defendant to prosecute the proceedings brought to recover the fees of his son as referee employed the plaintiff to make out the statement, which he did and that was used in the proceedings, the defendant would be liable to compensate the plaintiff for the services performed under that authority, for the attorney and counsel had the authority arising out of his relation to the party employing him to do all legal acts in the prosecution of the legal proceedings, or required to secure an intelligent and just disposition thereof. 6 Cow., 383, 388; 45 N. Y., 628, 635; 87 N. Y., 184, 188; 14 Hun, 252, 254; 12 Hun, 534; 11 Abb., N. C., 448. Judgment reversed and new trial ordered. profits on their lease for that time. Held, That the complaint stated a cause of action. Appeals from orders overruling demurrers as frivolous. The complaint in each action set forth that plaintiffs were the lessees of a certain building in New York City at an annual rental of $3,750 ; that they had relet the premises for four years at $6,000 a year, being a profit to them of $2,250 per year; that these companies undertook and agreed by their policies to indemnify against such loss as plaintiffs might sustain in their proprietary interest in the premises during the time of continuance of the lease; that in May, 1883, the premises were damaged by fire and partially destroyed so that they were untenantable, and plaintiffs and their sub-tenant were deprived of the use and enjoyment thereof from May till October; that the rent reserved in and by both of PLEAD- said leases ceased for said period, and these plaintiffs were therefore, by reason of said fire, caused to sustain loss and damages on the said lease in the sum of $812.50, being the amount of profit upon their said lease so insured as aforesaid, which would have accrued to May, 1883, and October 9th, 1883, them between said 29th day of had not said premises been destroyed by fire as aforesaid. Opinion by Daniels, J.: Davis, P. J., and Brady, J., concured. FIRE INSURANCE. ING. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Lawrence Carey et al., respts., v. The Northern Assurance Co., applt. Lawrence Carey et al., respts., v. The London and Provincial Fire Ins. Co., applt. Decided Sept., 1884. A complaint alleged that plaintiffs were lessees of a certain building which they sublet at a profit; that defendant insured their proprietary interest; that a fire occurred which rendered the premises untenantable from May to October, whereby the rent ceased under both leases for that period, and plaintiffs were injured by the loss of the The defendants in each case filed a demurrer, and on motion of plaintiff judgments were entered on the demurrers as frivolous. Norwood & Coggershall, for applt. J. Stewart Ross, for respts. plaints state a cause of action. I The measure of plaintiffs' loss is the value of the premises subject to the rent, and that value seems to have been established by the rent they were to receive beyond that they were to pay. We have no other facts that would set up a drawback for repairs or insurance or any other subject. See 1 Sandf., 551. In the first condition of both policies it is provided that in case of such destruction by fire of the premises that the lease held by the assured shall be by its terms and in fact canceled, then the company should be liable to pay in a specified way. Held, That as that contingency did not come the condition was inoperative. Orders affirmed, with costs. Opinion by Dykman, J; Barnard, P. J., concurs; Pratt, J., not sitting. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Mary Hays, an infant, respt., v. The Knickerbocker Ice Co., applt. Decided Sept., 1884. Where an order has been granted allowing an infant plaintiff to sue in forma pauperis, from which order no appeal is taken, the guardian will not be required to file security for costs. Appeal from order denying motion denying security for costs. .Action brought by an infant by guardian to recover for personal injuries. Defendant made a motion to require the guardian to file security for costs and the infant made a motion for leave to prosecute in forma pauperis. Both motions were heard at the same time when plaintiff's motion was granted and defendant's denied. No appeal was taken from the order granting plaintiff's motion. Moses B. Maclay, for applt. Held, That as defendant has elected to abide by the order granting permission to prosecute in forma pauperis it would be quite inconsistent now to require the guardian to file security for costs. Order affirmed, with costs. Opinion by Dykman, J.; Barnard, P. J., concurs; Pratt, J., not sitting. SALE. TITLE. N.Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. John Fogarty et al., respts., v. The Continental Ins. Co., applt. Decided Sept., 1884. Where plaintiffs purchased certain barrels of sugar of defendant at a specified price per pound, to be weighed and taken the following morning, and during the night the same were damaged by rain, Held, That defendant continued to be the owner and the loss by rain fell on him; that plaintiffs could refuse to receive the sugar and recover the amount paid by them in the contract. Appeal from judgment in favor of plaintiffs, entered on verdict. Action to recover moneys paid on a contract of sale. Plaintiffs purchased of defendant through | tity or quantity. 52 N. Y., 550. one B. 100 barrels of damaged By the rule defendant continued sugar, which had been sunk on to be the owner of the sugar in board a vessel, at six cents per question, for it was to be weighed pound, the memorandum of sale and taken the morning after the stating that it was "to be weighed purchase. The sugar was to be in its wet state, water to be drain. weighed by the vendor to ascered out," and paid $100 to B. on tain the quantity and determine account of the purchase price. It the amount of money to be paid, was arranged that the sugar was and the loss by the rain fell on to be weighed and taken the fol- defendant. Plaintiffs were therelowing morning. During the night fore entitled to receive back the the sugar was damaged by rain money they had paid, and the and in the morning plaintiffs re- verdict is right. fused to receive it and demanded back the $100, which was refused. At the close of the case a motion for nonsuit was made on the ground that the sale was complete; that the title was vested in plaintiffs and that defendant was Judgment affirmed, with costs. Opinion by Dykman, J.; Barnard, P. J., and Pratt, J., concur. SURROGATES. TERM. SECOND DEPT. not accountable for the subsequent N. Y. SUPREME COURT. GENERAL damage. Thereupon plaintiffs' counsel stipulated that a verdict. in their favor, if any was found, might be set aside and the nonsuit granted if the court on deliberation should conclude that one should have been granted. The case was submitted to the jury, who found for plaintiffs, and a subsequent motion to set aside the verdict was denied. A surrogate has power to entertain proceedings for the repayment of moneys deposited by a purchaser at a sale of real estate made pursuant to his decree and in a proper case to grant the relief prayed for. Appeal from order of surrogate denying application of one W. to be released from his purchase on a Roderick, for sale pursuant to decree and for the repayment of moneys deposited on said sale. L. E. Gilbert, for applt. respts. Held, No error. It is not always easy to determine who has the legal right to personal property after a contract of purchase and sale, but the rule of the law seems to be that the title remains unchanged and no property passes where anything remains to be done by the seller to ascertain the iden Certain real estate was sold by John Lynch as executor under a decree of the surrogate for the payment of his testator's debts, and W. became a purchaser on the sale. His bid was $5,325 and he deposited 10 per cent. thereof and the auctioneer's fee, besides $105 Opinion by Dykman, J.; Barnard, P. J., and Pratt, J., concur. paid for a search. The search dis- | tain the application and administer closed irregularities in the proceed- the proper relief. ings before the surrogate and also an order of the Bureau of Inspectors of Buildings of the Fire Department requiring the owners of the buildings on the premises to remove them. On discovering these defects W. presented this petition asking to be released and have his money refunded which he had paid out. The surrogate refused to entertain the proceedings and denied the application on the ground that he possessed no power or jurisdiction to grant any relief. J. H. Cook, for applt. F. E. Blackwell, for respt. Held, Error. Surrogates have power to direct the disposition of real estate, of real property and interests in real property of decedents for the payment of their debts and funeral expenses and the disposition of the proceeds thereof. Code Civ. Pro., § 2472, sub. 5. They may also exercise such incidental powers as are necessary to carry into effect the powers conferred expressly. Id., § 2481, sub. 11. These provisions clothe these officers with powers to make all necessary orders to carry into effect their decrees of sale, and at least to compel an executor to execute a deed in consummation of the sale or to pay back to a purchaser his deposit paid at the sale. This seems to be sufficiently clear under the provisions of the Code Civ. Pro., even if it was not so before. See 88 N. Y., 309. Order reversed and proceedings remitted with directions to enter HUSBAND AND WIFE. FORGERY. N. Y. COURT OF APPEALS. The People, respts., v. Ryland, applt. Decided Oct. 28, 1884. If it appears that a wife was not urged or drawn to the commission of a crime by her husband, but was inciter of it, she is liable as well as he. On the trial of an indictment for forgery, in the alteration and raising of a check, it appeared that defendant, a married woman, suggested the idea, procured the check by false representations, and delivered it to her husband; that it was altered in her presence, and that she received part of the proceeds of the crime. Held, That she was liable as a principal. The prisoner, with her husband and one W., was indicted for the crime of forgery in the third degree, and on a separate trial was convicted. The evidence showed that defendant, her husband and W.combined and co-operated in the commission of the crime, which consisted in altering a check by changing the name of the payee, and by raising the amount, obtaining the money upon it. It was proved that defendant suggested to her husband and W. the idea of obtaining the check, and that she went out with her husband and returned after an absence of four hours, with a check for six dollars, which she had procured, and delivered the same to her husband, and this check was altered in her presence. Defendant obtained the check upon representing that she wished to purchase it because the post office was closed, and she could not obtain an order there, and she desired to send it that evening to her sister or mother in Philadelphia. Defendant's husband was not present when she procured the check. It was also proved that she received a considerable portion of the avails of the altered check as her share for her participation in the crime. At the close of the testimony defendant's counsel requested the court to direct the jury to acquit the defendant on the ground that she was under the coercion of her husband at the time the offence was committed, and that all she did, viz., the delivery of the check to her husband and subsequently receiving a part of the proceeds of the forgery, was done in her husband's presence, and the presumption of law was, that she acted under his control and direction. This request was refused and an exception taken. Peter Mitchell, for applt. Peter B. Olney, District-Attorney, for respt. Held, No error. While it is the rule that whatever of a criminal nature a wife does in the presence inciter of it, she is liable as well as he. 77 N. Y., 413; 82 id., 233. The court was also requested to direct the jury to acquit the defendant, on the ground that there was no evidence in the case tending to prove that she committed any unlawful act, except that given by W., her accomplice, and he was not corroborated. The request was refused. Aside from the testimony of W., it was proved that defendant originally applied for and obtained the check; that it was altered, and as altered the money obtained upon it. Held, That the request was properly refused, as the testimony tended to connect defendant with the offence, and thus corroborated W.'s evidence. It was claimed that defendant could only be prosecuted as an accessory before the fact. Held, Untenable; that she was a principal in the transaction from the beginning, and as such was chargeable as the maker of the instrument. Judgment of General Term affirming judgment of conviction, affirmed. Opinion by Miller, J.; all concur except Rapallo, J., absent. LEASE. CHATTEL MORTGAGE. TERM. FIFTH DEPT. of her husband is presumed to be N. Y. SUPREME COURT. GENERAL compelled by him. 1 Bish. Cr. Law (7th Ed.) § 359. This presumption is prima facie and not conclusive, and if it appears that she was not urged or drawn to the of fense by her husband, but was an Mortimer F. Reynolds, applt., v. De Witt C. Ellis, assignee, et al., respts. Decided Oct., 1884. |