S. J. Barrow, for respt. Held, Error; the declarations simply of the assignor before the assignment and not part of the res gestæ, are not competent against the assignee. 50 N. Y., 352; 86 id., 630. Within the rule laid down by these cases the declarations of H. were erroneously admitted as against P. It is very clear that they had a material influence in the decision of the case. The fact that H. is a party defendant does not for that reason make the evidence competent against P., no conspiracy being shown or alleged. P. is the real party defendant, and the case against him must be made out by evidence good as against him.

Judgment reversed and new trial 'granted before another referee, costs to abide event.

Opinion by Merwin, J.; Hardin, P. J., and Follett J., concur.

MUNICIPAL CORPORATIONS.

NEGLIGENCE.

N. Y. COURT OF APPEALS.

Urquhart, applt., v. The City of Ogdensburgh, respt.

Decided Nov. 25, 1884. Where the charter of a municipal corporation imposes upon it the duty of directing the manner and superintending the making and repairing of sidewalks in its streets, its assent to an unauthorized alteration of a sidewalk by an adjacent owner, can only be shown by formal corporate action. Neither knowledge of individual members of the common council that a change has been made, nor an omission of that body to object, can take its place and secure immunity to the corporation from claims for injuries caused thereby.

This action was brought to recover damages for injuries received by plaintiff from a fall alleged to have been caused by a defect in a sidewalk in one of defendant's streets. The case is reported on a former appeal, 91 N. Y., 67. Defendant's charter conferred upon it power to direct the manner and superintend the making and repairing of the sidewalks in its streets. (Laws 1868, Chap. 335, § 20; Laws 1873, Chap. 406, §17, sub. 12.) The exercise of this power is not left to defendant's discretion, but is imposed as a duty (§ 20) to be performed in a manner prescribed. It appeared that the sidewalk at the place where the accident occurred had been changed substantially as to its slope and manner of construction without authority from defendant; that defendant was noti fied of the changes that had been made, but made no objection

thereto.

Leslie W. Russell, for applt.
Edward C. James, for respt.

Held, That an assent to the change on the part of defendant will not be presumed; that while defendant's common council might design a plan and by proper action adopt a walk already constructed, and in that way secure the city immunity, this must be indicated by formal corporate action. Neither knowledge of individual members of the common council that a change has been made, nor an omission of the body itself to object can take its place. The action of the common council in allowing the owners of sidewalks

to rebuild them without affirmative action on its part, and theomission of all notice of such proceeding cannot take the place of the formal legislative proceedings which the charter requires, or be an answer to the claim of one injured in consequence of defects of which the city had notice; nor can a disregard of such notice be considered a judicial adoption of the plan by reason of which they were occasioned. 66 N. Y., 334; 94 id., 27.

Urquhart v. City of Ogdensburgh, 91 N. Y., 67, distinguished and limited.

Judgment of General Term, affirming judgment on verdict for defendant reversed and new trial granted.

Opinion by Danforth, J. All concur, except Miller, Earl, and Finch, JJ., dissenting.

MARINE INSURANCE. N. Y. COURT OF APPEALS. Chadsey, applt., v. Guion, respt. Decided Nov. 25, 1884.

A policy of marine insurance provided that its general language should be controlled by the indorsemeut of special risks; that the perils insured against were those of the seas and all other perils, &c., to said goods or any part therof; that perishable articles or those damaged before shipment should

terminated by the delivery of a material part of the cargo.

* *

This was an action upon an open policy of marine insurance issued by defendant and ninety-nine associates. The policy consisted of a printed form in general language and intended to be adaptable and embrace almost every variety of marine insurance the underwriters might be invited to take. It specially provided that its general language should be controlled by the endorsements of special risks, as they should from time to time be made "touching the adventures and perils which the said assurers are contented to bear and take upon themselves in this voyage, they are of the seas * and all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the said goods and merchandises, or any part thereof." sequently provided that "vegetables and roots * * and all other articles that are perishable in their own nature, or which have been damaged before shipment from any cause are warranted by the assured free from average, unless general." It was also provided that the policy should "continue and endure until the goods are landed at aforesaid." Plaintiff's assignor was insured by indorsement upon.

*

It was sub

as

eral. Plaintiff was insured by indorsement

on 1,650 bbls. of potatoes on canal boat F. P. A. After 109 bbls. were delivered the boat sunk and the greater part of the cargo lost. Held, That it was the intention of the parties to exempt the insurer from payment of any loss occurring to a portion only of the cargo, and that defendant's liability was Vol. 20.-No. 16.

rels of potatoes on a canal boat "from New York to Yonkers, F. P. A." It was assumed that the letters "F. P. A." meant that the risk was free from particular average and that the assurers

should be accountable only for a total loss of the property insured. The vessel arrived at its destination with its cargo entire and in good order. During the two weeks following, from time to time, as the weather permitted, potatoes amounting in quantity to 109 barrels were delivered in good order to the consignees, and then the boat sank with the remainder of the cargo on board, and the greater part of it lost.

Everett P. Wheeler, for appl. Treadwell Cleveland, for respt. Held, That it was the intention of the parties to exempt the assured from the payment of any loss occurring to a portion only of the property insured and to confine their liability to the absolute or constructive loss of the entire cargo, hence such liability terminated by the delivery of a material part of the cargo during the progress of the voyage. 4 Wend., 33; 6 El. & B., 422; 1 Wheat, 219; 19 N. Y., 277; 44 id., 204; 7 John., 427; Phil. on Ins., § 1773; 2 Pars. on Ins., 292.

If an irreconcilable repugnance exists between the printed part of the policy and the indorsement, the contract must be construed so as to give effect to the stipulations contained in the special indorsement, even though such construction nullifies other provisions contained in the printed part of the contract. 8 N. Y., 351; 17 id., 194; 22 id., 441.

Judgment of General Term, reversing judgment on verdict for plaintiff, affirmed.

Opinion by Ruger, Ch. J. All

concur.

PARTNERSHIP.

N. Y. COURT OF APPEALS. The Metropolitan Nat'l Bank of N. Y., respt., v. Sirret, impl'd, applt.

Decided Nov. 25, 1884.

There is nothing in the limited partnership act which prevents the change of an exist ing partnership into a limited one, or which prohibits a limited partnership from purchasing in good faith the stock of a former firm, or from paying for it out of capital contributed by the special partner, although the latter is thereby placed in substantially the same position as if he originally had put in the stock as capital instead of money.

The word "annually" in § 15 of the act, has the same meaning as per annum," and the annual interest may be paid quarterly or at any other stated period. The act does not prohibit the special partner

from assuming his proportion of the losses. The publication of a copy of the certificate filed, which states all the facts required by § 4, is sufficient to satisfy the requirements of § 9, and a change of the name of a newspaper in which the publication is directed to be made, after such publication is commenced, will not affect its validity. Reversing S. C., 15 W. Dig., 289.

This was an action upon a promissory note executed by a firm in which one S. was a special partner, and plaintiff seeks to hold him as such. It appeared that at the time the special partnership was organized, S. was a member of a firm engaged in the same business; that S. sold the stock of said firm, about all of which he owned, to one H., loaning him money to pay for it. This sale was made December 28, 1875. S. drew a check on

that day for the amount of his contribution to the capital of the special partnership, his account in the bank being good for the check. Two days after the sale by S. to H. the special partnership purchased the stock of him and paid H. out of the capital contributed by S., the amount he had paid S. for the stock. It was found that the stock purchased was needed by the new firm in its business, and that the price paid was fair and reasonable. The question of intent and good faith was submitted to the jury, who found in defendant's favor.

Norris Morey, for applt.

Wm. B. Hornblower, for respt. Held, That S. was not liable, as the facts justified the submission of the case to the jury.

There is nothing in the limited partnership act which prohibits a limited partnership from dealing with or buying goods for its business from the special partner. Such dealings, when fairly conducted, are not inconsistent with the purposes or objects of a limited partnership. 44 Penn. St., 156, Troubat on Lim. Part., § 307.

There is nothing in the letter or policy of said act to prevent the change of an existing partnership into a limited one. It does not prohibit a limited partnership from purchasing in good faith the stock of a former firm, or from paying for it out of capital contributed by the special partner, although it may happen that the latter is enabled to receive the greater part or the whole of the purchase money, and is placed in

substantially the same position as if he originally had put in the stock as capital instead of money. Where a limited partnership is at liberty to purchase the stock or use the fund for any other partnership purpose, bad faith in constituting the partnership is not a legal inference from such a transaction, and this is so although the expectation that the new firm would make the purchase existed when the partnership was formed. 10 J. & S. 36; 73 N. Y., 590,

Plaintiff made a motion to compel the special partner to produce the books kept by him as county treasurer, and offered to show that the money loaned by him to H. to purchase the stock was advanced out of the county funds. No complaint of a misuse of funds was made by the county. The motion was denied.

Held, No error; that the evidence offered was immaterial to the issue.

The certificate filed on the organization of the special partnership, permitted the special partner to draw the interest on his capital monthly. It was objected that this was a violation of section 15 of the limited partnership act, which permits the special partner annually to receive lawful interest on his capital.

Held, Untenable; that the word "annually" as used in said section, has the same meaning as "per annum" or "by the year," and the annual interest may be paid quarter yearly or at other stated periods less than a year.

The partnership articles provid

ed that the special partner should bear a proportion of the losses.

Held, That this was proper; that there is nothing in the limited partnership act prohibiting the special partner from extending his liability by agreement with the general partners, or assuming risks beyond the loss of his capital.

The certificate filed on the re newal of the partnership stated all the facts required to be stated by section 4 of the act. The notice published was a copy of this certificate.

Held, That the ninth section of the act is satisfied by such a publication. Troubat on Lim. Part., $84.

The name of one of the newspapers in which the notice was directed to be published was changed after the publication was commenced.

Held, That this did not affect the validity of the publication. The identity of the paper was not lost by the change of name.

cargo received and to be delivered; that any deficiency in the cargo from the quantity specified shall be paid for by the carrier, and any excess in the cargo to be paid for to the carrier by the consignee, the carrier does not acquire any title to an excess of the cargo and is not entitled to recover its value, but is entitled to freight thereon.

Appeal from judgment in favor of plaintiff entered on verdict and from order denying motion for a new trial on the minutes.

Action to recover freight and for an alleged surplus of 55 bushels of corn carried by plaintiff on canal boat Hill from Buffalo to defendants at Utica, under a bill of lading dated Nov. 17, 1880. The bill of lading called for 8400 bushels of corn, and contained the following provisions: "And it is agreed between the carriers and shippers that in consideration especially of the rate of freight herein named, the said carriers having supervised the weighing of said cargo on board, hereby agree that this bill of lading shall be conclusive as between shippers and assigns and carriers as to the quantity of cargo received on board and to be delivered at port of destination, and that they will deliver the full cargo

concur.

BILL OF LADING. N.Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT. Albert H. Ford, respt., v. George W. Head et al,, applt.

Decided Oct., 1884. Under a bill of lading which provides that it shall be conclusive as to the quantity of

"All damage caused by the boat or carrier, or deficiency in the cargo from quantity as herein specified to be paid for by the carrier and deducted from the freight, and any excess in the cargo to be paid for to the carrier by the consignee."

When the cargo was discharged it was weighed and found, as the verdict indicates, to contain 8455