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whereupon the city prohibited his doing so, poses, reserving the surplus water not re-
as obstructing the outlet of the sewer. Held, quired for that purpose.

Held, That the
That the license was revocable at the pleas deed to plaintiff's grantor did not convey
ure of the owner.-1d.

all the surplus water, but only so much as

was then used on the premises conveyed ;
5. The deposit of materials upon a lot for the but that plaintiff's title to that portion of
purpose of making land constitutes such

the surplus was prior to the right of any
materials a part of the real estate, and the

other person to whom similar rights were
same right of action exists for an injury afterwards conveyed, and that in case of a
thereto us would accrue for similar inju deficiency plaintiff was entitled to his sup.
ries to the natural land.-Id.

ply first. - Read v. The Erie R. Co. et al.,

335.
6. The ordinance of 1356, fixing an exterior

water-line and authorizing the adjacent 11. A deed or mortgage cannot be held void
owners to fill up to that line, although by reason of vagueness or uncertainty if by
annulled by Chap. 763, Laws of 1857, so far any particulars in the description the thing
as it attempted to establish an exterior line,

granted can be sufficiently ascertained to
was a sufficient authority and consent to enable the court to say that the words
fill up to the line established by the Act of

chosen by the parties were intended to re-
1857 to meet the requirements of the limita late to it. - The People ex rel. Myers v.

tion in the Sinking Fund Ordinance.-Id. Storm, 338.
7. A right to build into the wall of a building 12. The widow and heirs of one C. conveyed
for support is an incumbrance within the

certain premises by warranty deed to de-
meaning of a covenant against incum fendants, who gave back a mortgage.
brances.-Merrill v. Clark et al., 204.

Thereafter the premises were sold by order
8. Where a man, in what he believes to be his

of the Surrogate for the payment of the

debts of C. and defendants purchased on
last sickness and view of approaching

the sale. In an action to foreclose the
death, deeds his property to his wife

mortgage, Held, That there was a construct.
through a third party, without considera-

ive eviction and a breach of the covenant
tion, at his wife's request, she representing

for quiet enjoyment, and that plaintiff was
to him that by so doing he will save the not entitled to recover.- Tucker v. Cooney et
expense of administration on his estate,

al., 406.
and he subsequently recovers, he can main-
tain an action to revoke said deed, and a

13. A deed to one L., from her father-in-law,
complaint alleging said facts states a good
cause of action. - Houghton v. Houghton

purported to convey certain premises in fee
al., 232.

and declared that it was given to enable her

to sell and convey them in fee simple if she
9. Plaintiff's ancestor, B., sold certain land to

should so desire ; it then contained a cove-
a cemetery association by deed, which pro-

nant on the grantee's part, that upon a sale
vided that the grantee should pay to B. a

she would invest the proceeds in good se-
certain sum for each lot sold by it for a

curities, and on her death convey the
burial-place; that B. should be entitled to

premises or the proceeds to children born
the grass and products of all parts which re-

of her marriage with the grantor's son.
main unsold until all the lots were sold and

Held, That L., took only a life estate, and
had interments therein, and that in case the

issue having been born of the marriage a
grantee should fail to fulfill any of the prem-

valid remainder was created which vested
ises on which the land was granted the

on the birth of the issue ; that the power
right of soil of all lots without interments

of sale in the deed was a power in trust
should revert to B., his heirs, etc. No lots

which could only be exercised by the
were sold and B. and his heirs remained in

grantee and could not be delegated to her
possession until dispossessed by defendant,

executor. Coleman v. Beach, 410.
claiming under a deed executed on sale un-
der execution against the association. Held,

14. When a person takes a deed of certain
That no title passed to the grantee under

real property as security for advances to be
this deed to which judgments against it

made in discharging incumbrances thereon,
could attach; that the deed was not absolute

or under an agreement to reconvey said
but conditional.--Bennett et al. v. Culver,

property on repayment of such advances,
259.

he cannot, either directly or indirectly,

acquire the incumbrances and through
10. One F., in 1851, deeded a certain hotel

their foreclosure obtain an absolute title. —
property to plaintiff's grantor, with all the Miller v. McGuckin et al., 429.
right, title, etc., to and of all the water now
used on said premises, or to which said F. 15. There is no exacting or unyielding rule as
may be entitled by use, reservation or to the evidence required to establish that a
agreement with the N. Y. & E. RR. Co., deed, absolute in its form, is merely a
or otherwise. The agreement referred to mortgage. All that is necessary is that the
was in a deed to the RR. Co., which con proof shall clearly and satisfactorily main-
veyed a right to draw water for depot pur tain that fact.-Id.

Vol. 20.-No. 25d.

DEFENSE.

See BROKERS, 6; CORPORATIONS, 2; DEEDS,

3; ESTOPPEL, 4; FIRE INSURANCE, 21 ;
INDEMNITY, 2 ; LIFE INSURANCE, 1.

DEPOSITIONS.

16. When a person takes a deed of certain real

property under an agreement to reconvey
the same upon repayment to him within a
certain time of moneys advanced by him, a
failure to make such repayment within the
specified time does not deprive the party
entitled to the reconveyance of that right,
provided time is not of the essence of the
contract and the delay is excused and the
situation of the parties or the property is
not changed so that injury will result, and
the enhancement of the property in value

does not change such situation.--Id.
17. In such a case, in order to put the party

entitled to re-conveyance in default, the
other party must present his account and
call upon the first party to fulfill the agree-

ment by refunding the sum due.-Id.
18. A purchaser of real property, in examin-

ing the title thereto, is bound to consult
only the judgment in an action of foreclos.
ure involving it, and when it thereby ap-
pears that the sale of the property had been
regularly authorized, not even constructive
notice can be imputed to such purchaser of

anything contained in the pleadings.--Id.
19. Where the owner of a parcel of land en-

cumbered by two mortgages, for both of
which he was also personally liable, con-
veyed a portion to defendant, who assumed
and agreed to pay them as a part of the
purchase price, and afterwards conveyed
ihe remainder to B. by a quit-claim deed ;
and upon default in payment the mortgages
were foreclosed and the whole parcel sold
to satisfy the mortgage debts, Held, That
B. was entitled to maintain an action upon
the covenant to recover the value of the
parcel lost to him by reason of defendant's
failure to pay the mortgages and the conse-
quent foreclosure sale. – Wilcox v. Campbell,

471.
20. The measure or rule of damages is the

value of the parcel lost to B. at the time of
its sale under the judgment of foreclosure,
it being less than the amount of the mort-

1. An affidavit may be made by an attorney

who knows the facts for a party who seeks
to examine an adverse party under $ 870 of

the Code. -Lane v. Williams et al., 16.
2. An examination of a defendant before trial

cannot be ordered for the purpose of ob-
taining proof that his signature to the cer-
tificate of incorporation of a certain corpo-
ration is genuine, when it is not denied
that such signature was acknowledged as

required by law.-Nott v. Clews, 274.
3. An examination of a defendant before trial

cannot be ordered for the purpose of ascer-
taining facts which the plaintiff can learn
from other sources which are accessible to

him.-Id.
4. A party cannot be examined before trial for

the purpose of obtaining admissions. -- Mc-

Mahon v. The Brooklyn City RR. Co., 404.
5. A statement in the affidavit that the exam-

ination is desired for the purpose of using it
on the trial is not equivalent to a statement
that the applicant desires to offer or read

it in evidence on the trial, -Id.
6. The court, at Special Term, on notice, may

vacate an ex parte order of a judge.--Id.

DIRECTORS.

See BANKS, 6, 7.

DISCOVERY.

gages.-Id.

21. Where a deed is executed and delivered to

a husband and wife both are seized of the
entirety, and neither is severally seized of
any interest in the property, and each is
incapable by means of his or her sole deed
to convey any present right or interest in
the property to his or her grantee --Bram

v. Bram et al., 519.
22. A deed of conveyance made by husband

to wife directly for a more nominal consid-
eration passes no title, legal or equitable.
So held, in a case where the husband con-
veyed to his wife and after her death con-
veyed the same premises to his own child,
and the illegitimate son of the wife, her only
heir at law, made claim to the property. -

Johnson v. Rogers et al., 568.
See EAȘEMENT, 1-4; TRUST, 2, 3.

1. In an action brought by an administrator to

recover compensation for the use and occu-
pation of certain premises belonging to his
intestate, in which the defense was that for
a portion of the period for which such com-
pensation was claimed the premises had
been occupied by a corporation, and that
such corporation had paid the rent there-
for, plaintiff moved for a discovery of
the receipts given to such corporation for
said rent, which he alleged were in the pos-
session of defendant, who had been one
of its officers, Defendant denied that
such receipts were in his possession, but ad-
mitted that certain receipts of that charac-
ter were in the possession of his attorney.
lleld, That plaintiff was not entitled to a
discovery of said receipts.- Douglas v.

Delano, 85.
2. The administrator of a deceased partner is

entitled to a discovery and inspection of
partnership books, etc., with leave to take
copies, for the purpose of framing a com-
plaint for an accounting and selllement of

the partnership affairs, notwithstanding the

DRAINAGE.
articles of agreement provide that the sur-
vivors should carry on the business until 1. The provisions of $ 12 of Chap. 888, Laws
the expiration of the time limited for the of 1869, as amended in 1871 and 1881, are
existence of partnership, and that all the to be construed as making the order of the
property should remain and continue in the County Court final upon matters of fact,
business ; nor is it necessary to aver that but liable to appeal upon any question of
the books contain entries showing any in law arising upon the whole act or upon any
debtedness to the deceased or show any proceeding necessarily affecting the order.
violation of the partnership agreement or -In re petition of Swan, 325.
disclose any matters in respect to which a
discovery is sought. — Newman v. Newman

See EASEMENT, 8.
et al., 283.

EASEMENT.
3. If a co-administrator, being also a surviv.

ing partner, refuses to join in such an action 1. D. owned a tract including plaintiff's lot
he may be made a defendant both as admin and the land now known as Garden street.
istrator and individually.-Id.

In D.'s deed of plaintiff's lot it was described

as abutting on said street. Held, That D.'s
4. In an action against the principal and

grantee acquired an easement in the street,
sureties on a tax collector's bond, to re-

independent of the public right to use it,
cover the amount of taxes collected and which could be taken from bim only by the
not paid over, the plaintiff is entitled to a exercise of the right of eminent domain.
discovery and inspection of the assessment Plaintiff is entitled to an injunction re-
roll and warrant in the possession of the straining an interference with his said
principal, for the purpose of ascertaining right, and to recover damages suffered
the amount collected, and to enable plain-

thereby.-Fanning v. Osborne et al., 113.
tiff to frame its complaint, etc. - The Bvard,
of Education of Union School No. 1 v. King 2. Plaintiff's grantor purchased a piece of land
et al., 494.

of defendant, relying on his representation

that a strip of land along the south
See CREDITORS' ACTION.

bounds was a street and should be opened

and continued as such. The deed contained
DIVORCE.

no reference to the street, but it was there-
1, An order directing the payment of alimony

after opened by defendant. Held, That de-

fendant, by opening the street in pursuance
by the husband to the wife cannot be made
after the entry of a decree of separation

of his agreement, appropriated the space as
making no provision therefor; but pro-

a way appurtenant to the premises, and

could not subsequently recall the dedica-
vision for the support of children may be

tion.- Newman v. Nellis, 291.
made, under 2 R. S., 147, § 59.-Erkenbrach
v. Erkenbrach, 4.

3. Such way, being an apparent easement,
2. Under $ 59, tit. 1, ch. 8, part 2 R. S. the

passed to plaintiff by a deed conveying the
court may, after the entry of a decree of

premises by metes and bounds, although
divorce, make an allowance for the support

the word appurtenances was not used.

-

Id.
and education of the children of the mar-
riage. – Washburn v. Catlin, 12.

4. When there has been an easement with a

servient and dominant tenement, and the
3. The sums directed by a decree of divorce

ownership of both tenements has been
to be paid to plaintiff for her support and
maintenance may be reached by her credit-

vested in the same person, and the owner-

ship is again severed by the conveyance of
ors on supplementary proceedings and pay.

the servient tenement without any reference
ment thereof by the defendant to a receiver

whatever being made to the servitude pre-
appointed in such proceedings discharges
his liability therefor.- Stevenson v. Steven-

viously existing, but the property is con-
veyed in the same manner and by the same

terms as though the servitude had no ex-
See CONTEMPT.

istence, the grantee takes such property

uncncumbered by the easement. -Scrymser
DOGS.

v. Phelps, 314.
See ANIMALS.

5. Where various persons threaten to float
DOMICIL.

large numbers of logs down a non-navigable

stream and to use its banks while doing so,
1. Intention alone is not sufficient to change claiming the right to do so whenever they
or create a domicil; the fact of residence

chose, the owner of lands through which
must concur with the intent. —Huntley v. the stream flows may maintain an action
Baker, 226.

to quiet his title and to enjoin the threat-
DRAFTS.

ened injury, and all such persons may be

united as parties defendant. - Meyer v.
See Banks, 1-5.

Philips et al., 326.

80n, 182.

6. Plaintiff's right to recover in such an action 5. Where the Common Council of a city in

cannot be defeated by the fact that since its authorizing the construction of a railroad
commencement logs have been floated through its streets required the company to
down the stream.-Id.

construct a swing bridge across a canal, to

do which it became necessary to obtain
7. As to whether the public can acquire by land over which to swing the bridge when
prescription an easement in any stream for

open, Held, that the company could acquire
floating logs or any other purpose, quære. - title to such lands under the general statute.
Id.

--Id.
8. The construction and maintenance of con 6. On the trial before the commissioners the

necting ditches through and across the lands land owner has the right to open and close.
of adjoining owners, for the purpose of

-Id.
draining and discharging the surface water
into a creek below, and the use and en-

7. It is not error for the commissioners, after

the submission of the case, to view the
joyment thereof for the period of more than

premises a second time in the absence of
twenty years creates no right or easement

counsel.-Id.
by prescription to have the ditches kept
open for the discharge of the water over 8. The measure of damages for property
the land of the lower proprietor. The

taken for railroad purposes is its fair market
draining of the upper lands through the

value based on existing conditions and not
ditch being by the license or permission of

on speculations of future developments.-
the owner the use or enjoyment was not

In re petition of the N. Y., L. & W. RR. Co.
adverse, and consequently could not ripen

v. Bennet et al., 212.
into a right by prescription.— White v. Shel-
don, 548.

9. Where the parties have made a contract of

bargain and sale of the premises, leaving
See DEEDS, 10.

the question of consideration to be decided

by certain commissioners named, who are
EJECTMENT.

to proceed under the statute, and the con-
See CLOUD ON TITLE, 5.

tract reserves to the parties the right to ap-
peal from their decision, Held, That the

court upon setting aside the award on ap-
EMINENT DOMAIN.

peal cannot direct the appointment of new

commissioners.—Id.
1. When a person whose lands are sought to

be condemned by a railroad company under 10. To authorize a reversal of the awards of
the general railroad act makes an issue commissioners appointed to appraise the
for trial it is improper to appoint commis value of lands condemned for railroad pur-
sioners to condemn said land until the poses, they must be so grossly unequal and
route of said road is finally located, and an inadequate as to warrant the conclusion
allegation in the answer of the party whose that the commissioners proceeded upon a
land is sought to be condemned that it is wrong principle or acted corruptly in
not the intention of said railroad company awarding damages. The court will refuse
in good faith to construct said proposed to require the commissioners to reconsider
road puts the burden of proof on the their report upon the weight of evidence or
petitioner.-In re application of the S. I. R. questions of value, unless the facts are of
T. RR. Co. v. Bechtel, 15.

so decisive a character as to be almost con-

clusive.--In re application of the N. Y. C.
2. Before confirmation of the commissioner's & H. R. RR. Co., v. Pierce et al., 405.

report in railway condemnation proceed-
ings motion may properly be made by the 11. The owner or lessee of the premises is not
railway company to discontinue the pro entitled to compensation for the expense of
ceedings, and the court in granting it may removal of the personal property thereon.
annex such terms as justice requires.-In -Id.
re application of the N. Y., W. S. & B.RR.
Co. v. Thorne et al., 128.

12. Where, in proceedings to condemn land

for a railroad, the commissioners allow a
3. A general land agent having charge of the witness for the company to testify, against

subject of purchasing lands for all the pur the owner's objection, that the value of the
poses of a railroad corporation must be re portion not taken would be advanced by
garded as an officer of the corporation hav the proposed improvements, it is error. And
ing the right to verify petitions in proceed the error is not cured by a statement of the
ings to acquire title to lands.—In re appli commissioners in their report, that in fixing
cation of the N. Y., L. & W. RR. Co. v. the amount of compensation that should be
Scheu et al., 194.

awarded they did not make any allowance

or deduction on account of any real or
4. Notice of the proposed route need not be supposed benefits which the owner might

given to owners of land required for other derive from the construction of the road. -
purposes than the construction of the em In re application of the N. Y., W. S. & B.
bankment and the laying of the rails.-Id. RR. Co. v. Sutherland, 434.

13. Where, on taking land for railroad pur-

poses, an award was made to the city which
was paid to the chamberlain as directed,
Held, That he was only a depositary, and
that in the absence of proof that the city
had taken or used the money his receipt
thereof could not be held a waiver of the
right to appeal.-In re petition of the N. Y.

& H. RR. Co., 466.
14. An order of General Term, reversing an

order of confirmation of the report of com-
missioners of appraisal, and directing a new
appraisal before new commissioners, is not
final, and no appeal lies therefrom to the
Court of Appeals.-Id.

ESTOPPEL.
1. The mere fact that a justice of the peace

failed in his return to a writ of certiorari
to include the oral examination taken on
the criminal complaint will not estop him,
in a subsequent action for false imprison-
ment, from showing that such examination

was taken.—Mixter v. Bronner, 241.
2. The acceptance of payment of a claim

against a county in the amount audited by
the Board of Supervisors thereof is a waiver
by the claimant of any right to further
prosecute the same.- The People ex rel. Mc-
Donough v. The Board of Suprs. of Queens

Co., 312.
3. A person who has induced another to ad-

minister upon the estate of an intestate by
the declaration of such person that she had
been divorced from the deceased and was
married to another person and had no in-
terest in the estate of the deceased, is estop-
ped from denying the truth of such declara-
tions when the consequence would be to
work an injury to the person so adminis-

tering.In re accounting of Rusko, 408.
4. That an offer has been made, by way of

compromise, to accept a less sum in satisfac-
tion of a claim, which sum has not been
paid, is no defense to an action for the
whole amount of the claim.-Ryan V.

Burnham, 536.
5. Such offer does not estop the party making

it from claiming the whole amount due
him where it does not appear that the party
to whom the offer was made has acted on

it to his injury.-Id.
See APPEAL, 2; CONTRACT, 11; FIRE IN-

SURANCE, 1, 6, 8; HIGHWAYS, 11 ; Part-
NERSHIP, 11 ; Town Bonds, 7.

payment of a note, the intent of either of
the parties is immaterial, except as it was
communicated to the other at the time. -

Madden v. Benedict, 30.
2. The liability of one of the makers of a sev.

eral note to the holder is not affected by
the equities of the makers as between them-

selves.-Id.
3. A party by cross-examining his opponent's

witnesses in reference to the same matter
embraced in the direct-examination does
not make them his own, but is entitled to
call witnesses to contradict them. So held,
where defendant put questions to plaintiff's
witnesses based upon assumed facts which
varied in some particulars from those em-
braced in plaintiff's hypothetical questions,
and they gave their opinions as to the value
of the services upon such assumed facts.-

Tucker v. Ely, 66.
4. Where, in a suit originally commenced in

justice's court, plaintiff gave evidence as to
value, defendant was held entitled to give
evidence in rebuttal though the question of
value was not put in issue by the answer. -

Id.
5. In an action to recover for goods delivered

under a contract the defendant set up fraud
as a defense and proved that the agent em-
ployed to sell the goods to the city made
Offers of money to one C. to procure his
friendly offices to aid in introducing them.
This was objected to as the declarations of
a stranger, and that it was so far removed
from the scope of the agency as to be inad.
missible against plaintiff, the assignee of
the claim. The objection was overruled.
Held, Error.- Baird v. The Mayor, &c., of

N. Y., 100.
6. In an action to recover money loaned,

plaintiff put in evidence an envelope on
which was endorsed the date of the loan,
defendant's name and address, the terms of
the loan and a list of the collaterals. The
indorsement contained no promise to pay.
Held, That the indorsement did uot state
sufficient to constitute a complete contract
and that the evidence tending to show that
defendant's name was written on the envel.
ope after the loan was made on collaterals
belonging to other parties was admissible.

- The Union Trust Co. v. Whiton, 106.
7. The existence of a custom cannot overrule

the terms of a contract ambiguous on its
face and the explanation by parol evidence
showing what the parties really intended.-

Id.
8. Communications which may fairly be said

to have been induced by the previous rela-
tionship of attorney and client are privi-

leged. — Meyers v. Doeman, 111.
9. In an action to recover damages for a

breach of contract to furnish a portion of
the money required for the purchase of

EVICTION.

See Deeds, 3, 12.

EVIDENCE

1. Where the question is whether a certain

transaction amounted to a purchase or a

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