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iron on board. The direction, also, which was given to the jury, that the plaintiff could not recover if he did not deliver at least 100 tons of No. 1 wrought scrap-iron, affords no assistance to the plaintiff; for this did not raise the question whether the defendant would not have been bound to have accepted the cargo if it had complied with the agreement which was made for the sale of the iron, in case there was no greater deficiency in quantity than that of about half a ton. And, as the quality of the cargo appears to have been established to the satisfaction of the jury, but little over half the quantity was of the quality mentioned in the agreement. This request, accordingly, was simply theoretical, having nothing to do with the controlling circumstances of the case. The court further directed the jury that if the still bottoms were steel, or the coils were light iron, and not No. 1, or were steel,, in either event the plaintiff could not recover. These directions, of course, had reference to the position taken in his behalf under the original agreement, -that the defendant was not at liberty either to refuse or reject the cargo, after it had arrived on board the vessel at the city of Providence. The law does not sustain the exception taken to either of these directions, for the defendant had the right to object to and refuse the cargo as he did. And upon that basis it was within the power of the parties to make the agreement, which from the testimony of both sides it appears they did, that the defendant should sort out the cargo at the plaintiff's expense, and take and pay for only so much of it as was of the description of the iron mentioned in the first agreement; and it was upon that agreement that the case was finally disposed of, both by the directions given to the jury as well as their verdict. And from the stipulation which was afterwards made it is to be assumed that on this theory the plaintiff was not entitled to a verdict, but the defendant was entitled to so much by way of counter-claim as it allowed in his favor. As the case was developed by the evidence, it was one for the determination of the jury. By their verdict the plaintiff had the benefit of all he seems to have been entitled to in its disposition, and the judgment should be affirmed. All concur.

In re LIVINGSTON.

(Supreme Court, General Term, First Department. January 28, 1889.)

1. MUNICIPAL CORPORATIONS-PUBLIC IMPROVEMENTS-RATIFICATION OF EXPENDITURES. Laws N. Y. 1880, c. 565, making it the duty of the commissioner of public works to complete all work relating to the Morningside park, and to transmit to the board of assessors, on the completion of the work or any portion, a certificate of the amount theretofore expended, together with the expenditures thereafter incurred under that act, and declaring that the assessment should be pursuant to the laws for assessments for local improvements, is a ratification of the amount previously ex pended.

2. SAME-REDUCTION OF ASSESSMENT-COST OF WORK.

The commissioner had power to do the work without contract, and to do it by days' work, under Laws N. Y. 1867, c. 697; 1868, c. 288; 1870, c. 137; 1872, c. 872; and 1873, c. 335, and the power was continued by the charter of 1873, which exempted such work from its operation, and an assessment therefor cannot be reduced to the extent that the actual cost of that part of the work which was done by days' work exceeded its fair value, as that method of doing the work is neither fraud nor substantial error.

Appeal from special term, New York county.

Motion by Johnston Livingston to vacate or reduce an assessment. Motion denied, and Livingston appeals.

Argued before VAN BRUNT, P. J., and BRADY and MACOMBER, JJ.
J. A. Deering, for appellant. G. L. Sterling, for respondent.

BRADY, J. The petitioner sought in this proceeding to have the assessment upon his lots reduced to the extent or in the proportion that the actual cost of that part of the work involved which was performed by days' work exceeded its

fair value. The right to such relief does not appear to have been questioned in the court below, if the facts warranted the court in granting it. The learned justice was of the opinion that the evidence did not establish that the fair cost of the work was less than the amount imposed upon the property owners, and consequently that there was no basis for any reduction. He was further of the opinion that chapter 565 of the Laws of 1880 was a legislative ratification of the amount expended upon the work prior to the passage of the act. It appears that the total amount of the assessment was $386,945.89, of which amount $300,462.67 were assessed upon the city, and the balance, namely, $66,483.22, on the property owners. It was for this reason, doubtless, that the learned justice in the court below expressed the conviction that the evidence did not establish that the fair cost of the work was less than the amount imposed upon the property owners; and, although it must be said that there are some details at least suggesting it, the contrary is not established as clearly as it should be in a proceeding of this character. But even if it were, the appellant is not entitled to relief for two reasons, the first of which is that suggested by the court below in reference to the act of 1880. There does not seem to be any room to question the propriety of his view on that subject. It was by that act made the duty of the commissioner of public works to proceed to completion with all the work with reference to the Morningside park, and by section 2 it became his duty to transmit to the board of assessors, upon the completion of the work, or any portion thereof, as the commissioner might deem advisable, a certificate of the amount theretofore expended on said work, together with the expenditures thereafter incurred by him under the provisions of that act, and it was declared that the proceedings for laying and completing the assessment for the work so certified should be pursuant to the laws then or thereafter in force for laying and collecting assessments for local improvements in this city. This seems to be a clear recognition of expenditures made, and a direction that the amount thereof should be returned to the assessors in order that provision might be made for its payment. There does not appear to be any escape from the effect of this provision of the statute. And further, it seems that when the improvement to which the assessment relates was commenced, the commissioner had authority to do the work without contract, and that that authority was continued by the charter of 1873, for the reason that it was made exempt from its operation. A careful examination of chapter 697 of the Laws of 1867, chapter 288, of the Laws of 1868, chapter 137 of the Laws of 1870, chapter 872 of the Laws of 1872, and chapter 335 of the Laws of 1873, leads to the conclusion that the power of doing the work by what is called "days' work" existed, and for that reason, if for no other, the relief could not be granted, inasmuch as the mode of procedure was authorized, and it could not be therefore regarded either as a fraud or as a substantial error; and the provision in the act of 1880 in reference to expenditures theretofore made was doubtless predicated of the existence of those acts and the authority conferred and continued by them. The order should be affirmed, with $10 costs and disbursements. All concur.

In re LYON.

(Supreme Court, General Term, First Department. January 28, 1889.) Appeal from special term, New York county.

Dore Lyon appeals from an order denying his motion to vacate an assessment.
Argued before VAN BRUNT, P. J., and BRADY and MACOMBER, JJ.

J. A. Deering, for appellant. G. L. Sterling, for respondent.

BRADY, J. For the reasons stated in the opinion in Re Livingston, ante, 56, (decided herewith,) the order appealed from should be affirmed, with $10 costs and disbursements. All concur.

MERRILL v. BRUNNER.

(Supreme Court, General Term, First Department. January 28, 1889.) SALE-BREACH OF WARRANTY-CONDITIONAL SALE BY PURCHASER.

A vendee of personalty, who makes a conditional sale of the property, still retaining possession of it, is not thereby precluded from maintaining an action against her vendor for false representations concerning the property.

Appeal from circuit court.

Action by Florence A. Merrill against Peter Brunner, as surviving partner of the firm of Brunner & Moore. The defendant appeals from a judgment for plaintiff.

Argued before BRADY, DANIELS, and BARTLETT, JJ.

H. Daily, for appellant. H. W. P. Hodson, for respondent.

BRADY, J. The plaintiff complained that the firm of Brunner & Moore, of which the defendant is the survivor, sold to her a suit of parlor furniture, and, with intent to deceive and defraud her, falsely and fraudulently represented to her that the furniture was of solid rosewood, very scarce and valuable, and a great bargain, when in truth, as the firm well knew, the furniture was not of solid rosewood, but, on the contrary, was of white wood stained to represent rosewood, and neither scarce nor valuable. The transaction with reference to the sale was conducted between the plaintiff and Moore, the deceased partner; and it appears that, although the furniture was in her possession for some months, as soon as she discovered that it was not what it was represented to be, she sought the defendant, stated the facts, and attempted to return it. He declined to receive it, insisting that no misrepresentation had been made, and no fraud had been perpetrated, and that she bought it as it was. The learned judge charged fully and explicitly upon the various issues, and also charged the requests which were submitted by the defendant. Up to this point no exception whatever had been taken to the charge. It appeared, however, during the cross-examination of the plaintiff, that she admitted a sale of the furniture, which she owned, to her mother, intending, as she said, to go abroad; but in reference to the suit of furniture in question she said the sale was conditional, and this statement was in no way altered or impaired by anything that occurred on the trial. The defendant's counsel supposed that that circumstance would relieve his client from the consequences of the false representations made by the firm, and asked the court to charge that, "if the jury believe plaintiff has made a bill of sale of this set of furniture to her mother, and that her mother has sold this furniture to Miss Lunt, this transfer or act on the part of the plaintiff, and the sale by the mother to Miss Lunt, defeats her right to recover in this action." The learned court said with regard to this that there was no defense set up in the answer that the plaintiff had not perfect control of the furniture, and that the matter, therefore, in regard to the bill of sale, was entirely collateral, and that the learned counsel was bound by the answer which the plaintiff gave to his questions on that subject, such answer being that the sale was conditional. The learned judge also said: “A conditional bill of sale does not mean an absolute sale, and such answer as that does not imply an absolute sale. If the sale to the mother was conditional, then, even although the mother herself may have assumed subsequently to make an absolute sale to Miss Lunt, that would not be binding upon the plaintiff, because the mother could not transfer any greater title than she had received from her daughter." The defendant's counsel excepted to that part of the charge which related to the bill of sale. There is no value in this exception. The assumed sale formed no part of the answer, and no application was made to the court for liberty to amend by setting it up. But if it had been stated in the answer, it would have been of no value, for the reason that it was said to be a condi

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tional sale, and the fact appeared that there had been no delivery of the property, inasmuch as the plaintiff had possession of it, had sent it to the store of the defendant after the discovery of the asserted fraud, and, the defendant having refused to accept it, had taken it back to her own residence. There are, indeed, no questions of law involved in this controversy. The right of the plaintiff to recover depended entirely upon the allegation of fraud, and the proofs furnished were quite sufficient to justify the submission of the case to the jury upon that issue. It was submitted under a charge to which no exception was taken, and under a statement of the law as favorable to the defendant as he could expect. The judgment appealed from should be affirmed, with costs. All concur.

In re TOBIN'S ESTATE.

(Supreme Court, General Term, First Department. January 28, 1889.) DEATH-PRESUMPTION-CONTINUED ABSENCE.

Two of the next of kin of deceased went from Ireland to Australia in 1869, and were heard from for a year or two afterwards, since when their relatives had no news of them. One was married, and had no children, and there was no evidence that any were born to her after leaving Ireland. The other was unmarried. In 1885 their relatives published notices in Melbourne and Sydney, and began correspondence, to ascertain if they were living or had descendants, but nothing was learned. Held sufficient evidence to warrant the presumption of their death, and to authorize an order in 1888 directing the payment of the whole of deceased's estate to his remaining next of kin.

Appeal from surrogate's court, New York county.

Upon the settlement of the account of Algernon Sullivan, public administrator, etc., as administrator, etc. of Richard Tobin, deceased, an order was made directing the payment of funds in the hands of said Sullivan to the next of kin of Richard Tobin. The comptroller of the city of New York appeals. Argued before VAN BRUNT, P. J., and BRADY and MACOMBER, JJ. Henry R. Beekman and Frank W. Arnold, for appellant. George W. Carr, for respondent.

MACOMBER, J. Letters of administration upon the estate of Richard Tobin, who died in the city of New York on the 23d day of January, 1884, were issued by the surrogate to the public administrator. Upon an accounting made before the surrogate by the public administrator, on the 3d day of July, 1885, the administrator was directed to pay one-quarter of the estate to Michael Tobin, one-quarter to Ellen Cooke, and the residue, namely, one-half of the estate, into the city treasury for the benefit equally of John Tobin and Mary Molloy, two of the next of kin of the deceased. At this time it was not known whether either John Tobin or Mary Molloy was living. In the month of October, 1885, the other two next of kin, namely, Michael Tobin and Ellen Cooke, to whom the money is now directed to be paid, by publishing notices in Melbourne and in Sydney, in Australia, where John Tobin and Mary Molloy had gone 18 years previously, and by correspondence and other like acts, endeavored to ascertain whether these relatives were living, and, if so, where they were, and, if not, if they left descendants. Being satisfied from the evidence which they were able to obtain that these absentees, of whom they had not heard for over seven years, were dead, they applied to the surrogate in January, 1888, for modification of the previous decree, and for payment to them, as the next of kin of John Tobin and Mary Molloy, of the portion which had been originally paid into the city treasury in due course of the administration of Richard Tobin's estate. The surrogate, however, was not satisfied of the sufficiency of the proof then adduced, and denied the application, but with leave to renew the same. Subsequently, upon further evidence, the order appealed from was made. After an absence of seven years, with

out any intelligence of him by those who would be likely to hear from him by letter or otherwise, the person will be presumed to be dead. This presumption has been extended so as to lead to the conclusion, in the absence of any evidence whatever of actual living, that the death took place at the end of the seven years. Eagle v. Emmet, 4 Bradf. Sur. 117. John and Mary left Ireland in the year 1869, about 18 years before this application was made. There is no evidence of the reception by their relatives of any letters or other intelligence of them, after their arrival in Australia, excepting during the first year or two after their departure from Ireland. If these presumptions are to be indulged to their full extent, it would appear that neither John nor Mary could have succeeded personally to any of the property of their father, Richard Tobin. Furthermore, John was unmarried when he left home, but Mary, though married, had no children at that time, and there is no evidence that any were born to her subsequently. As the learned surrogate said in his opinion on the first hearing of this application: "The presumption that the person died without issue will be sustained by very slight proof, such as failure to hear of any such issue, or failure to answer advertisements calling for heirs, as was done in this case. Greaves v. Greenwood, L. R. 2 Exch. Div. 287. On the whole, we are satisfied that the learned surrogate has proceeded cautiously in the consideration of this application, and has acted upon sufficient legal evidence establishing the death of John Tobin and Mary Molloy; and that, consequently, the order appealed from should be affirmed, with costs and disbursements to be paid out of the funds. All concur.

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BLOOMINGDALE . BOWMAN.

(Supreme Court, General Term, First Department. January 28, 1889.) MORTGAGES-ASSIGNMENT-RIGHT TO BOND SECURED.

An assignment of a mortgage, without an assignment of the bond which it is given to secure, is a nullity, and gives the assignee no right to recover thereon.

Appeal from special term, New York county.

Action by Phebe N. Bloomingdale against John A. Bowman and others, to recover the amount of a mortgage. Judgment therefor was rendered against Bowman, and he appeals.

Argued before VAN BRUNT, P. J., and DANIELS and BARTLETT, JJ.
F. C. Cantine, for appellant. I. N. Miller, for respondent.

VAN BRUNT, P. J. The facts found by the learned court below are that in 1885 one George D. Baker by deed conveyed to Louis F. Reed, trustee, etc., certain property in New Jersey, and that at the same time Reed, as trustee as aforesaid, to secure to Baker the payment of $8,500, part of the purchase price of said premises, executed and delivered to said Baker a bond conditioned for the payment of the same, and a mortgage as security for the payment of the bond. In November, 1885, Louis F. Reed, as trustee, conveyed the premises above mentioned to John A. Bowman, the defendant, who assumed the payment of the above mortgage. In June, 1886, Baker assigned, under his hand and seal, the said mortgage to the plaintiff, but did not assign the bond therein recited and referred to. The plaintiff commenced this action to recover the amount of said mortgage from the defendant as grantee of Reed; and in the court below judgment was rendered in favor of the plaintiff, and from such judgment this appeal is taken.

We do not see how the judgment in question can be maintained. By the assumption clause contained in the deed to Bowman, if such deed was executed by him, he became liable to the owner of the mortgage debt for the amount of this mortgage. And by the transfer of the mortgage alone, unaccompanied by the bond, the plaintiff did not become the owner of the mort

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