date of the receipt the person to whom it was given was not indebted to the person giving it for anything else than that specified in the receipt. There is no such presumption as in the case of a promissory note. See 5 Den., 304; 2 Seld., 461. Several points in the case were decided upon conflicting testimony, but we find no error. Judgment and order affirmed. Opinion by Smith, P. J.; Barker, Haight and Bradley, JJ., con cur. EVIDENCE. CONTRACT. PRACTICE. N. Y. COURT OF APPEALS. Baird, applt., v. The Mayor, &c., of N. Y., respt. Decided Oct. 7, 1884. In an action to recover for goods delivered under a contract the defendant set up fraud as a defense and proved that the agent employed to sell the goods to the city made offers of money to one C. to procure his friend ly offices to aid in introducing them. This was objected to as the declarations of a stranger, and that it was so far removed from the scope of the agency as to be inadmissible against plaintiff, the assignee of the claim. The objection was overruled. Held, Error. The number of water meters required by the city was discretionary with the Commissioner of Public Works under Ch. 383, Laws of 1870, and he had authority to bind the city by accepting those delivered under the Navarro contract. A purchaser of personal property delivered in pursuance of an executory contract alleged to have been procured by fraud, waives the objection he might otherwise have to the contract by the acceptance of the property sold after knowledge of the fraud, and such acceptance precludes him from repudiating the contract in an action to recover the price of the article sold. To justify the reversal of the determination of a trial court upon questions of fact it must appear that the findings of fact were against the weight of evidence or that the proofs so clearly preponderated in favor of a contrary conclusion that it is reasonably certain that the trial court erred. Reversing S. C. 18 W. Dig., 39. This action was brought to recover the contract price for certain water meters furnished by N., plaintiff's assignor, under a contract with the Commissioner of Public Works of the city of New York. The defendant set up fraud as defense, and proved by C. that one G., an agent employed by N. to sell his meters to the city of W., had made him offers of money to secure his friendly offices in aid of introducing the meters there. This evidence was objected to by plaintiff, on the ground that it related to the declaration of a stranger to the subject of the action, who was not authorized to speak for any of the parties to it, and also that it was so far removed from the scope of any proved agency of G. as to be inadmissible as against plaintiff. The objections were overruled and plaintiff excepted. Samuel Hand, Ashbel Green and A. J. Vanderpoel, for applt. Francis N. Bangs, for respt. Held, Error. 56 N. Y., 95. Defendant set up as a counterclaim alleged defects and imperfections in the water meters furnished by plaintiff. No damages were claimed or found on the trial. The affirmative findings of the referee show that the meters de livered conformed in quality and character with those described in the contract. Held, That this question could not under the circumstances be raised for the first time in this court. 25 N. Y., 268; 51 id., 93; 65 id., 596; 49 id., 626. A judgment was entered for plaintiff on report of a referee, which was reversed by the General Term and a new trial granted. It was claimed that this order of the General Term, though erroneous, might be affirmed to enable defendant to present its counterclaim. spect to the contracts of corporations than that applicable to the contracts of private individuals. 71 N. Y., 329; 78 id., 215; 85 id., 467; 11 Wend., 188; 1 Phil. on Ev., 599, note 177. Also held, That the provision of Chap. 308 of the Laws of 1861, requiring all contracts on behalf of the city to be awarded to the lowest bidder does not apply to this case. Also held, That the Commissioner of Public Works had authority to bind the city by accepting the meters delivered under the contract. A purchaser of personal property delivered in performance of an executory contract, alleged to have been procured by fraud, waives the objection he might otherwise have to such contract, by the acceptance of the property sold, after knowledge of the fraud, and such acceptance precludes him from repudiating the contract in an action brought to recover the price of the article sold. The acts authorizing the Commissioner of Public Works in his discretion to purchase water meters for the city of New York, and to raise in a manner specified the money to pay therefor. Laws 1870, Chap. 383, § 13; Laws 1871, Chap. 213, § 5, authorized said commissioner to enter upon an executory contract for such purchase and left it in his discretion to determine the number of meters required. 4 Paige, 251. A mistake of the commissioner as to the number could not be deemed anything but an error of judgment on his part which should not be al-erty, through fraud, if he desires lowed to affect the rights of an to avail himself of that objection, innocent third party contracting to act upon the first opportunity with him. Fraud on the part of and rescind it by repudiating its the Commissioner must be clearly obligations and restoring whatever proved and cannot be presumed. has been received under it immeIf established by circumstantial diately upon discovering the alevidence it must be by proof of leged fraud. If he delays acting such circumstances as are irrecon- and retains the property delivered cilable with any other theory than beyond a reasonable time to act, that of the guilt of the accused. or accepts performance after such No different rule prevails in re- discovery, he is held to have rati It is the duty of a party who has been induced to enter into the making of an executory contract for the purchase of personal prop fied the contract and waived his objection thereto. 3 Wend., 237; 46 N. Y., 536; 1 Den., 69; 2 Hill, 288, 5 id., 389; 44 N. Y., 530; 49 id., 625; 61 id., 153. In reviewing the determination of a trial court upon questions of fact, an appellate tribunal is not warranted in reversing, upon the sole ground that, in its opinion, the trial court should have reached a different conclusion upon conflicting evidence. To justify a reversal it must appear that such findings were against the weight of evidence, or that the proofs so clearly preponderated in favor of a contrary conclusion that it can be said with a reasonable degree of certainty that the trial court erred in its conclusions. 66 N. Y., 260; 55 id., 256; 94 id., 626; 64 id., 361. Order of General Term, reversing judgment for plaintiff and granting new trial, reversed and judgment affirmed. Opinion by Ruger, Ch. J. concur, Miller, J., on result BROKERS' COMMISSIONS. Appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying motion for new trial. The plaintiff was a fruit broker, and was authorized by the defendants, on April 27, 1877, to sell for them 673 casks of prunes at 7 cents per lb. Upon the following day plaintiff found a responsible purchaser for the prunes, and immediately notified defendants of that fact. Defendants then refused to sell the prunes, claiming that the plaintiffs' authority to make the contract for them was limited to the 27th of April. Plaintiff then brought this action to recover his commission as for a sale of the prunes in question. C. Edward Souther, for applt. James M. Smith, for respt. Held, That the jury having found upon conflicting evidence that the authority of plaintiff to sell the prunes was not limited to April 27th, he was entitled to his All commissions, for, to maintain the claim of a broker for his commissions, it is only necessary for him to be able to show that he had procured a purchaser for the property at the price for which he was empowered to sell, or that his principal had deprived him of the opportunity to do so while the privilege lasted. 83 N. Y., 383; 3 Hun, 152. N. Y. SUPREME COURT. GENERAL Polydore Duclos, respt., v. Wm. Decided Oct. 8, 1884. To maintain the claim of a broker for his commissions it is only necessary for him to show that he had procured a responsible purchaser for the property at the price for which he was empowered to sell, or that the prin Judgment affirmed. Opinion by Brady, J.; Daniels, J., concurred. Davis, P. J., thought that a new trial should have been ordered upon the mo cipal had deprived him of the opportunity tion in the court below, and there to do so while the privilege lasted. fore dissented. DEEDS. LICENSE. N. Y. COURT OF APPEALS. Duryee, respt., v. The Mayor, &c., of New York, applt. Decided Oct. 7, 1884. In 1848 the city deeded certain water lots to the owners of the adjacent upland, the deed containing a covenant by the grantee to build, within three months after being required to do so, and not until so required, bulkheads, wharves, streets, &c., and it also provided that on failure to do so the city might do the work at the grantee's expense or re-enter. The grantee and his successors proceeded to make and gain the land for twenty years, under the direction of the city officials. Held, That the deed conveyed an absolute title, subject only to be defeated by a breach of the conditions; that a failure to fill in all the land was not a defense to an action for eviction and in jury to the land; that the forfeiture might be waived by the city or the time extended, and that there was such a waiver; that the condition in the deed and the limitation in the ordinance of 1844 apply to the streets and not to lands outside of them. The grantee gave to the city, without consideration, a written license to change the outlet of a sewer so that it would discharge over the land outside of the street. Plaintiff on becoming the owner revoked said license and proceeded to fill in his land, whereupon the city prohibited his doing so, as obstructing the outlet of the sewer. Held, That the license was revocable at the pleas ure of the owner. The deposit of materials upon a lot for the purpose of making land constitutes such materials a part of the real estate, and the same right of action exists for an injury thereto as would accrue for similar injuries to the natural land. The ordinance of 1856, fixing an exterior water-line and authorizing the adjacent owners to fill up to that line, although annulled by Chap. 763, Laws of 1857, so far as it attempted to establish an exterior line, was a sufficient authority and consent to fill up to the line established by the Act of 1857 to meet the requirements of the limitation in the Sinking Fund Ordinance. This action was brought to recover the damages occasioned by an eviction from and injury to the lands of the plaintiff, through the alleged unlawful conduct of defendant. The premises in question were water lots in the East River, adjoining the lands between 34th and 36th streets, in the city of New York, and were sold by it for the purpose of filling and using as land for the extension of streets thereon and the erection of wharves, piers and buildings. In 1844 the city adopted ordinances, which provide among other things that the lands under water on the shores of the island of New York belonging to the city, under its several charters, might be sold and conveyed by the city to parties. desiring to purchase, giving priority to the owner of the adjacent upland, upon condition that "no grant made by virtue of this ordinance shall authorize the grantee to construct bulkheads or piers made land in conformity thereto, without permission so to do is first had and obtained from the Common Council, and the grantee shall be bound to make such land, piers and bulkheads at such times and in such manner as the Common Council shall direct, under penalty of forfeiture of said grant for non-compliance with such directions of the Common Council" (§ 15.) These ordinances were recognized and approved by the Legislature in Chap. 225 of Laws of 1845. In pursuance of this authority in January, 1848, the city sold and conveyed to the F. L. & T. Co., the then owner of lands was obtained from plaintiff's grantor. This license was for an indefinite period, and consisted simply of the licensor's written consent, and was without consideration. Plaintiff acquired title in 1867 and revoked the license, proceeded to build bulkheads along the exterior water-line, and to fill in the space between it and the shore line. The Croton Aqueduct Board forbade plaintiff using his premises in the manner proposed, and threatened him with the penalties imposed by the city ordinances upon those obstructing the outlet of any of its sewers. Plaintiff was thereby prevented from filling up his land and enjoying the use of it, and was subjected to large expense and damage owing to injuries occasioned by the action of the sewage and the obligation imposed upon him by defendant of keeping the outlet free from obstruction, and brought this action. the adjacent uplands, all the lands | ing this outlet a license to flow the under water in the East River, except the lands designed for streets and avenues lying between 31st and a point lying near 36th streets, and between Avenue A and the line of high-water mark on the adjacent uplands. It was stated in the deed that the object of the conveyance was to enable the grantee to make and gain the land under water in the East River, and purported to give immediate possession. The grantee covenanted to build and erect within three months after it was required to do so by the grantor, but not until required, bulkheads, bulkheads, wharves, avenues and streets, and fill in the same. It was further provided that in case of default by the grantee to perform said covenant, the city might do the work at the expense of the grantee, or re-enter and take possession of the premises. The grantee entered into possession of the premises, and it and its successors in title proceeded to make and gain the land under water for twenty years, without being interfered with by the city and under the direction and control of its officers. The streets so constructed and the wharves and bulkheads at their terminations were taken possession of by the city. In 1848 the city built a temporary sewer in one of the streets crossing the tract, which emptied into the river at the foot of the street. In 1865 the city, desiring to change the location of the outlet, built a new outlet, causing it to discharge over plaintiff's premises. Before construct Francis Lynde Stetson, for applt. F. J. Fithian, for respt. Held, That the deed under which plaintiff holds conveyed an absolute title, subject only to be defeated by a breach of the conditions; that the failure of the grantee and his successors in interest to fill in the land under water within the time required by the condition in the deed, even if this condition should be held to apply to the land between the streets, was not a defense to this action. It was competent for the city to waive the forfeiture or to extend |