under his deed, he acquired it prior | ants had a blue-stone yard in which to the mortgage, his right could not be considered or determined in this action. 75 N. Y., 127, 131. It was also claimed that the conclusions of law were not justified by the facts found, inasmuch as there was no finding by the court that the mortgage debt was due or that there was any sum unpaid thereon. Held, That these facts were admitted by defendant's answer, and they were, therefore, not in dispute, and it was not necessary to find them and make a statement of them in the decision of the court. Judgment affirmed. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur. MASTER AND SERVANT. NEGLIGENCE. N.Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. Bartholomew Scott, respt., v. Elizabeth Sweeney et al., applts. Decided Nov., 1884. Defendants conducted a blue stone yard, and employed S. He had charge of shifting stone, work in the mill and with the derrick. He had not power to hire or discharge men, and was not general superintendent. Owing to alleged improper orders given by S., while shifting stone with the derrick, plaintiff was injured. Held, That plaintiff and S. were co-servants, and that plaintiff could not recover against defendants, the masters. Plaintiff, a laborer employed by defendants, was injured by the boom of a derrick, and brought this action to recover. Defend one Simpson was foreman. His duties consisted in "shifting stone, work in the mill and work done with the derrick." He gave directions to the men in his department; he had not power to hire or discharge men, nor general superintendence of any kind over defendants' business. On the day of the accident Simpson was on the boom, and was preparing to drag some heavy stones; he directed men at a crank, around which ran the rope holding up the boom, to lower the boom. They lowered it so far that all the rope ran off the drum and the boom fell, striking plaintiff, who was just below busy at a stone. The defence, among other things, was that the negligence, if any, was that of a coservant. The court held that pro hac vice Simpson was the master. Plaintiff had a verdict. A. B. Parker, for applts. Held, Error. We think it must be held as matter of law that Simpson was only a servant. The cases of Crispin v. Babbitt, 81 N. Y., 546, and Slater v. Jewett, 85 N. Y., 63, point out with some clearness the test in these cases. If the act is one which from its nature and character belongs, or ought to belong, to the department of the master, then it is the master's act, no matter to what inferior agent or servant the authorization, not the execution when authorized, of the act is entrusted. If, however, the act done or omitted is in the execution of the proper details of the principal work which has been by the master directed to be done, such execution of proper details is the act of the servant, no matter how high the rank of the subordinate who performs the labor. And see 91 N. Y., 334. When Simpson ordered the boom lowered he was carrying out his part of the details of his master's work, no less than the workman who turned the crank. He was operating the derrick, a work needing one servant to be watchful of details, and so to direct the labor of others as to make it useful to their common employer in moving stone from the yard to the mill. Judgment reversed. Opinion by Landon, J.; Learned, P. J., concurs; Bockes, J., dis N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. Ambrose Fowler, respt., v. The Howe Machine Co., applt. Decided Jan., 1885. Where incompetent evidence has been volunteered by the witness the only way in which it can be expunged from the record is by motion to strike out. An agent cannot create an authority in himself to do a particular act by its performance or by asserting his authority to do it. Appeal from judgment on referee's report. Action for services alleged to have been rendered by plaintiff for defendant, a foreign corporation. Plaintiff sought to prove that one J. was general agent and manager Vol. 20.-No. 22b. of defendant's of defendant's business in this State, and while acting in that capacity engaged him to enter defendant's service at a fixed salary. All the evidence in the case was given by plaintiff. He stated that he had an interview with, J. the day before he began his service. Witness was asked: "State what conversation you had with him on the subject of working for the company." Defendant's objection thereto was overruled and defendant excepted. The witness answered: "He asked if I would like to work for the company. He said he was superintendent for the State of New York." Defendant objected to the statement as to what J. said as to his being superintendent, as not being competent, and asked that it be stricken out. The referee overruled the objection and denied the application to strike out, and defendant excepted. There was no other evidence as to J.'s agency. George C. Green, for applt. Frank Brundage, for respt. Held, That the denial of motion to strike out was error. As the witness volunteered the evidence, the motion was proper and the only way to expunge the same from the record. 78 N. Y., 102. There was no competent evidence of J.'s agency. 1 Cowen & Hill's Notes, 189; 52 N. Y., 272; 65 Barb., 165. The evidence given was mere hearsay. Judgment reversed, new trial before another referee, costs to abide event. Opinion by Barker, J.; Haight, Bradley and Rumsey, JJ., concur. MARRIAGE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. The Polar Star Mutual Benefit Association of the City of N. Y. v. Lena Boniface, respt., and Jno. B. Bonfort et al, applts. Decided Jan. 9, 1885. When a man and woman marry and the man has a wife living at that time, but that fact is not known to the woman who intends to contract a valid relation, and it subsequently becomes known to her and she still continues to live with the man, and the former wife subsequently dies and information of her death is received by them, and they thereafter live together as man and wife, holding themselves out to the world as such, a new and legal marital relation will be presumed to have arisen, dating from the death of the former wife, Appeal from a judgment recovered on trial before the Court. ent. his wife to and including the period of his last illness. At the time of his death Boniface was a member in good standing of the plaintiff, and the money payable upon the certificate issued by it was claimed by the respondent as his widow, and by the appellants as his children by his first wife. The plaintiff brought this action as one of interpleader to obtain a settlement of these conflicting claims. Leopold Leo and Charles K. Lexow, for applts. Benno Loewy, for respt. Held, That the purpose of the respondent was to contract a lawful relation with the deceased at the time when her formal but illegal marriage was solemnized; and that, after the discovery of the fact that he had a preceding wife living, she was not satisfied with her relations to him. That it might well, therefore, be presumed, when the information was obtain The respondent married Louis Boniface in 1860. Boniface had a wife living at that time, but that fact was not known to the respond-ed of the decease of such wife, that She became aware of it, however, in a few months after her marriage, but, notwithstanding that information, she continued to live with Boniface. In 1878 Boniface's former wife died, and information of that fact was received by him, and he stated to respondent that if she ever was in doubt that she was his lawful wife she was sure of it then, and showed her the letter containing information of the decease of the former wife. From that time to the time of his death in 1882 Boniface continued to live with the respondent as his wife, and treated her as such, introducing and referring to her as both parties united in the design that their relations from that time should be in entire accordance with the requirements of the law, and, for that purpose, agreed henceforth to live together as husband and wife. That the presumption was supported by what was said by him to the respondent when the information was received of the decease of the former wife, and also from the manner in which each was recognized and treated by the other from that time to the period of his own decease. That the obstacle which previously stood in the way of the execution of their design was removed, and, as the same design continued to exist, it is reasonable to presume that they did all that could be legally required to render that design lawfully binding. 91 N. Y., 451. That the respondent was the widow of Boniface, and entitled to the money due from the plaintiff. Judgment affirmed. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur. ATTACHMENT. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. John L. Sutherland et al., exrs., respts., v. Alonzo Bradner, impld, applt. Decided Jan. 9, 1885. The Court cannot order an affidavit made subsequently to the granting of an attachment to be filed nunc pro tunc of the date when the attachment was granted, and with the same force and effect as if the same had been read on the motion for said attachment, and consider the same in support of the attachment upon a motion to such affidavit upon the motion to vacate. Henry Thompson, for applt. Held, That such affidavit could not be read in support of the attachment under § 683 of the Code of Civ. Pro. 75 N. Y., 179, 183. That the direction to file the subsequent affidavit nunc pro tunc as of the prior date was an attempt to accomplish indirectly what could not be done directly. That the affidavit was not a paper in any way connected with the granting of the attachment, and therefore was prohibited from consideration when consideration when the motion was made. Order reversed' and papers remitted to Special Term for a proper hearing. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concur. PROMISSORY NOTES. HUSBAND AND WIFE. vacate it made upon the affidavits upon N. Y. SUPREME COURT. GENERAL which it was granted.. Appeal from order denying motion to vacate attachment upon the papers upon which it was granted. Upon the hearing of the motion the plaintiffs submitted an affidavit in support of the attachment made several days after the granting of the same, and the Court ordered it to be filed nunc pro tunc as of the date of the granting of the attachment and with the same force and effect as if read upon the motion therefor, and considered TERM. FIFTH DEPT. Susan A. Smith, respt., v. Benjamin W. Stanton, exr., applt. Decided Jan., 1885. Appeal from judgment entered upon the report of a referee on a claim presented against the executor of the testator, and referred under the statute. The claim presented was a promissory note of the testator, dated in 1872, whereby, for value received, he promised to pay plaintiff, or bearer, $490 one year from date. The facts were, that in 1837 testator's wife loaned to him a sum of money, the exact amount of which is not known, and the testator agreed to give his promissory note therefor; that some years thereafter testator, in pursuance of the agreement, gave his wife a promissory note for the money so received by him, with interest; that afterwards, and in June, 1866, an agreement was entered into between testator and his wife, by which the wife agreed to and did surrender up the note, and in consideration thereof testator agreed to and did execute and deliver to plaintiff and her sister, both of whom were his daughters, each a promissory note for one-half of the amount of the note given to his wife, and which she surrendered up. Afterwards, and in May, 1872, testator gave to plaintiff the note in judgment in exchange for and in payment of the promissory note previously given to her. The only question for consideration is as to the validity of this note. It was contended on the part of appellant, that by the common law rule existing at the time the money was loaned to testator, the personal property of the wife became the absolute property of the husband; that the rule continued unchanged until the passage of the statutes of 1848 and 1849, and that, consequently, there was no consideration for the notes subsequently given to plaintiff. L. N. Bangs, for applt. Arthur E. Clark, for respt. Held, That as the money was received by testator as his wife's, to be accounted for or secured by him to her, and he promised to pay a part thereof to plaintiff in consideration of the surrender of the wife's note, he must be held to have waived his previous marital right to the money. There was an equitable right sufficient to sustain the promise. See 85 N. Y., 421. We have carefully examined the authorities cited by appellant, but we think they are distinguishable. The decision of the Court of Appeals, to which we have referred, appears to be in point and controlling upon the question. Judgment affirmed. Opinion by Haight, J.; Barker and Bradley, JJ., concur. TOWN BONDS. ESTOPPEL. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. The Town of Solon, respt., v. The Williamsburgh Savings Bank, applt. Decided Jan., 1885. A statement in a petition under the General Bonding Act of 1869, that "the undersigned, representing a majority of the taxpayers," accompanied by a verification stating the signers are a majority, is sufficient to confer jurisdiction on the county judge. |