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read in evidence at the trial, and ants and occupants of the store, was not returned in the manner 632 Broadway. Defendants were provided for by $ 880 of the Code. the owners of the adjoining buildNor was the way paved for its ing, 630 Broadway. In February, introduction in evidence by proof 1882, defendants tore down that that the deponent had died; that building and began excavating she was absent from the State, or upon the lot for the purpose of rewas unable to attend the trial by building. A contractor was emreason of her confinement in prison ployed by defendants to shore up or jail, or because of insanity, the building occupied by plaintiffs. sickness or other infirmity.

Plaintiffs claimed that they had For these reasons it is plain that sustained damages by reason of to the extent of $174.12 the appli- the acts of defendants or the concation of the moving party must tractor acting under their control, be denied ; as to the item of $28.30 in the process of shoring up said paid the stenographer for a copy building. The defense was a license of the testimony actually taken at and no damages. Plaintiffs denied the trial I will allow him that the license and claimed that if any amount out of the assets of the had been given it was revoked. estate.

The court charged that if there Opinion by Rollins, S.

were no license, or if the license

had been revoked, plaintiffs could LICENSE TRESPASS. EVI.

recover. DENCE.

Defendants claimed that the

court erred in thereby charging N. Y. COMMON PLEAS. GENERAL

that if a license were given to enTERM.

ter upon plaintiffs' premises to Andres W. Ketcham et al., shore up the wall, such license respts., v. Henry Newman et al., might be revoked by notice, even appits.

though defendants had acted

thereon and inserted needles for Decided Dec. 6, 1886.

the support of the wall in pursuSo long as a parol license to enter upon

ance thereof; and in that it refused land is executory it is revocable at pleasure as to acts thereafter to be done un- to charge that such a license could der it.

not be revoked under such circumThe above doctrine applied to a license to

stances by mere notice. The jury enter the lands of another for the purpose

found for plaintiff. of shoring up a building thereon. In an action for trespass evidence that the Stern & Myers, for applts.

acts complained of were carefully done is Hoes & Morgan, for respts. immaterial.

Held, That the license herein, if Appeal from judgment in favor any were granted, remained execof plaintiff.

utory so long as the shoring up Action for trespass.

was proceeding, and was therefore Plaintiffs in 1882 were copart- revocable at pleasure as to acts ners in business and as such ten- thereafter to be done; and this,

though the licensee acting under Appeal from judgment entered the license may have incurred ex- upon report of a referee. penses.

Whoever acts under a Action to recover the price of parol license which is revocable flour, feed, etc., sold and delivered proceeds subject to the contin- to defendants, and for grinding gency that it may be revoked and done at their request. The answer he be without remedy as to any set up that the goods were delivexpense which he may have in- ered to defendants in payment of curred. 12 Ray, 213; 13 M. & W., rents due upon a lease of a mill 838.

made by defendant Peter Hood as Mumford v. Whitney, 15 Wend., agent of his wife. The referee 328, distinguished.

found as facts, that defendant Further held, That it was not Peter was authorized by Mary, his error to exclude evidence that the wife, to lease her interest in a mill acts complained of were carefully to plaintiff and to receive pay done under a license from plain- therefor in flour, etc., at the store tiffs in view of the character of of defendants; that Peter made the action. The action being for such lease and plaintiff agreed to trespass, no question of negli- pay $25 per month rent in flour, gence arises or can arise in the case. etc., at defendant's store, and Mary Judgment affirmed.

assented thereto ; that plaintiff Opinion per curiam. Allen and went into possession, etc.; that Bookstaver, JJ., sitting.

plaintiffs sold and delivered to defendants the goods mentioned in

the complaint, and defendants HUSBAND AND WIFE. SET

promised to pay for the same; OFF.

that said Mary did not transfer her N. Y. SUPREME COURT. GENERAL right or interest in the amount due TERM. FIFTH DEPT.

for rent to defendants, and did not Richard L. Whiting, respt., v.

authorize Peter or any one else to Peter Hood et al., applts.

apply the same in payment for the

goods sold to them; and awarded Decided Oct., 1886.

judgment for plaintiff. ExcepA husband, acting as the agent of his wife, tions were taken to these findings. leased her interest in a mill to plaintiff,

E. C. Aiken, for applts. who agreed to pay the rent in flour and feed and other mill products, to be deliv

A. J. Parker, for respt. ered at the husband's flour and feed store, HAIGHT, J., There is no evidence to which the wife assented. In an action

that Mary E. Hood ever transferred against the husband for the price of the

her interest in the rent to defendflour, etc., delivered at his store, Held, That the evidence warranted a finding ants, but that she did authorize that the husband was authorized by his defendant Peter to apply the same wife to apply the amount of the rent due in payment for the goods purin payment for the goods ; that he was

chased of plaintiff appears to us to entitled to set off such amount, and that the referee erred in finding to the con

be undisputed in the case. In fact trary.

the referee has virtually so found.

He found that plaintiff agreed to nished would probably exceed the pay the rent in flour and feed and rent of the mill, and that defendother mill products to be delivered ants would pay money for the surat defendant's store, and that she plus. Mrs. Hood testified, as the assented to the lease as so made. referee has found, that her husDefendants were the husband and band was authorized to act for her son of Mary E. Hood, and as co- in reference to the property, and partners were carrying on a store. that she assented to the terms of True, he did not find as a fact that the lease as made. We therefore, the flour, etc., were delivered to fail to see why, under the conher at defendant's store: but it ceded facts in the case, the rent of does not appear to us that such the mill should not be applied in was the contract as understood by payment of plaintiff's claim. the parties. Plaintiff testified Judgment reversed, and new that Peter Hood said to him that trial ordered. they were doing a pretty good Smith, P.J., Barker and Bradbusiness in the store; that they ley, JJ., concur. would buy a good deal of grain and handle a good deal of stuff, and they would buy their stuff of

GIFT. him and have their grinding done N. Y. SUPREME COURT. GENERAL at the mill, and they would prob

TERM. SECOND DEPT. ably have to pay him money for

Frank W. Halsted et al., the stuff they bought over and above the rent of the mill. De applts., v. Isaac W. Sherrill et

al., respts. fendant Peter testified that he told plaintiff that he would rent him

Decided Dec., 1886. the mill for $500 a year; that Evidence held insufficient to establish a plaintiff said he couldn't give that gift causa mortis. but would give $300 provided he Appeal from judgment entered could pay it out of the mill or in upon dismissal of complaint. grinding; that “he would deliver Action to establish an alleged the goods at our store or do grind- gift causa mortis by S., deceased, ing for us at the mill. I said the of about $20,000 in securities, and goods must be furnished at so low comprising nearly all his estate.

. a price as I could get them any S. died intestate March 19, 1884, where else.” It will be observed leaving his sister, Mrs. Halsted, from the evidence given by these plaintiffs' mother, and the responwitnesses, the only ones who testi- dent Mary H. Sharpsteen, a niece, fied as to the terms of the lease, his sole heirs at law. that it was agreed that the rent It appeared that on the day bewas to be paid in grinding or in fore his death S., having been ingoods out of the mill to be deliv- formed by the doctor that recovery ered to defendants, and that it was was doubtful, asked defendant understood that the goods so fur- Sherrill to get his box from the bank, which was done, and the referred to with any distinctness box being opened S. took out some was the “money,” and whether bonds belonging to one T. to whom that meant money in hand or his he gave them with others and bank credit, or his property genertold him to put them in the safe. ally, we can only conjecture. NeiHe then told Sherrill that hether were the donees referred to wanted the latter's wife to have with any precision. In answer to certain bonds in payment of his a question whether mother and debt to her, and said: “I don't the children” were meant, we are want the folks to object.” On be told the answer was “yes," but ing asked if he meant “mother what estate or share was to go to and the children” he said “yes,” any one was left uncertain. and added 'I don't want them to.' The direction to Sherrill to take I have not got very much money ;

the box to his office and take care I have not got much, but what I of it was not expressed to be, and have I give them, and I want you cannot be construed as a delivery to to carry out my arrangements.” Sherrill as the agent of the donees. Shortly after, on the arrival of the If the dying man had an intendoctors, he told Sherrill to take tion to make a donatio causa morand lock the box and put it in his tis, he failed to so express himself safe and take care of it.

as to enable the court to carry it Sherrill was a son in law of Mrs. into effect. Giving to the eviHalsted, and they both qualified dence the utmost force that can be as administrators and included the claimed, it fell far short from becontents of the box in the inven- ing sufficient to justify a verdict tory. Subsequently Mrs. H. as- for plaintiffs. signed her interests in the estate, Judgment affirmed, with costs. to the extent of the alleged gift, Opinion by Pratt, J.; Cullen, J., to plaintiffs. At the close of plain-concurs; Dykman, J., dissents. tiffs' testimony defendant Mary H. Sharpsteen moved for a nonsuit,

EXECUTION. AMENDMENT. which was granted and a request

GENERAL by plaintiffs to go to the jury de

N. Y. SUPREME COURT. nied.

TERM. SECOND DEPT. Henry M. Taylor, for applts. Samuel T. Sudlow et al., respts.,

0. D. M. Baker, for respt. Mary v. George W. Mead, applt. H. Springsteen.

Decided Dec., 1886. Held, No error, The testimony offered by plaintiffs fails in many

On application for leave to issue execution

plaintiffs' affidavit stated the date of respects to make a gift causa mor

judgment as the 1st, instead of the 5th; tis. The language used does not on motion to vacate the order granting clearly describe the property re.

leave, the motion was'denied and plaintiffs ferred to, nor the donees, nor does

given leave to file an affidavit giving the

correct date nunc pro tunc. Held, That it clearly express an intention to

the court had power to permit the cormake a gift. The only property rection.

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pro tunc.

Appeal from order of Special that because plaintiff made a misTerm, denying motion to vacate take in a date he has lost his judgan order granting leave to issue ment. execution, and granting leave to Costs being in the discretion of plaintiffs to file an affidavit nunc the court defendant has in no

manner been prejudiced by the The affidavit on which the for-action of the court. mer order was granted stated that Order affirmed, with costs. the judgment was entered on the Opinion by Pratt, J.; Barnard, first day of October, 1878, and P.J., and Dykman, J., concur. transcript filed in Kings Co. Oct. 23, 1885, whereas, in fact, the

FRAUD. PARTIES. judgment was entered Oct. 5, 1878. The order stated the correct date, N. Y. SUPREME COURT. GENERAL

Defendant moved to vacate said TERM. FOURTH DEPT. order or make it conform to the

Charles E. Hubbell, recr., affidavit on which it was granted. respt., v. The Merchants Nat. Bk. The motion was denied, and leave

of Syracuse, applt. granted plaintiffs to file nunc pro tunc an affidavit giving the correct

Decided Nov., 1886. date, to be attached to the motion Where a receiver of a corporation has been papers.

appointed in a creditor's action under &

1784 of the Code, the corporation is not Sewall Sergeant, for applt.

thereby dissolved, but is a necessary Benj. Wright, for respts.

party to an action brought by the receiHeld, No error. Plaintiff sim- ver to set aside a judgment had by its ply made a mistake in his affida

consent. vit as to the date of the judgment. Appeal from interlocutory judgDefendant does not claim to have ment overruling demurrer to the been misled or in any manner complaint, prejudiced by the mistake, and we October 7, 1884, defendant sued think it was clearly within the the Syracuse Iron Works on its power of the court to permit plain- promissory notes, and the same tiffs to make the correction. Had day the Syracuse Iron Works apdefendant appeared on the return peared and made an offer of judgday of the first motion and made ment, which was accepted and objection that there was no such judgment entered, upon which exjudgment, it would undoubtedly ecution was issued and a levy made have been corrected upon the spot, on chattels of the Iron Works on and the fact that plaintiff had said Oct. 7, and the sheriff sold made the mistake may account them Oct. 14, under the execution. for his non-appearance.

Techni- October 7, 1884, plaintiff was cally, the order ought to have con- | appointed temporary receiver of formed to the affidavit, but no in- the Syracuse Iron Works in a justice, so far as appears, was done creditor's action brought under $ to defendant. It is absurd to say | 1784, Code Civ. Pro., qualified the

Vol. 25—No. 7b.

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