ways of ascertaining the value of certain property, one of them must be resorted to before an action for the value can be maintained. The plaintiffs were the owners of a patent for the manufacture of a rail for use on railroads, known as Booth's Patent Duplex Safety Steel and Iron Rail, and in June, 1869, they entered into an agreement, in writing, with defendants, in and by which plaintiffs agreed to give to the defendant full license to manufacture said rail in certain states, such license to continue during the running of said patent. and of all renewals thereof, and of all improvements upon such patent, and to all patents on the machinery for the manufacture, &c., such license to be exclusive in such states, and to continue so long as defendants should supply the demand for such rails in such states; all rails to be of good material and made in a good workmanlike manner; plaintiff to have the right to inspect all rails before delivery to purchasers. And the conditions were: Defendants to proceed at once to make rails, and give as much attention to them as to any other rails manufactured by them. On the same day the last mentioned contract was made, another was also entered into, in which it was recited that plaintiff did thereby sell and grant unto the defendants the right, license, and privilege to manufacture said rails in the states in said former contract mentioned, paying the royalty aforesaid. The breaches of the contract for which plaintiff seeks to recover in this action. are: That rails were not made in good, workmanlike manner; proper efforts to introduce and sell them were not made; they have neglected to fill orders, &c., on which plaintiff would have received large royalties; they have not paid for the machinery sent by plaintiffs to them, pursuant to said contract, although they have made 3,000 tons of rails, and have received orders for enough more to make up 7,000 tons, when, by the terms of the 1. Defendant was to pay a royalty of contract, they were bound to pay for said $2.50 per ton on first 7,000 tons manu-machinery. factured. On the trial it was proved that defen、 2. Plaintiff to have notice and in- dants did manufacture some of the rails, spect sales. and that they had made large contracts 3. Royalty on defective rails to be one- with different railroads to manufacture half. 4. Defendants to keep true accounts, to be open at all times to plaintiff's inspection. more, and that such contracts were not filled, and if filled were filled by other rails, and generally that defendants had by their course tended to injure plaintiff's rails. J. B. Perkins for applt. George F. Danforth for respt. It was further agreed that plaintiff should send to defendants, at Cleveland, The plaintiff was non-suited on the all such machinery, tools, &c., then in ground that there was no covenant to his possession at Rochester, for the man-manufacture rails in the contracts. ufacture of said rails, the value thereof to be agreed on between the parties if they could agree, and if they could not agree, then arbitrators were to be appointed. Ownership of the machinery to be in plaintiff until defendants should have made 7,000 tons of rails, and then to belong to defendants, and to be paid for by them. Held, That the contracts between the parties were not a mere license to make and vend the Booth rails, which plaintiff could make at any time, and on which no action could be maintained against defendant for a breach of the conditions Julius Hilborne, as assignee, &c., respt. v. Christian Kolle, et al, applts. This court has power in its discretion to allow the discontinuance of an action without costs. Appeal from an order allowing the plaintiff to discontinue without costs. The plaintiff in this cause is an assignee in bankruptcy. He had previously brought a suit in the U. S. Circuit Court to recov er certain property alleged to belong to the bankrupt which was in the name of bankrupt's wife. In the progress of that suit there was a reference to a commis thereof. The contracts show that the intention of the parties was different. The plaintiff relinquished the manufacture of the rail, and transferred not only the right to manufacture them to the defendants, but also the machinery they had used in manufacturing them, and in return they received so much as royalty. That it is not necessary, in order to render a party liable upon a contract, that it should contain an express agreement on his behalf, if by the relations of the parties, and the subject matter of the contract, a duty is owing from the one not expressly bound by the contract to the other, in reference to the subject of it. That the law implies a promise by the defendant to perform all the conditions, in the performance of which the plaintiff has a pecuniary interest, except that between the same parties as in this suit, a which relates to the payment of the price stipulation was entered into between the of the machinery. That defendant's respective counsel. It was agreed that liability to pay for the machinery depended upon two conditions: One is the making of 7,000 tons of Booth rails, and the ascertainment of the price by mutual agreement or by arbitration. Either party could terminate the contract at pleasure, but the defendants, in order to relieve themselves, were bound to give notice of their determination, and return to plaintiff the machinery. They could not keep silent and omit to make the rails, return the machinery, and deprive plaintiffs of the royalty to which they would have been entitled had the defendants, in good faith, performed the contract. That the plaintiffs cannot recover the price of the machinery in this action, or until the price is ascertained in one of the ways provided in that contract. Non-suit set aside and new trial granted. DISCONTINUANCE. sioner, who proceeded to take testimony. There were other proceedings against the bankrupt in which testimony had been taken before the same commissioner. In the suit in the U. S. Circuit Court on the final hearing thereof either party · might read any part of the whole of the evidence taken before the commissioner on the reference to him, in another case of Hilborne, assignee, v. Obenier, et al, subject, however, to objections and exceptions the same as if regularly taken in the suit in the U. S. Court between the same parties as in this suit, but without prejudice to the right of the parties to call witnesses already examined or other witnes ses. Subsequently another stipulation was entered into in the suit in the U. S. Circuit Court, between the same parties as in this suit, whereby it was agreed that the complainant should institute an action in the Supreme Court against the defendants, for the same cause of action, in lieu of the U. S. Circuit suit, and that the pleadings should be the pleadings of the action in the Supreme Court, and the same should be referred to a referee, and that the evidence and exhibits which were to be read and submitted on the final N. Y. SUPREME COURT, GENERAL TERM. hearing of the cause between these same FIRST DEPARTMENT. parties in the U. S. Circuit Court suit, should be read and submitted to the referee in this suit, in the same manner, and subject to like objections and exceptions, and that the referee make his report upon such evidence and exhibits, and none others. Upon the hearing before the referee in this suit, certain evidence, alleged to be material, was offered and objected to on the ground it was not within the terms of this stipulation, plaintiff supposing that he could introduce any evidence taken before the commissioner in any of the suits wherein he took testimony. Plaintiff then made a motion to have the stipulation modified to allow the introduction of the evidence sought to be introduced in this suit, or that the action be discontinued without costs. An order was entered discontinuing this action without costs, from which or der this appeal was taken. R. S. Newcomb, for respt. Held, That the action was of an equitable nature, and costs were within the discretion of the court, and sufficient reason existed for the exercise of that discretion. Barante v. Deyermand, 41 N. Y., 335. The order was broader, perhaps, than the situation of the parties required, for the difficulty found to have been produced might be removed by a modification of the terms of the stipulation. Stip ulation should be so far modified as to allow the plaintiff to discontinue without costs, unless the defendant will stipulate within twenty days after notice of this decision, that the plaintiff may, upon the trial of this action, read all the evidence taken in the different proceedings had in the United States Court. In that event the motion for leave to discontinue should be denied, otherwise affirmed. Opinion by Daniels, J.; Brady, J. concurring. Brady, J., wrote opinion with same result. One Hughes, in August, 1868, hired of defendant a store in Blooklyn, took possession and put in certain fixtures for business purposes. The lease under which he held in the 7th clause, contained the usual provisions, as to renting and reletting in case the premises were deserted. In December, 1868, the sheriff took possession of the store and Hughe's goods, by virtue of executions against Hughes, under which the goods were sold, the fixtures, however, remaining in the store. About January, 8, 1869, the sheriff removed from the premises which remained unoccupied until February, 1869, when defendant re-let them to one Fleming, leaving the fixtures in the store, but not including them, in terms, in the lease. In March, Hughes assigned the fixtures to plaintiff, who demanded the same of defendant, but was refused--defendant asserting a prior claim to them, on account of arrearage in rent. A second demand was made by plaintiff's attorney, who was answered by defendant, that he had rented them with the premises. It was urged by defendant that this action could not lie, in that the conversion occurred, if at all, before plaintiff had title to the fixtures, and to recover, he must show a conversion as to himself, after he became owner; and he must show that defendant had control of the fixtures and could have complied with the demand when made. Verdict for plaintiff. Hedley & Parsons for respt. On appeal, Held, That the lease by defendant to Fleming, did not include the fixtures in terms, and there is room to doubt that defendant really intended to put them out of his control, in case, at any time, it should become his interest to resume that control. Assuming, however, that defendant was out of possession, we do not think that fact would be a bar to this action. It is well settled that an action will lie in favor of the true owner, against a person who has parted with, and at the commencement of the action, is not in law of fact in possession of, the property (38 N. Y., 475; 23 N. Y., 264; 27 How, Pr., 420). When the defendant has unlawfully parted with the property sought to be recovered, he is to all intents and purposes, to be regarded as still in possession, sufficiently to render him liable either in replevin or trover. ny. He was the possessor of a draft, drawn to his order on certain bankers in New York, for $74 in gold. The draft was accepted payable at Germania American Bank, and endorsed by the acceptors. The draft was duly presented at the Germania American Bank. The teller not being able to read the body of the draft, it being in French, looked to the figures, which were 74, and an irregular mark much like the letter z, (intended to prevent any addition to, or alteration of the amount). He mistook it for 742, and paid the prisoner $742 in gold coin, who received the same without comment, and went off. This mistake being detected, prisoner was arrested. He denied having received more than $74. Verdict of guilty. Chas. W. Brooke, for pltff. in error. On appeal, Held, That if the prisoner found on counting the money, that he had in his possession that to which he knew he was not entitled,, and which he knew the owner did not intend to give him, he was bound to return it, and if he Actual forcible dispossession of plain did not, but concealed its possession, and tiff need not be shown. GRAND LARCENY. N. Y. SUPREME COURT, GENERAL TERM, FIRST DEPARTMENT. Wolfstein, pltff in error, v. The People, defts in error. sought to deprive the owner of it, and if this error was discovered at the bank, when the money was delivered, and he took it with the intent to defraud the owner, the crime was then complete. But if the error was not noticed until afterward, and if the intent of felonious appropriation was then formed and executed, the legal guilt of the prisoner was at that time incurred. It will not do to If a person is overpaid by mistake, say, that because the owner parted volunand at the time of discovering the tarily with his property, therefore there error, whether that be at the moment was no unlawful taking, there may be the of payment, or afterwards, forms the physical act, but there is absent the the intention of defrauding the intelligent assent to the transfer, upon rightful owner as to such overpay which consent must necessarily depend. ment, it is larceny. The original taking even may have been Writ of Error to the General Sessions, lawful, but the legal accountability as for Prisoner was indicted for grand larce-crime began when the error was discov ered and the intent formed to wrongfully in the declaration as rendered in the Cirand feloniously deprive the owner of his cuit Court for the District of Wisconsin, property. Conviction affirmed. on the 27th October, 1870, for $708.90; and the notice to the supervisors, set out Opinion by Westbrook, J.; Davis, P.J. in the declaration, uses the same lan and Daniels, J., concurring. guage. The other judgment is described. as rendered in the Circuit Court for the Western District of Wisconsin, June 10, DAMAGES. TOWN OFFICERS. VA- 1871, for the sum of $1,531.56. RIANCE. U. S. SUPREME COURT. Decided January, 1876. In an action against town supervisors for failure to place certain judgments upon the tax list as required by law, the damages in the absence of proof of actual, are limited to nominal damages; the supervisors do not become debtors for the full amount of the judgments. Under an allegation of the recovery of a judgment in the Circuit Court for the District of Wisconsin, a judgment obtained in the Eastern District Court of Wisconsin is inadmissible, where the defendant has pleaded NUL TIEL. In error to the Circuit Court of the United States for the Western District of Wisconsin. The answer of the defendants denies that there is any such judgment as that first described. And as to the second judgment, they say that after it was rendered the town of Waldwick was divided and a part of it organized into the new town of Moscow; that thirty-seven per cent. of the judgment was collectible from that town, and that it was not the duty of the defendants to levy the whole judgment on the property of the citizens of Waldwick. On these issues the parties went to trial before a jury. In support of the issue as to the existence of the first judgment, plaintiffs introduced a copy of a record of a judgment between the same parties, for the same amount, and of the same date as that described in the declaration, in the Circuit Court for the Eastern District of The defendants are sued by plaintiff for Wisconsin, to which defendants objected a failure to perform their duty as Super- because it varied from the judgment desvisors of the town of Waldwick, in the cribed in the declaration, and in the noCounty of Iowa, Wisconsin, in refusing tice given to the defendants to place it on to place upon the tax list the amount of the tax list. The court sustained the obthe judgments recovered by him against jection. There had been for many years a that town. By the statutes of Wisconsin, Circuit Court for the District of Wisconno execution can issue against towns on sin. Shortly before this judgment was judgments rendered against them, but the amounts of such judgments are to be placed, by order of the supervisors, on the next tax list for the annual assessment and collection of taxes, and the amount so levied and collected is to be paid to the judgment creditor, and to no other purpose. The declaration avers due notice served on the supervisors of these judgments, and demand that they be so placed on the tax list. The first judgment is described rendered the district was divided into two districts, and the circuit courts were by the expressed language of the act of Congress called the circuit court for the eastern district and the circuit court for the western district respectively. Plaintiff introduced a record of his judgment for $1,531.56 in the western district of Wisconsin, and notice and demand as to that to the supervisors. This being all the testimony, plaintiff requested the court to charge the jury |