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been asserted in text-books, and repeated in judicial opinions, that any person may abate a public nuisance. But the best-considered authorities in this country and England now hold that a public nuisance can only be abated by an individual where it obstructs his private right, or interferes at the time with his enjoyment of a right common to many, as the right of passage upon the public highway, and he thereby sustains a special injury. Brown v. Perkins, 12 Gray, 89; Mayor of Colchester v. Brooke, 7 Q. B. Div. 339; Dimes v. Petley, 15 id. 276; Bridge Co. v. Smith, 30 N. Y. 44; Harrower v. Ritson, 37 Barb. 301.

The public remedy is ordinarily by indictment for the punishment of the offender, wherein on judgment of conviction the removal or destruction of the thing constituting the nuisance, if physical and tangible, may be adjudged, or by bill in equity filed in behalf of the people. But the remedy by judicial prosecution, in rem or in personam, is not, we conceive, exclusive, where the statute in a particular case gives a remedy by summary abatement, and the remedy is appropriate to the object to be accomplished. There are nuisances arising from conduct, which can only be abated by the arrest and punishment of the offender, and in such cases it is obvious that the Legislature could not directly direct the sheriff or other officer to seize and flog or imprison the culprit. The infliction of punishment for crime is the prerogative of the court, and cannot be usurped by the Legislature. The Legislature can only define the offense, and prescribe the measure of punishment, where guilt shall have been judicially ascertained. But as the Legislature may declare nuisances, it may also, where the nuisance is physical and tangible, direct its summary abatement by executive officers, without the intervention of judicial proceedings in cases analogous to those where the remedy by summary abatement existed at common law. Marvin, J., in his able opinion in Griffith v. McCullum, 46 Barb. 561, speaking of the remedy for the abatement of nuisances, says: "That which is exclusively a common-law or public nuisance cannot lawfully be abated by the private acts of individuals. The remedy is an indictment a criminal prosecution-unless some other remedy has been provided by statute."

The cases of Hart v. Mayor, supra; Van Wormer v. Mayor, supra, and Meeker v. Van Rensselaer, supra -show that the public remedy is not in all cases confined to a judicial prosecution. But the remedy, by summary abatement, cannot be extended beyond the purpose implied in the words, and must be confined to doing what is necessary to accomplish it. And here lies, we think, the stress of the question now presented. It cannot be denied that in many cases a nui. sance can only be abated by the destruction of the property in which it consists. The cases of infected cargo or clothing, and of impure and unwholesome food are plainly of this description. They are nuisances per se, and their abatement is their destruction. So, also, there can be little doubt, as we conceive, that obscene books or pictures, or implements only capable of an illegal use, may be destroyed as a part of the process of abating the nuisance they create, if so directed by statute. The keeping of a bawdy-house, or a house for the resort of lewd and dissolute people, is a nuisance at common law. But the tearing down of the building so kept would not be justified as the exercise of the power of summary abatement, and it would add nothing, we think, to the justification, that a statute was produced authorizing the destruction of the building summarily as a part of the remedy. The nuisance consists, in the case supposed, in the conduct of the owner or occupants of the house in using or allowing it to be used for the immoral purpose, and the remedy would be to stop the use. This would be the only mode of abatement in such case known to the common law, and the destruction of the building for

this purpose would have no sanction in common law or precedent. See Babcock v. City of Buffalo, 56 N. Y. 268; Barclay v. Com., 25 Penn. St. 503; Ely v. Supervisors, 36 N. Y. 297.

But where a public nuisance consists in the location or use of tangible personal property, so as to interfere with or obstruct a public right or regulation, as in the case of the float in The Albany Basin, 9 Wend. 571, or the nets in the present case, the Legis lature may, we think, authorize its summary abatement by executive agencies, without resort to judicial proceedings, and any injury or destruction of the property necessarily incident to the exercise of the summary jurisdiction interferes with no legal right of the owner. But the Legislature could not go further. It could not decree the destruction or forfeiture of property used so as to constitute a nuisance, as a punishment of the wrong, nor even, we think, to prevent a future illegal use of the property, it not being a nuisauce per se, and appoint officers to execute its mandate. The plain reason is that due process of law requires a hearing and trial before punishment, or before forfeiture of property can be adjudged for the owner's misconduct. Such legislation would be a plain usurpation by the Legislature of judicial powers; and under guise of exercising the power of summary abatement of nuisances, the Legislature cannot take into its own hands the enforcement of the criminal or quasi criminal law. See opinion of Shaw, C. J., in Fisher v. McGirr, supra, and in Brown v. Perkins, 12 Gray, 89.

The inquiry in the present case comes to this: Whether the destruction of the nets set in violation of law, authorized and required by the act of 1883, is simply a proper, reasonable and necessary regulation for the abatement of the nuisance, or transcends that purpose, and is to be regarded as the imposition and infliction of a forfeiture of the owner's right of property in the nets, in the nature of a punishment. We regard the case as very near the border line, but we think the legislation may be fairly sustained on the ground that the destruction of nets so placed in a reasonable incident of the power of the abatement of the nuisance. The owner of the nets is deprived of his property, but not as the direct object of the law, but as incident to the abatement of the nuisance. Where a private person is authorized to abate a public nuisance, as in case of a house built in a highway, or a gate across it, which obstructs and prevents his passage thereon, it was long ago held that he was not required to observe particular care in abating the nuisance; and that although the gate might have been opened without cutting it down, yet the cutting down would be lawful. Lodie v. Arnold, 2 Salk. 458, and cases cited. But the general rule undoubtedly is that the abatement must be limited by necessity, and no wanton and unnecessary injury must be committed. 3 Bl. Com. 6, note. It is conceivable that nets illegally set could, with the use of care, be removed without destroying them. But in view of their position, the difficulty attending their removal, the liability to injury in the process, their comparatively small value, we think the Legislature could adjudge their destruction as a reasonable means of abating the nuisance.

These views lead to an affirmance of the order of the General Term. The case of Weller v. Snover, 42 N. J. Law, 341, tends to sustain the conclusion we have reached. The action in that case was trespass for entering the plaintiff's lands, bordering a non-navigable stream in New Jersey, and destroying a fishbasket, in the waters diverted therefrom, placed for the catching of fish, contrary to a statute. The court held the statute to be a justification. The case of Williams v. Blackwall, 2 Hurl. & C. 33, arose under an act of Parliament, which authorized the summary destruction by fish- wardens of what was known as salmon-engines," being fish-nets set in violation of

building or on the roadways, except on licensed hackstands, even though ordered in advance by a passeuger."

East of the restaurant building is a plank walk for passengers, and east of the walk a space is reserved for

the act. The case is not an authority upon the power of our Legislature, under the limitations of the State Constitution, but the legislation upon which the action was founded shows, that in a country governed by the principles of Magna Charta, such legislation is not deemed inconsistent with the fundamental doc-private carriages. The rest of the wharf is used for trines of civil liberty. It is insisted that the provision in the act of 1883 authorizes the destruction of nets found on the land, on shores or islands adjacent to waters, where taking of fish by nets is prohibited, and that this part of the statute is, in any view, unconstitutional. Upon this premise it is insisted that the whole section must fall, as the statute, if unconstitutional as to one provision, is unconstitutional as a whole. This is not, we think, the general rule of law where provisions of a statute are separable, one of which only is void. On the contrary, the geueral rule requires the court to sustain the valid provisions while rejecting the others. Where the void matter is so blended with the good that they cannot be separated, or where the court can judicially see that the Legislature only intended the statute to be enforced in its entirety, and that by rejecting part the general purpose of the statute would be defeated, the court, if compelled to defeat the main purpose of the statute, will not strive to save any part. See Fisher v. McGirr, supra.

The order granting a new trial should be affirmed, and judgment absolute ordered for the defendant, on the stipulation, with costs.

All concur, except O'BRIEN, J., not sitting.

CARRIER-PROHIBITION OF HACKNEY
CARRIAGES-PRIVATE CARRIAGE.

RHODE ISLAND SUPREME COURT, NOV. 30, 1889.

GRISWOLD V. WEBB.

When a passenger orders a carriage to meet him at, and take him from, the terminus of a common carrier, such carriage is so far the private carriage of the passenger that it ceases to be "standing for hire," and to be a hackney carriage" within the meaning of a rule of the common carrier forbidding hackney carriages to attend in certain specified places.

A common carrier owning or controlling its terminals, may exclude from them persons soliciting trade or hacking or expressing without its license, but cannot deprive a passenger of the privilege of being carried from the terminus in a convenient and usual way, nor can it compel a passenger to take certain carriages or none.

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Francis B. Peckham and Samuel R. Honey, for plaintiff.

William P. Sheffield and William P. Sheffield, Jr., for defendant.

STINESS, J. The plaintiff is owner of Commercial wharf in Newport, a part of which is leased to the Newport and Wickford Railroad and Steamboat Company, as a terminus. To preserve order upon the wharf stands are let for hackney carriages, and the following rules are prescribed for its use:

"RULES FOR HACKMEN AND OTHERS.

"1. Drivers of hackney carriages shall remain on or near their carriages except when carrying baggage to or from them.

"2. No one shall occupy a hack-stand or expressstand except the licensee or his employees.

3. No hackney carriage or express wagon shall stand on the space to the eastward of the restaurant

sidewalks, roadways and buildings. The defendant, driver of a hackney carriage in Newport, went to the wharf, on the day in question, for a lady who was to arrive in the boat, as he had been ordered to do by the passenger, or some one in her behalf. He backed nis hack as near as he could to the space reserved for private carriages, when he was ordered to leave the wharf by the superintendent, upon the ground that he had no right to be there, having no license from the owner. The plaintiff claimed that the wheels of the defendant's carriage were backed on to the plank walk, but, upon all the testimony, we are not satisfied this was so, or, if so, that it was any thing more than accidental. At any rate, the order to leave the wharf was not put upon this ground, but because he had no right there. Upon receiving the order to leave, the defendant stated both to the plaintiff and to the superintendent of the wharf that he had been ordered there for a passenger and he refused to leave. The plaintiff then called a policeman who moved the carriage to another place, in the road way, where the defendant remained until the boat arrived, when he took his passenger and drove away. The passenger was an infirm lady, who had been accustomed to ride with the defendant and one who was obliged to use a stool, which he had with him, to aid her in getting into the carriage. The plaintiff sues in trespass and the defendant justifies under a right as servant of the passenger. The question is whether the defendant has the right to enter and remain upon the wharf to take the passenger, notwithstanding the rules and the order to leave. We understand the rules to forbid an unlicensed hackney carriage to stand upon the wharf at all; for none are allowed to stand in the roadways, except on the licensed stands, and none are allowed to occupy a stand without a license. But the wharf is leased to a common carrier of passengers, with a provision that the space east of the restaurant shall be reserved for the use of private carriages of passengers arriving at the wharf.

The question of right therefore is the same as it would be between passengers and a company which owns its terminus. While such ownership carries with it a right of control, in most respects the same as in private property, a railroad station or steamboat wharf is, to some extent, a public place; the public have the right to come and go there for the purpose of travel; for taking and leaving passengers, and for other matters growing out of the business of the company as a common carrier; but the company has the right to say that no business of any other character shall be carried on within the limits of its property. It has the right to say that no one shall come there to solicit trade simply because it may be convenient for travellers, and so to say that none, except those whom it permits, shall solicit in the business of hacking or expressing. When notice of such prohibition has been given, the license which otherwise might be implied is at an end, and it is the duty of persons engaged in any such business to heed the notice and to retire from the premises. Barney'v. Oyster Bay & Huntington Steamboat Co., 67 N. Y. 301; Commonwealth v. Power, 7 Metc. 596. But while this is so, the company cannot deprive a passenger of the ordinary rights and privileges of a traveller; among which is the privilege of being transported from the terminus in a reasonably convenient and usual way. A company cannot compel a passenger to take one of certain carriages or none at all; nor impose unreasonable restrictions which will amount to that. If a passenger orders a carriage to take him from

the terminus, such carriage is, pro hac vice, a private carriage not in the sense that the passenger has a special property in it, so as to be liable for the driver's negligence, but in the sense that it is not "standing for hire." Masterson v. Short, 33 How. Pr. 481.

The driver is not engaged in his vocation of soliciting patronage but is waiting to take one with whom a contract has already been made. No question is made that a passenger may have his own carriage enter the premises of a carrier to take him away; but to say that one who is not so fortunate as to own a carriage shall not be allowed to call the one he wants, because it is a hackney carriage would be a discrimination intolerable in this country. Yet this is really the plaintiff's claim. Every passenger has the right, upon the premises of the carrier, to reasonable and usual facilities, for arrival and departure; and so far as this includes the right to be taken to and from a station or wharf it is immaterial whether he goes in a private or a hired carriage. Decisions upon this question have not been numerous, and we know of but one directly in point, although in others there are dicta which indicate what is understood to be the law. Summitt v. State, 8 Lea, 413, was a conviction of the defendant, a watchman in a depot, for assault, in ejecting a hackman therefrom. The company had forbidden hackmen to enter the building. Notwithstanding this rule, the right of a hackman to go into a part of the depot, to obtain the luggage of a passenger, whose check he had, was not controverted. The prosecutor having the check of a passenger, was in another part of the depot but it was held that the defendant was not justified in ejecting him altogether from the station and the conviction was sustained. Tobin v. Portland, Saco & Portsmouth R. Co., 59 Me. 183, was an action for damages by a hackman, who was injured by stepping on a defective platform when leaving a passenger at the station. The court say: The hackman, conveying passengers to a railroad depot for transportation, and aiding him to alight upon the platform of the corporation, is as rightfully upon the same as the passengers alighting." In this case it was not claimed that any rules had been violated. The recent case of Old Colony Co. v. Tripp, 147 Mass. 35, was an action of trespass against an expressman who solicited patronage in the plaintiff's station, contrary to its rules. Allen, J., says: "Passengers taking and leaving the cars at the station and persons setting down passengers or delivering merchandise or baggage for transportation from the station, or taking up passengers or receiving merchandise that had been transported to the station, had a right to use the station buildings and grounds superior to the right of the plaintiff to exclusive occupancy. All such persons had business with the plaintiff, which it was bound to attend to in the place and manner which it had provided for all who had like business with it." A statute of Massachusetts prescribes that railroad corporations shall give to all persons equal facilities for the use of its depot. The court held that this statute applied only to the relations between common carriers and their patrons or those who had the right to use the station. It did not give the defendant the right to go there to solicit business because another had the right. See also Harris v. Stevens, 31 Vt. 79.

W.

In Markham v. Brown, 8 N. H. 523, an action of trespass brought by an innkeeper against a stage driver, the court say the defendant had clearly a right "to go to the plaintiff's inn with travellers and he might of course lawfully enter it for the purpose of leaving their baggage and receiving his fare." The case most nearly in support of the plaintiff's contention, of those we have seen, is Barker v. Midland Railroad Co., 18 C. B. 46, where it was held that an omnibus proprietor carrying passengers to and from a station, could not maintain an action for a refusal to allow him to drive his

vehicle into the station yard. As the proprietor was not using or seeking to use the railway it was consid ered that the company owed him no duty. Jerris, C. J., said a passenger would no doubt have a right of action, if unduly obstructed, but a violation of duty to him would not give an action to the plaintiff. It is to be observed that the recent English cases are mainly controlled by statute, 17 and 18 Vict., chap. 31, to which the Massachusetts statute is similar. They relate chiefly to the question whether a prohibition to one, to ply for passengers within a station, when the same right is granted to another, is an undue preference under the statute. It is generally held that it is not. See In re Beadell, 2 C. B. (N. S.) 509; Ex parte Painter, 2 id. 702; Hole v. Digby, 27 W. R. 884. In the lat ter case it seems to be conceded that one going bona fide to meet a passenger would not be guilty of trespass. In Marriott v. London & S. W. R. Co., 1 C. B. (N. S.) 499, the defendant company was ordered to admit the complainant's omnibus into the station to receive and set down passengers and goods, as other public vehicles were admitted. Upon the question before us, we do not think these cases are in conflict with the views we have above expressed. The case at bar differs from Barker v. Midland Railroad Co., in this, that here the hackney driver is not plaintiff seeking to recover damages for the revocation of a license to go upon the wharf, or for a breach of duty to another, but the defendant against an alleged trespass, who relied upon his right as servant of the other to justify his being there.

We think the justification is sufficient. It is substantially given by the terms of the lease to the steamboat company. This does not deprive the owner of the general control of his wharf, nor interfere with his reasonable rules for its management. It simply secures to a passenger the common privileges of a passenger and enables the hackney driver to shield himself from an apparent violation of the rules only when he is act ing, bona fide, as the servant of such passenger. This qualification guards the owner from an incursion of unlicensed drivers under a mere pretense of serving passengers, and also confines the right of soliciting business on his premises to those whom he may permit. We give judgment for the defendant for his costs.

NEW YORK COURT OF APPEALS AB STRACTS.

AGENCY-BREACH OF DUTY-MEASURE OF DAMAGES. -At the trial of an action against brokers to recover $2,000, a balance of money placed in their hands as a margin against loss on a sale of wheat on plaintiff's ac count, brought on account of a breach of the contract by defendants in making an unauthorized purchase of wheat for delivery of such sale, and in subsequently refusing to purchase when instructed to, defendants requested an instruction that plaintiff could only recover damages for breach of contract, and not conver sion; and the court said: "I shall charge that he is entitled to recover the $2,000 in this action. It is immaterial whether for a conversion or breach of con tract." The jury had previously been charged that plaintiff's right to recover was dependent on their finding the facts in his favor. Held, that the court did not intend to charge that plaintiff was entitled to recover, and that although there was no support for an action for conversion of wheat, defendants could not have been prejudiced by the action of the court; it appearing that no less a sum than $2,000 would have indemnified plaintiff for the loss suffered by defendants' breach of duty. White v. Smith, 54 N. Y. 522; Knowlton v. Fitch, 52 id. 288: Hess v. Rau, 95 id. 359.

Hill v. Board of Supervisors.

Second Division, Feb. 25, 1890. Campbell v. Wright. I by law." Feb. 25, 1890. Opinion by Bradley, J. Parker, J., dissenting. Affirm- Opinion by Gray, J. Affirming 6 N. Y. Supp. 716. ing 44 Hun, 623.

BANKS-COLLECTIONS -OWNERSHIP OF DRAFT.-A check drawn on defendant bank was indorsed in blank by the payee, and left with the H.'s, private bankers, for collection. They indorsed it to plaintiff's cashier for collection only, and sent it to plaintiff, their correspondent; and the latter in like manner indorsed it to the cashier of defendant, with directions to remit to plaintiff its proceeds. On the day of receiving it, defendant charged the check to the account of the drawer, and cancelled it, and at the same time drew its sight-draft for the amount, less exchange, and mailed it to plaintiff. On the previous day the H.'s had failed; and on the day after the check had been paid the payee requested defendant to stop payment of its draft, which it did. Held, that defendant could not defeat a recovery on the draft by plaintiff on the ground that the latter did not hold the check for value, and was not entitled to its proceeds as against the payee. By the law of this State, Harrison's Bank was the agent for Cameron, but neither the plaintiff nor defendant was his agent; and had either neglected to take the necessary steps to collect the check, to Cameron's injury, he would have had no right of action against either, but would have had a cause of action against Harrison's Bank. Allen v. Bank, 22 Wend. 215; Montgomery Co. Bank v. Albany City Bank, N. Y. 459; Commercial Bank v. Union Bank, 11 id. 203; Ayrault v. Bank, 47 id. 570; Exchange Nat. Bank of Pittsburgh v. Third Nat. Bank of New York, 112 U. S. 276; Morse Banks (3d ed.), § 272. In Montgomery Co. Bank v. Albany City Bank and the Bank of the State of New York, supra, the plaintiff indorsed and sent a draft to the Albany City Bank for collection, which in turn indorsed and sent it to the Bank of the State of New York for collection; but the latter bank negligently omitted to present the draft for payment, and the drawer and indorsers were discharged. The plaintiff sued both banks, and recovered against both at Circuit, and the judgment was affirmed by the General Term; but it was reversed in the Court of Appeals as to the Bank of the State of New York, and affirmed as to the Albany City Bank. It was said: "The New York State Bank was the agent directly guilty of the neglect. That bank was employed to do the service by the plaintiff's agent, the Albany City Bank, as its agent, to which it was alone responsible for its acts and neglect, and for which the latter, according to the settled rule, was alone responsible to the plaintiff; there being no agreement to the contrary, expressed or implied." It is unnecessary to specially consider the cases which were decided in this State

prior to Allen v. Bank, supra, or those of States in which it is held that the bank receiving payment of the paper is the agent of the owner, notwithstanding it may have passed through several hands before reaching the bank making the collection. Second Division, Feb. 25, 1890. Corn Exchange Bank v. Farmers' Nat. Bank of Lancaster, Penn. Opinion by Follett, C. J. Bradley and Brown, JJ., dissenting. Reversing 42 Hun, 659.

COUNTIES LIABILITIES-MOBS.-Laws of New York of 1855, chapter 428, section 5, which provides that an action for damages, in consequence of a mob or riot, shall not be maintained * * * unless * * * brought within three months after the loss or injury," is not affected by the Code of Civil Procedure of New York, section 405, allowing one year, after the invol untary dismissal of an action commenced in time, within which to bring another action; as section 414 excepts from the provision of the chapter all cases "where a different limitation is specifically prescribed

DEED CONDITIONS FORFEITURE.- (1) Land was conveyed to a town for a highway by deed conditioned "that no house, building or other erection whatsoever, except a public monument, shall be built or erected or permitted upon" it. Held, that an area way constructed below the surface of the land for the purpose of supplying light and access to the basement of an adjoining building, by means of gratings flush with the sidewalk that was laid over it, was not an erection upon the land, within the meaning of the condition. (2) After the date of the deed the grantee was incorporated as a village, and later as a city. Held, that the city assumed the same relation to the conveyance that the town took by it. (3) The fact that the wall of an adjoining building encroached from sixteen inches to two inches upon the land in question did not render the municipal authorities chargeable with having permitted a violation of the condition of the deed, so as to work a forfeiture of the grant, it appearing that they could not, with any reasonable degree of certainty, have been able to ascertain or determine that there was in fact any encroachment. Second Division, Feb. 25, 1890. Rose v. Hawley. Opinion by Bradley, J. Affirming 45 Hun, 592.

DEEDS-RECORD-NOTICE TO ATTORNEY.- (1) After land had been conveyed to plaintiff, but before the deed was recorded, a mortgagee of the property foreclosed his mortgage, became the purchaser at the sale, recorded the referee's deed, and conveyed the property for a valuable consideration to defendant. Held, that defendant was entitled to protection against the conveyance to plaintiff, without regard to the question whether his grantor had or had not notice thereof. (2) Plaintiff's husband informed the attorneys of the mortgagee of the existence of plaintiff's deed while on a visit to them to inquire about an abstract of title of the property. Held, that the attorneys' knowledge could not be imputed to the mortgagee, it not having been acquired by them while engaged in foreclosing the mortgage or transacting business for the mortgagee. Second Division, Feb. 25, 1890. Slattery v. Schwannecke. Opinion by Brown, J. Affirming 44 Hun, 75.

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EVIDENCE HEARSAY -AGENCY PROVINCE OF JURY.-(1) In an action by a contractor to recover for extra work done on a well in consequence of an explosion alleged to be due to defendants' negligence, testimony of a witness that some one told him that a torpedo was exploded just below the surface of the rock, and so injured the well, is inadmissible, as being hearsay. (2) In such action it is a question for the jury whether the person who employed one to explode the torpedo that caused the damage was actually or apparently authorized to act as the contractor's agent in the premises. Jan. 28, 1890. Doyle v. Rector, etc., of Trinity Church Corp. Opinion by Follett, C. J. Reversing 44 Hun, 628.

INSURANCE-WAIVER OF CONDITIONS.-In an action on a life policy, the defense was that default in the payment of a premium had forfeited the policy. The time of payment was extended by a general agent of the company, pending negotiations relative to the exchange of the life policy for a paid-up policy, who had been accustomed to receive premiums after they were due, and the company had been accustomed to ratify his acts by accepting the premiums. Held, that the general agent was specially authorized to extend the time of payment of premiums, and that the question whether the extension was in fact made should have been submitted to the jury. Feb. 25, 1890. Wyman v. Phoenix Mutual Life Ins. Co. Opinion by Finch, J. Affirming 6 N. Y. Supp. 289.

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MORTGAGES-FORECLOSURE-MARSHALLING ASSETS.(1) Where, on foreclosure of a blanket" mortgage on property, which is also covered by junior mortgages on the separate parcels, a sale is ordered in parcels in the inverse order in which the junior mortgages were given, and the sale of the last lot produces a surplus, such surplus cannot be regarded as constituting a specific fund, subject to the specific lien upon the last lot, but a common fund, distributable to all of the lienors upon the land sold, in the order of the dates when the liens were created. (2) No issue having been raised by the pleadings as to the rights of the subsequent lienors, the decree for such sale is not conclusive as to the priority of lien of the subsequent mortgagees. March 4, 1890. Burchell v. Osborne. Opinion by Gray, J. Affirming 6 N. Y. Supp. 863.

RAILROADS-INJURIES TO PASSENGER-DAMAGES.(1) The conductor of an elevated train signalled it to start at the same instant that he opened the gate for a passenger to alight, and the motion of the train in starting caused the door to swing onto the passenger's hand, injuring it. Held, that the company was chargeable with negligence. (2) The conductor, not being at his post of duty, the platform of the car, when the train stopped, the passenger opened the door of the car so that she could attract his attention in time to have the gate opened before the train started. Held, that the question of her contributory negligence was for the jury. (3) At the trial the court called the attention of the jury to the fact that there was no evidence of any specific loss of business or time by plaintiff, and no evidence of any expense or liability in dollars and cents for medical expenses, and that nothing could be allowed specifically for these items. Defendant requested a charge that there was no evidence upon which the jury could give "any" damage for loss of time by plaintiff, as a music teacher, and that there was no evidence that she had suffered damage from being absent from her position as a teacher in the public schools, and that they could give "no" damages for such absence. Held, that the requests were properly refused, as they excluded the right to recover nominal damages; and also because the jury had already been sufficiently instructed upon the subject. Second Division, Feb. 25, 1890. Baker v. Manhattan Ry. Co. Opinion by Haight, J. Affirming 54 N. Y. Super. Ct. 394.

SALE-BREACH OF WARRANTY-DAMAGES.-When an article, made and delivered under an express warranty as to its fitness for a particular purpose, proves unfit for that purpose, the proper measure of damages recoverable by the vendee, if he uses the article, is not the cost of changing it and making it conform to the warranty, but the losses sustained by him, including profits he would have made. Milk Pan Co. v. Remington, 109 N. Y. 143, is cited. That decision was not intended to, nor does it, modify the rule as recognized and enforced in Passinger v. Thorburn, 34 N. Y. 634; White v. Miller, 71 id. 133; Wakeman v. Manuf. Co., 101 id. 205; Reed v. McConnell, id. 276, and kindred cases. The object of the freezer was to preserve chickens for the May market. The expense of construction and trouble, as well as expense of operation, was incurred and undertaken in order to secure the enhanced prices of the month of May. It was the extra profit which the plaintiff was contracting to secure, and, in so far as the profits contemplated by the parties can be proven, they may be considered. Gains prevented, as well as losses sustained, are proper elements of damage. Wakeman v. Manufacturing Co., 101 N. Y. 205. Second Division, Feb. 25, 1890. Beeman v. Banta. Opinion by Parker, J. Affirming 45 Hun, 593.

PROMISSORY NOTES WARRANTY. (1) Plaintiff's debtor agreed that he should have the benefit of

certain collaterals held by defendant's testator to secure a debt due him by plaintiff's debtor, over and above the interest of defendant's testator therein, and in order to secure this, plaintiff paid the debt due defendant's testator, and took an assignment of his claim, including notes. Held, that there was no im plied warranty by defendant's testator that the notes were valid and unpaid, as the transaction was not a sale of them. (2) In an action on an alleged breach of warranty of the notes, the complaint alleged that the transaction was a bona fide purchase of the notes, and that they had been paid, to the knowledge of defendant's testator. The answer made no direct denial of this, but set forth the transaction in detail, and concluded by denying that defendant's testator" made any other or different transfer of said notes than as herein stated." No objections were made to the admission of evidence of the transaction. Held, that the referee was justified in refusing to find that defendant admitted the allegations of the complaint. Jan. 14, 1890. Mandeville v. Newton. Opinion by Andrews, J. Affirming 3 N. Y. Supp. 956.

SPECIFIC PERFORMANCE-REMEDY AT LAW-TENDER (1) A purchaser of land can maintain an action in equity against his vendor to compel specific performance of the contract of sale, although he has another remedy at law. (2) After execution of a contract for sale of land, the vendor gave the purchaser a verbal option to extend the time of performance for thirty or sixty days, provided that at the time fixed for carrying out the agreement as it then stood, he would increase the amount of the purchase-price, and pay an additional sum down. The purchaser accepted the proposition, and attended at the time and place specified, ready to carry it out. The vendor was only represented by agents, neither of whom had any evidence of authority to act for her, and upon the purchaser's objecting to pay the money except to the vendor, or some one showing authority from her to receive it, one of the agents made a tender of the deed, and as the purchaser was not prepared to carry out the agreement, declared the contract at an end. Held, that the purchaser had a right to insist upon a written extension, properly signed, before paying the money, and to be reasonably satisfied as to the authority of the agents to give such an extension; and that under the circumstances, the rights of the purchaser could not be terminated by a tender of the deed at the time and place mentioned in the contract. (3) The contract having been repudiated by the vendor, the purchaser was not bound to make any tender before commenc ing an action for specific performance. (4) A claim that the purchaser was in default because he was not present in person, but appeared through agents, who did not produce any evidence of their authority to act, was not well founded; the vendor not having questioned the authority of such agents. Second Division, March 4, 1890. Baumann v. Pinckney. Opinion by Vann, J. Haight, J., dissenting. Reversing 14 Daly, 241.

STATUTE OF FRAUDS -AGENCY TERMINATION PERFORMANCE WITHIN A YEAR. (1) When the com pensation of an agent is dependent upon the success of his efforts in procuring a contract for his principal, and his subsequent performance of the work, the principal will not be permitted to stimulate his efforts with the promise of reward, and then, when the contract is obtained and the compensation assured after construction, terminate the agency for the sole pur pose of securing to himself the agent's profits. (2) A contract for the sale of chattels, to be manufactured and delivered as may be required, is not within the statute of frauds, as an agreement which by its terms is not to be performed within a year; there being nothing in its terms inconsistent with complete per

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