arrangement for the purchase of the mare; but had expressed himself to others as well pleased with the mare, and that she drove to suit him; that the delivery of the mare to plaintiff was for the purpose of having him treat her as a farrier only; that no notice was given by defendant to plaintiff that the arrangement for the purchase of said mare was terminated, and the same was not terminated, but in full force at the time of the death of the mare. "As a conclusion of law, I find that plaintiff is entitled to recover of defendant the sum of $141.76." Eli Soule, for applt. Burrell & Robinson, for respt. Held, That the conclusion of law from the facts found by the referee was erroneous. The findings of fact are supported by the evidence, and if his legal conclusion is sound, the judgment should be affirmed. But had the title to the mare vested in defendant? He had the option to become the owner; if she did not suit him to return her; and the referee finds that the option was still existing at the time she was taken sick and returned to plaintiff. Νο time was was mentioned within which he was to determine whether he would take title and pay for the animal. It was a mere bailment and not a sale. The referee does not find that there was a sale in præsenti. Hunt v. Wyman, 100 Mass., 198, is in point. There the price was agreed upon, and defendant took possession of the horse to try it, and if he did not like it he was to return it in as good condition as he got it the night of the day he took it. The horse was severely injured, without defendant's fault, before the expiration of the time limited for its return, so that he could not be returned. It was held that it was an option to purchase the horse if he liked it, and not a present sale, and that therefore he was not liable for the price. Elphick v. Barnes, L. R., 5 C. P. Div.,321, is a similar case. That was the sale of a horse at an agreed price, with the right of the purchaser to take it on trial for eight days, and before the eight days expired the horse died, without his fault. Denman, J. said: "There is no sale until the approval is given, either expressly or by implication resulting from keeping the goods beyond the time allowed for trial. Here I think there was no sale at the time of the horse's death." See also, 51 N. Y., 211; Benj. on Sales, § 39. Taylor v. Tillotson, 16 Wend., 494; Bradley v. Wheeler, 44 N.Y., 495, distinguished and explained. The question to be determined is, what is the intention of the parties as to the passing of title. Defendant had not paid any part of the price, nor notified plaintiff that he had concluded to retain the mare; but before having come to a determination the animal sickened and died. We do not think that the minds of the parties ever met upon a contract of sale in præsenti; and hence the title to the mare was at the time of her death in plaintiff, and defendant was not liable in an action for Nos. 166338 and 9, to be delivered property sold and delivered. Judgment reversed and new trial granted. Opinion by Lewis, J.; Barker and Haight, JJ., concur; Bradley, J., not sitting. [This decision was rendered upon a re-argument, and overrules the decision rendered upon the former argument, which is reported in 32 Hun, 384.] BANKS. LIMITATION. N.Y. SUPREME COURT. GENERAL GENERAL TERM. THird Dept. Thomas Ganley, admr., respt., v. Troy City National Bank, applt. Decided Dec., 1884. In 1865 Margaret Ganley deposited two treasury notes with defendant for safe keeping and took from its cashier a paper stating that they were to be delivered to her on surrender of the receipt. In 1866 her husband, without her knowledge or subsequent ratification, induced defendant, without producing the receipt, to sell the notes and pay over the proceeds to him. She died in 1869 and no administrator was appointed until plaintiff was in 1879. The husband died in 1874. Plaintiff produced the receipt and demanded of defendant the notes, which were refused. He then began this action. Held, That the action could be maintained. The court will take judicial notice of the fact that treasury notes were first issued after 1860. Margaret Ganley, plaintiff's intestate, plaintiff is her son, in 1865 deposited two U. S. Treasury notes with defendant and took from its cashier this paper: "Received this day of Margaret Ganley for safe keeping for her account, 2 U. S. 7-30 treasury notes, $500 each, on surrender of this receipt. G. F. Sims, cashier." She was married to Dominick Ganley before 1848. She died in 1869 leaving descendants. In 1866 Dominick, without the knowledge or subsequent ratification of Margaret, got defendant to convert the notes into money and pay this to him. without the production of the above receipt. About this time Dominick bought a lot for $1,200, and built a house thereon, in which he and Margaret lived until her death and in which he lived until in 1874; he died intestate, seized of this real estate, but hav ing no personal property. Aside from the treasury notes Margaret had no property. Her husband did not take out letters of administration, but in 1879 plaintiff did. He presented the receipt to the bank and demanded the return of the treasury notes, which being refused he begun this action. He had a verdict. R. A. Parmenter, for applt. Held, That plaintiff could recover. The Statute of Limitations is not a defence. The action is on a contract, the day for the performance of which did not arrive until in 1879 when plaintiff presented the receipt to the bank and demanded performance. This case is much like Wilkinson v. Verity, L. R, 6 C. P., 206. The court there say: "Where a man undertakes to do an act upon a future day and before the day arrives disables himself from performing it or absolutely refuses to perform it, it is in the option of the opposite party, at his election, to treat that conduct as of itself a violation and breach of contract or to insist upon holding the repudiating party liable and sue him for non-performance when the day arrives." When the wife acquired the notes does not appear, but the court can take judicial notice of the fact that treasury notes were first issued after 1860. The wife therefore could acquire and hold them as her separate estate. As the wife died in 1869, leaving descendants, her husband became entitled, under § 11, Ch. 782, Laws of 1867, to the same distributive share in her personal estate as she would have been entitled to receive from the personal estate of her husband under the R. S.; in this case one-third. But this he would receive from her administrator. And it is no answer to the demand of the latter for the bank to say that it has already paid one to whom or to whose estate the administrator must make distribution. The court cannot tell how large that sum will be and therefore cannot avoid circuity of action. Judgment affirmed. Opinion by Landon, J.; Learned, P. J., and Bockes, J., concur. APPEAL. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Decided Jan. 1885. A judgment entered upon the direction of the Court upon the trial of an issue of fact cannot be reviewed unless a decision is signed and filed determining the issues of fact and law. Appeal from judgment entered on decision of the court. The appeal book contains a document entitled in the cause which reads, "Plaintiff requests the court to find as matter of fact," and then follow eighteen requests to find matters of fact and three requests to find conclusions of law. Some of these are marked "found" and others "refused," but the signature of the trial judge nowhere appears. The clerk has not certified the case nor the judgment roll. Elon R. Brown, for applt. Lansing & Rogers, for respt. Held, That the judgment is irregular and ought not to be affirmed, but the appeal should be dismissed. 14 Abb. 209; 19 id. 169. Decisions made on trials should be signed in some form by the judge. 14 How., 426; 4 Abb., 11. The decision must be in writing and must be filed in the office of the clerk. Code Civ. Pro., § 1010. But assuming that the document referred to can be regarded as the authentic decision of the trial judge, it is fatally defective in omitting to state conclusions of law determining the case and authorizing the entry of a judgment, and in wholly omitting to "direct the judgment to be entered thereupon." Code, Sylvester Benjamin, applt., v. § 1022. This court cannot look J. Watson Allen, respt. into the opinion to ascertain what plaintiff's actual possession to the wild lands. Appeal from judgment on deci. sion at Special Term dismissing complaint. was decided by the Special Term. 49 N. Y., 521; 70 id., 481; 90 id., 45, 48. A county clerk is not authorized to enter a judgment upon an opinion; there must be a decision. Code, § 1228. Code, § 1228. A judgment entered upon the direction of the court upon the trial of an issue of fact cannot be reviewed unless a decision is signed and filed determining the issues of fact and law. 30 N. Y., 328. Such has been the law since 1860. 3 Wait Pr., 216. Eaton v. Weeks, 82 N. Y., 576, tiff had any title to the premises. distinguished. Action to restrain defendants from cutting timber on certain wild lands, to which plaintiff alleges title, which defendants deny, alleging title in another from whom they derived the right to cut the timber. There is no evidence that the grantors named in the deed read in evidence by plain Plaintiff contends that the title is Henry M. Field for applt. Held, Judicial notice will not be taken of any act of conveyance of land in Western New York subsequent to the treaty and deed of cession by New York to Massachusetts in 1786. 64 N. Y., 262. The land, so far as appears, never has been occupied. The conveyances to plaintiff afford no evidence of title. The facts do not come within the rule extending actual possession of the farm to the wild land by relation. 14 Wend., 239; 71 N. Y., 380; 79 id., 93; 1 Cow., 286; 6 id., taken from his decision to the 677. Judgment affirmed, with costs. Opinion by Bradley, J.; Haight and Childs, JJ., concur. REPLEVIN. COSTS. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. J. Daniel Ackerman et al., applts.; v. Charles C. De Lude, respt. Decided Jan., 1885. A defendant who, in an action to recover a chattel, obtains a verdict for the return of a portion of the goods replevied exceeding $50 in value, as assessed by the jury, is entitled to costs under § 3234 of the Code, although the plaintiff may also be entitled to costs, and although there was but one count in the complaint and but one cause of action set forth. Appeal from order allowing and directing the taxation of defendant's costs. Action to recover possession of certain goods of a specified value which had been sold and delivered to defendant's assignor at different times. Special Term, and the same was reversed. Louis Marshall, for applt. Charles C. De Lude, for respt. Held, That defendant was also entitled to costs by virtue of 3234 of the Code. By that section costs are allowed to each of the parties where the complaint sets forth two or more causes of action upon which issues of fact are joined, when the plaintiff recovers upon one or more of the issues and defendant recovers upon the other or others. The complaint contained but one count, which included the different bills of goods sold to defendant's assignor. Upon the trial plaintiffs recovered a verdict for a portion of the goods for the possession of which the suit was prosecuted, and the jury assessed their value at a sum exceeding $50; and defendant recovered a verdict for the residue of the goods which had been replevied, exceeding in value those recovered by plaintiffs. Defendant was disallowed costs by the clerk, and an appeal was These goods were sold by plaintiffs at different times, and those delivered in pursuance of each sale did in fact constitute and form different causes of action, and it is because of that circumstance that the jury were able to divide the recovery as they did by their verdict; but inasmuch as the complaint did not separately set forth these several causes of action the right of defendant to costs is denied, and 9 Abb., N. S., 310; 50 How., 159; 50 N. Y., 671, are urged in support of this position; but they were decided under the old Code, which contained no such provision as in the present Code. This section is in substance and effect the same as the provisions which were contained in the revised statutes: that each of the parties should recover costs where there were two or more distinct causes of action in separate counts; that the plaintiff should recover costs on those issues found for him, and the defendant on those found in his favor. 2 R. S. (Edm. |