ance in watching for trains coming in the opposite direction and in keeping his engine under absolute control. He was bound to obey the order of the train despatcher, and so far as appears he did so. Rule 10 provides that all delayed trains must approach Canajoharie and certain other stations under absolute control. It is claimed that there was a breach of this rule on the part of some of the engineers of this train. Held, That this would not aid defendants, as it appeared that deceased was not responsible for the speed of the train and had no control of the air-brakes. His duty was to look out, and if he saw danger ahead to give the signal and reverse his engine; that he did. In any view of the case it was a proper question to be submitted to a jury. Defendants offered to show by expert testimony what was the meaning of the holding order "do not pass Canajoharie without further orders." This was rejected. Held, No error. This was imThis was immaterial, as there was no question as to the meaning of the order, and if it was doubtful the question would be, how the employees understood it at the time. If the orders were so blind that it required an expert to tell their meaning, it furnished no defense to show how an employee ought to have understood them at the time. It was the direct act of defendants, through their agent, in giving improper, unwise and in definite orders, as the jury have found, that caused the injury. It was because the orders were not understood and were misconceived that the collision happened. Also held, That it was the duty of defendants, not only to provide proper rules for the management of their trains, but to take every reasonable precaution to bring such rules and orders to the knowledge of all the employees to be affected thereby. The superintendent who gave the orders for running the trains must be regarded as occupying the place of the corporation in respect as well to the orders as to the omission to take proper precautions for carrying them into effect. 13 Am., 545. The jury have found, under a proper charge, that the accident occurred through the issuance of improper orders by the superintendent without proper notice to the different trainsmen. Also held, That the fact that the negligence of some of the fellow servants of the deceased co-operated with the negligence of defendants in producing the injury does not relieve the latter from liability. 80 N. Y., 46; 95 id., 546. See also 91 N. Y., 332; 92 id., 639. The order was such as justified the jury in believing that the orders were improper in that they were uncertain, indefinite and unintelligible, and that no precautions were taken to see that they were were properly understood and acted upon. Judgment affirmed, with costs. Opinion by Pratt, J.; Barnard, P.J., and Dykman, J., concur. MECHANIC'S LIEN. HUS BAND AND WIFE. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. John McDougall et al., applts., v. Mary Nast, impl'd, respt. Decided Oct., 1886. Where a man, with his wife's consent, erects improvements on her real estate, said estate becomes subject to the statutory mechanics' liens the same as if the wife had personally contracted for the erection of the building. The statutory lien is limited to the amount due to the contractor at the time of filing the notice, or to the sums he might receive afterwards on account of his contract. Appeal from judgment on decision of Special Term dismissing plaintiffs' complaint. Action to establish a mechanic's lien on land owned by respondent, and to foreclose such lien. Respondent owns a lot of land upon which her husband made a contract with one F. to erect a store at an agreed price of $4,200. Respondent was not a party to said contract, but consented to the erection of the store. Mr. Nast advanced to F. on the contract, as the work progressed, $3,000, and the building being then incomplete, the contract was changed in some particulars, Mr. Nast agreeing to pay an additional $500 when the work was done; under the modified agreement Nast advanced $1,398.98. Thereafter and on April 30, F. willfully and without cause abandoned the work in an unfinished condition and Nast completed it at the necessary expense of $1,226. When F. abandoned the work he had been paid all that was due him under the contract, and it would then have cost more to complete the work according to contract than would be due under the contract on its full performance. Appellants furnished material and did work and labor on the building for F. to the amount of $111, and on May 20 filed a notice. for the purpose of acquiring a lien upon the premises in compliance with the provisions of the statute creating liens in favor of laborers and material men. Near & Platt, for applts. Holliday & Bingham, for respt. Held, That although Mrs. Nast was not a party to the contract under which F. did the work, yet as she consented to the improvement of her property in that manner a lien would attach thereon in favor of laborers and material men, the same as if she had personally contracted with F. to erect the store upon the terms agreed upon in the contract between her husband and F. 79 N. Y., 273; 77 id., 388; 90 id., 336. It is only the money which the contractor earns under his contract that is reached by the proceedings authorized by the statute. Laws of 1873, Ch. 489; 67 N. Y., 215. The sums expended by Nast in completing the building after the abandonment cannot be fairly construed as payment to F., the contractor, after the notice was filed. He did that only which the contractor had agreed to do, and until done nothing would have been due him under his agreement. To complete the building Nast had to expend TERM. SECOND DEPT. William Nelson, applt., v. Edward Gridley, respt. Decided Dec., 1886. The lot in question was fenced on the south to the water, but was open to a highway on the north. Held, Not such an enclosure as the law required to establish adverse possession. What is necessary to constitute a practical location of a boundary line. Where a grantor has plainly expressed in a deed the land conveyed, it is immaterial what his intention was. Appeal from judgment for defendant directed by the court, and from order denying motion for a new trial. Action of trespass. In 1861 defendant's father conveyed certain land to Mrs. H. by deed describing the land by course and distance. By several mesne conveyances referring to said description plaintiff became the owner. In 1869 Mrs. H. erected a gate across the highway and a fence down to the edge of the creek. cleared the bank, which was precipitous, and planted fruit trees on a part of it. A survey of the land in accordance with the deed shows that it did not run to the creek, but left a strip about twenty feet wide, and on this strip the alleged trespass was committed. This strip is bounded on the south by said fence, on the east by the creek and on the north and northwest was open to the highway and defendant's father's other lands. Plaintiff claimed to own this strip by adverse possession and by practical location by the parties. Defendant testified that H. requested permission to build the gate and fence and that his father gave permission, with the understanding that it should not affect his title. The alleged trespass consisted in cutting down 106 trees and tearing down the fence in Jan., 1886. Plaintiff in 1871 A. M. & G. Card, for applt. Held, That the direction of the verdict was proper. There was no evidence sufficient to justify a jury in finding that plaintiff owned the land where the alleged trespass occurred. It was clear that the evidence did not make out possession under the statute, as it was never inclosed by a fence or actually cultivated and improved. Code Civ. Pro., §§ 372, 368; 74 N. Y., 240. Fencing one or even both sides of the strip down to the water was not such an enclosure as the law required to establish adverse possession. 56 N. Y., 526; 24 Wend., 451. It was incumbent upon plaintiff to prove a hostile possession of the land in question, exclusive of any other right; this he utterly failed to do. On the other hand, it appeared that his grantor only assumed to include in the deed precisely what had been originally conveyed, which did not include the land in question. The fact that the original deed from G. reserving the right to flow to extent of three feet is not material, as it does not clearly appear but that flowing to that height might interfere with the land described in the deed; even if it did not, it was competent for the grantor to make such a reservation for purposes of his own. In no sense could such a reservation extend the boundaries as described in the deed. Neither do the facts of the case constitute a practical location of the line as claimed by plaintiff. There was never any dispute or question as to the line, no doubt as to the meaning of the deeds, and no actual going upon the land and locating of the lines. A motion for a new trial was made on the ground of newly discovered evidence, which consisted of proof that that G., defendant's father, intended to convey the land down to the water. The motion was denied. Held, No error. It is immaterial what was the intention of G., since he plainly expressed in his deed the land conveyed. Judgment and order affirmed, with costs. Opinion by Pratt, J.; Dykman, J., concurs; Barnard, P.J., not sitting. Vol. 25-No. 12. REFEREE. MORTGAGE. EVI- N. Y. SUPREME COURT. GENERAL The rule in case of conflicting evidence is that the finding of the referee upon the facts must be accepted as conclusive upon the parties. The fact that witnesses spoke under a possible bias from interest, both pecuniary and in feeling, does not change the settled rule applicable to a review by the court, on appeal, of findings of fact. On the contrary, such fact makes the propriety of the rule more emphatic. Accountings between a mortgagor and a former holder of the mortgage, in respect to payments claimed to have been made thereon, accompanied by an agreement to apply the balances settled upon the mortgage, are admissible in evidence, as against a subsequent assignee, to prove payment of the mortgage to the mortgagees. Such an agreement to make an application is as effectual, by way of payment upon the mortgage, as if receipted to that effect or indorsed thereon; and both parties are concluded by the transaction. What was said by the parties, while the accounting and settlement was in progress, is admissible as part of the res gestæ. After a witness had been fully examined and cross-examined, he was, at a later period, sought to be questioned generally as to matters before testified to by him. The objection was taken that the matter had been fully gone over by the witness on his former examination. The objection was sustained. Held, That in this ruling there was no error, the ruling being one within the discretion of the referee. Appeal by defendant from judgment entered upon the report of a referee. Action to restrain the foreclosure of a mortgage by advertisement, and to compel the cancellation thereof and of the accompanying bond, on the ground that the debt had been paid. The answer alleged that six several payments, of different amounts, had been made between April, 1874, and Sept., 1876, which were indorsed on the bond and mortgage, and denied that there were any others. The question of payment was the only one litigated before the referee. Upon conflicting evidence, the referee found the fact of payment, and directed a judgment in favor of plaintiff. R. E. Andrews, for applt. James Lansing, for respt. Held, That the judgment could not be reversed, on appeal, upon the ground that the finding of facts was erroneous. The mortgage was made by plaintiff and her husband to Henry and Ephraim Alderman in April, 1869, and was by them assigned, with the bond accompanying it, to defendant July 19, 1884. Plaintiff claimed that the mortgage debt had been fully paid to the mortgagees prior to the assignment to defendant; and as evidence bearing upon the subject of such payment plaintiff was allowed to testify to what were called accountings and settlements between her husband, the mortgagor, and the Aldermans, the mortgagees. She testified that she knew of more than one in April, 1874, and several others, either that year or the next year; that Ephraim was the one with whom the business was principally done; that "there was a general looking over of accounts and bills on several occasions; the first looking over was Sept. 1st, 1873. $349.50 was found due my husband, to be indorsed on bond and mortgage; second interview was in April, 1874, $300; third interview August, 1875, $20 and $35; September, 1876, $130.20; all due my husband from Aldermans. I recollect the transaction of 1874; the sum then agreed upon was $300." The admission of this evidence was objected to, on the ground that it was but an admission of a former holder of the mortgage, and was inadmissible to affect the rights of the present plaintiff, who thereafter became the assignee for value of the security. Held, That the transactions having occurred while the relation of the parties was that of debtor and creditor, and relating to matters involving that relation, evidence of them was admissible, as would be evidence of a money pay'ment by one to the other, had it been made. That the evidence, if credited, proved a transaction between the parties-a looking over of accounts, adjusting the items-with an agreement as to the application of the balances found to the payment of the mortgage debt; and such agreement was as effectual by way of payment as if receipted, or indorsed upon the mortgage. That the transactions testified to constituted, both in law and equity, payments upon the mortgage, and they were open to proof as such, the same as would be a |