or during her own life, according | defendant of certain premises beas he should live or die, and pay it over in accordance with those events. Testator, in the language quoted, does not give the sum of $8,000 to T. D. M., and does not speak of it as the sum given to him, but as the sum "which I have hereinbefore directed to be paid unto Theo. D. Mead." Decree affirmed. Opinion by Dykman, J.; Barnard, P. J., and Pratt, J., concur. DISCOVERY OF PAPERS. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. William P. Douglas, admr.. applt., v. Franklin H. Delano, respt. Decided Oct. 8, 1884. 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 compensation was claimed the premises had been occupied by a corporation, and that such corporation had paid the rent therefor, plaintiff moved for a discovery of the receipts given to such corporation for said rent, which he alleged were in the possession of defendant, who had been one of its officers. Defendant denied that such receipts were in his possession, but admitted that certain receipts of that character were in the possession of his attorney. Held, That plaintiff was not entitled to a discovery of said receipts. Appeal from order denying motion for a discovery of certain receipts. This action was brought by plaintiff to recover compensation for the use and occupation by longing to plaintiff's intestate. The defense, among others, was that for a portion of the time for which such compensation was claimed the premises had been occupied by the New Boston Coal Mining Company, which had paid the rent therefor. Plaintiff then made a motion to compel a discovery of the receipts given for such rent to said company, of which defendant had been an officer, and which receipts plaintiff alleged were in the possession or under the control of defendant, and that they were material to show the length of time the occupancy by the company continued, and therefore to fix the length of defendant's occupancy. Defendant denied that such receipts were in his possession, but admitted that certain of them had been given to his attorneys by a third person, who had been a stockholder of such company, and were in their hands. John M. Bowers, for applt. Held: That the motion was properly denied, on the ground that the receipts sought were not in the possession or under the control of defendant. That, moreover, these receipts were not required to enable plaintiff to prove his alleged cause of action. That that would be done by showing the right of the intestate to the property, its use and occupation by defendant and the value of that use. That the receipts could be only proper as evidence to prove defendant's defense, and it follows, therefore, that the object of the application was to discover what evidence defendant might be able to produce upon the trial to prove his alleged defense, and that the law has not provided this proceed ing to secure the attainment of that object. 2 Hun, 308. That neither § 803 of the Code of Civ. Pro., nor Rule 14 of the General Rules of Practice, nor 1 Civil Procedure, 179, sustain or sanction this practice. That to obtain a discovery of books and papers they must be required either to enable the applicant to prepare his pleading or prepare for the trial of the action, or to take some other proceeding required by him for the presentation of his rights, and this was not an application within either of these classes of cases. Order affirmed. Opinions by Davis, P. J., and Daniels, J.; Brady, J., con curs. HIGHWAYS. N.Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Pierre C. Van Wyck, respt.. v. Nathaniel B. Lent et al., applts. Decided Sept., 1884. Highway commissioners have power to summarily remove a building which obstructs a highway, even though sufficient space is left for teams to pass and re-pass, and neither they nor those assisting them can be held Appeal from judgment in favor of plaintiff entered on verdict and from order denying a new trial. Action for trespass on land upon which plaintiff had erected a rough building. building. Defendant, claimed that this building was on the street and that they removed it by direction of the commissioners of highways because it was an encroachment and obstruction to public travel and so a public nui sance. The land as described in the complaint lays between the upper landing road and a lot belonging to one McE., and between the railroad and Water street. Plaintiff claimed that the lot in question. was immediately north of the McE. lot and between that and the landing road, and that it was 19 ft. 7 in. on Water street, measuring from the north-west corner of the brick wall of the McE. house. It appeared that the brick house had stood on the McE. lot thirty years, and there was a piazza on the north side 6 ft. wide. Plaintiff's building, which was 24 ft. north and south, and 12 ft. east and west, was placed close to this piazza. The case was submitted to the jury, on the theory that the commissioners of highways had no power to tear down the building and abate the nuisance, provided there was room left to drive past the building with teams, without inconvenience or danger. The court charged as follows: "If you find from the facts that there was this opportunity to pass and re liable in damages for such exercise of offi- pass this building without injury cial power. or inconvenience to these people, then, of course, applying the law | 45 ft. wide. This undisputed fact is as I give it to you, you must find sufficient to call for a new trial, a verdict for plaintiff." He also because when the commissioners told the jury that whether the found this obstruction to public building projected 11 or 12 ft. travel, they had sufficient power to into the highway, as plaintiff cause its summary removal, 61 N. claimed, or was entirely in the Y., 448, and neither they nor those highway, as defendants claimed, acting in their assistance can be was not material. "Whether it held responsible in damages for stood wholly on the highway or such an exercise of official power. only partly on the highhway, as admitted by plaintiff, does not seem to me to be the question at issue here, nor the question which is to be determined, if I understand the law." Abram Hyatt, for applts. Francis Larkin, for respt. Held, Error; The charge left the jury to find for plaintiff, if there was left sufficient space in the road to pass and re-pass by the public; about this there was no dispute, and the charge was in effect a direction to find for respt. The highways of the State are made for and devoted to public travel, and the whole public have the right to their use and in their entirety, and when obstructions to public travel are found, the commissioners of highways are clothed with power to remove them with out waiting for the slow process of law, even though travel be not absolutely and entirely prevented. That as the measurement of plaintiff's lot was from the brick wall of the McE. house, the 6 feet occupied by the piazza belonged to plaintiff and was a part of his 19 ft. 7 in. and deducting six feet left him only 13 ft. 7 in., so that 10 ft. 5 in. of his building was on the road which was there about It also appeared that the McE. building had been used from the time of its erection as a public store, and that the space in front of it had been used as a public highway during all that thirty years. Under that use by the public it became a public highway, under our statute. This being so, not only a part, but the whole of the building erected by plaintiff, was on a public highway. What was the width of the public highway at that point and whether the building demolished was erected entirely within its bounds, as defendants claim, were questions of great materiality in the proper determination of this action. But the charge that the commissioners could not summarily abate the nuisance if the public could pass around it is plainly erroneous. Judgment and order reversed, and new trial granted, costs to abide event. Opinion by Dykman, J.; Barnard, P. J., and Pratt, J., concur. NATIONAL BANKS. N. Y. COURT OF APPEALS. The City Nat'l B'k of Pough keepsie, respt., v. Phelps, impld., this letter and a verbal request by applt. Decided Oct. 7, 1884. All property and rights held by a State bank before organizing as a National bank, continue to be vested in it under its new status. As between it and those who have contracted with it, it retains its identity. Defendants executed to the City Bank a guaranty of payment of advances to be made to one W., which guaranty was recognized by defendants after the bank had been con verted into a National bank. W. having afterwards failed, Held, That defendants were liable on the guaranty. This was an action upon a guar anty, executed by the firm of P. & X. to the City Bank of Poughkeepsie, in February, 1861, secur ing the payment of advances said bank might make to one W. for legitimate business purposes. The City Bank was converted into the City National Bank, June 13, 1865, no change being made in its officers, books, manner of doing business, banking-house, place of business, stockholders or other wise. Advances were made on the strength of the guaranty very soon after it was given and from time to time until in 1875, when the defendant P., in response to a request by the bank to renew the guaranty sent a letter to the cashier of the City National Bank, treating it as identical with the City Bank and speaking of it as an obligation given to "your bank," stating that he regarded the guaranty as good when given, and that he believes it "just as good now as it was then," and continues "so that I do not see the slightest advantage in having it renewed." After the receipt of P. to continue business under the guaranty and to renew the notes, the bank went on renewing the paper of W., which it then held, to April, 1876, soon after which W. failed. Edward S. Clinch, for applt. Held, That defendant is liable; that it is the general scheme of the National Banking Act that State banks may avail themselves of its privileges and subject themselves to its liabilities, without abandoning their corporate existence, without any change in the organization, officers, stockholders or property and without interruption of their pending business or contracts. All property and rights which they hold before organizing as national banks are continued to be vested in them under their new status. It is but a continuation of the same body under a changed jurisdiction. As between it and those who have contracted with it it retains its identity, notwithstanding its acceptance of the privilege of organizing under the National Banking Act. 16 Hun, 158. Judgment of General Term, affirming judgment for plaintiff affirmed. Opinion by Rapallo, J. All concur. Decided Oct. 31, 1884. A special guardian of an infant of the age of five years, appointed in proceedings taken to authorize the sale of real estate belong ing to such infant, cannot convey said real estate to himself. When such a special guardian, acting in good faith, has conveyed such real estate to himself and has subsequently conveyed the same to a third person the defect in the title of such third person may be cured by proceedings instituted upon the joint petition of the guardian and the infant-said infant having attained the age of seventeen years in the interva!-whereby the original proceedings are opened and the guardian therein permitted and required to convey the interest of the infant to such third person. Case agreed upon and submitted without controversy. The defendant contracted to purchase certain real property of the plaintiff, but refused to accept the deed tendered by the latter upon the ground that he could not convey a good title. It appeared that in 1870 an undivided third part of the property in question was owned by an infant of the age of five years; that proceedings were taken to authorize the sale of such infant's property in which his mother, Eliza J. Gilmore, was appointed his special guardian for the purpose of selling the same; and that, by virtue of such proceedings, she conveyed said property as such special guardian to herself. She subsequently conveyed such property to one McGivney, who thereafter contracted to sell the same to one Squier, who refused to receive it claiming that the interest of the infant was not cut off. In order to correct this alleged defect in the title of McGivney, Eliza J. Gilmore and Vol. 20.-No. 4b. the infant, who had attained the age of seventeen in the interval, joined in a petition to the court whereby they prayed that the proceedings in which said Eliza J. Gilmore, as special guardian, had conveyed the premises in question to herself should be so far opened as to allow said Eliza J. Gilmore, as such special guardian, to join in a conveyance with McGivney to Squier. The matter was referred to a referee to take proof of the facts alleged in said petition and report the same, together with his opinion thereon. Said referee reported that Eliza J. Gilmore had acted in entire good faith, and that, in his opinion, the proceedings theretofore had should be so far opened as to allow, direct and require her, as special guardian therein, to convey the interest of the infant in the premises to McGivney. McGivney. It was ordered, accordingly, and, after such order had been complied with, McGivney conveyed the premises in question to Squier, who subsequently conveyed them to the plaintiff. Two questions were submitted to the court by the case agreed upon herein: (1.) Did Eliza J. Gilmore, by the execution of a deed, as special guardian to herself individually, acquire a good title to the infant's interest in the property conveyed? (2.) If she did not acquire title to said property, did the proceedings subsequently taken and had cure the defect in the title? Bagley & Thain, for plff. |