also says that much of the confusion of ideas about the vesting of the title on a sale of personal property arises from the misleading influence of unsuitable analogies. I have already referred to one of those unsuitable analogies. Justice Lowrie thus refers to another: "The class of cases which have tended most powerfully to embarrass this question are those wherein the real question was not, has the title vested in the vendee? but has it absolutely rested as to take away the lien of the vendor for unpaid purchase-money or his right to stop in transitu? Yet to this class belong most of the older cases, which are usually referred to as leading cases in the present question, though they have nothing to do with it, for it is very plain that the title may vest while the vendor has such remaining control over the goods as entitled him to arrest their full delivery in default of payment or on the failure of the vendee." Gonser v. Smith, 115 Peun. St. 452, recognized and followed Winslow v. Leonard, and affirmed the doctrine that the passing of the title upon a sale of chattels depends upon the intention of the parties, to be derived from the contract and its circumstances, and that actual delivery, weighing and setting aside are only circumstances from which the intention may be inferred. In ap We might multiply authorities upon this point without limit, were it necessary. We do not think those cited are in serious conflict with any of our own cases. Where an apparent conflict exists it is doubtless due to inadvertence in applying a principle of law which was only intended to protect execution creditors, bona fide purchasers or the right of stoppage in transitu. This principle, as before observed, has no application to cases arising between vendor and vendee. plying the law to questions of this nature we cannot wholly ignore the accepted principles of right and justice, nor can we, in considering contract relations, ignore the usages which the necessities and wants of business have practically made a part of them. This has sometimes been called the expansive property of the common law. If the great mass of legal principles which has descended to us under the name of the common law is composed only of iron-clad rules, it would be wholly unsuited to the present age and generation, and the great changes which have taken place, not only in the volume of business but in the mode of conducting it. We are constantly applying the accepted principles of the common law to new phases and modes of doing business. This is a necessity, alike dictated by common sense and the necessities of trade. The present is a striking illustration of the wisdom of this rule. Both the appellant and his customer in Montgomery county were engaged in a lawful business. The inals by judicial construction who are not so in fact or intent. We are of opinion that the learned judge below erred when he instructed the jury that the facts as set forth in the specification of error show a violation of the liquor laws of this Commonwealth. The judgment is reversed. MASTER AND SERVANT-DEFECTIVE AP- NEW YORK COURT OF APPEALS, SECOND DIVISION, DAVIDSON V. CORNELL. In the construction of an elevated railroad by defendant, upright columns were erected on each side of the street opposite each other, about sixty feet apart, upon which were placed iron cross-beams for the purpose of supporting girders. An apparatus, consisting of a steam-engine and boiler, placed on a platform and designated a "traveller," was used to hoist these girders from the ground to their places in the structure. The "traveller" was about twenty feet wide and thirty feet long, placed on twelve wheels, three resting on each of the four girders, and weighed from ten to twelve tons, In front of this traveller, and disconnected from it, were two derricks or cranes. The rope to which the tackle was attached for hoisting the girders ran through the top of the crane, and thence back to the traveller, where it was wound about a drum. When four girders, constituting a single span, were hoisted and bolted, the cranes and the "traveller" were moved forward for the purpose of hoisting another span of girders to their places. While the "traveller" was being moved, the girders on which it rested gave way, and fell to the ground, and injured the plaintiff, who had been employed by defendant on the traveller for some time. There was evidence that braces between the girders would have made them more stable. Held, that while plaintiff knew there were no braces placed between the girders, such knowledge did not amount to such a comprehension of the risks assumed as would justify the withdrawal of the case from the jury. In an action for personal injuries, a physician called by plaintiff to testify as to the pharacter and extent of the injuries, stated that a few days before the trial (which was more than a year after the accident) plaintiff subinitted himself to an examination by the witness. Held, that testimony as to plaintiff's statements to the witness concerning the effect of his injuries was hearsay, such statements not having been made involuntarily or for the purpose of obtaining medical treatment. The error in admitting such testimony is not cured by evidence of plaintiff that the statements made to the physician were true. 10 N. Y. Supp. 521, reversed. Term. appellant had the right to sell and his customer in APPEAL from City Court of Brooklyn, General Montgomery county had the right to buy the liquor in question. To say that a man who may lawfully sell an article to another who may lawfully buy it cannot deliver the article sold by the usual course of business is to assert a proposition that is absurd upon its face. It is not sustained by either authority or reason. In this case the purchaser was licensed to retail the beer to his customers. The effect of this conviction, if sustained by this court, will be merely to compel the appellant to deliver his liquors by a common carrier instead of by his own wagon in the usual course of trade. It cannot prevent sales nor diminish the quantity of liquors sold and consumed. It imposes a burden upon the wholesale dealer which is not imposed by the law, and is in violation of the usages of trade. We do not think the Legislature intended, when it licensed the appellant as a wholesale dealer, to prohibit the delivery of goods sold by him in the manner recognized in all other kinds of business, and especially ought we not to indulge in metaphysical hair splitting in the construction of a penal statute, and make men crim The action was brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendants, who were engaged in the construction of a double-track elevated railway on Broadway, in the city of Brooklyn. This was done by setting columus upright on either side of the street opposite each other, in transverse lines and longitudinally, about sixty feet apart, placing upon them iron cross-beams which supported gir ders, four in each span, extending from one to another of those cross-beams, and for the purpose of hoisting those long girders from the ground to their places in the structure, there was used a steam-engine, boiler and other apparatus upon a platform on wheels. This was in the evidence designated as a "traveller." It was about twenty feet in width, and about thirty feet in length, on twelve wheels, three resting on each of the four girders, and its weight was from ten to twelve tons. In advance of this traveller, and disconnected from it, were two derricks or cranes, called by the witnesses "grasshoppers," also on wheels. In hoist essentially aided in keeping them in the position in which they were placed. The conclusion was war ranted that the situation in which the girders were when the platform conveying the engine, boiler and other implements was moved over them was such as to be deemed in defective condition for such use and purpose. Not because the girders had not of themselves adequate strength, but for the reason that they had not the support to keep them in proper position which they should have had, and which may have been given to them by such lateral bracing, and further support would have been given by bolting the ends at the bottom. But it seems that the onward movement of the traveller was not delayed for that purpose, nor for a sufficient time to straighten bent girders. Another force of workmen was supplied to follow the traveller, ing a girder the rope to which the tackle was attached led from it through the top of the crane, thence back to the traveller, where, by the power of the engine, it was wound about a drum, thus raising the girder to its place on the cross-beams. When the four girders, constituting a single span, were thus hoisted and bolted, the grasshoppers were taken onto that span, and the traveller, by means of a rope and tackle attached, fastened by a clamp to one of the inner longitudinal girders some distance in advance of it, and the application of the power of the engine was moved forward onto and near the forward end of the span of girders next in the rear to that on which the grasshoppers rested, there stopped, and by the use of chocks, stayed, and another span of girders hoisted to their places. By this method of construction the work had proceeded nearly one mile, when on February 14, 1888, the trav-laterally brace them, and straighten such of the girders eller, while being so moved, and the girders on which it rested fell to the ground, causing the injury to the plaintiff of which he complains. He was an employee of the defendants upon the traveller, and had been so engaged for some time. He recovered $2,500. The judgment was affirmed by the General Term. James Troy, for appellants. Charles J. Patterson, for respondent. BRADLEY, J. The immediate cause of the giving way of the girders and the fall of the structure was the subject of some contention upon the evidence. The plaintiff's counsel contends that it was the result of the negligent failure of the defendants to perform their duty to their employees, in that they did not use the care imposed upon them to provide a reasonably safe structure for the men to work upon, or proper means for its support or movement, for the purposes of the service required. If that proposition, in its application to the cause of the calamity in question, had the support of evidence, the charge of negligence on the part of the defendants was sustained. Ryan v. Fowler, 24 N. Y. 410; Pantzar v. Mining Co., 99 id. 368; Kranz v. Railway Co., 123 id. 1. There is no question about the competency of the men to perform the duties devolved upon them in the service. The charge of negligence against the defendants has relation mainly to the system provided for the performance of the work of construction in which the plaintiff was engaged, and is that there was a want of reasonable care in furnishing precautionary means for the safety of the employees upon it. The structure called the "traveller," containing the engine, boiler and other appliances, was moved on the girders from one cross-beam to another, having the weight of ten to twelve tons, and required a substantial support. In this instance, for some cause, it is said, the girders swayed as the traveller was moving along upon them, and they, with it, fell to the ground. There was no lateral bracing placed between the girders before this weighty structure called the "traveller" was moved over The them. Nor were the ends at the bottom bolted. as were bent, and complete the bolting of them at the ends. This plan and system of proceeding with the work of construction may have been adopted and employed quite as much in reference to expedition as safety. The movement of the platform on twelve wheels, each two feet in diameter, was slow, and regulated, when necessary, by a rear or heel rope, used to restrain its movement down grade and to aid in stopping its progress, and the steadiness of its movement very likely was supposed would give safety to it. But in view of the fact that it may have been rendered more so, and perhaps perfectly safe by taking little more time to brace and bolt the girders before attempting to pass the platform over them, permitted the conclusion that failure to do so was negligence on the part of the defendants in the method adopted to proceed with the work. There was some, but not very satisfactory, evidence that the "heel rope," as it was called, in the rear was defective, and on the occasion in question was broken. On the part of the plaintiff evidence was also given tending to prove that the rope or cable to which the power was applied to draw the traveller over the girders was not in line with its motion or movement, that the clamp employed, not being such as could be fastened to the cross-beam in direct line from the place it was attached for that pur pose to the moving platform, was fastened a distance in advance of it to one of the longitudinal girders. This was the subject of considerable evidence, and it is by no means clear that the divergence of this rope from the direct line of motion was such as to be seriously prejudicial to the safe movement of the structure, although the evidence may have presented a question in that respect for the jury, in connection with the condition in which the girders were when required to support the transmission of the platform over them. But the main question seems to have had relation to the defective manner in which the girders were stayed to their places. It is however urged by the defendants' counsel, that although they may not have been as firmly supported as they should have been, the plaintiff, having been engaged in the work for considerable time, knew the situation of the girders, that they were neither braced nor bolted at their ends to the brackets on the crossbeams, and assumed such hazards as were incident to the operation of the platform on which he was engaged in the service. It is, as a general rule, true that a servant entering into employment which is hazard. ous assumes the usual risks of the service, and those which are apparent to ordinary observation, and when he accepts or continues in the service with knowledge of the character of structures from which injury may be apprehended, he also assumes the hazard incident to the situation. Gibson v. Railway Co., G3 N. Y. 449; De Forest v. Jewett, 88 id. 264; Sweeney v. Envelope Co., 101 id. 520; Hickey v. Taaffe, 105 id. 26; Williams v. Railroad Co., 116 id. 628. Those not obvious assumed by the employee are such perils as exist after the master has used due care and precaution to guard the former against danger. And the defective condition of structures or appliances which, by the exercise of reasonable care of the master, may be obviated, and from the consequences of which he is relieved from responsibility to the servant by reason of the latter's knowledge of the situation, is such as is apparent to his observation. Kain v. Smith, 89 N. Y. 375; McGovern v. Railroad Co., 123 id. 280. It was plain to be seen that there was no lateral bracing between the girders. This the plaintiff knew. He may also have observed that the ends were bolted only at the top. As they were resting upon the crossbeams it may be that no apprehension of danger in the passage of this loaded platform over them was apparent to ordinary observation. And the importance of such bracing and bolting, for the purpose of safely taking and moving that weight upon them by the means applied and in the manner it was, may have required some skill or judgment not available to an ordinary observer or to the plaintiff. The knowledge of what appeared to him to be the situation may not necessarily have advised the plaintiff of the consequences which might result from it. The place of the plaintiff's service was on the platform where was located the power applied to raise the girders, and when that was being done it was sixty feet or more in the rear from the place where the girders as they were hoisted were placed and bolted. The inference was permitted from the evidence that the defective condition occasioned by the want of bracing and bolting, for the purposes of bearing the moving weight upon the girders, and the consequences to be apprehended from such omission, so far as they were attributable to such causes, were not within the hazards of the service assumed by the plaintiff, nor was he, as matter of law, chargeable with contributory negligence, and therefore the motion for nonsuit was properly denied. For the purpose of proving the character and extent of the injury the plaintiff had sustained, a medical witness was called, and testified that the Saturday before the trial commenced (which was more than a year after the accident) the plaintiff came to his house, and submitted himself to the examination of the witness. After testifying that he formed an opinion that the plaintiff was suffering from an injury to the spinal cord from some cause, the doctor was asked: "What are the symptoms of that injury, and what does that injury do in case of disabling him?" and answered: "There is inability to walk; inability to stand, even. There is want of sensation in the lower extremities. There is marked tenderness over a portion of the spine. There is a loss of sexual power. Of course my opinion in that respect must rest upon his declarations, but if his statement be true, there is an entire loss of sexual power." The defendant objected to the witness stating what the plaintiff said to him, and on the doctor proceeding to state something further than the plaintiff had said, the defendants' counsel moved that it be stricken out. The court, in denying the motion, remarked that the evidence was taken with the understanding that it would be stricken out unless the fact should be proved by him. The defendants' counsel excepted. The witness further testified that he asked the plaintiff about his power of sexual intercourse. The doctor was then asked the following question, objection to which was overruled, and exception taken: "Question. What question did you ask him, and what reply did he make, concerning sexual intercourse? Answer. I asked him whether or not he had sexual intercourse. said he had not. I said to him, 'Have you had since the injury?' A. 'Never.' I said to him, 'Have you had any intercourse with your wife He | since then?' He said, 'I have never been able to.'" And the witness gave some further evidence of the declaration of the plaintiff on the subject of his sexual disability during that time. In overruling the objection, the court said that he would receive the evidence under the "same ruling and limitations" already indicated. The question arises whether or not the reception of this evidence was error. As a general rule, declarations made out of court by a party are not admissible as evidence in his behalf. But his statements to his attending physician of the nature of the symp toms of his malady or sufferings have quite uniformly been held admissible. And from necessity they were formerly deemed competent, when made to persons other than medical attendants, under some circumstances. Caldwell v. Murphy, 11 N. Y. 416; Werely v Persons, 28 id. 341; Matterson v. Railroad Co., 35 id. 491. But since the Code permits parties to make their statements under oath as witnesses, that necessity in this State has ceased to exist, and as a rule, declarations made to persons other than the medical attendants of the party are not admissible as evidence. Reed v. Railroad Co., 45 N. Y. 574; Roche v. Railroad Co., 105 id. 294. It was however held in Hagenlocher v. Railroad Co., 99 N. Y. 136, that the evidence of a non-medical witness that the plaintiff (who had received an injury) manifested pain by screaming, was held competent, because it was apparently involuntary, and corroborated by what appeared to be her condition. The rule of admissibility of statements made to physicians by persons who have been physically injured or are suffering from disease is not an unqualified one. They must relate to present, and not past, pain and suffering. Towle v. Blake, 48 N. II. 92. And it has been held that their declarations, after controversy has arisen, made at a medical examination then had for the purpose of preparing evidence, and not for medical treatment, were incompetent. Railroad Co. v. Huntley, 38 Mich. 537; Jones v. President, etc., of Portland (Mich.), 5 N. W. Rep. 731. In Matterson v. Railroad Co., 35 N. Y. 487, it was held that expressions of pain and suffering made by the injured persons to physicians when they were examining him were competent evidence, notwithstanding the examination was made by them with a view to testifying as to the result of it in a suit then pending. The same was said in Kent v. Town of Lincoln, 32 Vt. 591. It may be seen, that when attended by a physician for the purpose of treatment, there is a strong inducement for the patient to speak truly of his pains and sufferings, while it may be otherwise when medically examined for the purpose of creating evidence in his own behalf. It is therefore that the weight of judicial authority is to the effect that the statements expressive of their present condition are permitted to be given as evidence only when made to a physician for the purposes of treatment by him. Barber v. Merriam, 11 Allen, 322; Fay v. Harlan, 128 Mass. 244; Roche v. Railroad Co., 105 N. Y. 294. In the present case the declarations in question of the plaintiff were not instinctive, nor were they made to the physician with a view to medical treatment. They consisted, not of examination of present pain or suffering, but were the plaintiff's statements, so far as called for by the doctor, of the effect upon him of the injury and the consequences which had followed in such respects from the time it occurred-a period of nearly fifteen months. This was hearsay, and is very different from that of a medical witness as to the expressions by a patient or person suffering from injury or disease, indicating pain or distress or expressive of the present state of his feelings in that respect. We think the reception of the evidence was error, and although the plaintiff testified to the truth of the statements made to the doctor, his evidence did not cure the error. The character of his injury was an important fact as bearing upon the question of damages, and although his evidence may have constituted the basis, in part at least, of an hypothetical question for the opinion of the doctor, it cannot be said that the eridence given by the latter of the plaintiff's declarations were not prejudicial to the defendants. The plaintiff's interest as a party presented the question of his credibility for the jury, and his evidence could not properly be corroborated by proving that the facts to which he testified corresponded with the declarations made by him to the doctor. This, for the support of the plaintiff's evidence, was not admissible. Robb v. Hackley, 23 Wend. 50; Reed v. Railroad Co., 45 N. Y. 574. The other exceptions taken require no consideration, as they may not necessarily arise upon another trial. The judgment should be reversed aud a new trial granted, costs to abide the event. All concur. NEW YORK COURT OF APPEALS ABSTRACTS. APPEAL-FINDINGS OF REFEREE-OPINION OF COURT BELOW. PARTNERSHIP — BANKING — MISAPPROPRIATION.-(1) The findings of a referee, having been affirmed at General Term, are conclusive. (2) The opinion of the General Term of the Supreme Court will not be examined on appeal to the Court of Appeals to see whether the General Term exercised the jurisdiction which it possessed to review the findings of a referee on the evidence. (3) Where plaintiff deposits to his credit with a trust company a draft drawn on a partner in his individual capacity, he is not liable for a misappropriation of partnership funds by a payment of the draft with the firm's check. To sustain their contention, the defendant's counsel cite the following, among other, authorities: Dob v. Halsey, 16 Johns. 38; Elliott v. Dudley, 19 Barb. 329; Bank v. Savery, 82 N. Y. 299; Bank v. Underhill, 102 id. 336; Rogers v. Batchelor, 12 Pet. 229; Moriarty v. Bailey, 46 Conn. 592; Kendall v. Wood, L. R., 6 Exch. 243. think any of these authorities are applicable to this case. If we assume that the plaintiff employed the Boston Trust Company to collect the draft on Pryor, and that the trust company thus became his agent for that purpose, then the Bank of the Republic became the agent of the trust company, and not of the plaintiff. Allen v. Bank, 22 Wend. 215; Commercial Bank of Pennsylvania v. Union Bank of New York, 11 N. Y. 203; Ayroult v. Bank, 47 id. 570. The Bank of the Republic did not become responsible to the plaintiff, We do not and the plaintiff conld not in any way control or direct its conduct in the discharge of the duty which it had assumed to the trust company. The rule of constructive notice to a principal can have no operation whatever in a case where the agent himself has not received actual notice. There are undoubtedly cases where an agent is authorized by his principal to employ subagents, and where the nature of the business intrusted to the agent is such that it must be assumed he was authorized to employ subagents for the principal, and in such cases it is frequently true that both the agents and the subagents are the representatives of the prin cipal, and the knowledge which either of them acquired in the business may be imputed to the principal. But here it is settled upon abundant authority that the agent employed by the Boston Trust Company to collect its draft had no relation whatever to the plaintiff, and owed a duty, not to the plaintiff, but solely to the trust company. So in any view of this case, the knowledge acquired by the Bauk of the Republic when it received the firm check in payment of the draft upon Pryor individually cannot be imputed to the plaintiff. The plaintiff, in the end, in some form, received his money from the Boston Trust Com pany in good faith, without notice, and he cannot be made to account for it to the defendants. Stephens v. Board, 79 N. Y. 183. April 12, 1892. Wheatland v. Pryor. Opinion by Earl, C. J. 14 N. Y. Supp. 533, af firmed. APPEAL-Order-new TRIAL.-This court cannot review an order made by the Supreme Court setting aside a verdict, and granting a new trial, on the ground that the verdict was against the evidence. Young v. Davis, 30 N. Y. 134, followed; Folger v. Fitzhugh, 41 id. 228; Wright v. Hunter, 46 id. 409; Campbell v. Page, 50 id. 658; Standard Oil Co. v. Amazon Ins. Co., 79 id. 507. April 12, 1892. Baldwin's Bunk of Penn Yan v. Buller. Opinion by Andrews, J. Appeal from 14 N. Y. Supp. 831, dismissed. ATTACHMENT-PLEADING AMENDMENT-DISMISSAL OF APPEAL.-(1) The complaint on which an attachment issued counted on two causes of action, and the attachment was based on both counts. Afterward, from an order vacating the attachment, plaintiff ap pealed to the General Term, and after perfecting the appeal, filed an amended complaint, omitting the sec ond count in the original complaint. Afterward, on motion of defendant, the appeal was dismissed. Held, that such dismissal was error, as the abandonment of one cause of action on which the attachment issued was not a waiver of the right of attachment, or the right to prosecute the appeal. (2) The appeal from the order vacating the attachment having been perfected before amending the complaint on which the attachment issued, the effect of such amendment could not be determined on a motion to dismiss the appeal. March 25, 1892. Norfolk & N. B. Hosiery Co. v. Ar nold. Opinion by O'Brien, J. Gray, J., dissenting. 17 N. Y. Supp. 595, reversed. CARRIERS-INJURIES TO PASSENGERS-EVIDENCEPlaintiff, a passenger on a north-bound train, which was running on the easternmost of three tracks, alighted from the west side at a station where the sta tion and platform were at the east side of the tracks. After the train had started, and while proceeding across the two tracks on the west side, plaintiff was struck and injured by the engine of a south-bound train, whose engineer did not see him, and which was approaching on the westernmost track, under full control, with bell rigning, and at a slow rate of speed. Plaintiff's evidence was that the engine of his train was emitting steam so as to obstruct his view. that a rule of the railroad company, which prohibits trains from approaching stations when other trains are Held, discharging their passengers, had no application, as both trains were moving, and that plaintiff, having failed to show that the trainmen had violated any rule, since on his own version of the facts they could not see him, did not make out a cause of action. April 12, 1892. Goldberg v. New York Cent. & H. R. R. Co. Opinion by Andrews, J. 15 N. Y. Supp. 579, reversed. CIVIL DAMAGE ACT LANDLORD OF SALOONKEEPER.-(1) In an action under chapter 646, Laws of 1873, which provides that "a person ** * renting or permitting the occupation of a building or premises, having knowledge that intoxicating liquors were to be sold therein," shall be liable for any damages caused by the intoxication of any person produced by liquor sold on such premises, it appeared that premises uuder the entire management of an agent of the owner were leased by the agent without any specification in the lease as to the use to which they were to be put, but with the knowledge of the agent that they were to be used for the sale of liquor. The owner lived in another county, and had no personal knowledge that the prem ises were used for such purpose. Held, that the owner was chargeable with the knowledge of his agent as to the purpose for which the promises were to be used. (2) Evidence that at the time of the lease of the premises by E., as agent for defendant, to G., it was understood that liquor should not be sold thereon, was immaterial where it appeared that E. knew that G. and his assigns did in fact carry on the business of selling liquor on the premises. (3) Under the provisions of the act that makes one liable if the sale of the liquor by him "shall have caused the intoxication in whole or in part," it must appear that the liquor so sold contributed in an appreciable degree to the intoxication, and a charge to the jury that if the liquor sold by defendant to plaintiff's husband "contributed in the slightest degree to his intoxication," the case was within the statute, did not contravene that principle. March 25, 1892. Hall v. Germain. Opinion by Andrews, J. Earl, C. J., dissenting. 14 N. Y. Supp. 5, affirmed. CORPORATIONS-OFFICERS-TRANSFER OF STOCK.— (1) Defendant, a stockholder and director of a solvent corporation, assigned all his stock (eighty shares) in good faith to J., the secretary and treasurer, with power to transfer the same on the transfer book, saying, when he handed J. the certificate, that he thereby severed all connection with the company, and would have nothing further to do with it. J. accepted the stock, but as the company did not have a transfer book, no entry of the transfer was made till some days thereafter, when a transfer book was procured, and seventy-five shares of the stock transferred, and a new certificate therefor issued to J., and a certificate for five shares issued to defendant, without his knowledge, which he was afterward induced by J. to accept, but not with the understanding that he should be a director. Held, in an action against defendant for a debt of the company contracted after the assignment of his stock to J., that he was not liable, the assignment having divested him of all interest therein at the date thereof, though chapter 611, section 17, Laws of 1875, provides that "no transfer of stock shall be valid, for any purpose whatever, *** until" entered in the transfer book, and the by-laws of the company contain a provision that stock could be transferred "only * * * upon the books of the company." It has been frequently held that such provisions are intended solely for the protection of the corporation; can be waived or asserted at its pleasure; are without effect, except for the protection of the corporation, and do not operate to prevent the passing of the entire title, legal and equitable, in the shares, as between the parties, by the delivery of the certificate, with assignment and power of transfer. Isham v. Buck ingham, 49 N. Y. 216; Robinson v. Bank, 95 id. G37; McNeil v. Bank, 46 id. 331; Leitch v. Wells, 48 id. 585. (2) Chapter 611, section 10, Laws of 1875, provides that members of the board of directors of a corporation shall be stockholders of at least five shares, and shall hold their offices until their successors are chosen. Held, that a director having assigned all his stock, the statute executes itself, and operates to divest him of the directorship. Second Division, March 22, 1892. Chemical Nat. Bank of New York v. Colwell. Opinion by Parker, J. Bradley, J., dissenting. 9 N. Y. Supp. 285, 288, reversed. EMINENT DOMAIN-CONVEYANCE PENDING ACTION— PARTIES. (1) Pending an action against an elevated railroad company for damages done to plaintiff's property by the construction and operation of defendants' railroad in the street on which such property abutted, plaintiff conveyed the property to a third person by a deed "reserving to the vendor all damages to said property, caused or to be caused by the present, past or future maintenance and operation of the elevated railway on D. street, as now constructed, and the fee and easement in D. street, now or hereafter occupied and invaded by the said elevated railway structure, when maintained and operated as aforesaid, and conveyance is made subject to said reservation to the said " vendor (plaintiff). Held, that such reservation was sufficient to enable plaintiff to maintain his action. (2) Where plaintiff in such case transfers his interest in the property pending suit, the action survives, and defendant may bring in plaintiff's vendee as a party, section 756 of the Code of Civil Procedure, providing that in case of transfer of interest the action may be continued by the original party, unless the court directs the person to whom the interest is transferred to be substituted in the action or joined with the original party, as the case requires. April 12, 1892. McGean v. Metropolitan El. Ry. Co. Opinion by Maynard, J. 14 N. Y. Supp. 761, affirmed. INSANITY-INQUISITION-NOTICE TO LUNATIC-JURISDICTION.-(1) Section 2325 of the Code of Civil Procedure provides that in all cases the court must require notice to be given of the presentation of a petition in lunacy proceedings to the husband or wife of the alleged lunatic, or to one or more relatives, or to an officer specified, unless sufficient reasons are shown for dispensing with such notice. Held, that this section does not dispense with the right of the alleged lunatic to have notice also, such proceedings being no exception to the rule that the person proceeded against must have notice, to give validity to an injunction against him. (2) The fact that the wife of the alleged lunatic informed her husband, on the day before the inquisition was had, that she had applied to the court to have a committee appointed, and that the hearing would take place the next day, at a given time and place, was no notice within the requirement. (3) Au alleged lunatic having been adjudged insane by a commission, without notice to him, the court subsequently denied his motion to vacate the commission, and all proceedings had therein, but permitted him to litigate his sanity by traversing the original petition, thereby putting him in the same position as on an original hearing thereon, and the decision in such traverse was adverse to him. Held, that having submitted to a litigation of his sanity without raising any question of jurisdiction, the court bad full power to act, though the original proceedings were without jurisdiction. (4) It was discretionary with the court, pending the traverse, to let the original inquisition and proceedings stand until the termination of the inquiry. (5) The lunatic's motion to vacate having asked for alternative relief, namely, that the proceedings should be vacated, or that the petitioner be permitted to traverse the inquisition, which latter relief or a relief more favorable was awarded to him, he cannot object to the refusal of the court to vacate the proceedings. March 25, 1892. In re Blewitt. Opinion by Andrews, J. 16 N. Y. Supp. 305, affirmed. PLEADING AMENDMENT-HARMLESS ERROR.-In an action for wages alleged to be due under a contract for hiring, the sole issue was whether plaintiff had performed his part of the contract. While all the correspondence between the parties, introduced by plaintiff, was relevant to the issue, some of it contained evidence which would have been competent on the question of a wrongful discharge of plaintiff, and at the close of plaintiff's case defendant moved to dismiss the complaint on the ground that the action was one to recover wages, and that the proof showed a discharge prior to the period for which the wages were claimed. On plaintiff's motion the court granted leave to amend the complaint so as to conform to the proof, but the court still adhered to the issue made by the original pleadings, as if no such motion had been made or |