his administrator, and the notes were transferred by him to plaintiffs to secure them for their liability as sureties on the bond given by J., as administrator of S., and for a judgment or claim for $3,200, which had been obtained against the estate of S. and which had been paid by plaintiffs. Defendant was the son of S. All but two of the notes were non-negotiable.

B. T. Wright, for applt.

M. M. Waters, for respts. Held, That plaintiffs must be deemed to have known that the

Held, That defendant was not discharged from his liability on the notes in suit by this deed, and his sale of his interest in the personal estate, "including his distributive share," implied that he must pay his own debt as going in part to make up that share.

Judgment of General Term, affirming judgment for plaintiffs, affirmed.

Opinion by Finch, J. All con

cur.

COMMON CARRIERS.

to have taken them at their peril if the transfer to them was in any respect a misapplication. 7 Johns. Ch., 160. A debtor defending solely in that character could not raise the question as to misapplication. 79 N. Y., 631.

The transfer of the notes to plaintiffs in no manner worked a devastavit.

It appeared that defendant transferred by deed his interest to J., the administrator. The property conveyed was described as "all my right, title and interest of every name and kind in the estate or property of Dann C. Squires, deceased, including all my right, title and interest in the hereinafter mentioned several pieces and parcels of real estate; also all my right and interest in the personal property of said Dann C. Squires, including my distributive share in said personal property."

This transfer contained no assumption by J. of the payment of the notes.

TERM. FIFTH DEPT. Christoph Schwinger, respt., v. Alonzo Raymond et al., applts. Decided Jan., 1885.

Where the owner of a canal boat agreed to

carry barrels of beans on deck, but told the shipper that he did not want to be responsible for their proper covering, as he could not be personally present at the time and place of loading, but would furnish the lumber for that purpose, and the shippers promised that they would attend to the cov ering, but they failed to do so after a reasonable opportunity afforded, Held, That the owner having furnished the lumber, was not responsible for damage to the beans resulting from an imperfect or defective covering, made by the captain, whereby they became wet, etc.

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 amount of freight due for transporting barrels of beans by canal from Albion to New York. Counterclaim for damages occasioned through plaintiff's negligence in not properly

properly cover them, cannot be maintained; for they knew that plaintiff could not be present at Albion, and that he did not wish to entrust the covering of the beans to the captain, and they expressly promised him that they would look after it and see that the beans were properly covered, and they failed to do so.

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

PROMISSORY NOTES.

N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. George A. Farnham et al., respts., v. James A. Connors, applt.

Decided Dec., 1884.

Defendant, sued upon his note, set up a lack of consideration. He testified that he hired certain premises for a certain sum, a further sum to be paid if he made any money during his occupation. That he made no money. That, at the end of the term, defendant threatened to injure his credit with a friend unless he gave a note for the further amount; that under these circumstances the note was given. Held, that the note was not given in settlement of a disputed claim, and that the question of consideration should have been submitted to the jury.

Plaintiff sued upon a note. The defenses were infancy and no consideration. Defendant testified that he hired of plaintiffs a stand in a hotel upon this agreement: that he was to pay $100 for the season, and $100 more if he made any money. That he lost money; that, at the end of the season,

one of the plaintiffs asked him for this note of $100, saying that defendant had a friend who had helped him, and that if defendant did not give the note plaintiff would tell that friend that defendant did not pay his debts. That then plaintiff gave the note, saying that he would do so rather than have plaintiff do what he proposed. Plaintiff gave evidence tending to show that defendant had ratified the contract, and of fered in evidence a letter of defendant, asking an extension about the time the note became due, and refused to submit the question of after he became of age. The Court consideration to the jury, and ordered judgment for plaintiff.

E. T. Brackett, for applt.
W. J. Miner, for respts.

Held, Error. The evidence of defendant as to the terms of the agreement was not contradicted. It tended to show that he gave the note, not because he owed plaintiff, but because the latter threatened to ruin his credit with a friend. In this view the note was not given, as respondent claims, in compromise of a disputed claim. For there was no claim. 37 Barb., 152, 157. The asking an extension of time may have been inconsistent, but defendant's version may still have been true. This was for the jury.

Infancy was not made out. The contract was only voidable, and the letter written asking for an extension was a distinct recognition of the existing obligation of the note. The question of considera

tion still remained, and should have been submitted to the jury.

Judgment reversed.

Opinion by Landon, J.; Learned P. J., and Fish, J., concur.

APPEAL. PRACTICE.

where an appeal is taken from a final judgment rendered upon the verdict of a jury, the appeal may be taken upon questions of law. Section 1347 provides for an appeal from an order granting or refusing a new trial, or where it involves some part of the merits of the action, etc. Under this section,

TERM. FIFTH DEPT.

Lauren Olmstead, respt., Thomas Reed, sheriff, applt.

Decided Jan., 1885.

v.

If appellant desires the appellate court to review the evidence upon the merits, he is

required to make a motion for a new trial, either upon the minutes of the court, or upon a case and exceptions, and appeal from the order denying the motion. An appeal simply from the judgment brings up for review only questions of law.

Appeal from judgment entered upon verdict of a jury.

The action was instituted to recover the value of certain cattle

late court to review the evidence upon the merits, it becomes necessary for him to make a motion for a new trial, either upon the minutes, under § 999 of the Code, or upon a case and exceptions under § 1002, and appeal from the order denying the motion. 64 N. Y., 236; 14 Hun, 177-8; id., 559-560; affirmed 79 N. Y., 632.

Judgment affirmed.

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

HIGHWAYS.

seized and sold upon an execution issued upon a judgment against a third party. The appellant contended, on this appeal, that the verdict was against the weight of evidence, but he failed to make any motion for a new trial, either upon the minutes of the court, or upon a case and exceptions at Special Term, but appealed from the judgment simply.

E. M. Walker, for applt. Hoag & Upson, for respt. Held, That the court could not, upon such appeal, review the evidence upon the merits, but could only consider questions of law. The Code, § 1346, provides that

TERM. THIRD DEPT.

In re rebuilding the bridge between Shawangunk and Crawford. Decided Nov., 1884.

A commissioner of highways can lay out a highway only in the manner prescribed by statute, i. e., by order. His acts or words encouraging individuals to construct it and his promise to recognize it officially when completed are not sufficient to estop his town.

Where there has been no official recognition of a highway as such, a user of twenty years is necessary to constitute it a highway which the town is bound to maintain.

Appeal from order directing the commissioner of highways of the town of Crawford to build one-half