quires real estate pursuant to a tax-sale is not in privity with the former owner. No contractual relation exists between them. The owner does not grant his title. Such a purchaser is a grantee of the State. Becker v. Howard, 66 N. Y. 5. The land is assessed irrespective of any special interests; the taxation of all particular estates or rights being merged in the burden put upon it. If the tax be not paid, then the State, by virtue of its taxing power, and through the medium provided by statute, either acquires the land or grants it to a citizen. The purchaser is not subjected to any of the inconveniences of the old title, nor can he take any advantage from it. Covenants running with the land do not bind him, nor do him any good. Blackw. TaxTitles, § 965. He not only obtains his title from a source other than the former owner, but the estate acquired is not of necessity the same. The owner of the old title may have granted rights of way and other easements which a purchaser from him would be estopped from denying. He may have incumbered the lands by mortgage, in which event the estate acquired by his grantee would likewise be burdened with it. But as we have seen, the owner of the tax-title obtains the land free from incumbrances of every character, not excepting the mortgage lien, after the mortgagee's time for redemption has expired. Becker v. Howard, supra. It seems to be apparent therefore that the plaintiff and defendant were not privies, but strangers. It follows that the attempted attornment by the tenant to this defendant was void, and that the trial court rightly instructed the jury. Hubbell v. Weldon, Hill & D. 139, distinguished. Second Division, Jan. 14, 1890. O'Donnell v. McIntyre. Opinion by Parker, J. Follett, C. J., dissenting. Reversing 41 Hun, 637. MARRIAGE-WIFE'S PERSONAL INJURIES-EVIDENCE. -In an action by a married woman for personal injuries, where the complaint contains no allegation that plaintiff was engaged in business on her own account, or was entitled to her own earnings, the admission of evidence that she was engaged in a certain business wherein she usually made a certain amount per week, and that her injuries prevented her from working for a certain time, is reversible error, as damages for such injuries are presumed to belong to her husband. Gumb v. Railroad Co., 114 N. Y. 411; Saffer v. Railroad Co., 5 N. Y. Supp. 700. In Hartel v. Holland, 19 Week. Dig. 312, and Ehrgott v. Mayor, etc., 96 N. Y. 275, the question here presented, involving the right to recover damages which the law does not presume to be the immediate and natural consequences of the injury, in the absence of a special averment of such damages, does not appear to have been raised or passed upon. Therefore they do not support the respondent's contention. Second Division, Jan. 14, 1890. Uransky v. Dry Dock, E. B. & B. R. Co. Opinion by Parker, J. Reversing 44 Hun, 119.

MASTER AND SERVANT-CONTRACT--DEATH OF MASTER-A contract to work as a farm hand for a year at a certain price is terminated by the death of the master during the term, and the servant can only recover for the period of service during the master's life, though he continues to work until the end of the year under the direction of the master's widow, to whom a life-estate in the farm and the full use and control of the personalty were devised. It seems to be conceded that the death of the servant dissolves the contract. Wolfe v. Howes, 20 N. Y. 197; Spalding v. Rosa, 71 id. 40; Devlin v. Mayor, 63 id. 14; Fahey v. North, 19 Barb. 341; Clark v. Gilbert, 32 id. 576; Seymour v. Cagger, 13 Hun, 29; Boast v. Firth, L. R., 4 C. P. 1. Almost all of these cases were marked by the circumstances that the services belonged to the class of skilled labor. In such instances the impossibility of a substituted service by the representative of the servant is very apparent. The master has selected

the servant by reason of his personal qualifications, and ought not, when he dies, to abide the choice of another, or accept a service which he does not want. While these cases possess, with a single exception, that characteristic, I do not think they depend upon it. Fahey v. North was a contract for farm labor, ended by the sickness of the servant, and quite uniformly the general rule stated is that the servant's agreement to render personal services is dissolved by his death. There happens a total inability to perform. It is without the servant's fault, and so further performance is excused, and the contract is apportioned. If, in this case, Lacy had died on that day in July, his representative could not have performed his contract. McMahan, surviving, would have been free to say that he bargained for Lacy's services, and not for those of another, selected and chosen by strangers, and either the contract would be broken or else dissolved. I have no doubt that it must be deemed dissolved, and that the death of the servant bound to render personal services under a personal control ends the contract, and irrespective of the inquiry whether those services involve skilled or common labor; for, even as it respects the latter, the servant's character, habits, capacity, industry and temper, all enter into and affect the contract which the master makes, and are material and essential, where the service rendered is to be personal, and subject to the daily direction and choice and control of the master. He was willing to hire Lacy for a year; but Lacy's personal representative or a laborer tendered by him he might not want at all, and at least not for a fixed period, preventing a discharge. And so it must be conceded that the death of the servant, employed to render personal services under the master's daily direction, dissolves the contract. Babcock v. Goodrich, 3 How. Pr. (N. S.) 53. But if that be so, on what principle shall the master be differently and more closely bound? And why shall not his death also dissolve the contract? There is no logic and no justice in a contrary rule. The same reasoning which relieves the servant's estate relieves also the master's, for the relation constituted is personal on both sides, and contemplates no substitution. If the master selects the servant, the servant chooses the master. It is not every one to whom he will bind himself for a year knowing that he must be obedient and render the service required. Submission to the master's will is the law of the contract which he meditates making. He knows that a promise by the servant to obey the lawful and reasonable orders of his master, within the scope of his contract, is implied by law; and a breach of this promise in a material matter justifies the master in discharging him. Rex v. St. John, 9 Barn. & C. 896. One does not put himself in such relation for a fixed period without some choice as to whom he will serve. The master's habits, character and temper enter into the consideration of the servant before he binds himself to the service, just as his own personal characteristics materially affect the choice of the master. The service, the choice, the contract are personal upon both sides, and more or less dependent upon the individuality of the contracting parties, and the rule applicable to one should be the rule which governs the other. If, now, to such a case-that is, to the simple and normal relation of master and servant, involving daily obedience on one side, and constant direction on the other-we apply the suggested test of possibility of performance in substantial accord with the contract, the result is not different. It is said that if the mas ter dies his representatives have only to pay, and any one may do that. But under the contract that is by no means all that remains to be done. They must take the place of the master in ordering and directing the work of the farm, and requiring the stipulated obedi ence. That may prove to effect a radical change in the situation of the servant, as it seems to have done in the

maliciously, and without probable cause, they may consider it in aggravation of damages. (3) It is competent for the plaintiff to show that between the time when the cause of action arose and when the action was begun the defendant repeated the charges complained of. (4) It is allowable for a party to prove that the adverse party has attempted to hire one of his witnesses to leave the country. Second Division, Jan. 14, 1890. Cruikshank v. Gorden. Opinion by Follett, C. J. Affirming 1 N. Y. Supp. 443.

MORTGAGE-FORECLOSURE—DOWER-MARKETABLE

TITLE.

Where in a foreclosure suit, the mortgagor, who has conveyed the land by unrecorded deed of which the mortgagee has no notice, is made a party defendant, but not served, and his grantee, a married man, is also made party defendant and contests the suit, the latter's wife, who is not made a party, is not barred by the foreclosure of her inchoate right of dower. Title derived through such foreclosure proceedings, not being free from doubt, is not a marketable one, which a purchaser can be compelled to accept. Mills v. Van Voorhies, 20 N. Y. 412; Simar v. Canaday, 53 id. 298; Denton v. Nanny, 8 Barb. 618. The right of dower is not derived from the husband. It is a right at common law, and arises by reason of the marriage and by operation of law. It is a right which attaches on the land when the seisin and the marriage relation are concurrent, and such is the effect of the statute. 1 R. S. 740, § 1. When it was essential under an early statute of this State. to determine the relation of the wife to the graat made of land to her husband, it was held that the wife's inchoate right of dower vested at the moment of the grant to the husband; and that she took such right constructively, as purchaser from the grantor. Sutliff v. Forgey, 1 Cow. 89; 5 id. 713; Priest v. Cummings, 20 Wend. 350; Connolly v. Smith, 21 id. 61; Lawrence v. Miller, 2 N. Y. 251. And inasmuch as Mrs. Sandford did not derive her inchoate right of dower from her husband, the fact that he was a party defendant to the foreclosure action did not operate to bar or defeat her right of redemption. Second Division, Jan. 21, 1890. Kursheedt v. Union Dime Savings Inst. Opinion by Bradley, J. Affirming 44 Hun, 623.

NEGLIGENCE PARENTS' CARE OF CHILDREN. Where, in an action for personal injuries, it appears that plaintiff, an infant two years old, being with her father in his store, escaped from his sight for about two minutes, ran into the street, and was run over by defendant's horse-car, the question of the contributory negligence of plaintiff's parents should be left to the jury. Birkett v. Ice Co., 110 N. Y. 506; Kunz v. City of Troy, 104 id. 344; Stackus v. Railroad Co., 79 id. 464. Jan. 21, 1890. Weil v. Dry Dock, E. B. & B. R. Co. Opinion by O'Brien, J. Reversing 5 N. Y. Supp. 833.

SLANDER-EVIDENCE-DAMAGES-TAMPERING WITH WITNESS. (1) To say of a physician: "He is no good, only a butcher. I would not have him for a dog "- is slander per se. Secor v. Harris, 18 Barb. 425; Fitzgerald v. Redfield, 51 id. 484; Bergold v. Puchta, 2 Thomp. & C. 532; Lynde v. Johnson, 39 Hun, 12: Southsee v. Denny, 1 Exch. 196; Townsh. Sland. & Lib. (3d ed), § 193; Folk. Starkie Sland., § 88; 15 Am. Law Rev. 573; 19 Am. Law Reg. (N. S.) 465. (2) Where, in defense to an action for slander, brought by a physician, the defendant pleads, in mitigation of damages. "that plaintiff is not skillful or competent as a physician, and bas no reputation as a competent physician," and offers no evidence in support of such allegation, it is proper to instruct the jury that if they believe such

TAXATION-DEBTS DUE RESIDENTS OF STATE-TRUS TEES.-Laws of New York, 1883, chapter 392, which provides that all debts due to persons residing within this State, however secured or wherever such securities shall be held, shall be subject to taxation in the town, village or ward where the owner resides, does not apply to a debt due to three trustees, only two of whom reside in this State, where the non-resident trustee holds the securities, and the beneficiaries are nonresidents. Jan. 21, 1890. People, ex rel. Barrow, v. Coleman. Opinion by Peckham, J. Reversing 6 N. Y. Supp. 285.

INJUNCTION

APPEAL

WAYS · OBSTRUCTION WEIGHT OF EVIDENCE.-(1) One who has purchased and acquired by grant a right of way across the lands of another for the purpose of a carriage road from the public highway to the grantee's residence may maintain injunction to restrain the grantor from making such use of the land thus granted as will render the road impassable, or otherwise interfere with its use by the grantee for the purposes of a carriage road. The conveyance of the right of way unquestionably gave the grantee, not only a right to an unobstructed passage at all times over the defendant's land, but also all such rights as were incident or necessary to the enjoyment of such right of passage. Bliss v. Greeley, 45 N. Y. 671: Maxwell v. McAtee, 9 B. Mour. 21. The grantee thus acquired the right to enter upon the land and construct such a road-bed as he desired, and to keep the same in repair. He could break up the soil, level irregularities, fill up depressions, blast rocks, and not only remove impediments, but supply deficiencies, in order to constitute a good road. He had a right to exclude strangers from its use and to restrict such use of it by the owner of the servient tenement as was incon sistent with the enjoyment of his easement. The owner of the soil was under no obligation to repair the road, as that duty belongs to the party for whose benefit it is constructed. 2 Washb. Real Prop. 311; 2 Hil. Real Prop. 101. In considering the extent of the rights of the respective parties in the grant of a right of way, it is not proper to refer to the parol negotia tions which preceded its execution, or the colloquium accompanying it (Bayard v. Malcolm, 1 Johns. 467: Renard v. Sampson, 12 N. Y. 561; Long v. Railroad Co., 50 id. 76); but we are to regard the language of the grant, and when that is uncertain or ambiguous, the circumstances surrounding it, and the situation of the parties, with a view of arriving at the true intent of the parties. As was said in Bakeman v. Talbot, 31 N. Y. 370: The doctrine that the facilities for passage, where a private right of way exists, are to be regulated by the nature of the case, and the circumstances of the time and place, is very well settled by authority." In Burnham v. Nevins, 144 Mass. 92, Morton, C. J., says: "These general principles are that a man who owns land subject to an easement has the right to use his land in any way which is not inconsistent with the easement, * * * and that the extent of the easement claimed must be determined by the true construction of the grant or reservation by which it is created, aided by any circumstances surrounding the estate and the parties which have any legitimate tendency to show the intentions of the par

ties." See also Onthank v. Railroad Co., 71 N. Y. 194. Under these rules it is obvious that the rights of the owner of the easement are paramount, to the extent of the grant, to those of the owner of the soil. The right of way granted was to be forty feet wide, and the grantee had a right thereunder, not only to a free passage over the travelled part, but also to a free passage over such portion of the land, inclosed as a way, as he thought proper or necessary to use. Herrick v. Sto

ver, 5 Wend. 580; Drake v. Rogers, 3 Hill, 604; Wood Nuis., § 260. The deposit of stone or other obstructions on such inclosed space, in such a way as to interrupt the enjoyment of the easement, constituted an obstruction which was inconsistent with the rights possessed by the grantee, and could be properly prevented by injunction. The use of such land for agricultural purposes, the raising of crops or the deposit of materials thereon, except perhaps for temporary purposes-was clearly inconsistent with the rights conveyed by the grant. It is difficult, if not impossible, to lay down a clear and definite line of use which shall enable the parties always to determine what may be considered a proper and reasonable use, as distinguished from an unreasonable and improper one, and such questions must, of necessity, be usually left to the determination of a jury or the trial court, as questions of fact. Bakeman v. Talbot, 31 N. Y. 366; Huson v. Young, 4 Lans. 64; Prentice v. Geiger, 74 N. Y. 342. (2) In an action to restrain the grantor from the improper use of land so granted, a finding by the trial court that defendant bad made such improper use is conclusive on appeal. Some of the members of this court are however apprehensive that the order made by the court below is not sufficiently explicit, and may be subject to misunderstanding and misconstruction. We have therefore thought best to change its form so as to express more clearly the rights and duties of the respective parties. The words "willfully or unreasonably" should be inserted after the word "interfering," in the sixth line of the order, in the place of the words "in any way," and also after the word "as," in the ninth line of said order. With these modifications, the judgment should be affirmed with costs. Jan. 14, 1890. Herman v. Roberts. Opinion by Ruger, C. J.; Finch, J., dissenting. Modifying 48 Hun,

619.

WILLS-CONSTRUCTION-RIGHTS OF LEGATEES.-Testatrix bequeathed all her property in trust, and provided by her will that the income of the property should be applied to the use of her husband during his life, "except that [the trustees] shall apply to the use of D. * ** the sum of $1,000 per annum during the life-time of my said husband and from and after the decease of my said husband the sum of $2,000 per annum." After the death of the husband, the income was for several years insufficient to pay the whole amount of the annuity, but afterward became more than sufficient. Held, that such surplus should be first applied to pay the deficiencies in the payments of former years, before it could be applied for distribution among the next of kin. Casamaijor v. Pearson, 8 Clark & F. 100, distinguished. The question here involved is not new in this State, and has, as we read the authorities, been expressly decided in favor of the annuitants. Stewart v. Chambers, 2 Sandf. Ch. 382. That case was followed by the learned surrogate of New York in Cochrane v. Walker, 4 Dem. Sur. 164. The views expressed are fully sustained by recent English authorities. Booth v. Coulton, L. R., 5 Ch. 684, and Pitt v. Lord Dacre, 3 Ch. Div. 295, may be referred to as supporting the doctrine contended for. The case of Baker v. Baker, 6 H. L. Cas. 615, is not in point. The question in that case was whether the annuity was a demonstrative legacy, payable out of the corpus of the fund, and it was held that it was not; and in that re

spect agrees with the view of this court upon the construction of the will under consideration. Delaney v. Van Aulen, 84 N. Y. 16. Jan. 14, 1890. In re Chauncey; In re Kirby's Will. Opinion by Ruger, C. J. Reversing 6 N. Y. Supp. 183.

ABSTRACTS OF VARIOUS RECENT

DECISIONS.

CARRIERS-STREET-CARS-TENDER OF FARE. It is not necessary that a passenger on a street-car should tender the exact amount of his fare, but he must tender a reasonable amount, and the carrier must furnish change, and $5 is such a reasonable amount. The obligation of the carrier in such case would be that which the law imposes on every common carrier, viz., that he must, "if able to do so, accept and carry whatever is offered to him, at a reasonable time and place. of a kind that he undertakes or is accustomed to carry." This duty, like every other which the law imposes, must have a reasonable performance; and we do not think it would in all cases be reasonable for the carrier to demand the exact fare as a condition of carriage. Suppose that on entering a street-car a person should tender the sum of ten cents? Would it be reasonable for the carrier to refuse it? Prior to the act of 1878, the usual fare was six and one-quarter cents. In such a case it would be unreasonable for the carrier to demand the exact fare; for there is no coin in the country which would enable the passenger to answer such a demand. It would be impossible for the passenger to furnish such a sum. Consequently, to allow the carrier to maintain such a demand would be to allow him to refuse to perform the duty which the law imposes upon him. The fare which he is now allowed to charge is no longer the sum mentioned. The act of 1878 forbids him to "charge or collect a higher rate than five cents." But there is nothing to prevent a lower rate from being charged. The carrier might fix it at four and one-quarter cents, and in such a case it would be equally impossible for the passenger to comply with such a demand as in the case above put. Consequently, it will not do to lay down the rule that the passenger is obliged to tender the exact fare. But it does not follow that the passenger may tender any sum, however large. If he should tender a $100 bill, for example, it would be clear that the carrier would not be bound to furnish change. The true rule must be, not that the passenger must tender the exact fare, but that he must tender a reasonable sum, and that the carrier must accept such tender, and must furnish change to a reasonable amount. The obligation to furnish a reasonable amount of change must be considered as one which the law imposes from the nature of the business. Section 2188 of the Civil Code provides that "a passenger who refuses to pay his fare, or to conform to any lawful regulation of the carrier, may be ejected from the vehicle by the carrier." The question is whether the findings show a refusal to paywhether the tender of a $5 gold piece was sufficient. It is claimed by appellant that the establishment of the rule contended for by the respondent would lead to great inconvenience, and make it the duty of the carrier of persons for hire in street-cars to provide its conductors with sufficient small coin to do a general exchange business with all passengers; thus requiring the company to intrust, to a class of employees who are usually of no pecuniary responsibility, large sums of money. It is further said that if the tender of a $5 gold piece is a tender of the amount actually due, and the conductor is bound to receive it and return $4.95 to the passenger, the same principle would apply to the offer by the passenger of $10 or $20 in gold or currency. With the question of convenience however we have

nothing to do, except in so far as it bears upon the question whether the amount tendered was a reasonable sum-such as the carrier was bound to accept. It does not follow, if it be established as a rule, that $5 is a reasonable amount to be tendered to a conductor, that $20 or $50 is also a reasonable amount, and must be accepted. The fears of the appellant are based upon the assumption that passengers generally will contumaciously, to avoid the payment of fare, and require the companies to carry them free, offer coin of a large denomination. But these fears, we think, can safely be set aside upon the theory that a question like this will, as is usual, settle itself by a spirit of mutual accommodation between carrier and passenger. It is a well-known fact that the $5 gold piece is practically the lowest gold coin in use in this section of the country. The case upon which the appellant relies (Fulton v. Railroad Co., 17 U. C. Q. B. 428) is not quite in point. In that case the plaintiff had boarded a train of cars without a ticket, and when asked for his fare declined paying it, as he said he had not made up his mind how far he should go. The conductor told him that he must decide, and afterward, on his declining again on the same ground, stopped the train and put him off. The plaintiff then tendered the conductor a $20 gold piece, telling him to take his fare, $1.35, out of it. Under these circumstances the court very properly held that the plaintiff had refused to pay his fare, within the meaning of a statute very much like our own, and that the conductor was justified in refusing to carry him further. The court said: "The general practice is for the passengers to pay at the office and get tickets, * * and a person rushing into a car without

*

a ticket has no reason to expect that he will find the conductor prepared to change a $20 gold piece, for he relies upon receiving tickets from the parties, or, if money is to be paid to him instead, that it will be paid with reasonable regard to what is convenient under the circumstances." A distinction ought to be made, we think, between passengers travelling on steam railroads and those travelling on street railroads. Passengers of the former class are expected to prepare themselves with tickets procured at the regular office established at the station where the trains regularly stop. Horse-cars and cable-cars stop at all points along the road at the beck of those desiring to ride, and the conductors do not, as a general thing, expect to receive tickets for the passage. Cal. Sup. Ct., Nov. 26, 1889. Barrett v. Market St. C. Ry. Co. Opinion by Patersou, J.

CONSTITUTIONAL LAW-EX POST FACTO-EXECUTION OF CRIMINAL.-(1) Act 7th General Assembly of Colorado, substituting the State penitentiary for the county jail as the place of confinement pending execution, and directing that the executions, which had before taken place publicly, should thereafter take place within the penitentiary walls, is not in these respects ex post facto as to one under sentence when the act took effect, as it does not change the punishment to his disadvantage. Calder v. Bull, 3 Dall. 386–390, is recognized as the leading case in this country upon the subject, and in that case Chase, J., said: "I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition: 1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2. Every law that aggravates a crime, or makes it greater than it was when committed. 3. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed. 4. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required, at the time of the commission of the offense, in order to convict the offender." The statute of which complaint is made does not attempt to make that criminal which was not criminal before.

It does not aggravate the crime nor alter the rules of evidence. It cannot therefore be considered as an ex post facto law under the rule given, unless it changes the punishment for the offense to the disadvantage of the defendant. To the argument based upon the change in the place of execution, we say that in legal contemplation there is no difference between an execution in one place within the State and in another. The punishment is uot aggravated by being inflicted in the county of Fremont, rather thau in the county of Arapahoe, where the trial took place. The penalty has not been changed, but only the locality where it is to be inflicted. The case of Carter v. Burt, 12 Allen, 425, is directly in point upon this question. In that case the prisoner had been convicted of being a common seller of intoxicating liquors without license, and sentenced to pay a fine of $50, and to be imprisoned in the house of correction for three months. By the statute in force at the time the offense was committed, it was provided that the imprisonment in such cases should be in the house of correction in the county where the court was holden; while by a subsequent enactment, in force at the time of sentence, it was provided that any person under sentence for such offenses might be committed, at the discretion of the court, "to the house of correction in any county in the Commonwealth in the same manner as such person might be committed in the county where the court is so holden." It was claimed in argument that the latter law aggravated the punishment, and was therefore ex post facto as to such offense; but the court held that such argument was fallacious, that the rights of a person convicted were not materially affected by the change, and that the punishment was not aggravated by an imprisonment in one county rather than in another. If the argument in this case, based upon the change in the place of execution, is sound, then, in case future legislation should change the location of the penitentiary to a county other than Fremont, and thereby change the place of execution, it would likewise follow that a change so made would be subject to the same objections-a conclusion we cannot indorse. We think the argument unsound, and that the constitutional objection based thereon is not well taken. In arriving at this result, we have not overlooked the case of Garvey v. People, 6 Col. 559. It seems to us however that counsel have confounded certain incidents connected with the administration of the penalty with the punishment itself. (2) Nor is the act ex post facto in that it designates the confinement as solitary, where it also provides that the accused may be visited by "attendants, counsel, physician, a spiritual adviser, ✶ ✶✶ and members of his family." Counsel say that the punishment in this case is aggravated by reason of the change in place of confinement from the county jail to the penitentiary. We are aware that in many well-considered cases it has been held that a change in the place of confinement from an institution where crimi nals convicted of minor offenses are incarcerated to one established for the imprisonment of those convicted of more heinous crimes has been held as an ag gravation of the punishment, on account of the dis grace and reproach attached to the confinement with criminals of a more depraved and infamous character: but this reason can have no application in the case of one convicted of willful, deliberate and premeditated murder, and awaiting execution therefor. And, the reason for the rule failing, the rule itself must also fail. Aside from this, the defendant is imprisoned for the purpose only that he may be produced at the time set for his execution, the confinement being no part of the punishment, but simply an incident connected therewith, referable to penal administration as its primary object; and such chauges may be made applicable to past as well as future offenses. Hartung v. People, 22 N. Y. 95-105; Cooley Const. Lim. 271, 272. And al