tion that one of the original parties is dead, and that the action has not since been revived.

CAZET V. HUBBELL

FRAUD, DISCOVERY OF-Contract-Time of Disaffirmance
See CONTRACT. 2.

PRESUMPTION OF-Preferential Assignment-Possession

unchanged

See ASSIGNMENT.

FRAUDS, STATUTE OF-COMPLIANCE-Part Payment .

263

-LAW, Church Organized under, can maintain Ejectment
See CHURCH.

39

1.

GOOD AND SUFFICIENT DEED--Words--Construction--Real Estate
See WORDS.

211

GRANTEE OF LAND Purchasing with Knowledge of Prior Conveyance-Deed not Recorded

See REAL ESTATE. 1.

GROUND OF APPEAL, Misnomer no

by whom Recoverable

46

See APPEAL.

H

HEIR-AT-LAW-Expectancy-Transfer

See PARTITION.

HIGHWAYS, Penalties for Encroachments on-Construction of Sta

HOLDER, BONA FIDE, Rights of Assignee of-Negotiable Paper
See NEGOTIABLE PAPER.

HUSBAND AND WIFE-Agency of Husband.]

Where property

is bought by the husband as the agent of the wife, and after-
wards sold by him, as such agent, at a profit, the profits belong
to the wife. There is nothing in the policy of the law as it now
exists which makes the agency of the husband, acting for the
wife, differ from the like agency of any other party.
MERCHANT V. BRUNNELL.

Possession of Real Estate by, under Wife, not adverse-
Damages-Interest

See REAL ESTATE. 3.

290

326

66

35

57

PAGE

IMPEACHMENT OF EVIDENCE-Admissions

See EVIDENCE. 2.

IMPRISONMENT, FALSE - Corporation Ordinance Powers of
Metropolitan Police Board

See FALSE IMPRISONMENT.

INDICTABLE CRIME, Words must Impute-Slander-Evidence

Credibility

See SLANDER.

INFRINGEMENT OF TRADE MARK, what-Injunction

See TRADE MARK.

INJUNCTION-Tax illegally assessed-Remedy what. Code, $11.] An application for a preliminary injunction is addressed to the discretion of the Court; and although the Appellate Court may require the discretion to be exercised, it will not assume to control such discretion.

An order refusing to grant such injunction does not come within subdiv. 2 of § 11 of the Code of Procedure, and is not appealable to this Court.

It seems that an injunction cannot legally be granted to restrain the collection of a tax, although illegally assessed; the proper remedy is by action for damages, etc.

HASBROUCK V. KINGSTON BOARD OF EDUCATION. INJURY-LOSS OF SERVICE, by whom Recoverable-Misnomer no Ground of Appeal

See APPEAL.

INNOCENT PERSONS-Loss by Third Party—Which shall sustain ?] Whenever one of two innocent persons must suffer by the acts of a third party, he who has enabled such third party to occasion the loss must sustain it. When a party sells a cargo of corn and allows the purchaser to take the corn, ship it, receive a bill of lading therefor, and draw upon his consignee with bill of lading attached to the draft, such vendor will not be allowed the right of stoppage in transitu to obtain payment, when by so doing the consignee is to suffer for his acceptance and payment of such draft. RAWLS V. DESHLER

INSOLVENT COMPANY divides its Capital-Recovery from Stockholders

See COMPANY.

Where an insurance company

INSURANCE-Agency-Estoppel.]
employs an agent to solicit the insurance of property in their com-
pany, and furnishes blanks to be filled by the statement of the
insured, and the agent of the company takes the responsibility of
filling up these blanks, and assures the applicant that all is right,
the company will not be permitted to prove the facts to be different
from those stated by the agent in the application.

2.

ROWLEY v. EMPIRE INS. Co.

-Carrier's Insurable Interest-Negligence must cause Damage.] A common carrier has an insurable interest in goods being transported by him to the extent of advances made, freight, and his legal obligations to the owner of the cargo, which is the fair value of the property carried by the contract of indemnity.

Although the Plaintiff was guilty of negligence, it will furnish no defence unless such negligence contributed to the loss and damage complained of.

Where the damage consisted in the sinking of a boat loaded with

361

266

134

167

106

203

91

124

285

grain and the injury to the grain, the extent of the damage involves
the price of the grain at the place of the disaster.

SAVAGE v. CORN EXCHANGE FIRE AND INLAND INS. Co. .

3. INSURANCE-Condition-Construction.] When a policy of insur-
ance is upon a building and a stock of goods, etc., such as is usually
kept in country stores, it covers all articles of merchandise coming
within such description, even though it include articles generally
prohibited except at special rates.

4.

PINDAR V. KINGS CO. INS. Co.

Loss by Fire occasioned by Explosion-Steam-engine.]
In a policy of insurance upon a building in which there is a steam-
engine, a clause exempting the company from liability, when the
loss by fire is occasioned by any explosion, must be construed as
applicable to an explosion of the engine within the building, as well
as to the explosions of any kind without the building; and the
fact that an extra premium was paid on account of the increased
risk from the engine within the building does not change the
construction.

HAYWARD V. LIVERPOOL FIRE AND LIFE Ins. Co.
INTEREST-DAMAGES-Real Estate-Possession of Husband un-
der Wife, not adverse

See REAL ESTATE. 3.

CARRIER'S INSURABLE-Negligence must cause

PAGE

112

330

180

57

damage

See INSURANCE. 2.

J

112

JUDGMENT-Foreclosure-Purchaser-Jurisdiction

2.

3.

See FORECLOSURE.

-of de facto Judge cannot be collaterally impeached.] It
is sufficient to sustain a judgment that the Judge presiding at the
trial and judgment was a de facto judge at the time. His judicial
acts, so far as they affect third parties, cannot be collaterally im-
peached.

READ V. CITY OF BUFFALO

-

-Power to reform - Pleading· Mistaken Averment
Variance.] A party is not estopped by a mistaken averment of the
law in his pleadings. But the Court will give such relief as he
appears to be entitled to, notwithstanding such mistaken aver-

ment.

Where the opposite party has not been misled by such mis-
take, the party making the averment will not be precluded from
asking such relief as the Court, upon a view of the case, shall deem
him to be entitled to.

UNION BANK v. Bush

See ASSESSORS.

JUDICIAL OFFICERS, Assessors protected like all

JURISDICTION-Boundary

See NEW YORK, COUNTY OF.

333

79

235

196

278

L

LAPSE OF TIME-Mortgage-Title to Real Estate-Presumption

repelled

See TITLE.

24

LEASE ASSIGNMENT-Pleading-Equitable Relief Trial.

See PLEADING. 2.

LEGACY, WHAT CONSTITUTES-Dower-Proportional Deduc-
tions.] Every bequest of personal property is a legacy, including
as well those made in lieu of dower, or in satisfaction of an indebt-
edness, as those which are wholly gratuitous.

Where the testator provides in his will that, in case his estate
should not be sufficient to pay the legacies, the deficit is to be de-
ducted in proportion to the sums given to each, he makes the
amount given to the widow in lieu of dower to depend upon the
sufficiency of the estate to pay the legacies given. The same prin-
ciple applies also where the legacies are to be increased by a sur-
plus in the estate.

ORTON V. ORTON.

LIABILITY UPON AGREEMENT TO PAY THIRD PARTY-
Power of Referee to allow Amendment. Code, §§ 272, 173.] Where
a person receives money upon an agreement to pay the demands
of a third party against those from whom he received the money,
he is liable, upon such promise, to pay the same to the party en-
titled, irrespective of the legal obligations of the party paying the

same.

SECOR V. LAW

LIEN, EQUITABLE-Evidence-Admissions of Agent

See MARRIED WOMAN.

LOCATION OF BOUNDARY OF REAL ESTATE-Evidence
See REAL ESTATE. 2.

LOSS BY FIRE OCCASIONED BY EXPLOSION-Insurance-

Steam-engine

PAGE

226

18

328

270

117

180

.

See INSURANCE. 4.

BY THIRD PARTY-Innocent Persons-Which shall sustain ?
See INNOCENT PERSONS.

91

OF SERVICE, by whom Recoverable-Injury-Misnomer no

Ground of Appeal

203

See APPEAL.

M

MAKER OR ENDORSER of Accommodation Note, Authority of
Partner to become-Notice. Code, §§ 136, 274

MARRIED WOMAN-Equitable lien-Evidence-Admissions of Agent.]
Under the laws of the State, conferring upon married women the
rights and powers of femes-sole in respect to their separate estate,
they are liable to fulfil their contracts in the management of such
separate interests.

A married woman employing an attorney in relation to her
separate interest, is liable to pay the usual fees, the same as other
parties.

OWEN V. CAWLEY

METROPOLITAN POLICE BOARD, Powers of False Imprison-
ment-Corporation Ordinance

See FALSE IMPRISONMENT.

MISNOMER NO GROUND OF APPEAL-Injury-Loss of Service,
by whom Recoverable

218

270

266

203

See APPEAL.

MISTAKEN AVERMENT-Variance-Power to Reform Pleading-
Judgment

See JUDGMENT. 3.

MORTGAGE ON TESTATOR'S REAL ESTATE, Executor can
enforce Bond to pay.

See EXECUTOR.

MORTGAGE-Satisfaction.] Where a note is given as a part payment
of mortgage, the mortgagees cannot be compelled to cancel the
mortgage until the note is paid.

RANGER V. GOODRICH

TITLE to Real Estate-Lapse of Time-Presumption
See TITLE.

repelled

MURDER, EVIDENCE OF PROVOCATION TO, Admissible when .
See EVIDENCE. 3.

PAGE

235

171

303

24

1

N

NEGLIGENCE MUST CAUSE DAMAGE-Carrier's Insurable In-
terest.

Railroad Nonsuit-Presumptions for Plaintiff
See NONSUIT.

NEGOTIABLE PAPER-Rights of Assignee of bond fide holder.] An
assignee of a promissory note, acquiring title after the maturity of
note from a bona fide holder for value, takes all the rights of such
bonâ fide holder.

NEW YORK, CHARTER OF THE CITY OF-Corporation may
employ additional Counsel-Corporation Counsel

See CHARTER.

NEW YORK COUNTY, BOUNDARY-Riot Act-Laws 1855.] The
boundary of territorial jurisdiction between the counties of New
York and Kings is the actual line of low water on the Brooklyn
side of East River.

2.

ATLANTIC DOCK COMPANY v. CITY OF BROOKLYN

OF,-Boundary-Jurisdiction.] The waters
of the Atlantic Basin, on the Brooklyn side of East River, are
within the county of New York, and the city of Brooklyn is not
liable for the destruction by a mob of a floating elevator within such
basin.

ORR v. CITY OF BROOKLYN

NO NOTICE TO CONTRACTOR-Article Condemned

See CONTRACT.

NONSUIT-Presumptions for Plaintiff-Negligence-Railroad.] On a
question of nonsuit, all disputed questions of fact are to be decided
in favor of the Plaintiff; and all presumptions and influences
which he had a right to ask from the jury, are to be conceded to
him.

In the management of a railroad and machinery, the railroad
corporation is bound to use the utmost care and vigilance to avoid
the dangers attending a collision.

The party injured was required to exercise only the ordinary

112

8

66

206

305

278

49