owned the goods, &c., and permitted her husband to have the use of them in his business as a hotel-keeper, plaintiff could not recover. Held, That the charge and the refusal to charge was error.

If a wife contributes to the intoxication of her husband, by consenting to the use by him of intoxicating liquor, or aiding him in procuring it or furnishing it to him, she is not entitled to recover damages sustained to her means of support caused by such intoxication, and a refusal so to charge is error.

Appeal from judgment entered upon verdict, and from order denying motion for a new trial upon the minutes.

Action to recover damages claimed to have been sustained to plaintiff's means of support by reason of the sale of intoxicating liquors to her husband.

It was conceded that defendant's husband was the lessee of an hotel and was running the business in his own name, and that in February, 1879, he borrowed $2,800 from her, and gave her a bill of

Decided Oct., 1884.

furniture in the hotel and the wines and liquors then on hand. Plaintiff put in evidence a petition

appeared that defendant's husband was engaged in carrying on the business of a hotel-keeper under a lease to him, but that the defendant was the owner of the goods, furniture, liquors, &c., contained therein, by virtue of a bill of sale given for money loaned to her husband, and had petitioned the Board of Excise for a license and presented therewith a bond signed by her, but there was no proof of any license issued thereon or that she took possession of and controlled the goods, &c. The Court charged the jury that if the goods, &c., in the hotel was hers, and not his, then, under the acknowledged facts of the case, the business of selling intoxicating liquors was hers and she was liable; otherwise not; and refused to charge that if defendant

the Board of Excise, praying for a license, and also a bond accompanying the same. Defendant testified that said petition was signed by her husband and she knew nothing about it; that at the time she signed the bond she did not read it over or know its contents, but signed it because requested by him; that the board took no action upon her petition, but granted a license to him upon his application; that he carried on the hotel and the business of

selling liquor therein, and that she was not interested therein; that she never took possession of the property mentioned in the bill of sale, but permitted her husband to use it in his business. Defendant's counsel requested the Court to charge that if defendant owned the property in the hotel and her husband had the use of it in his business plaintiff could not rerecover, which the Court refused to do and counsel excepted thereto. The Court charged that if the property in the hotel was hers, then, under the acknowledged facts of the case, the business of selling was hers; but if it was his, then she was not responsible; to which exception was taken.

A. B. Kendall, for applt. Francis A. Williams, for respt. Held, Error. Defendant had the right to have it submitted to the jury as to whether or not she was using this property in the business of operating the hotel and in the sale of strong liquors therein. The fact that she was the owner of the goods and furniture does not necessarily establish that fact.

Evidence was given tending to show that plaintiff had on different occasions purchased liquors for and in company with her husband, but this was denied. Defendant requested the Court to charge that if plaintiff contributed to the intoxication of her husband, by consenting to the use by him of intoxicating liquor and aiding him in procuring it, or furnishing it to him, she is not entitled to recover damages sustained to her means of

support by and in consequence of such intoxication, which was refused.

Held, Error. It can hardly be claimed that plaintiff is entitled to recover damages for the intoxication of her husband caused by liquor which she herself had procured and furnished to him.

Judgment reversed and new trial ordered.

Opinion by Haight, J.; Smith, P. J., and Barker, J., concur; Bradley, J., not sitting.

CONTRACT.

N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Lauren, respt., v. Bernauer, applt.

Decided Sept., 1884.

A contract for the exchange of lands provided that either party failing to comply with this agreement shall forfeit to the other the sum of $1,000. Heid, That the sum named was a penalty and not liquidated damages and that in case of a failure to perform the measure of damage should be the damages actually resulting therefrom.

Appeal from judgment in favor of plaintiff, entered on verdict directed by the court.

Action on a written contract for the exchange of real property for the recovery of damages resulting from a failure to perform. The contract, after providing for the exchange and the terms thereof, contains the following clause: "Either party failing to comply with this agreement shall forfeit to the other the sum of $1,000."

After the failure of performance

was established the court held and decided that the sum named in the contract was fixed damages and directed a verdict for that amount.

Held, Error. In this instance the meaning of the parties is not so obscure as in some cases where the same question has been presented. Their object was to effect an exchange of real property, and after providing for that they say that "either party failing to comply, &c." It was a case where the damages to result from the failure of performance could be easily and certainly ascertained and the parties did not undertake their determination; they employed no language indicative of an intention to liquidate and fix the damages, but did name a forfeit, a word peculiarly descriptive of a penalty; not that any word or phraseology will ever be entirely controlling against the fair construction and meaning of an entire instrument, but where, as in this case, there is nothing to countervail the well settled legal signification of the terms employed they will be permitted prevalence.

This contract declares the provision to be a forfeit, and so the parties must have intended. The sum named does not measure or liquidate the damages; the agreement makes no such profession and indicates no such design. The parties call this sum a forfeit and thus clearly indicate their intention to make it a penalty. ing prescribed a forfeiture as a means of enforcing the performance of this contract the parties rested as they do in a penal bond

Hav

or undertaking, and relied on the courts to determine actual damages sustained in the event of nonperformance; otherwise some language would have been employed indicative of an intention to liquidate the damages.

There is but little legal authority in this class of cases, because each case depends entirely on its own peculiarities. One general rule,

however, is that where the word "penalty" or "forfeiture" is used that is generally conclusive against liquidated damages. 16 N. Y., 471; 17 Barb., 260. On the whole examination and consideration of this case our conclusion is that the sum of $1,000 named in the agreement as a forfeit was intended as a penalty and not for liquidated damages, and that the recovery in this action must, in any event, be confined to the damages actually resulting from the failure of defendant to carry out the contract on his part.

Judgment reversed and new trial granted, costs to abide event.

Opinion by Dykman, J.; Barnard, P. J., and Pratt, J., concur.

NEW TRIAL. FIXTURES.

N. Y. COURT OF APPEALS. Bigler, applt., v. The National Bank of Newburgh, respt.

Decided Oct. 31, 1884.

Plaintiff recovered judgment for the value of certain machinery in a sawing-mill which was claimed to be personal property. It appeared that many of the articles, from the method of attachment, adaptation to

the use of the premises and intent of the party affixing them as shown by his insuring them for the mortgagee, were shown to be part of the realty. Held, That a new trial was proper to cure the error in allowing plaintiff to recover for them.

Affirming S. C., 14 W. Dig., 410.

Per curiam opinion. All concur, except Rapallo, J., absent.

SUMMARY PROCEEDINGS. EXTRA ALLOWANCE.

TERM. FIRST DEPT.

Theodore F. Miller, for applt.
E. A. Brewster, for respt.

Held, That this court must consider the evidence as well as the law, and if there was any reason for granting the order of the General Term it must be sustained.

The action was brought to recover the value of certain machinery in a sawing and planing mill, alleged by plaintiff to be personal property and to.belong to him. It appeared that many of the articles for which the original judgment was recovered from the method of their attachment, adaptation to use of the premises where they were placed, and the intent of the party affixing them as shown by his insuring them for the benefit of the mortgagee, and other facts showed that they were a part of the realty.

Held, That a new trial was proper to cure the error committed in allowing plaintiff to recover for such articles.

Order of General Term, reversing judgment for plaintiff and granting new trial, affirmed, and judgment absolute ordered for defendant.

Edward C. Sheehy, applt., V. Joseph J. Kelly, respt.

Decided Oct., 1884.

When summary proceedings to dispossess a tenant are regularly prosecuted, the remedy of the defeated party is by appeal from the final determination, and not by an action to restrain its enforcement.

In an action to restrain the enforcement of a final determination in summary proceedings to recover the possession of real property, adjudging the plaintiff to be wrongfully in possession of such property under a lease from a third person, the subjectmatter involved is the lease and not the property itself, although the claim of the plaintiff is that his lessor, and not the defendant, is the owner of the property, and a perpetual injunction is asked for, and the greatest allowance that can be granted, if any, is five per cent. of the value of such lease.

It is doubtful whether any extra allowance can be granted in such a case.

Appeal from a judgment recovered on trial at the Special Term, and from an order directing an additional allowance of costs.

The action was brought to restrain the execution of a final determination in summary proceedings to recover possession of real property adjudging the plaintiff to be wrongfully in possession of the property in question. The complaint was dismissed at the Special Term upon the ground that the action was unauthorized, and that the proper remedy of plaintiff was

by appeal. The plaintiff was in possession under a lease from a third person, and his claim was that his lessor, and not the defendant, was the owner of the property, and he asked for a perpetual injunction. Upon a motion for an extra allowance the Court considered that the title to the property was involved and granted an allowance of $1,000, being a percentage upon the value of the property. The value of plaintiff's lease was only $100.

James Henderson, for applt.
John Townshend, for respt.
Held, That since the summary

could regularly be made in such an action, 67 Barb., 81, and even if the action should be deemed a proper one for an allowance, it should in no event have exceeded the sum of $500, and that was too small an amount to require the exercise of doubtful authority.

Order granting allowance reversed and judgment reduced by deducting the amount of such allowance from it.

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

ADVERSE POSSESSION.

cuted the action was without legal support, and the judgment dismissing the plaintiff's complaint was entirely proper.

That all that was in controversy, as the subject of the action, was a leasehold interest for the period of one year. That the title of plaintiff's lessor was averred not for the purpose of establishing it as an independent fact, but to maintain. the validity of the demise. That it was incidentally, therefore, and not directly in controversy, and was not brought into the case as the subject of the action, but to support the lease upon which alone the right to maintain the action depended. That the leasehold interest was therefore the subject of the action, and upon its value alone the allowance should have been estimated if the case was deemed proper for the exercise of that authority.

That it may well be doubted whether any allowance whatever

TERM. FIRST DEPT. Marx Ottinger et al., applts., v. Louis Strasburger, respt.

Decided Oct. 8, 1884.

In an action to compel the specific performance of a contract to purchase real property it appeared that the last person who had a record title to the premises in question was one B., who died in 1816, leaving a will by which he devised such premises, with others, to his executors in trust, with power to sell same and distribute the proceeds among his legatees; that in 1821 one T. was in possession of said premises, but that no conveyance to him was on record; that in 1836 a partition suit was instituted by the heirs and devisees of B. to divide all his real estate then undistributed under his will; and that the premises in question were not included in such suit; that T. continued in possession of the premises, claiming them as his own until 1867, when he died, leaving a will, and that in 1882 his executor, under a power of sale contained therein, conveyed the premises to the plaintiff. Held, That defendant should be required to perform his contract to purchase the property.

Appeal from judgment recov. ered on trial at Special Term.