Plaintiff was damaged by the falling of a bridge. Witnesses who helped repair the bridge before the accident were allowed, against plaintiff's general objection, to state their opinions as to the sufficiency of the stringers of the bridge. Held, No error. Appeal from Special Term order denying motion for new trial. Action for damages caused by the falling of a highway bridge, resulting from alleged negligence of defendant, who was highway commissioner. In May, 1879, plaintiff drove on to the bridge a team of four horses drawing a wagon loaded with a steam boiler, weighing 6,000 pounds, and some of the stringers supporting the bridge gave way, causing the damages complained of. In September, 1878, defendant had examined the stringers and had put in new braces and strengthened the bridge. Plaintiff gave evidence that some of the stringers were then impaired by dry rot. The evidence for defendant tended to show that when the bridge was repaired the stringers were tested by cutting and boring into them; that while they were not perfectly sound, they were not rotten; that they were apparently sound; that some of them on top, where the planks rested, for an inch in depth, were a little dozy, powder posted, powder rot or dry rot," but beyond that sound. Defendant's counsel asked one witness who had assisted defendant in making the examination and repairs, "Did you, from your examination of the bridge stringers, consider them sufficient?” He asked another witness who had also been present and assisting, "Did you consider the stringers at that time suitable and sound for that purpose?" for that purpose?" He asked the defendant, "Did you consider these stringers sound and suitable for that bridge?" Plaintiff objected to these questions respectively, without stating any ground of the objection. The objections were overruled, and the witnesses all answered in the affirmative. Henderson & Wentworth, for applt. Allen & Thrasher, for respt. Held, It must be assumed that the witnesses were qualified to give their opinions if such evidence was competent. 70 N. Y., 73; 79 id., 255. The evidence is within the rule permitting opinions of experts. 12 Hun, 274; 9 Bosw., 558; 27 N. Y., 234, 241; 44 J. & S., 369; 23 N. Y., 42; 3 Hun, 523; 9 id., 133; 12 id., 274; 26 id., 250; 26 N. Y., 426; 16 id., 173; 68 id., 547; 95 U. S., 297; 85 N. Y., 413. Hover v. Barkhoof, 44 N. Y., 113, distinguished. The question of competency can not be raised upon the exceptions taken to the admission of the testimony. 63 Barb., 261; 57 N. Y., 651; 63 id., 621; 38 id., 184; 81 id., 242; 85 id., 414; 77 id., 182. See 21 Hun, 654; 6 N. Y., 168; 90 id., 664. The exceptions to refusals to charge and to the charge as made are groundless, for the charge properly left it to the jury to say whether defendant exercised proper care--such care and caution as the judgment of prudent men would and should exercise under like circumstances. 14 Hun, 177; 46 N. Y., 194; 2 Den., 433; 30 How., 222; 51 N. Y., 497; 47 id., 639; 27 id., 234; 16 J. & S., 528. Order affirmed. Opinion by Bradley, J.; Smith, P. J., and Barker, J., concur; Haight, J., not sitting. PARTNERSHIP. LEGACY. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. Peter J. Ferris, applt., v. Roswell L. Burrows, exr,. et al., respts. Decided Oct., 1884. In ascertaining the amount to be paid to the assignee of all the interest of a legatee under a will, the claim of the executor against the legatee on a note made to the testatrix by a partnership of which said legatee is survivor may be set-off or retained against the legacy, the note, at the time of the as signment, being in the executor's hands and past due. Appeal from part of decree of surrogate's court, in the matter of the settlement of the accounts of said Roswell L. Burrows, ex ecutor. The part of the decree appealed from is as follows: "It is ordered, adjudged and decreed that the said claim of Peter J. Ferris, as to the said sum of $3,025.50, be not allowed, and that said sum be offset against and deducted from the share of Andrew J. Pierce, as legatee under said will, leaving the balance of said share, amounting to $1,155.53, which it is hereby ordered and adjudged that the said Peter J. Ferris, as such credi tor and assignee, is entitled to have paid to him." Sophia Pierce died March 9, 1877, leaving a will, of which said Burrows is executor. The will gave one-fourth of testatrix' estate to each of her three children, Jerome, Andrew J., and Sophia L., and the remaining fourth to the children of testatrix' deceased son, Charles L. At testatrix' death. said Andrew J. owed her, on his individual notes, a sum amounting, with interest to January 22, 1884, to $2,240.69. At testatrix' death said Jerome and Andrew J. were in business, under the firm name of Jerome, Pierce & Co. The firm was dissolved by Jerome's death, January 3, 1878. At testatrix' death said firm owed her on a note, with interest to April 16, 1877, $6,229.56. On May 18, 1878, said Andrew J., as surviving partner, being insolvent, made an assignment for the benefit of creditors. After the discharge of the assignee there remained a balance unpaid to said executor of the indebtedness due on said partnership note, with interest to January 22, 1884, $3,025.50. Sophia Pierce, at her death, and Peter J. Ferris, with nine others, were sureties on a bond of said Andrew J. Since then said Ferris and the other bondsmen have been obliged to pay on said bond a sum amounting, with interest to January 22, 1884, to $6,567.50. Said Ferris has paid the whole of said sum, and has an assignment of all claims of the other bondsmen. The contributory share of Sophia Pierce's estate has been decreed Opinion by Smith, P. J.; Barker, Haight, and Bradley, JJ., concur. to be paid to Ferris out of said, from affirmed, with costs to reestate, leaving unpaid to Ferris spondents. $5,970.46. After the assignment of Andrew J., as surviving partner, he assigned to Ferris, on January 25, 1882, his share of Sophia Pierce's estate, to apply on his individual indebtedness. Andrew J. is insolvent, and has been so since May 18, 1878. Sheldon T. Viele, for applt. Charles B. Hill, for Pierce et al., respts. Roswell L. Burrows, exr., respt, in person. Held, That in ascertaining the amount to be paid to the assignee of Andrew J. Pierce, as a legatee, the claim of the executor against the legatee as surviving partner may be set off against the legacy. This is true, even at law. 13 Metc., 132; 3 T. R., 433; 5 id., 493; 6 id., 582; 1 Paige, 444; 88 N. Y., 600. The rule has not been changed by statute. 2 R. S., 354, $18, sub. 7; Old Code, § 150; New Code, 8501. That the present claimant is the assignee of the legatee does not affect the executor's right to setoff the amount unpaid on the note, for at the time of the assignment he held the note, and it was then past due. 37 N. Y., 396. The debt in question would be a proper set-off in equity, if not at law. 43 N. Y., 419; 80 id., 560. Hodgson v. Fox, L. R., 9 Ch. Div., 673; S. C., 26 Eng., Moak's notes, 431, and Cherry v. Boultbee, 2 Keene, 319; S. C., 4 Mylne & C., 442, considered. CORPORATIONS. JOINT N. Y. COURT OF APPEALS. Decided Nov. 25, 1884. The plea of ultra vires should not prevail, This was an action upon a contract entered into by R. & S., the defendants, as parties of the first part, and all the stockholders of plaintiff, and plaintiff itself, as parties of the second part. It was thereby agreed that the parties of the second part were to give the parties of the first part threeeighths of the capital stock of plaintiff; that two of the trustees were to resign and defendants to The part of the decree appealed take their place; that defendants Vol. 20.-No. 13a. jointly were to promote the gen- | for moneys received by his coeral interest of plaintiff, furnish defendant S. the means necessary to carry on its business and have entire control of its business for the full term of the patent belonging to plaintiff, and that the accounts were to be made up every six months, when profits were to be divided and paid. The contract was executed by all plaintiff's stockholders and its president on its behalf. Defendants claim that the contract exceeded plaintiff's corporate powers and was ultra vires. It was not shown that defendants were not afterwards duly elected trustees of plaintiff, and that they did not act as such in the transaction in carrying out the contract. It appeared that defendants reaped the benefits arising from the contract. There was no proof showing want of authority to execute the contract or a violation of plaintiff's charter. Held, Error; that the contract of the defendants being a joint obligation there was a joint liability. 93 N. Y., 349. The respondent's counsel claims that the order of the General Term is not appealable because it is silent as to the reasons or facts which guided that court to its conclusions. Held, Untenable; if the court below was influenced in its determination by questions of fact, and it was material to the respondent to make this apparent, he should have seen to it that the order showed that the reversal was upon the facts. Having failed to do this he is not in a position to claim that he may be denied a new trial upon grounds remote from the merits of the controversy which he is prevented from urging by reason of the silence of the order. If it was deemed important that the order should be corrected a motion should have been made for that purpose and an order could have been made which would have protected the rights of all the parties. Wm. Henry Arnoux, for applt. Edward Gebhard, for respt. Held, That the plea of ultra vires cannot be upheld; every presumption is in the contrary direction. 78 N. Y., 131. The plea of ultra vires should not, as Order of General Term, reversa general rule, prevail, whether ing judgment for plaintiff as to interposed for or against a corpo- defendant R., reversed, and judgration, when it would not advancement for plaintiff affirmed. justice, but, on the contrary, would accomplish a legal wrong. 63 N. Y., 62; 82 id., 291. A judgment for plaintiff was rendered against the defendants, which was reversed by the General Term as to defendant R., on the ground that he was not liable Opinion by Miller, J. All con| cur, cur, except Andrews, J., not voting, and Rapallo, J., absent. CIVIL DAMAGE ACT. N.Y. SUPREME COURT. GENERAL John D. Goodwin, applt., v. Decided Nov., 1884. The servant of plaintiff, a resident of Vermont, drove over into the State of New York, and there purchased of defendant liquor, by which he became intoxicated, and returning to Vermont he left plaintiff's horse exposed to the weather; it sickened and died. In an action under the Civil Damage Act to recover the value of the horse, Held, That plaintiff had no cause of action. The statute has no extra-territorial by statute and must refer only to Judgment affirmed, with costs. effect, and the injury for which a recovery Bockes, J., concurs; Landon, J., can be had under it must be suffered in this State. This action was brought under the Civil Damage Act, Ch. 646 De not acting. NEGLIGENCE. TERM. THIRD DEPT. Theodore I. Miller, an infant, by guardian, applt., v. Samuel D. Coykendall et al., respts. Decided Dec., 1884. Plaintiff, aged 12, was hired by defendants, Laws of 1873. Plaintiff, a resident N. Y. SUPREME COURT. GENERAL of Vermont, had a servant at Fairhaven. Vt., named Connelly. fendant resided in Hampton, Washington county, in this State, and sold liquors. Connelly, in the month of February, drove over from Fairhaven to Hampton, purchased liquor there of defendant, returned to Fairhaven intoxicated, put the horse in a barn, the door of which he left open; a wind was blowing, the horse took cold and died, as witnesses testified, from this exposure. Plaintiff brought this action to recover the value of the horse, and was non-suited. Hill & Lillie, for applt. J. M. Whitman, for respt. Held, That the non-suit was proper. The statute cannot be intended to have an extra territorial effect. The cause of action is given men. who manufactured a kind of fuel from coal dust and pitch, to carry water to the workOne Taylor was foreman, and he directed plaintiff to attend a shoot which brought down pitch. In order to do this plaintiff was compelled to stand on a platform about three feet wide, raised 12 feet from the ground, and without any railing. Through the whole length of this platform and about two feet above it run a shaft which revolved outward. The outside edge of the platform was not more than ten feet from the shaft. This turned cog-wheels which made a good deal of noise and which were greasy. The pitch shoot was near the cog-wheels and back of them. From time to time it was necessary to open and close the shoot; to open it the boy must lean over the cog-wheels, raise a slide with an |