erty on an attachment granted on the ground that it is a foreign corporation only. In deciding the motion which caused this appeal the learned justice in the court below applied, as required, the well-established rules. He said: "The facts upon which the alleged liability of the defendant to pay the coupons is claimed are set up on information or belief. The source of such information is not given, nor is it stated whence or from whom it is derived. The affidavit and complaint are insufficient. Bank v. Alberger, 78 N. Y. 252; Marine Nat. Bank v. Ward, 35 Hun, 395. See, also, Yates v. North, 44 N. Y. 271. The appellant seeks to avoid the application of these rules by asserting that they relate to hearsay or parol statements, and not to those founded on documentary evidence presumptively in the possession of the defendant. This is begging the question. We can assume nothing on that subject. The authority to issue an attachment rests necessarily and justly on facts, the principal of which is the obligation to pay and the proof of which would be indispensable before a judgment could be obtained, and an execution issued. The attachment is an inverted process exercising the prerogatives of the execution, and doing in presenti what otherwise could not be done except in futuro, and after due and orderly investigation. When this remedy is resorted to, and especially on the ground of non-residence, the liability of the defendant should be shown by evidence such as would be required on the trial to make out a prima facie case. This has not been done herein, and the attachment was properly vacated. The order made below should be affirmed for these reasons. Ordered accordingly, with $10 costs and disbursements of this appeal. All concur. STERN et al. v. JAMES. (Supreme Court, General Term, First Department. January 28, 1889.) 1. GUARANTY-CONSTRUCTION-CONTINUING GUARANTY. Plaintiffs having refused to open an account on credit with a third person, defendant wrote them that any goods they might sell such third person would be promptly paid for, and, if not so paid for by her, he (defendant) would "pay the account. Held, that this guaranty was continuous, and applied to goods sold to the third person several years thereafter, though in the mean time several bills of goods had been sold to her on credit, for which she had paid. 2. SAME-FORM OF ACTION. The fact that an action on the guaranty is brought for a single bill of goods, and not on an account, or for a balance of an account, is immaterial. 3. SAME-PLEADING AND PROOF. Defendant having admitted the making of the guaranty, but having averred that the sale was not made on the credit thereof, evidence as to the circumstances inducing him to write the guaranty is properly excluded, as not relevant to the issues. Appeal from special term, New York county. Action by Isaac Stern, Louis Stern, and Benjamin Stern, copartners doing business under the firm name of Stern Bros., against Cornelius W. James. Upon a trial by the court without a jury, judgment was entered for plaintiffs, and defendant appeals. Argued before VAN BRUNT, P. J., and BRADY and MACOMBER, JJ. VAN BRUNT, P. J. The respondents in this action were copartners doing business in the city of New York, as importers and retailers of dry goods, and, for the purpose of giving credit to one Miss M. F. Bryan, the appellant caused to be written the following letter: "NEW YORK, Dec. 26th, 1882. Messrs. Stern Bros.-GENTLEMEN: Our Mr. C. W. James instructs me to say in his absence that any goods you may sell to Miss Bryan would be promptly paid for, and, if not so paid for by her, he will pay the account. Yours, truly, JOHN H. COMER." Subsequent to the giving of this guaranty, and solely upon the faith thereof, the respondents sold to Miss Bryan divers bills of goods, which were paid; and between the 12th of January, 1885, and the 11th of March, 1885, relying solely upon the faith of such guaranty, the respondent sold certain other goods and merchandise, consisting of dry goods and wearing apparel, to Miss Bryan, amounting in the aggregate to the sum of $277.07. Payment of said sum was demanded of Miss Bryan, but the same has not been paid. The respondents subsequently gave notice of such nonpayment to the appellant, and demanded payment of the same, which was refused, and thereupon this action was commenced. Upon the trial, judgment was rendered in favor of the respondents, from which judgment this appeal is taken. The principal ground of objection which is urged is that the guaranty given by the appellant did not cover the sale of the goods made by the respondents, for the reason that the guaranty was not a continuing one, but only applied to the first bill of goods sold to Miss Bryan subsequent to its being given. The rule is undoubtedly well settled that in the construction of a guaranty, if the plain terms of the contract may be fulfilled by being confined to one transaction, courts are not anxious to extend it to others; but where it is reasonably clear that the guaranty was intended to be continuous, and to apply to more than one transaction, then, under the ordinary rules of construction, it must be held to be continuous. In the case at bar, it is apparent, from the circumstances of the parties, Miss Bryan being engaged in the millinery business, and purchasing from time to time for that business, and having applied to the plaintiffs for the purpose of opening an account, and the plaintiffs having declined to open such account on her credit, and the defendant having furnished this guaranty in order to induce them to open the account, that no other construction can be placed upon the guaranty. The guaranty is not to pay for any single bill of goods which might be purchased, but that, if Miss Bryan did not promptly pay her account, the defendant would do so. It is the account which was to be paid, not a particular bill; and Miss Bryan was the applicant to open the account, which evidently refers to a continuous account, and not a single transaction. The case of Schwartz v. Hyman, 107 N. Y. 562, 14 N. E. Rep. 447, in no way conflicts with this view. In that case, from the wording of the guaranty, it was apparent that the guarantor only intended to guaranty the bill of goods which should be selected from the line of samples which were then sent,-a circumstance which clearly distinguishes the case from the one at bar. The objection that this action is not on an account, or for a balance of an account, but for the bill of goods purchased March 4, 1885, is not well taken. It is entirely immaterial what the form of the action may be,-whether for this single bill, or for a bill included with others. The action is in reality for the balance which may be due upon the account which Miss Bryan had with the respondents, which account the appellant guarantied. The objection that error was committed in the exclusion of the questions put to Mr. James, as to his inducements in writing the letter, and as to the circumstances which impelled him to write it, are not well taken. There was no question of this kind raised by the pleadings. The defendant admitted the making of the guaranty, but denied his liability, and denied any knowledge or information sufficient to form a belief as to the sale of the goods, and averred that the sale was not made upon the credit of the guaranty, but upon the credit of Miss Bryan. This raised no issue calling for the evidence as to the circumstances under which the appellant signed the guaranty, or the inducements which operated upon his mind. The simple issues involved were: Did the respondent sell the goods? did Miss Bryan owe for them? were they sold upon the faith of this guaranty? and did such guaranty cover this sale? The evidence as to the inducements which Miss Bryan held out to the appellant to induce him to sign this guaranty had no relevancy whatever to these v.4N.Y.s.no.1-2 issues. It tended in no manner to elucidate any of the questions involved. It was therefore no error to exclude this evidence. The judgment appealed from must be affirmed, with costs. All concur. CLARK v. FEY. (Supreme Court, General Term, First Department. January 28, 1889.) 1. SALE-REFUSAL TO ACCEPT GOODS-PLEADING AND Proof. In an action for failure to take goods under a contract, which provided that they should be shipped during a certain period, when plaintiff does not show a shipment and tender of the goods to defendant within that time, the complaint is properly dismissed. Following Hill v. Blake, 97 N. Y. 216. 2. SAME-RIGHT TO RESCIND-STATUTE of Frauds. A parol promise to take the goods, made by defendants after the expiration of the period, being within the statute of frauds, and not binding, does not deprive defendants of the right to rescind. Following Hill v. Blake, 97 N. Y. 216. Appeal from circuit court, New York county. Action by Clarence H. Clark against John Fey. Complaint dismissed, and plaintiff appeals. Argued before VAN BRUNT, P. J., and BRADY and DANIELS, JJ. L. W. Russell, for appellant. J. E. Parsons, for respondent. BRADY, J. This action was brought for damages alleged to have been sustained by the defendant's failure to take and pay for 500 tons of old iron "T" rails sold to him by the plaintiff. The contract is as follows: "NEW YORK, Dec. 29, 1879. "John Fey, Esq.-DEAR SIR: We have this day sold you old iron ‹ T' rails on the following terms, viz.: "Quantity. Five hundred (500) tons of 2,240 pounds each. and "Price. ($37.50) Thirty-seven dollars and fifty cents per ton of 2,240 lbs. "Delivery. Shipment from the other side, January, and February, March, seller's option. Yours, faithfully, or "Payment. Thirty-two ($32.50) dollars and fifty cents cash, according to invoice weights on handing order on vessels, balance on handing weigh-master's return. After naming vessels, the sellers shall not be responsible for non-arrival of cargoes, and this contract shall be considered canceled to that extent. CLARK, POST & MARTIN." The complaint contains the necessary facts to show the existence of a cause of action, and, among other averments, that the defendant accepted the iron in June, 1880, but requested the plaintiff to hold it in store for his account, cost, and risk, and to extend the time for payment, and for the actual manual delivery of the rails, and that this request was acceded to, and it was arranged that the rails so tendered should be held in store without any agreement for any fixed or definite time. The defendant, by his answer, denied that there was any other or different agreement than the contract for the purchase of the rails, or that the plaintiffs performed or tendered performance of the conditions of the contract on their part, or offered to deliver the rails. It appeared that the market for rails from December, 1879, up to the last of March following advanced to $45.50 a ton, and that the price was the highest from the 15th to the 20th of the last month named, when it began to decline gradually to $40 a ton, on the 10th of April. On the 15th of that month there was a very decided decline, reaching $23 to $24 a ton. Mr. Post, on behalf of the plaintiffs, testified that from the 15th to the 20th of April the defendant called upon him at his office, and said that in consequence of the price of old rails falling from $45 to practically $23 a ton, it was a very difficult thing for him to take these rails; that he could not sell them to anybody; and wanted him to be as easy as he could, and to carry the rails, and give him some rails later; to which Post answered that he would do everything he could to accommodate him, and carried the rails for him until, he thought, some time in June, when he sent for defendant, and told him, the contracts being on joint account, the other persons interested insisted that the rails should be taken, and the storage paid. Mr. Post then advised Mr. Fey, he says, that they were going to set aside 500 tons of rails for him; and he said, "That is all right; fix it up that way." It appears, however, that within the period allowed for that purpose the iron contracted for did not arrive in the city of New York. It was not shown that the plaintiffs, between January 1st and March 31st, had placed on vessels such iron as the contract called for, not under engagement to other persons, which could be designated for the defendant. The plaintiff, it is true, proved by Mr. Post that they had on hand about 18,000 tons of rails which had arrived in February and March, which was before the decline in the price. There was evidence that these rails were shipped during the period mentioned in the contract. They were not, however, tendered to the defendant. The plaintiffs also gave in evidence some bills of lading showing the shipment of iron, but some of them were not made until the month of April, and those relating to shipments in January, February, and March were of iron which was not tendered to the defendant. Indeed, there was no positive reliable evidence that it had been shipped. The case, therefore, is one in which a contract was made to ship during a certain period, viz., January, February, and March, a stated amount of iron; the shipment of which was not made during the period allowed for the purpose; and there was therefore no compliance with the terms of the contract. The case is regarded as embraced within the adjudication of Hill v. Blake, 97 N. Y. 216, upon which the dismissal of the complaint was mainly based, and as this is a decision of the court of last resort it may be entirely unnecessary to cite another authority. The court in that case said of a contract which required shipment in December, 1879, or January, 1880, seller's option, that the omission to furnish the iron shipped in these months authorized the defendant to rescind the contract. And a similar decision can be found in Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. Rep. 12, in which the authorities bearing upon a kindred question are reviewed in extenso, and the case just cited is referred to. It was substantially held in that case that in a mercantile contract a statement descriptive of the subject-matter, or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty or condition precedent, upon the failure or non-performance of which the party aggrieved may repudiate the whole contract, and that this applied even where the contract had been partially performed, and the goods accepted by the defendant in ignorance that there had been a failure of some shipments within the period allowed, if the right to rescind is exercised before accepting or paying for the additional merchandise. The learned counsel for the appellant sought ingeniously to distinguish between the contract in this case and that in Hill v. Blake, of course, for his client's benefit; but a critical examination of them has failed to disclose any substantial difference between them. It was supposed by the appellants that the subsequent agreement to which Mr. Post testified deprived the defendant of the right to a strict compliance with the contract and of the right to rescind; the answer to which is that assuming the agreement to have been made it was within the statute of frauds, and not binding. On this proposition Hill v. Blake, supra, is also a decisive and controlling adjudication. There it appeared that an offer was made in the shape of a letter sent to the defendant, the purport of which was that he could be given his iron out of a vessel named, probably in the week following the conversation, or a vessel named to sail from Great Britain during that month, to which Mr. Blake replied; "Well, I don't want the iron now; the later shipment will suit me better," to which answer was made by the plaintiff, “Very well; that fixes it," and the parties separated. In discussing the effect of that conversation, and stating that it could not be doubted that the omission to furnish iron shipped in the months named in the contract authorized the defendant to rescind the contract, the court said that to admit this would vary by parol the substance of a contract valid only because in writing, and that this could not be done without a violation of the statute. The learned judge said. "I do not think it necessary to inquire whether the mere time of performance might be waived by parol. That is not the question. The only one before us relates to a substantial matter,-to one affecting the identity of the thing sold,—and without mention of which there could have been no contract, and which, although agreed upon, would have been invalid if not in writing." In that case, as in this, there was no clement of estoppel which would authorize the court to reject the principle of law established by the cases referred to, and permit the plaintiff to recover. It is thought for these reasons that the learned judge at circuit was right in disposing of the controversy upon the cases cited. The failure of the plaintiffs to perform their contract, according to its terms, deprived them of any cause of action. They undertook to ship within a certain period, for the defendant, a certain amount of iron, and the only manner in which that contract could be performed according to the rules of law governing the relations growing out of such an instrument was to do the thing required by it. The judgment should be affirmed, with costs. All concur. PEOPLE v. O'HARA. (Supreme Court, General Term, First Department. January 28, 1889.) ROBBERY-ATTEMPT TO COMMIT-EVIDENCE. In a prosecution for attempted robbery, the evidence for the state was that the complaining witness had been knocked down either by defendant or by two other men who were with defendant, and that, while on the ground, one of the men present attempted to put his hand into the complainant's pocket. A witness for defendant testified that he saw complainant knocked down, but did not see anybody stand over him when he was down. Held, that a verdict of guilty of the offense charged was justified. Appeal from court of general sessions, New York county. Prosecution of Eugene O'Hara for an attempt to commit robbery. There was a conviction, and defendant appeals. Argued before VAN BRUNT, P. J., and BRADY and MACOMBER, JJ. Frank J. Keller, for appellant. John R. Fellows, Dist. Atty., and McKenzie Semple, for the People. MACOMBER, J. The question presented by the testimony was whether the defendant, who was jointly indicted with two others, attempted to rob one Michael Rooney, or whether it was a street brawl only, participated in by the three persons indicted, on the one side, and Michael Rooney and a woman on the other. Rooney, being accompanied by a young woman, whom he had known in Ireland, was, according to his own story, assaulted in the street, and both he and his companion were knocked down, either by this defendant or by his comrades. While upon the ground, one of the men present attempted to put his hand into the complainant's pocket, while he was being held by the man who had just felled him. Rooney had in his pocket at the time cash amounting to £13 sterling. The money was not lost or taken away, for the police interfered and arrested all the parties. The evidence of Officer Henry Grieg, of the Twenty-Ninth precinct, corroborates positively the testimony of Rooney, and of Annie Smith, his companion, as to the assault and to the cry of "Police! Thieves! Robbers!" and the like. The witness for the defendant, |