and in 1865 judgment was entered on such dismissal. In 1867 an application was made to set aside such dismissal, but it was denied. These facts were relied upon as a bar to the present action.

Daniel P. Mahony, for applt.
Simon Sterne, for respt.

Held, That a dismissal of a complaint for such a cause has not been considered, under the present system, either at law or in equity, a defense to a subsequent suit, 4 Johns. Ch., 300; 51 Barb., 267, and that the denial of the application to open such default probably proceeded upon the delay intervening before such application, and involved no inquiry concerning the merits of the case, and was not an adjudication upon them. That the decision related to a mere matter of practice, and in no way prevented the plaintiff from commencing a subsequent action for substantial relief. 29 How., 20, 29; 42 N. Y., 167; 75 N. Y., 599.

That it appeared by the evidence that the sole object of the foreclosure proceedings under which the property in question was sold to C., and by him conveyed to M., was to place the title of the property absolutely in M., free from the obligations assumed by him to protect it for the benefit of his grantor by paying off the encumbrances, and that he had bought in and was the real owner of the mortgage foreclosed, and that the obligations assumed by him of protecting the property were entirely inconsistent with the right afterwards directly or indirectly to

acquire the encumbrances, and through their foreclosure to obtain an absolute title for himself, and that as to him and the executor claiming under him the foreclosure and sale were fraudulent and entitled to no support in the judgment of a court of equity, and that, even if such were not the case, when the estate was re-vested in M., the original equities reattached to it in his hands. 1 Story Eq. Jur., 12 Ed., § 410.

That the verified answer of M. in the preceding suit brought by the plaintiff to recover the property substantially conceded the deed to him to have been executed for the purpose, and by way of security, and that such answer equally admissible against his executor as it would have been against himself if he had survived and been a party defendant in this action. 69 N. Y., 404.

was

That there is no exacting or un yielding rule as to the evidence required to establish that a deed absolute in its form is merely a mortgage. That all that is necessary is that the proof shall clearly and satisfactorily maintain the existence of that fact. 7 Cranch, 218.

That the equitable rights and interests of the plaintiff could be preserved even though the contract had been for a re-conveyance of the property by M. upon payment of his advances within one year, for the observance of the time so designated was not made an essential part of the agreement, and was not insisted upon at any time. by M. himself, and she was not

That M., not having presented an account showing the rents and profits received by him, or the expenditures made by him, nor called upon the other party to fulfil the agreement by refunding any sum which might have become due to him for advances he had made, was not in a situation to insist upon a forfeiture of the equitable owner of the property to receive the title. 55 N. Y., 7.

The proceedings before the referee upon the application of the plaintiff during her infancy to sue as a poor person, including the evidence of one A., since deceased, were allowed to be given in evidence on the trial.

Held, Error. That M. was not a party to these proceedings, and was not therefore in a condition to cross-examine the witness A., and where that right has not been enjoyed the evidence of a deceased witness cannot be read against the party deprived of it, or those claiming under him in any subsequent portion of the proceedings. 1 Greenleaf on Ev., 7th Ed., § 164, 2 Johns., 17; 11 id., 128.

That, however, the evidence of A. was merely cumulative, and its admission did not harm the defendant.

That the defendant McGuckin was accountable to the plaintiff for the proceeds of the sale of the property made by his testator.

The other defendants were the devisees of Q., to whom M. had, sold the property in question. Q. had bought this property after the dismissal of the plaintiff's first action, and after the foreclosure of the mortgage. The plaintiff herein by her answer in the foreclosure action set up the facts constituting her claim in this action, but not being proper to be tried in an action of foreclosure they were disregarded. It was claimed, however, by the plaintiff that this constituted notice to Q. of her rights in the property.

Held, That it appeared that Q. purchased the property in good faith and for a valuable consideration, and that in tracing the title to the property she was under no obligation to look so far into the pleadings in the foreclosure suit as to have informed herself of the contents of this answer. That all that she could be required to do would be to consult the judgment itself, and when it thereby appeared that the sale of the property had been regularly authorized she cannot be held to have had even constructive notice of the contents of the answer of the plaintiff herein

Judgment reversed as to the devisees of Q., and a new trial ordered, unless plaintiff stipulate to dismiss complaint as to them, but if such stipulation should be given, judgment modified by directing McGuckin to account for the proceeds of the property.

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

AGENCY. WARRANTY. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

Mary A. Brayley, admrx.,applt., v. John Dow, respt.

Decided Jan., 1885.

An agent authorized to sell reaping machines and to give them a pretty good recommendation, has implied power to bind his principal by a warranty.

Where the court in charging the jury misstated the agent's testimony in this partic ular; that he would warrant the machine

"for five years" to do good work, but the principal's counsel neglected to call the attention of the court to the fact, and the whole case was tried upon the theory that the machine was defective from the first.

Held, That this did not prejudice the principal, if the court was justified from the evidence in charging that there was a warranty.

Where the agent admitted that he said he would warrant the machine to do good work and to be durable and strong, the court is justified in charging that a warranty was given.

Appeal from judgment entered upon verdict, and from order denying motion for a new trial made upon a case and exceptions.

Action to recover the purchase price of a reaping machine sold through an agent; defense, a breach of warranty. Plaintiff contended that the agent was not anthorized to warrant, and that he was not bound thereby. The agent testified that he was authorized to sell machines, &c., for plaintiff, and that it was his business to give the machines a pretty good recommendation.

Vol. 20.-No. 19.

A. J. Abbott, for applt. John R. Strang, for respt. Held, That the evidence was sufficient to sustain a finding that the agent had power to warrant. An agent employed to sell has power to warrant in cases in which the sale is one which is usually attended with warranty; where the buyer was justified by the nature of the case in believing that the agent had authority to warrant, and had no means of knowing the limitation of his authority, the principal will be bound. 1 Pars. on Cont., 60.

Appellant claims that the court erred in its charge to the jury upon the question of warranty. The court in its charge stated: "There is no great dispute that there was a warranty, or as to what the warranty was. Donnan says he said. the machine would do as good work as any machine; that it was stronger, heavier and better than the Royce machine, and would cut and gather and rake off well. He said he told defendant that he would warrant the machine to do good work, and to be good, durable and strong. He says that he said to defendant that he would warrant the machine for five years to do good work, and that it was durable and strong." Again, "If you come to the conclusion that there was a warranty, as there was," &c. This correctly states the substance of Donnan's testimony, except that he did not testify that he said to defendant he would warrant the machine for five years. His testimony was: "I told him that it was my busi

ness to give the machine a pretty good recommendation, and did it with the intention to sell it; I said I would warrant it to do good work and to be durable and strong." Plaintiff neglected to call the attention of the court to its misstatement of the testimony. Defendant

claimed that the machine was defective from the first and would not do good work, and the case was tried upon that theory.

""

Held, That for these reasons the words for five years" in the charge did not prejudice the plaintiff if the court was justified from the evidence in charging that there was a warranty.

Held also, That as the agent said he would "warrant" the machine to do good work, &c., the court was justified in its charge.

Statements made by the vendor. describing the goods he offers for sale, together with their durability, capability, &c., are usually submitted to the jury for the purpose of enabling them to determine whether or not the statements were intended and understood to be warranties or mere expressions of opinion. But, in this case, Donnan admits that he said he would "warrant" it to do good work, &c., and this justified the court in charging that a warrant was given.

Judgment and order affirmed. Opinion by Haight, J.; Bradley and Childs, JJ., concur.

EMINENT DOMAIN.

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

In re application of the N. Y. W. S. & B. RR. Co., respt., to acquire lands of Isaac H. Sutherland, applt.

Decided Jan., 1885.

Where, in proceedings to condemn land for a railroad, the Commissioners allow a wit ness for the company to testify, against the owner's objection, that the value of the portion not taken would be advanced by the proposed improvements, it is error. And the error is not cured by a statement of the Commissioners in their report, that in fixing the amount of compensation that should be awarded they did not make any allowance or deduction on account of any real or supposed benefits which the owner might derive from the construction of the road.

Appeal from an appraisal and report of the Commissioners and from order confirming the same.

Proceedings were instituted by petitioner for the purpose of acquiring the lands described in the petition for the purposes of its incorporation. A witness sworn for petitioner testified that he resided at Pittsburgh, N. Y.; that his place adjoined the Isaac Sutherland place on the east; that his lands adjoin the lands of the Sutherland heirs on the northwest. "I have some knowledge of the effect upon the value of lands as affected by the location of railroad depots. Q. What, in your opinion, will be the effect of the proposed improvements upon the land proposed to be taken in these proceedings upon the ad joining lands?" Objected to as incompetent and immaterial.