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a chattel mortgage on said crops therefor when asked by plaintiff. The agreement was never filed in the clerk's office. Cotemporaneously with the agreement W. executed to plaintiff a chattel mort gage upon an undivided half interest of said growing wheat, with other property, which was duly filed February 17, 1880. W. came on to the farm and put in twenty acres of barley, in the spring of 1880 W. and her husband, and plaintiff, lived in separate parts of the farm-house, as

the crops was not valid as against C., he being a mortgagee for value and in good faith.

Plaintiff had no such possession of W.'s share as was equivalent to notice of plaintiff's lien thereon. 84 N. Y., 634.

Judgment affirmed.

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

LIMITATIONS. COUNTER

CLAIMS.

TERM. FIRST DEPT. Daniel Herbert et al., respts., v. J. Warren S. Dey, applt.

Decided Oct. 8, 1884.

agreed in the lease. On June 10, N. Y. SUPREME COURT. GENERAL 1880, W. executed to C. a chattel mortgage upon the undivided half of said growing wheat and barley, which was duly filed the day it was made. The consideration was C.'s indorsement of W.'s note, discounted at bank, which C. paid. The avails of the note were given by W. to C. to pay plaintiff's mortgage, which was done. Subsequently the wheat and barley were divided, plaintiff took her part, and the rest was sold by defendant as C.'s agent, by virtue of his mortgage, which the referee found he took in good faith. The referee held defendant entitled to dismissal of the complaint.

Henry M. Field, for applt. Frank Rice, for respt. Held, That the lease, by its terms, made the parties to it tenants in common of the wheat then growing, as well as of the crops thereafter to be put in during the term. 1 Hill, 243 15 Barb., 595; 39 N. Y., 129; 32 Hun., 257. The provision in the lease giving plaintiff a lien on W.'s share of

When an action upon a contract is commenced within the time limited therefor by the Statute of Limitations, a counterclaim arising out of the contract set forth in the complaint as the foundation of the plaintiff's claim is not barred by the Statute of Limitations although the pleading containing it is not served until after the expiration of the time limited by said statute for the commencement of an independent action upon such counterclaim.

Appeal from a judgment recov ered on a verdict of a jury, and from an order denying a motion for a new trial.

This action was brought to recover the amount unpaid for services performed vices performed and materials supplied by plaintiffs to the defendant in building a cellar.

The defendant resisted plaintiffs' claim, upon the ground that plaintiffs had agreed to make the cellar "tight," and to have it completed in May, while, in fact,

they had failed to make it tight. | low that it must be in like conand that, after it was completed, dition as to defendant. That water came through and spread as plaintiffs had performed over the floor so that plaintiffs had the contract, their action was to to relay a large portion of the cel- be maintained or defeated. That lar floor and do other work to they could only insist on their make the cellar tight, for which right to remuneration as they had they had made an extra charge performed their agreement. That which was included in their claim. if that were a qualified or defecThe answer also set up, as a coun- tive performance, then defendterclaim, damages for the unten- ant had the right to rely on the antable condition of defendant's qualification or defect. That, house caused by the failure of whatever it was, it was carried plaintiffs to make the cellar tight along with the contract and to the continuing from May to Septem- extent that it existed, it would ber, in which latter month plain- defeat the demand made by plaintiffs completed the extra work tiffs for compensation for the required to make the cellar tight. work. That, if the contract was The complaint in the action was preserved in part, it was preserved served within six years after the as a whole, and it continued to be cause of action arose, but the an- the measure of all the rights and swer containing this counterclaim remedies of the parties. was not served until after six years from the time when such counterclaim accrued, and for that reason the jury were directed not to allow it.

Gilbert O. Hulse, for applt. Tallmadge N. Foster, for respts. Held, That this ruling would probably have been strictly accurate if the counterclaim had been an independent cause of action unconnected with the cause of action relied upon by the plaintiffs; but that it was not, for the right to damages arose out of the partial failure of plaintiffs to perform the contract which was the foundation of their own right to recover; and that, if the contract was still continued unaffected by the Statute of Limitations as to plaintiffs, it would seem to fol

That the Statute of Limitations imposes no limit whatever on the time within which the defendant is to be restricted to the presentation of his counterclaim for a breach of an agreement sued upon by the plaintiff; and that the omission of such a restriction evinces the design that no distinction should be made between the right to enforce the several parts of an entire contract; and that such a construction of the statute as would produce a different result would be strikingly unjust.

That the provisions made for the allowance of counterclaims connected with, or growing out of, the subject of the action, support the above construction given to the Statute of Limitations, Code Civ. Pro., § 501, sub. 1, for without any restraint whatever, they

are allowed to be relied upon whenever the subject with which they may be connected is made the foundation of an action. That no other circumstance has been required to entitle the defendant to present his counterclaim than that it arises out of the contract forming the foundation of the action; and, as that was its character in this instance, defendant was legally entitled to rely upon it for his protection as long as plaintiffs could invoke the aid of the same agreement to establish their demand against him. 3 Hill, 171.

Judgment reversed and trial ordered.

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Edward M. Jewett, respt., v. Jeremiah C. Lamphier, applt.

Decided Oct., 1884.

Personal property of plaintiff was levied on to satisfy his taxes; before sale plaintiff offered to pay the taxes, and the collector refused to take the money unless plaintiff paid other taxes, which plaintiff was not bound to pay. Held, A sufficient tender to discharge the lien of the levy, even though plaintiff did not actually offer enough money to pay the tax and the collector's fees; and one who, with knowledge of such tender, purchased at the sale got no title. The tax for 1874 on certain premises was assessed to a resident of the town in which they were situated, and was returned uncollected. Held, That the tax was, in 1875, chargeable only against the land

assessed.

Appeal from judgment on verdict at Circuit, and from order denying motion for new trial.

The firm of Getz Bros. for about three years prior and up to May 6, 1874, occupied certain premises in the town of Amherst. Title to the premises was not in the firm or any member of it. Plaintiff lived in Buffalo, and was a member of the firm, which was dissolved May 6, 1874, when plaintiff purchased the premises. In 1874 the premises were assessed to Getz Bros. and a tax was levied thereon. That tax was returned uncollected and went into the roll of 1875, under the heading, "Resident lands returned for non-payment of 1874, from the town of Amherst for want of property to make the same." In the same roll of 1875 the premises appeared assessed to plaintiff, and the roll with the proper warrant annexed came to the collector, who levied on some staves belonging to plaintiff, and sold them to defendant. This action was for possession of the staves. Plaintiff claimed that he had discharged the lien of the tax by tender. He testified that he tendered to the collector, before the sale, the amount of the tax, and offered to pay everything relating to his tax; that he did not think anything was said about fees; that if there was, he offered to pay everything, fees and all; that the collector refused to accept any money unless he would also pay the returned tax against Getz Bros., which plaintiff refused to pay. The property was sold to defendant, who had knowledge of

all the circumstances of the tender, which he had helped plaintiff to make.

E. B. Vedder, for applt.
Spencer Clinton, for respt.

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Held, That the warrant being regular on its face justified the collector in making the levy. 5 N. Y., 376; 27 Barb., 34. But the tender discharged that lien. N. Y., 343; 65 id., 314; S. C., 22 Am. R., 612; 53 N. Y., 23; 9 Bosw., 358. Plaintiff held the burden of proving a good tender. 6 Wend.. 22, 34; 15 id., 637; 46 Barb., 227; 5 N. H., 440; S. C., 22 Am. Dec., 469; 5 Mass., 365; 6 Pick., 356. The collector's declarations dispensed with tender of the fees. 9 N. Y., 525, 528; 10 Cush., 267; 7 id., 391; 2 Car. & P., 77; 1 Bing. N. C., 253; 3 Durn. & E., 683; 5 M. & W., 306. Plaintiff was not bound to pay the tax assessed to Getz Bros. That tax in 1875 was chargeable only against the land assessed, and not against any one personally. Laws of 1855, Ch. 427, Title 1, §5; 45 N. Y., 676, 680; 29 Hun, 485. Defendant was chargeable with knowledge that the sale was invalid, and he cannot object that plaintiff made no demand of possession before suit. 65 N. Y., 314; 5 Lans., 153; 6 Hill, 613; 8 Barb., 213.

Judgment and order affirmed. Opinion by Bradley, J.; Smith, P. J., and Haight, J., concur.

SECRET OF TRADE. IN. FRINGEMENT. DAMAGES. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

Oliver H. P. Champlin et al., respts., V. Thomas Stoddart, impld., applt.

Decided Oct., 1884.

A cosmetic, made and sold by defendant's agency, being an infringement of plaintiffs' rights, defendant is liable, notwithstanding he assumed to carry on the business in his firm's name on his partner's

account.

case the measure of damages In such adopted was the price realized by defendant from his sales, less what it would have cost plaintiffs to make and vend the same quantity. Held, No error.

Proof of advertising done by plaintiffs is admissible.

Appeal from interlocutory judgment adjudging that defendant had infringed upon upon plaintiffs' right and title to make and vend a certain cosmetic, and ordering reference to find amount of damages sustained by plaintiffs thereby, and from Special Term order overruling defendant's exceptions to the referee's report and confirming such report, and from final judgment for recovery of the damages so reported.

Defendant was, by contract with plaintiffs, bound not to make or vend the cosmetic, the formula for which was a secret of trade which he had sold to plaintiffs. Defendant and his brother were partners, and the former assisted in compounding, bottling and labelling the cosmetic made at the store of the firm, and in shipping the same. Defendant claimed the sales were

made, not by him, but by the firm, and on his brother's account alone. Plaintiffs were prepared and able to have sold the same quantity as defendant sold, in addition to what they did sell, during the same period.

Norris Morey, for applt. James A. Allen, for respts. Held, That defendant was liable to plaintiffs for damages resulting from the sales.

The price realized from defendant's sales, less what it would have cost plaintiffs to make and vend the quantity sold by defendant, was a measure of damages to which defendant cannot object. 10 Fed. R., 385; 8 id., 806; 1 Blatchf., 398, 406; 97 Mass., 208; 7 Cush., 222.

Proof of advertising done by plaintiffs was competent to show what they had done to establish a market in sections where defendant subsequently made sales.

Judgment and order affirmed, with costs.

Opinion by Smith, P. J; Bradley and Corlett, JJ., concur; Barker, J., not sitting.

HIGHWAYS. NEGLIGENCE.

N. Y. SUPREME COURT. GENERAL TERM. FIFth Dept.

facilities for abutting owners to go into a street, nor are they bound to remove inconveniences occasioned to such owners by proper repair of the street.

Appeal from Special Term order denying motion for new trial.

Action for personal injuries alleged to have been caused by defendant's negligence. Market street is a principal street in Attica, running north and south, and coming into it from the west is a cul de sac several rods deep, upon which are dwellings, a cooper-shop, etc., and the evidence tended to show that it has been used for more than 20 years as a way to and from said houses and business places. Along the west side of Market street defendant has for many years maintained a sidewalk made of planks laid crosswise, except at the entrance of the way in question, where the planks were laid lengthwise. Before the accident defendant replaced the planks with stone, except where they had been placed lengthwise. The custom had been to go with loaded or unloaded teams to and from the street by this way. In September, 1879, plaintiff drove from Market street to the coopershop, got a load of barrels, and on his way back his wagon tipped while passing over this walk and plaintiff was thrown out and hurt.

John Porter, applt., v. The Vil. Some weeks before, defendant had lage of Attica, respt.

Decided Oct., 1884.

Dedication and acceptance of a highway may be inferred from its continuous public use for 20 years; and the question of such use is for the jury.

Village authorities are not bound to provide

raised the walk several inches, and filled in the street side of the walk so as to make a suitable approach to the way, but a few days before the accident the earth was washed out and a hole was thus made on the street side of the walk, into

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