judgment as holds that plaintiff is not entitled to compensation is reversed. On the latter point the referee received much evidence consisting of proof of declarations of Mrs. D. respecting the terms of the agreement between herself and Mrs. Cooley. Those declarations were incompetent as against plaintiff. Presumptively the services by her. There was no adoption of the child by Mrs. D. or her husband, and no relinquishment by the father of his right to the custody and care of the child. Held, D. has no right to the custody of the child as against the father; but, prima facie, he is entitled to compensation for the care of the child, bestowed by his wife at his home; and declarations by the wife that she, with her husband's permission, agreed to render the services gratuitously, are mere hearsay as against him. Appeal from judgment on ref- of his wife in his own household eree's report. were not rendered on her separate account, and in rendering them she bore to him the common law relation. 25 Hun, 239; 93 N. Y., 17. Plaintiff seeks a judgment entitling him to the possession, care and control of defendant Mabel, an infant daughter of defendant Alonzo B. Cooley, or, if that relief be denied, a judgment entitling him to compensation out of said infant's estate for her care and support while she lived in his family. The questions whether plaintiff is entitled to compensation, and if so, whether he is entitled to an accounting by the father as guardian, and to have compensation out of the estate of the infant, will be open for investigation on the new trial, which is ordered before another referee, costs of this appeal and of new trial to abide event. Costs of the action prior to bringing this appeal to defendants. Opinion by Smith, P. J.; Barker, Haight and Bradley, JJ., con Shortly before her death, and in contemplation of it, Mrs. Cooley consigned Mabel to Mrs. D. to bring up and care for as her own 'till she was old enough to choose for herself, or until she came of age, her father to furnish her clothing and education, which he did. Mrs. D. took the child and cared for her until her own death, when Cooley reclaimed his daughter and took her to his own home, where she has since lived, Cooley N. Y. SUPREME COURT. GENERAL having taken a second wife who is A. J. Abbott, for applt. Held, That so much of the referee's judgment as denies plaintiff's right to the custody of the child can hardly be questioned, and is affirmed. So much of the cur. ASSIGNMENT OF JUDGMENT. TERM. FIRST DEPT. Howard Potter, as executor, &c., respt., v. Anton Weidman, impleaded, &c., applt. Decided Oct. 8, 1884. If a judgment creditor who has assigned his judgment covenanting that he will not receive or collect nor release nor discharge the same, satisfies it of record, and if the way. judgment debtor is responsible, and the estate could not be proved in that judgment could have been collected, he is liable to his assignee for the amount due upon the judgment. In an action to recover such amount the judgment debtor will be allowed to testify that he owned real estate out of which the judgment could have been collected. It is not necessary that such ownership should be proved by the production of the deeds. Appeal from a judgment recovered on the verdict of a jury. The defendants, who were judgment creditors of F. and C., had assigned their judgment to plaintiff's testator, covenanting that a certain amount was due thereon, and that they would not collect or receive the same, nor release nor Held, That as the fact was only incidentally in issue in the case, its existence might be proved by the witness who had knowledge of it. That his deeds were not so involved in the controversy as to require that they should be produced as the best evidence of the fact. Judgment affirmed. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur. PUBLIC SALE. PRIVILEGED TERM. FIFTH DEPT. Alexander Meyers v. Stephen Doeman. Decided Oct., 1884. discharge the judgment; subse- N. Y. SUPREME COURT. GENERAL quently, however, they executed a satisfaction of the judgment upon which it was discharged of record. This discharge was valid against the testator, inasmuch as the judgment debtors had no notice of the assignment. It was proved upon the trial by C., one of the judgment debtors, that he was responsible, and that the judgment could have been lected from him. col John J. Townsend, for applt. Held, That these facts were sufficient to render the defendants liable to the plaintiff for the amount due upon the assigned judgment, together with interest. 50 N. Y., 396. During the progress of the trial C. was permitted to state that he owned certain real and personal property. This was objected to on the ground that title to real An agreement made by parties having liens Such an agreement is sufficient consideration Motion by defendant for a new trial on exceptions taken at Circuit and ordered heard at General Term in first instance. On May 12, 1876, plaintiff, defendant and T., each recovered judgment against J. D. and on the same day issued executions thereon. The sheriff already held executions on prior judgments, under which he had levied on the debtor's goods. On May 15, 1876, the sheriff being about to sell the goods under the said executions, an oral agreement was made between plaintiff, defendant and T., that plaintiff and T. would refrain from bidding at the sale and permit defendant to become the purchaser, and that defendant would pay plaintiff and T. their judgments, which, together with defendant's judgment, were liens on the property. Accordingly plaintiff and T. refrained from bidding, except that T. made ore bid at defendant's request, in order to carry out the arrangement, and defendant became the purchaser. At At the same time, defendant borrowed | of plaintiff $100 and gave his note therefor. T. has assigned his judgment and his interest in defendant's agreement to pay it to plaintiff. This action is brought on the agreement and the note. A. S. Kendall, for deft. M. Rumsey Miller, for plff. Held, Agreements which necessarily operate to restrain the natural rivalry and competition of the parties, and thus result in the disadvantage of the public or of third parties, are void as against public policy. 43 N. Y., 147; 3 Johns. Cas., 29; 6 Johns., 194; 8 id., 444; 13 id., 112; Hill & Den., 191; 48 N. Y., 667. But there are But there are cases holding that the fact that an agreement has the effect to prevent competition at a public sale does not necessarily render the agreement void. It depends on the intent. 3 Met., 384; 66 N. Y., 288; 83 id., 14, 28. The later cases have essentially modified the doctrine of the earlier ones; but this case is squarely within the later rule, which we must follow. The agreement of plaintiff and T. not to bid was sufficient consideration for defendant's promise. 3 Johns. Cas., 29; 13 Johns., 112. Defendant could not avail himself of the statute of frauds, he not having pleaded it as a defence to the agreement which was set out in the complaint. 94 N. Y., 431, 450. But the case is not within the statute, because defendant's promise to pay the debt of the judgment debtor was founded on a new consideration, viz., the promise of plaintiff. 8 Johns., 29, 39; id., 91; 15 Hun, 178; S. C. affd.; 80 N. Y., 269. One F. testified that he was attorney of record in the judgments in favor of plaintiff, defendant and T., against J. D. He had a talk with his clients shortly before the sale. More than a year later he wrote plaintiff to come and pay his costs, and on his coming he had a conversation with him which defendant's counsel sought to prove. Witness testified that he asked plaintiff why he, defendant and T., did not buy the goods as it was talked when witness was there. Defendant sought to prove what answer plaintiff gave, and also what plaintiff said about getting his pay from J. D., and as to whether he had any security for payment of his judgment other than J. D.'s obligation. The evidence was excluded. Held, No error. The communications called for were in regard D. owned a tract including plaintiff's lot and the land now known as Garden street. In D.'s deed of plaintiff's lot it was described as abutting on said street. Held, That D.'s grantee acquired an easement in the street, independent of the public right to use it, which could be taken from him only by the exercise of the right of eminent domain. Plaintiff is entitled to an injunction restraining an interference with his said right, and to recover damages suffered thereby. Appeal from judgment on decision at Special Term on a trial. D. originally owned a tract, including plaintiff's lot and land now known as Garden street, and when he conveyed to R., through whom plaintiff derived title, he owned the fee of the street, and the lot abutted on the street, and Vol. 20.-No. 5b. was so described in the deed. A steam railroad has been constructed, maintained and used in said street in a manner somewhat destructive of the use of the street as such, without acquiring and compensating for plaintiff's rights in said street. D. Wright, for applts., D. M. Osborne & Co. H. V. Howland, for applt., David M. Osborne. S. E. Payne, for respt. Held, That plaintiff succeeded to the right of R. acquired by purchase, and independent of the public right to use the street. It was private property, which could not be taken away or impaired by the public authorities without the owner's consent, except by the constitutional exercise of the right of eminent domain. 64 N. Y., 65, 73; 19 Hun, 30. Plaintiff is entitled to an injunction restraining the use of the street by the railroad, and to recover for the injuries he has sustained thereby. 90 N. Y., 122; 91 id., 148, 153. Kerr v. The People, 27 N. Y., 188, distinguished. Therefore it is no protection to defendants that they are acting with the consent of the railroad company under sanction of its charter. Every person engaged in the work is a trespasser, and is individually liable, whether he acts as officer, agent or servant of another, and Osborne is not protected by the fact that he has acted as president of D. M. Osborne & Co. Cases of Bell and of Elliott, de cided by Rumsey, J. (Mss. Op.), | Plaintiffs might have united causes distinguished. Judgment affirmed, with costs. Opinion by Smith, P. J.; Bradley, J. concurs; Barker, J., not sitting; Haight, J., not voting. EXCISE. PLEADING EVIDENCE. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. of action under each of the sections specified in the indorsement in one complaint, but in order to do so. they must have specified each section in the indorsement on the summons. The indorsement in this case did that and nothing more and in the form prescribed by the statute. The fact that plaintiffs, in their complaint proceeded under only one of the sections specified did not effect the sufficiency Overseers of the Poor, respts., of the indorsement. v. John McCann, applt. Decided Oct., 1884. The summons was indorsed thus: "This summons is issued to collect penalties for violations of Sections 13 and 14, of the act to suppress intemperance, and to regulate the sale of intoxicating liquors, passed April 16, 1857, and the acts amendatory thereof, November 24, 1880. N. B. Packard, Jus tice of the Peace." Held, To be a sufficient compliance with § 1897 of Code of Civ. Proc. The provisions of the statute respecting the indorsement do not apply to the complaint. The sufficiency of the latter is to be tested by the rules of pleading. Testimony that the witness bought cider of defendant, and was partially intoxicated by drinking several glasses of it is enough to bring the case within the prohibition of the excise law. Appeal from judgment of County Court, affirming justice's judg ment. Action for penalties under the excise law. The justice overruled defendants' objection that the summons was not properly in dorsed. E. K. Burnham, for applt. Camp & Dunwell, for respts. Held, That the indorsement sufficiently complied with the statute. Held, Also, That the indorsement is none the less specific by reason of the reference not only to the act of 1857 but also "to the acts amendatory thereof." It still confines the action to a claim under the two sections specified. It is simply matter of description of the act containing those sections. The complaint alleged that defendant was indebted to plaintiffs "for several penalties for violations of sections 13 and 14 of the act," etc., and it then set out that defendant at different times sold spirituous liquors, in less quantities than 5 gallons, without a li cense. Held, That the complaint is sufficient. It sets out several good causes of action under § 13, and the reference to § 14 may be treated as surplusage. A witness testified that the cider which he bought of defendant and of which he drank several glasses, partially intoxicated him. Held, That this brings the case within the rule of Board of Excise v. Taylor. 21 N. Y., 177. |