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den upon the land, has taken title in reference to it, or that he gets all the proprietary right in the premises which he is permitted to assume was assured to him by the covenant of his grantor. That is within it which, in view of the apparent situation, the deed purports to convey. Mott v. Palmer, 1 N. Y. 564. It would not include the public easement in an open, visible highway or street. (2) A judgment against plaintiff in an action by the municipal corporation for obstructing the street is not conclusive on plaintiff in this action, as to the user of the street at the time of his purchase, though the court found in that action that the land had been used, occupied and maintained as a public street for more than twenty-five years last past, a period prior to plaintiff's purchase, as the only issue necessarily involved in that action was the right of the public to the land as and for a street, which right was not, so far as shown, dependent on a continuous user by the public. The judgment entered upon the decision perpetually enjoining the defendant in that action from obstructing the passage by the public over that strip of land was conclusive upon him and his privies as to the matters determined, and as to all matters which the parties may have legitimately litigated, and had determined, in that action. Jordan v. Van Epps, 85 N. Y. 427; Pray v. Hegeman, 98 id. 351; Bell v. Merrifield, 109 id. 203. But a judgment is res adjudicata as to those matters only which are within the subjectmatter of the litigation, and those which, as incidental to or essentially connected with it, might legitimately have been litigated in the action. The question, and the only issue necessarily involved, in the former action was whether there was in the public the right to the strip of land as and for a street, and when the existence of such easement was determined the purpose of the action was accomplished. To that extent the adjudication is conclusive upon the plaintiff. But whether the place was used as a street, or open or visible as such, at the time of the sale by Esty to Todd, was not, so far as appears, legitimately within the purview of that action, or essentially, for any purpose, involved in its determination. That fact therefore was not material to that controversy, and for that reason the plaintiff in this action, for breach of covenant, is not concluded by any expression in that respect in the findings of the court in the former action. People v. Johnson, 38 N. Y. 63; Sweet v. Tuttle, 14 id. 465; Woodgate v. Fleet, 44 id. 1; Stowell v. Chamberlain, 60 id. 272; Belden v. State, 103 id. 1; Cromwell v. County of Sac, 94 U. S. 351. Second Division, Nov. 26, 1889. Hymes v. Esty. Opinion by Bradley, J. Reversing 46 Hun, 678, mem.

FACTORS AND BROKERS-COMMISSIONS,-Defendant wrote to P. & Co., stating that it wished to dispose of its ore to them. P. & Co. referred it to plaintiff as one who knew their business methods. Plaintiff had made hundreds of transactions for them. P. & Co. desired only to smelt the ore for defendant, but defendant would not make a smelting contract unless P. & Co. would also buy the ore. Plaintiff was to receive a commission from P. & Co. for making a smelting contract. He showed P. & Co. the advisability of buying the ore, and suggested ways in which they could get it at the low. est figure. The entire transaction between defendant and P. & Co. was embraced in one contract drawn by plaintiff. Held, that he was not defendant's agent in negotiating the sale, so as to entitle him to commissions from it. Nov. 26, 1889. Harnickell v. Parrot Silver & Copper Min. Co. Opinion by Finch, J. Reversing 5 N. Y. Supp. 112.

CONTRACTS.-Defendants agreed to sell stock for plaintiffs, and pay over to them $5 a share, and half the profits accruing to defendants, "personally," on it, less expenses and commissions. Defendants agreed to give R. half their interest to sell the stock.

R. employed a broker, who sold it at an advance. Held, that on an accounting the expenses and commissions of the broker should be allowed to defendants, but not the expenses or commissions of R., as he was the assignee of defendants, and half the profits must come to them before they could settle with R. Second Division, Nov. 26, 1889. Berdell v. Allen. Opinion by Vann, J. Affirming 22 Jones & S. 38.

HIGHWAYS-DEFECTIVE.-(1) In an action under the Laws of New York, 1881, chapter 700, for injuries caused by the negligence of highway commissioners in failing to keep the highway in proper condition, there was evidence, that eleven years before the accident occurred, an excavation seven feet deep had been made by a railroad company just off the highway, and within eleven feet of the beaten track, and that there was no ditch or barrier between the beaten track and the excavation. While plaintiff was driving over the road, on a dark night, his horses, instead of following the curve of the road, continued straight ahead, falling into the excavation, and injuring plaintiff. Held, that plaintiff's injuries were caused by the negligence of the highway commissioners. (2) The fact that a road has been used for public travel many years, and has been recognized and treated by the town authorities as a highway, gives it that character, so far as respects the liability of the town to a traveller for injuries caused by the negligence of the highway commissioners in failing to keep it in proper condition. (3) Though the commissioners had no direct notice of the dangerous condition of the highway, the fact that such condition has continued and been exposed for upwards of ten years is sufficient to warrant the inference that they know, or ought to have known, of it. (4) The commissioners are not excused from negligence on the ground that they had no funds which they were required to use in repairing the highway, since 1 Revised Statutes of New York, page 503, section 4 (Laws N. Y., 1857, chap. 615), provides the means for raising money for the purpose, and Laws of New York, 1869, chapter 855 (Amend. Laws N. Y., 1874, chap. 260), gives them authority to borrow additional money when necessary. (5) An order made by the highway commissioners after a road has been used as a highway for twenty years cannot change the width or location of the road from what it was before, but it is admissible in evidence to show the width of the highway, as manifested by its use as such for twenty years, and that without proof of the commissioners' authority to make it. (6) It is not proper to ask a witness familiar with the town what its character is as to the necessity for highway labor, since the question calls for the opinion only of the witness. (7) Nor is it proper to ask the opinion of a witness as to the comparative danger of the place where the accident occurred and another place on the road. (8) The fact that plaintiff's horses were running away, and were beyond his control, without fault on his part, does not relieve the commissioners from liability, where the defect in the highway was a proximate cause of the accident. Second Division, Nov. 26, 1889. Ivory v. Town of Deer Park. Opinion by Bradley, J. Affirming 42 Hun, 656, mem.

INSURANCE-MUTUAL BENEFIT-ACTIONS-SUICIDE. (1) Where a certificate of insurance provides that the society will pay the beneficiary a certain sum, on the death of the assured, from the death fund of the society, and that, whenever the death fund is insufficient to meet the existing claims by death, an assessment shall be made on the members, the beneficiary can maintain an action at law for the amount of the certificate, though the death fund is not sufficient to meet the claim, owing to the society's failure to make an assessment. (2) The fact that assured committed suicide in New York is not a defense to the action, under the provision of the policy that it should be void

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if he should die * * in violation of, or attempt to violate, any criminal law" of the State in which he should be, as in New York suicide is not a crime, thought an attempt to commit suicide is a crime. It is with much force urged on the part of the defendant that the criminally unlawful attempt preceded the death, and that it was no less a violation of law because such was the result or consequence of it; that whether successful or unsuccessful, there was an attempt, within the statute. Although that may be so in some sense, in common parlance, an attempt to commit crime imports a purpose, not fully accomplished, to commit it. It is the attempt to commit suicide that is the crime, while the taking one's own life is no violation of the criminal law. The attempt, in such case, to commit crime would be merely an unaccomplished purpose to attempt suicide, and therefore the peculiarity of the offense referred to is such that it cannot come within the provision of the statute that " a person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime was consummated, unless the court, in its discretion, discharges the jury, and directs the defendant to be tried for the crime itself." Id., § 685. the attempt to commit suicide is the only crime involved in the purpose and act of a party having in view the taking his own life, it is not seen how there can, in the law, be recognized an attempt to commit the crime; for whatever may be done with the intent and purpose of suicide is involved in the attempt to do it, and thus constitutes an ingredient of the main and only offense. It must, for the purpose of question here, be assumed that Darrow had the purpose of taking his own life, and that he fully accomplished such purpose. The result of his act, influenced by such intent, then, was his death. By the act of taking his own life he violated no criminal law, unless the attempt to do it may be distinguished from the act accomplished. An act is characterized by the purpose, when ascertained, of the party doing it, or by its result. If the act fail to accomplish its purpose, it constitutes an attempt; but, if the result of it is the consummation of the purpose, the act is not commonly designated as an attempt. The common acceptation of terms used, and which do not necessarily have a technical meaning, is entitled to some consideration in the construction of contracts, where the intention of the parties is sought for, as it must be, in the language employed. For the purpose of upholding the contract of insurance, its provisions will be strictly construed as against the insurer. McMaster v. Insurance Co., 55 N. Y. 222; Dillebar v. Insurance Co., 69 id. 256. When its terms permit more than one construction, that one will be adopted which supports its validity (Coyne v. Weaver, 84 N. Y. 386); and it is only when no other is permissible by the language used that a construction which works a forfeiture will be given to such an instrument. Hitchcock v. Insurance Co., 26 N. Y. 69; Griffey v. Insurance Co., 100 id. 417. The reason assigned for such rule of construction is that the insurer is supposed to have chosen the language to express the terms of the contract, and it has become a rule of law that, if it be left in doubt whether words of the contract" were used in an enlarged or a restricted sense, other things being equal, the construction will be adopted which is most beneficial to the promisee." Hoffman v. Insurance Co., 32 N. Y. 405, 413. There is nothing in the language of the policy to indicate that the defendant had reason to suppose that the promisee understood that suicide of the member came within its terms; and words may easily have been employed to embrace it within a condition, if it had been in the contemplation of the defendant as an act of forfeiture of the claim of the beneficiary upon the contract. Inasmuch as suicide is not a violation of the criminal law, the words do not necessarily or clearly import

that the act which produces it is within the provision in question, or that it was within the intention of the defendant. And that is a sufficient reason why they should not be extended, or their meaning refined by interpretation, with a view to treat the act causing death as within the invalidating condition of the policy. Griffey v. Insurance Co., supra. Thus far, the question has not been considered whether the mere consequence or result of an act of the member in violation of criminal law would come within such provision. If literally construed, it might not. The contract is rendered void if the member "die * * * in violation of, or attempt to violate, any criminal law." It is not death in consequence of the violation of law, but death in or during the act of violation of law, that is expressed by the words used. In Bradley v. Insurance Co., 45 N. Y. 422, the conclusion was warranted that at the time of his death the assured was engaged in the violation of law; and such was the case in Cluff v. Insurance Co., 13 Allen, 308, where a policy on the same life, and containing the same provision, was the subject of the action, and the defense was the same. In Murray v. Insurance Co., 96 N. Y. 614, the provision of the policy was that if the assured should die "in, or in consequence of, * ** a violation of the laws," etc., the policy would be void. Second Division, Nov. 26, 1889. Darrow v. Family Fund Society. Opinion by Bradley, J. Affirming 42 Hun, 245.

MARRIAGE-ARTICLES OF SEPARATION-DIVORCEPARTIES. (1) Under the Code of Civil Procedure of New York, section 449, which allows the trustee of an express trust to sue in his own name, a trustee to whom a husband agrees, in articles of separation, to pay money for the support of his wife and children, may sue on such agreement in his own name. Code Civ. Proc., § 449; Calkins v. Long, 22 Barb. 97; Greenfield v. Insurance Co., 47 N. Y. 430; Slocum v. Barry, 38 id. 46; Hughes v. Insurance Co., 44 How. Pr. 351. (2) Articles of separation, whereby husband and wife agree to live separately from the execution thereof, and whereby the husband agrees to pay money annually to a trustee for the support of his wife and children during the period of her natural life, unless she should remarry, are valid. It was reluctantly held by the chancellor in Carson v. Murray, 3 Paige, 500, and then only upon the principle of stare decisis, as evinced by Baker v. Barney, 8 Johns. 57; Shelthar v. Gregory, 2 Wend. 422-following the English decisions prior to the Revolution-that "a valid agreement for an immediate separation between husband and wife, and for a separate allowance of her support, may be made through the medium of a trustee." The case of Carson v. Murray, 3 Paige, 483, was upon a bill in equity by the wife against the executors of her husband, based upon an agreement of separation, for its enforcement out of the estate of the deceased husband. The case of Baker v. Barney, 8 Johns. 57, was an action to recover of the husband the price of suitable goods sold to the wife after the separation of husband and wife under an agreement making provision for the support of the wife. And the case of Shelthar v. Gregory, 2 Wend. 422, was an action upon the bond and agreement to separate, and the defense was, that after the bond was given and before the installment or sum fell due by the terms of the agreement, the wife returned to and was living with the husband, and was supported by him. In these cases the husband and wife were living together when the agreement or articles of separation were executed, and separated immediately thereafter. The ruling of the court was to the effect that such articles of separation, considered under these va rious aspects, were valid. These holdings were based upon decisions made in the English courts, and I am not aware that the English or our own courts have departed or receded from the principle thus laid down.

While the husband and wife in Calkins v. Long, 22 Barb. 98, had actually separated before the agreement of separation was executed, the court, in holding that the agreement was valid, cites numerous decisions with approval in England and several of the States of the Union to the effect that such agreements are valid, and will be enforced where the separation had taken place before, or takes place immediately after, the execution of the agreement of separation, and this case is said (in a note upon page 110) to have been affirmed by the Court of Appeals. Judge Davis, in delivering the opinion of the court in Walker v. Walker, 9 Wall. 743, while regretting, upon the score of public policy, that the courts of England and of this country, had gone so far, was, as was the chancellor in Calkins v. Long, supra, constrained to hold that "a covenant by the husband for the maintenance of the wife, contained in a deed of separation between them through the medium of trustees, and where the consideration is apparent, is valid, and will be enforced in equity, if it appears that the deed was not made in contemplation of a future possible separation, but in respect to one which was to occur immediately, or for the continuance of one which had already taken place." The validity of such agreements are recognized and enforced in numerous cases decided by the courts of this and other States. Carpenter v. Osborn, 102 N. Y. 552; Pettit v. Pettit, 107 id. 677; Carson v. Murray, 3 Paige, 483; Rogers v. Rogers, 4 id. 516; Allen v. Affleck, 64 How. Pr. 380; Dupre v. Rein, 7 Abb. N. C. 256. (3) The obligation to make such payments is not terminated by a divorce obtained by the wife, where the decree does not provide for alimony, and gives the custody of the children to the mother, as the articles of separation did. As we have seen, the law sanctions agreements in certain circumstances between husbands and wives for separate living, and providing the means for the support and maintenance of the wife and children through the medium of a trustee to receive and disburse the same. Such agreements take the place, as far as they extend, of the duties and obligations of the law in relation to husband and wife and their children. But they do not supersede or render inoperative other duties and obligations imposed by law upon husband and wife toward each other and toward their children. They are still husband and wife, but living apart from each other, and bound to observe all the other domestic duties resting upon them as husband and wife and parents, not provided for in the agreement of separation. Neither of them can marry or commit adultery without incurring the consequences and the penalty prescribed by law to husbands and wives who commit those offenses. Hence we find numerous decisions of the courts, in nearly all civilized countries, holding that either husband or wife may, notwithstanding the existence of such agreement between them, maintain against the other the ordinary action for divorce, limited or absolute, according to the ground and the jurisdiction, and whether the ground therefor accrued before or after such agreement was entered into. The following authorities, I think, sustain the proposition: Stew. Mar. & Div., § 191; Grant v. Budd, 30 Law T. (N. S.) 319; Charlesworth v. Holt, 43 L. J. Exch. 25; Wright v. Miller, 1 Sandf. Ch. 103; Carpenter v. Osborn, 102 N. Y. 559; Pettit v. Pettit, 107 id. 677; Jee v. Thurlow, 2 Barn. & C. 547; Kremelberg v. Kremelberg, 52 Md. 553. Second Division, Dec. 10, 1889. Fosdick. Opinion by Potter, J.; Follett, C. J., dissenting. Affirming 13 Daly, 500.

Clark v.

MARRIAGE-CONTRACT BETWEEN HUSBAND AND WIFE EQUITY. (1) A husband advanced money to his daughter for the use of his wife. The daughter signed an instrument, acknowledging the receipt of the money, and promising that it would be repaid by the wife out of a specified fund. The wife also signed the instrument; her signature being preceded by the

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words, "I concur and agree to this." Held an original obligation by the wife to repay the advances, and not a guaranty of a promise by the daughter to do so. (2) A husband was excluded by will from any share in his father's estate, but his wife was entitled to share equally with the other children; the provision in her favor concluding with a direction that the moneys received by her were to be "applied to the maintenance and support of herself and her issue by her present husband." The husband and wife separated, but he advanced, at different times, various sums to her for the support of herself and children; she entering into a written contract to reimburse him therefor out of her interest in his father's estate. Held, that while at law the contract was void, yet as it was reasonable and just that she, under the circumstances, should reimburse him for his advances, it would be enforced in equity. The contract was void at law. The commonlaw doctrine that husband and wife could not contract with each other has not been changed in this State by legislation respecting the rights of married women. The entire and absolute disability of married women to enter into any legal contract, which was a stubborn and inflexible principle of the common law, has indeed, in some respects, been modified. She may now under our laws purchase real and personal property, and carry on business on her own account, and as incident to these rights she may enter into contracts with third persons for the purchase and sale of property, or in the prosecution of her separate business, enforceable in a legal action to the same extent as though she was a feme sole. But the disability to deal with her husband, or to make a binding contract with him, remains unchanged. Contracts between husband and wife are invalid as contracts, in the eye of a court of law, to the same extent now as before the recent legislation. See Yale v. Dederer, 18 N. Y. 265; White v. Wager, 25 id. 329; Frecking v. Rolland, 53 id. 422; Cashman v. Henry, 75 id. 103. If any exception exists, it has been created by the act of 1887. not applicable to the transaction in question. But the unity of husband and wife, by which the legal existence of the wife was merged in that of her husband, preventing them from contracting with each other as if they were two distinct persons, never prevailed in courts of equity. It may be more accurate to say that courts of equity disregard the fiction upon which the common law proceeded, and are accustomed to lay hold of and give effect to transactions or agreements between husband and wife, according to the nature and equity of the case. It does not limit its inquiry to the ascertainment of the fact whether what had taken place would as between other persons have constituted a contract, and give relief, as matter of course, if a formal contract be established, but it further inquires whether the contract was just and fair, and equitably ought to be enforced, and administers relief, where both the contract and the circumstances require it. The jurisdiction in equity has been frequently exercised to enforce contracts or agreements for settlement, made between husband or wife before or after marriage, in favor of the wife, whether made with or without the intervention of trustees. Reference to the cases will be found in the elementary treatises. It has also been exerted, though less frequently, to enforce agreements in favor of the husband for a settlement out of the property of the wife, or to charge her separate estate in his favor. Cannel v. Buckle, 2 P. Wms. 243: More v. Freeman, Bunb. 205; Livingston v. Livingston, 2 Johns. Ch. 537; Gardner v. Gardner, 22 Wend. 526; 2 Kent Com. 167. But courts of equity do not entertain jurisdiction to enforce mere voluntary agreements not founded upon any consideration, either in favor of the wife against the husband, or in his favor against the wife; but if they have been consummated, and are fair and just,

courts of equity will uphold the transaction, except as against creditors. Reade v. Livingston, 3 Johns. Ch. 481; 2 Story Eq. Jur., §§ 986, 1377, and cases cited. (3) A gross sum of money advanced by the husband to the wife, to be applied at her discretion for family expenses, constitutes a technical consideration for her agreement to reimburse him therefor. (4) In a suit by the husband against his wife's administrator for such advances, it is error to exclude evidence that the wife expended, in the support of herself and children, a sum equalling or exceeding the entire income to which she was entitled under the will, and that the debts owing by her at her decease exceeded the sum collected by her administrator from the estate of the husband's father on account of income accrued but unpaid at her decease, since the husband's advances, under such circumstances, ought to be treated as if made in fulfillment of his general marital obligations. (5) The administrator, having the right to prove that the husband's claim has no legal or equitable foundation, may show what debts were owing by the wife at her death, and this right is not affected by the fact that this is not a proper proceeding for ascertaining the wife's debts, and that her creditors will not be bound by any adjudication herein. Nov. 26, 1889. Hendricks v. Isaacs. Opinion by Andrews, J. Reversing 5 N. Y. Supp. 105.

MASTER AND SERVANT - CONTRIBUTORY NEGLIGENCE. (1) In an action for personal injuries the complaint alleged that plaintiff, without fault or negligence on her part, was injured by falling into a trench, dug under a permit from the city, and negligently left unguarded by defendant's servants. Plaintiff testified that she saw the trench almost daily, and had passed over it shortly before the accident, and that when it happened her attention had been diverted from the treuch. Held, that it was error to instruct that plaintiff's negligence was not in the case, and would be no defense. (2) The evidence showed that the contractor under whose supervision the trench was dug, had contracted with the owner of certain buildings to make water connections for the same with the street main; that the owner consented that the rents of the house, which had no water connections, should be paid to defendant, to whom he was indebted; and that defendant, to avoid losing the tenant, supplied the contractor with a laborer to dig the trench for making the water connection. Held, that it was misleading to instruct that the jury was not bound to conclude from the fact that the contractor procured a permit to make the connection that he intended to make it under his contract with the owner, if the evidence disclosed any other motive for procuring it. (3) An instruction that whether the tenant held under the owner or under de. fendant, the material question was whether defendant was interested in having the water connection made, is misleading, as it tends to induce the inference that the contract therefor which was concededly made with the owner, might have been made with defendant. (4) It was also error to refuse to instruct that it is not sufficient to render defendant liable to show that he was desirous of or interested in having the work done, or that it was done at his suggestion, but that it must appear that the contractor was defendant's servant, and to substitute an instruction which suggests that defendant might have induced the contractor to perform his agreement with the owner. (5) It was competent for the contractor to testify that the trench was dug under the contract with the owner, and that he had no contract with any other person at the time. Second Division, Nov. 26, 1889. Kelly v. Doody. Opinion by Potter, J.

MUNICIPAL CORPORATIONS-DEFECTIVE STREETS.(1) In an action against a city for injuries sustained from an obstruction in one of its streets, evidence as

to the condition of the street and the absence of lights prior to the accident is admissible, as tending to show that the city had, or ought to have had, knowledge of the defect, if it was created by a third person, and left unguarded by the city. (2) A city is liable for negligently maintaining an obstruction in a street, whether created by a public or private agency. (3) By statute it is made a municipal duty to supply the inhabitants of the city of Yonkers with water, and the "Board of Water Commissioners of the City of Yonkers," though created by private statute, is required by the charter, inter alia, to make the necessary surveys and provide for a system of sewers, the laying of water-pipes, and erection of hydrants. Held, that the board is a department of the municipal government, for the negligence of which in digging a trench for laying water-pipes the city is liable. Nelson v. Village of Canisteo, 100 N. Y. 89; Turner v. City of Newburgh, 109 id. 301; Russell v. Village of Canastota, 98 id. 496. In Ehrgott v. Mayor, 96 id. 273, this court said: "To determine whether there is municipal responsibility, the inquiry must be whether the department whose misfeasance or non-feasance is complained of is a part of the machinery for carrying on the municipal government, and whether it was at the time engaged in the discharge of a duty, or charged with a duty primarily resting upon the municipality." The duty of supply. ing the citizens of Yonkers with water is by statute made a municipal duty, and the board of water commissioners exists for that purpose. While this board is created by special statute, it is recognized as a department of the city government in the charter, and charged with the duty of "making the necessary surveys," etc., “and preparing a general plan and system of sewers for the city;" also "of preparing and approving specifications for constructing all sewers, drains, wells, fire cisterns, laying water-pipes and erecting hydrants." The board exists solely for the benefit of the city. It can own no property and do no act that has not reference to the well-being of the city. It is given the power to purchase and acquire land, but the title, when acquired, vests in the city. For its contracts the city is liable, and judgments recovered against it are judgments against the city. When the water-rents collected by it are more than sufficient to meet its expenses, the surplus must go to the benefit of the city. It is denominated the "Board of Water Commissioners of the City of Yonkers." It is not au independent body, acting for itself, but is a department of the city, and one of the instruments of the municipal government. Being such, when engaged in digging the trench for the purpose of laying waterpipes in Yonkers avenue it was engaged in the discharge of a municipal duty, and it was obligatory upon it in so doing to so protect and guard the work that it should not endanger persons using the street, and, if that was impossible with a due and diligent prosecution of the work, the street should, by suitable barrier, have been closed against the public. For its failure so to do, and for injuries resulting from such failure, the defendant is liable. Ehrgott v. Mayor, 96 N. Y. 265; Walsh v. Mayor, 107 id. 220; Barnes v. District of Columbia, 91 U. S. 540; Brusso v. City of Buffalo, 90 N. Y. 679. Second Division, Nov. 26, 1889. Pettengill v. City of Yonkers. Opinion by Brown, J. Affirming 39 Hun, 449.

PARTNERSHIP-SURVIVOR-PREFERENTIAL ASSIGNMENT. (1) The insolvent survivor of an insolvent firm can make a valid general preferential assignment of the property which belonged to the firm for the benefit of its creditors, and it is no ground of objection that the assignment includes his own individual property. (2) An individual creditor of the surviving partner cannot complain on the ground that the assignment devotes property which belonged to the firm to the

payment of the survivor's individual debts. Bostwick v. Menck, 40 N. Y. 383; Wheel Co. v. Fielding, 101 id. 510; Crook v. Rindskopf, 105 id. 488; Williams v. Whedon, 109 id. 333, 338. Second Division, Nov. 26, 1889. Haynes v. Brooks. Opinion by Follett, C. J. Affirming 42 Hun, 528.

SALE-FRAUD-WITNESS-CROSS-EXAMINATION. — (1) In replevin against a sheriff who has seized the goods under attachment against plaintiff's vendor, where the question in issue is as to the good faith of the sale by which the plaintiff obtained title, it is proper to refuse to instruct the jury that if, as part of the agreement on which the bill of sale was made, a sum of money was given by the plaintiff to his vendor for the latter's personal use, then the conveyance is fraudulent. (2) In such an action, where the consideration for the sale was the cancellation of a debt and the payment of a sum of money, and the question of fraud has been fully and fairly presented to the jury, it is proper to refuse to instruct them that if any interest in the property was reserved to the vendor, or some benefit secured to him, with the vendee's consent, then the conveyance is void. (3) Under the Penal Code of New York, section 714, which permits a witness' conviction of a crime to be shown upon cross-examination, without production of the record, a witness who has stated how long it is since he came out of prison may be asked what crime he was convicted of. That the jury may and should give proper consideration and weight to evidence showing that the witness has committed crimes is beyond question. Real v. People, 42 N. Y. 270-280; People v. Noelke, 94 id. 137; People v. Irving, 95 id. 541; Ryan v. People, 79 id. 598. The apparent conflict in some of the cases in respect to this mode of discrediting witnesses has arisen from the mode of proving the discrediting fact. It had been held before the Penal Code that it is not competent to show by a cross-examination of the witness himself that he had been convicted of a crime, if the objection was made that the record of the conviction is the best evidence. Newcomb v. Griswold, 24 N. Y. 298; Real v. People, 42 id. 280. Such objection being no longer available, you may show upon the cross-examination of the witness himself that he has been convicted of a crime, or that he had been imprisoned upon the conviction of a crime, or that he had committed a crime. People v. Irving, 95 N. Y. 541; People v. Noelke, 94 id. 137-144; Real v. People, 42 id. 280. The courts have repeatedly held that it does not prove that a witness has been guilty of a crime to prove he has been arrested upon the charge of a crime, or that he has been indicted for a crime. People v. Crapo, 76 N. Y. 288; People v. Brown, 72 id. 571; People v. Irving, 95 id. 544; Smith v. Mulford, 42 Hun, 347. Second Division, Dec. 10, 1889. Spiegel v. Hays. Opinion by Potter, J.

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JOINT-STOCK COMPANIES - CONSTITUTIONAL LAW.-(1) Laws of New York of 1880, chapter 542, section 3, as amended by Laws of 1881, chapter 361, provides that "every corporation, joint-stock company, or association whatever, now or hereafter incorporated or organized under any law of this State,

* and doing business in this State," shall pay a certain tax on its corporate franchise, to be computed, under different circumstances, on its capital stock or its dividends. By various statutes joint-stock companies are authorized to sue and be sued in the name of their president and treasurer; are not to be dissolved by the death of a stockholder or the assignment of his stock, when by the articles of incorporation the property is represented by shares; may devolve upon three or more of the partners the sole management of their business; may acquire and convey real property in the name of their president, free from the claim of any shareholder. Held, that the United States Express Company, a company organized

and doing business in New York under articles of agreement, which embrace all the above privileges, but contain no reference to the statutes conferring them, is not a mere private partnership, but a joint-stock company, organized or incorporated under the laws of the State, and taxable under said act. Waterbury v. Express Co., 50 Barb. 158; Westcott v. Fargo, 6 Lans. 319; 61 N. Y. 542. (2) The tax provided for by said act is not an unconstitutional interference with foreign or interstate commerce. Nov. 26, 1889. People, ex rel. Platt, v. Wemple. Opinion by Danforth, J. Affirming 5 N. Y. Supp. 581.

NOTICE CONSTITUTIONAL LAW EVIDENCE -(1) 2 Revised Statutes of New York (7th ed.), pages 992, 993, provide that assessment-rolls in each year shall be completed on or before a certain time, and notices posted in the town that a copy has been left with one of the assessors, where interested persons can examine it; and that on the third Tuesday thereafter the assessors will meet, at a specified place, to review the assessments. Laws of New York of 1851, chapter 176, section 5 (2 R. S. [8th ed.], p. 1099), provides that in case of failure of the assessors to meet for review, any person aggrieved may appeal to the board of supervisors, who shall have power to review and correct the assessment. Laws of 1855, chapter 427, sections 83 and 85 (2 R. S. [7th ed.], p. 1032), provide that the comptroller may cancel any tax-sale, on discovering that it was for any reason invalid. Laws 1885, chapter 448 (2 R. S. [8th ed.], p. 1145), gives the comptroller the right to cancel taxes and sales illegally made, when the taxes have been legally paid, or the town or ward had no right to levy the assessment. Held, that these statutes gave the tax payer a sufficient opportunity to be heard in regard to his assessment, and that therefore Laws of New York of 1885, chapter 448, providing that all conveyauces under tax-sales heretofore executed by the comptroller, * after having been recorded for two years, *shall, six months after this act takes effect, be conclusive evidence that the sale, and all proceedings prior thereto, * were regular," was not unconstitutional as depriving owners of property theretofore sold for taxes of their property without due process of law. (2) In an action by the people for the penalties imposed by Laws of New York of 1885, chapter 283, section 11 (1 R. S. [8th ed.]. p. 639), for cutting and carrying away trees from plaintiff's vacant laud, part of the forest preserve, where plaintiff claims under a comptroller's deed made in pursuance of a sale for unpaid taxes levied previous to a certain year, evidence by defendant of irregularities by the assessors in making the assessments for certain years prior to the year mentioned is inadmissible, where there is no evidence that the sale was made for taxes levied in those years. (3) Evidence that lands were assessed to a certain person as resident lands in certain years is inadmissible to show that they were actually occupied. (4) Papers purporting to be unauthenticated copies of papers in the comptroller's office are inadmissible in evidence, where there is no legal proof that they are such copies, and it is not shown that they are material. Nov. 26, 1889. People v. Turner. Opinion by Ruger, C. J. Affirming 2 N. Y. Supp. 253.

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WILL LEGACIES CHARGES ON LAND. Testator gave a legacy of $2,500 to his wife in lieu of dower, another of $1,500 to a son to be used for his education, and another of $500 to plaintiff, all to be paid within a year after testator's death. These were followed by a disposition of the entire residue of the estate, without distinguishing realty from personalty. At the time of the execution of the will, testator's personalty consisted of only $1,500 worth of farm stock and implements, and he was substantially free from debt. Soon thereafter he purchased more land, using a part of his

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