Judgment affirmed. Opinion by Smith, P. J.; Barker, Haight and Bradley, JJ.,

concur.

EVIDENCE.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

ing property, the privilege of purchasing which within a certain time was held by plaintiff and which privilege he lost on account of defendant's failure to perform his contract. Upon the trial the plaintiff's complaint was dismissed at the close of his evidence, upon the ground that such

Decided Oct., 1884.

When a plaintiff's complaint is dismissed at the close of his evidence, upon the ground that such evidence is insufficient to constitute a cause of action, the judgment cannot be sustained upon appeal if any evidence material to sustain the issues on the part of the plaintiff was improperly excluded during the trial

In an action to recover damages for a breach of contract to furnish a portion of the money required for the purchase of certain mining property, the privilege of purchasing which within a certain time was held by plaintiff, which privilege he lost on account of the defendant's failure to perform his contract, it was proved that on the day set for purchasing the property, a por

tion of which defendant was to receive,

defendant refused to perform, upon the

ground that there were defects in the title, and that thereupon an extension of time was procured for the purpose of removing such defects. It was then offered to be shown that in the interval an arrangement was effected obviating the objection. This evidence was excluded. Held. Error.

It was also shown that at one time plaintiff had offered to relieve defendant of his contract and defendant had declined to give it up. Plaintiff was then asked whether at that time he could have raised the money necessary to purchase the property elsewhere if defendant had given up his contract. This was excluded. Held, Error.

This was an action to recover damages for a breach of contract to furnish a portion of the money required to purchase certain min

stitute a cause of action.

Chittenden, Townsend & Chittenden, for applt.

Joseph Larocque, for respt.

Held, That if this ground was well taken as the case stood the judgment could not be affirmed if any evidence material to sustain the issues on the part of the plaintiff was improperly excluded during the trial.

It was proved that, upon the day fixed for payment and conveyance of the property, defendant refused to complete the purchase on the ground of certain defects existing in the title to the property, and that thereupon an exten

sion of time was obtained for the purpose of removing that obstacle. It was then offered to be shown that an arrangement respecting these defects was effected in the interval. This evidence was excluded and plaintiff excepted.

Held, Error. That the fact was one which the plaintiff was entitled to prove, and its exclusion may have changed a material aspect of the case.

It was also proved that the plaintiff at one time offered to relieve the defendant of his contract, and that the defendant refused to give it up. The plaintiff was then

asked whether at that time he could have procured the money necessary to purchase the property from some other source if defendant had thrown up his contract. This question was excluded and plaintiff excepted.

Held, Error. That the plaintiff had a right to show that he was anxious and able to protect his contract if defendent was not willing to go through with it, and that he could have performed on his part if he had known in time that defendant would elect to abandon the contract, and that he had therefore sustained some real and not imaginary loss.

Judgment reversed and new trial granted.

Opinion by Davis, P. J.; Daniels, J., concurred; Brady, J., concurred in the result.

INDICTMENT. PERJURY.

The indictment was objected to upon the authority of 61 Barb., 35, as insufficiently stating the issues in the action in which it was claimed that the defendant had sworn falsely.

Frank J. Keller, for applt. John Vincent, Asst. Dist. Atty., for respt.

Held, That the nature and description of the action was suffi ciently given by the indictment to

TERM. FIRST DEPT.

the charge intended to be made. against him, and that the indict

Decided Oct. 8, 1884.

An indictment charging the defendant with having committed the crime of perjury by giving material evidence in an action between certain parties for a limited divorce, contains a sufficient statement of the nature of the action in which it is claimed that the perjury was committed.

A person is guilty of perjury who swears falsely as to a fact material to a defence set up in an action, although such defence would fail without proofs of other facts. In a prosecution for perjury the law does not exact positive proof in addition to that given by the prosecuting witness of the falsity of the evidence, but all that it requires

both to the rule in force before the enactment of the Code of Criminal Procedure and to the rules laid down in such Code. Wharton, on Crim. Law, 4th ed., § 2263; Code of Crim. Pro., § 276; Penal Code, $96.

One of the defences alleged in the answer of the defendant in the action in which the perjury was alleged to have been committed, was that the plaintiff had committed adultery with an unknown man on the 9th day of July, 1879, at a house in 12th street, between

South 3d and South 4th streets, in Williamsburg, Brooklyn, and the evidence alleged in this action to have been false was that the prisoner had seen such plaintiff enter a house of assignation in that locality and on that date with a man and remain in such house for about an hour. It was objected that this evidence was not material inasmuch as it was not stated that such man was not plaintiff's husband.

Held, That it was not necessary to render the prisoner's evidence material that it should also have included the fact that the man stated to have been with the plaintiff, in the action, was not her husband. That in order to establish the defence alleged in the action it was necessary that it should be shown that the plaintiff went into the house with a man, and also that such man was not her husband. Each included a material inquiry in the case, and evidence. given to prove either of these facts would consequently be material to the issue, and as defendant was shown to have given evidence directly tending to establish the ex

there was no such house in that locality on that date. It was ar gued that the prosecuting witness was not sufficiently corroborated.

Held, That the corroboration was all that could be reasonably required to put the prisoner upon his defence, for what the law has exacted is not positive proof of the falsity of the evidence in addition to that given by the prosecuting witness, but that there should be additional evidence strongly corroborative of it. 1 Greenleaf on Ev., 7th ed., § 257; 3 id., § 198; 14 Peters, 430; 6 Cow., 118.

That the failure of the prisoner to produce any witnesses to establish the truth of the evidence given by him in the divorce action tended materially to strengthen and confirm the evidence given by the witnesses sworn on the part of the prosecution. 21 N. Y., 578;

33 id., 501; 69 id., 309.

Judgment affirmed. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur.

EXECUTORS. POWERS OF

SALE.

that was wilfully false, he committed the crime of perjury in giving it. 59 N. Y., 117, 123.

Upon the trial of the indictment the plaintiff in the divorce action testified that she had not gone into a house of assignation in the locality and on the date testified to by the prisoner, and her evidence was corroborated by two persons who were familiar with the locality in question, and who testified that

TERM. FIRST DEPT.

In the matter of the opening of the Riverside Park, on the application of N. Dane Ellingwood and others, for an award, &c.

Decided Oct. 8, 1884.

A testatrix by her will bequeathed one thousand dollars apiece to two of her grandchildren "to be paid out of the proceeds of her real estate when her executor might deem it advisable to sell." She then di

The Commissioners of Estimate and Assessment, in the matter of the opening of the Riverside Drive, awarded $3,150 to "unknown owners," for a plot of land taken for such improvement. There were two sets of claimants of such award, one set claiming as devisees under the will of Frances De Peyster, and the other as grantees of her executor, under a power of sale alleged to have been conferred upon him by such will. The controversy was referred to a referee, before whom it appeared that the property in question belonged to the said Frances De Peyster, and by her will she bequeathed $1,000 apiece to two of her grandchildren, to be paid out of the proceeds of her real estate when her executor might deem it advisable to sell. She then divided the residue of her real estate into equal parts, one of which she devised to her daughter, directing her executor to pay her the income arising from it until he might think it advisable to sell, and the other she gave to her son, together with all her personal property, with the exception of a pew in the North Dutch Church. The referee decided that the executor of Frances De Peyster was given a power of sale, and that the award belonged

deed from such executor, and, to the person claiming under the from the order confirming his report this appeal was taken.

James A. Deering, for applt. Alexander B. Johnson, for respt. Held, That all of the personal property of the testatrix having been given to her son, there was nothing to pay the legacies, except by a sale of the real estate, and if no other provision existed that would be sufficient to authorize the sale in connection with the words of the will, directing the legacies to be paid out of the proceeds of the real estate.

That moreover, after the gift of $2,000, to be paid out of the proceeds of the real estate when the executor might deem it advisable to sell, the testatrix devised the residue of her real estate-not the entire real estate, but the residue, i. e., what should remain after the sale of so much of it as might be necessary in the discretion of the executor, if he chose to exercise his discretion in that respect. That no doubt could be entertained of the power of sale under the provisions of this will, and therefore the deed from the executor was valid.

Decided Sept., 1884. If ordinary ingenuity has been exercised to the utmost to provide machinery and means for the endurance of the enormous strain imposed upon it by railroad use, and when the best practicable inventions are utilized and the best human foresight exercised, the master is not liable even though injuries are sustained by the servant.

Appeal from judgment for defendant on dismissal of complaint. Action to recover damages for the death of plaintiff's intestate caused, as alleged, by the negligence of defendant in failing to furnish suitable appliances for his

use.

Intestate was a fireman in the employ of defendant, and his position was often over the link that couples the engine to the tender. They were attached by a draw-bar held in position at each end by a pin 14 inches in length and 2 in diameter, through the lower end of each of which was a hole for a key. The coupling link was 14 inches in diameter. On each side of the pin were two iron safety chains 12 inches long, of an inch in diameter, with iron hooks of the same size.

Before the train, consisting of 30 or 40 freight cars, started, all these appliances were examined and placed in order by deceased and the engineer. While passing up an ascending grade the pin in the engine end of the draw worked up, cut off the key on both sides and released the drawbar; the safety chains parted, the engine shot ahead and deceased fell on the track and was killed. It was claimed that the safety chains should have been larger

and stronger. No claim was made that they were defective.

One of plaintiff's expert witnesses said: "Where these chains. are upon the engine there are two of them, one on each side, so that in case of these chains we have two pieces of iron of an inch in diameter for that purpose. In the coupling link there is but one inch of iron, 1 inch or 14 of an inch in diameter. I do not say that in my opinion two bars of iron of an inch in diameter would not have the same bearing strain as one link of iron 14 inches in diameter. Two bars of iron of an inch in diameter each will carry a trifle more than one bar of iron 1 inch or 14 inch in diameter, probably two tons more." It appeared that the safety chains provided for this engine were as large as any in use and were in fact stronger than the coupling links ordinarily used and that everything was in place and in order when the accident occurred.

The complaint was dismissed.
T. & J. W. Lyon, for applt.
Lewis E. Carr, for respt.

Held, No error. The rule to be deduced from the later cases seems to be that the master is not an insurer and does not undertake that the machinery furnished will never fail; that he may manage his business in his own way and with appliances adapted to its necessities, provided such means and appliances are safe and suitable for the use of his servant. Vigilance must be measured by the danger to be apprehended and