fied that plaintiff entered his employ to do yard work January 17, 1874, and went into the stables as hostler March 13, 1874; that when he first hired plaintiff he agreed to pay him $10 per month and board, and no other agreement was ever made with him. Defendant, who

had been an hotel-keeper for many years, then offered evidence that hostlers at hotels received scale money, and that this formed a part of their compensation; that this was a universal custom. This evidence was excluded and exception taken. Defendant then offered to prove what plaintiff's services were worth over the scale money received, and this was also excluded.

The referee allowed plaintiff $10 per month up to the time he became hostler, and $20 per month thereafter until he became sick.

Held, That the referee erred in rejecting the evidence offered as to the custom as to scale money; that it tended to prove a general usage, and if such usage existed the parties may be presumed to have contracted with reference to it. There was no such clear proof of a special contract in conflict with the usage as justified the rejection on that ground.

Judgment of General Term, affirming judgment for plaintiff, reversed, and new trial granted.

Opinion by Rapallo, J. All concur, except Ruger, Ch. J., and Earl, J., not voting.

FICTITIOUS NAMES.

N. Y. COURT OF APPEALS. Gay et al., applts., v. Seibold, impld., respt.

Decided Dec. 2, 1884.

To violate the statute of 1883, forbidding the transaction of business under fictitious names, the designation "and company must be used in the transaction of some business. Where the business is consciously done with the partners under their real names, and not under any false designation, the statute is not violated. Defendants executed a bond conditioned for the faithful performance of duty by one S., as salesman, to plaintiffs by their individual names, doing business under the name of Gay Bros. & Co. They did business under that name, and the words " & Co." represented no actual person. Held, That the bond was outside of the statute and was valid.

This action was brought upon a bond executed by all the defendants jointly to secure the payment by defendant J. S. of all moneys due from him to plaintiffs under an agreement between him and them. Said agreement was in writing executed by plaintiffs, who were book publishers under the name of Gay Brothers & Co. By it, for certain considerations to be paid him, J. S. agreed to act as clerk and manager of plaintiffs' branch office, in the city of Buffalo, for the sale of their publications, which they were from time to time to consign to him. J. S. was to keep accounts of his stock and receipts and disbursements, and after deducting his commissions from time to time to remit the balances to plaintiffs. He was to canvass personally for the sale of the books and to attend to the office work. On the same day the bond in suit

was executed by the defendants "To John Gay and Charles Gay, Jr., doing business as Gay Brothers & Co., in the city of New York," and was conditioned to be void if J. S. should well and truly pay to "Gay Brothers & Co." all sums due from him under the agreement in the manner and at the times prescribed. Thereafter, in pursuance of the agreement, plaintiffs entrusted J. S. with books and publications, which he disposed of and received the money for but failed to account for the same to plaintiffs. The respondent sets up as a defense that plaintiffs are carrying on business in violation of the statute which requires that where the designation "and Company" or & Co." is used it shall represent an actual partner or partners (Laws of 1833, Chap. 281) which is entitled "An act to prevent persons from transacting business under fictitious names." Upon the trial it was proved that plaintiffs had for two years been carrying on business in the city of New York under the firm name of Gay Brothers & Co., and that the two plaintiffs were the only members constituting that firm, and that the words "and Company represented no actual person.

66

Joseph P. Carr, for applts. William L. Jones, for respt. Held, Error; that the act of 1833, being highly penal, should be strictly construed; that to violate it the designation "and Company" or "& Co." must be used in the transaction of some business, the purpose of the statute being to protect persons giving credit to the fictitious firm on the faith of the fictitious designation. In this case the business having in fact been consciously done with plaintiffs in their real names and not under any false designation the statute was not even in form violated. No credit was given to and no reliance placed upon the false designation. Although this transaction should be held to be within the letter of the statute it is not within its purpose and intent, and hence it is outside of the statute. 15 Johns., 358, 380; 31 N. Y., 289; 2 Plowden, 465.

Judgment of General Term, affirming judgment of non-suit, reversed, and new trial granted.

Opinion by Earl, J. All concur, Ruger, Ch. J., in result.

SUMMARY PROCEEDINGS.

COSTS.

swer or proof upon the trial that plaintiffs' business in Buffalo was carried on by J. S. in violation of the statute, or that he was required so to carry it on, or that the contract was entered into and the bond

made to aid plaintiffs in violating the statute. The plaintiffs were non-suited.

is a local law, and the Board of Charities and police have no general or special duties relating to granting licenses, and the act contains no provisions limiting or qualifying the powers and functions of the Board of Commissioners of Excise. The penalty when collected must be paid to the county treasury, for the support of the poor of the city of Auburn, as there exists in Cayuga County a distinction in the manner of supporting the poor as between town and county.

Comrs. v. Glennon, 21 Hun, 244; and Kingston v. Osterhaut, 23 Hun, 66, distinguished.

Each count of the complaint charged that on each day between the particular days mentioned, defendants sold liquor without license. Defendants did not demand a bill of particulars or require that the complaint be made more definite and certain.

Held, That proofs were properly received showing violations of the law upon each day within the period mentioned in each count; and the point that the recovery should be limited to one penalty in each count is not well taken.

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

for injuries to plaintiff's land, caused, as alleged, by defendant's having erected an embankment, which turned the water of a stream upon said land, cannot be joined with a cause of action for failure to construct a farm crossing.

The complaint in this action alleged, first, that defendant had erected and wrongfully and unlawfully maintained an embankment upon its land, which in times of high water turned the water of a stream into and through the dwelling-house and grounds of plaintiff, by means whereof he was damaged. The complaint alleges as a second cause of action that plaintiff owned a wood lot of about 44 acres, which was divided by defendant's road into two parcels; that defendant failed to erect and maintain a farm crossing for plaintiff's use, to gain access to one portion of said lot, to the damage and injury of the plaintiff. The complaint was demurred to on the ground that it contains two causes of action which are improperly united. The demurrer was overruled.

A. M. Beardsley, for applt.
A. Coburn, for respt.

Held, Error; that the first cause of action was to recover damages

Vol. 20-No. 12a.

the nature of the obligation so as to make the cause of action one relating to real estate and not to the implied promise or contract. Defendant's failure. failure to provide farm crossings was not tortious, and did not directly affect the land. The two causes of action were therefore improperly joined. Judgment of General Term, affirming order overruling demurrer, reversed.

Opinion by Miller, J. All concur, except Rapallo, J., absent.

EXAMINATION OF DEFEND

ANT BEFORE TRIAL. N.Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

Eliphalet Nott, applt., v. Henry Clews, impl'd, respt.

Decided Oct. 31, 1884.

An examination of a defendant before trial cannot be ordered for the purpose of ob taining proof that his signature to the certificate of incorporation of a certain corporation is genuine, when it is not denied that such signature was acknowledged as required by law.

An examination of a defendant before trial

cannot be ordered for the purpose of ascertaining facts which the plaintiff can learn

from other sources which are accessible to him.

Appeal from an order vacating an order directing the examination of the defendant Clews as a witness before trial.

This was an action brought by a stockholder of a mining corporation to compel an accounting by the trustees.

sired for the purpose of enabling
the plaintiff to obtain proof of the
fact that his signature to the cer-
tificate of incorporation of the cor-
poration was genuine, and also to
obtain a statement of the receipts
of the corporation, the sources
thereof, the amount received on
account of its stock, etc.
It ap-
peared by the affidavit of one of
defendant's attorneys that a re-
ceiver of the corporation had been
appointed, to whom all its books
and papers had been delivered.

George M. Harwood, for applt.
Abbott Bros., for respt.

Held, That since the certificate of incorporation of the company was required to be acknowledged, and it was not denied that such an acknowledgment had taken place, the examination could not be ordered for the purpose of obtaining proof of the genuineness of defendant's signature to such certificate.

That since the books and papers of the corporation had been delivered to a receiver, and upon consulting them all the information necessary to the plaintiff could probably be obtained without resorting to the examination of the defendant, a case was not made out for such examination.

Order vacating order directing the examination affirmed.

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

TAXES.

TPRM. FIFTH DEPT.

In re petition of Lewis H.