriction, to prevent them from contracting with teachers at a rate which will exhaust the appropriation made in pursuance of such estimate before the end of the school year, the effect thereof being merely to shorten the |