violation of § 395 they must reject it. In this case it appears there were circumstances regarding the obtaining of the confession which the learned judge thought the jury might consider. This question has been decided in defendant's favor in Massachusetts, Michigan and Georgia, and we think their view correct. 120 Mass., 185; 108 id., 285; 111 id., 435; 119 id., 305; 126 id., 464; 27 N. W. Rep., 539; 47 Ga., 572; 45 id., 43; 55 id., 136. To these cases it is possible that 82 N. C., 631, is an exception.

Judgment and conviction reversed and new trial granted.

Opinion by Learned P. J.; Bockes, J., concurs; Landon, J., dissents.

EXTRA ALLOWANCE.

N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

Henry C. Adams, applt., v. Algernon S. Sullivan, admr., et al., respts.

Decided Nov., 1886.

In an action for an accounting of a copartnership a notice was attached to the summons that in case of default judgment would be taken for $65,000. The court found that no partnership ever existed and that plaintiff had no interest in certain investments alleged to have been made with partnership funds and gave judgment for defendants and an extra allowance of $2,000. No proof was given by affidavit of the sum claimed or the value of the subject matter involved Held, That, under the Code § 3253, there was no basis for an extra allowance.

This was an action to declare a certain law partnership made in 1841 between Henry Adams and plaintiff, his son, dissolved and for

an accounting. The complaint also alleged investment by Henry Adams of partnership funds in real and personal property and that plaintiff was entitled to a share of this. A motion for a reference was made and denied, apparently because the fact of a partnership had been denied. The case came on to be tried and at Special Term it was found that no partnership had existed and no such investments as alleged had been made. The court in his findings allowed different counsel $2,000. At the end of the summons was a notice that in case of default plaintiff would take judgment for $65,000.

H. C. Adams, for applt.

Fred M. Littlefield, L. H. Arnold, R. F. Little and L. C. Whiton, for respts.

ance.

Held, That the judgment should be affirmed except as to the allowAs the allowance was not made by an order it seems that the only way to bring it up is by an appeal from the judgment. The summons had attached to it a notice that judgment would be taken for $65,000. But this action is not one specified in Code, § 420, and judgment could only be taken by application to the court. Code, § 1214. The notice is of no use and does not show the amount claimed. Nor does the complaint. No sum was recovered. No affidavits were used to establish the amount, except one which is evidently based on the notice above mentioned. The complaint alleges that the profits of the partnership annually were $5,000. But it is

found that there was no partnership. So as to various investments. The court has found that no such investments exist. 83 N. Y., 89. All that is involved here is plaintiff's interest in what Henry Adams had and he had no interest. See 51 N. Y., 365, at close of opinion. Budd v. Smales; N. Y. Daily Reg., March 19, 1884, cited 8 Civ. Pro., 230.

Allowance stricken out, other wise judgment affirmed without costs of appeal.

Opinion by Learned, P.J.; Bockes, and Landon, JJ., concur.

VOTER. RESIDENCE.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

James Silvey v. William W. Lindsey et al.

Decided Oct., 1886.

An inmate of the New York State Soldiers and Sailors home at Bath, who has left his home in New York City with the intention of making his future residence at the home so long as he should be permitted to stay there, is a resident of Bath and qualified to vote there.

Case submitted on agreed state of facts under $1279 of the Code.

Plaintiff was an inmate of the New York State Soldiers and Sailors Home at Bath, and at the annual town meeting in 1886 he offered his vote which was rejected by defendants, the presiding officers of the meeting, on the sole ground that plaintiff was not a resident of the town of Bath. Plaintiff was duly entitled to admission to the home. At the time he became an inmate there, in 1880,

he was a resident of the city of New York, where he was a qualified elector, and since then he has resided in the home continuously, and has voted at every State election and town meeting held in the town of Bath up to the time his vote was rejected by defendants.

The case states that "in becoming an inmate of said institution, said Silvey intended to change his residence from the city of New York to the fifth election. district of the town of Bath and to make his residence in said institution so long as he should be permitted to remain there as such inmate." Defendants contend that, under Art. 2, §3, of the Constitution, plaintiff could not acquire a residence in the town of Bath while he was an inmate of the home and supported at public expense.

Miller & Nichols, for plff.
J. F. Parkhurst, for defts.

Held, That on entering the institution plaintiff abandoned his residence in the city of New York and intended to make the town of Bath his future residence permanently, or for an indefinite period, and he thus became a resident of the latter place and a qualified elector therein. Admitting that the Soldiers home is an asylum of the class and character of those referred to in the constitutional provisions, yet plaintiff could change his residence just as any other citizen. Nor was it necessary that he should have had a fixed purpose of residing permanently in the town of Bath. 31 Barb., 475; 8 Wend., 141; 1 Bosw., 673; 53 N. Y., 556;

99 Mass., 592; 12 Allen, 111; 11 Cush,, 362; 9 Gray, 357; 5 Pick.,

379.

Judgment for plaintiff for damages and costs as agreed upon in the case submitted.

Opinion by Barker, J.; Smith, P.J., Haight and Bradley, JJ.,

concur.

LAND GRANT.

N. Y. SUPREME COURT. GENERAL
TERM. FIRST DEPT.
Charles E. Appleby, applt., v.
The Mayor, etc., of N. Y., respt.

Decided Oct. 15, 1886.

A person cannot maintain an action to compel the comptroller of the city of New York to convey to him certain land under water on the water front of said city upon a resolution passed by the commissioners of the sinking fund of said city under §§ 4 and 5, Chap. 9, Revised Ordinances of 1859 of the city of N. Y., in the following form: "Resolved, that the comptroller be and he is hereby authorized to cause a grant to be issued to A. for the land under water on the North River in front of the upland owned by him between 56th and 58th streets extending to the exterior line of the city, as now fixed by law, and containing the usual covenants and conditions, atfifty dollars per foot, running measure." Such a resolution does not amount to a contract between A. and the city for the purchase and sale of said property, but leaves the issuing of the grant in the discretion of the comptroller.

Appeal from judgment of Special Term, dismissing complaint.

Chapter 9 of the Revised Ordinances of 1859 of the city of N. Y. made it the duty of the comptroller and the street commissioners of the city of N. Y. to report to the commissioners of the sinking fund what sum of money

should be charged for a grant of land under water belonging to the city of N. Y., and if the commissioners of the sinking fund agreed to the terms so reported the comptroller was authorized to cause a grant to be issued to the person legally entitled thereto. Under this ordinance the commissioners of the sinking fund passed the following resolution:

"Resolved, that the comptroller be and he is hereby authorized to cause a grant to be issued to Chas. E. Appleby for the land under water on the North River in front of the upland owned by him between 56th and 58th streets extending to the exterior line of the city as now fixed by law, and containing the usual covenants and conditions, at fifty dollars per foot running measure." After the passage of this resolution Appleby applied to the comptroller for a grant of said land and the comptroller refused to issue the same, whereupon this action was brought to compel him to do so.

Cecil Campbell Higgins, for applt.

James C. Carter, for respt.

Held, That no absolute right to the acquirement of this property by plaintiff was created by the above resolution. That it proceeded no further than to grant the authority to the comptroller to cause a conveyance of the property to be made. That no mandatory language of any description was employed in it, but it was permissive solely in its effect, and that being its extent it created no such absolute duty upon the comptroller

as would supply the legal foundation for this action. That the commissioners of the sinking fund did not by this resolution enter into any agreement entitling plaintiff to a conveyance of this land. That they had no authority to convey it themselves, but when they assented to the price reported by the comptroller and street commissioners, the comptroller was empowered to cause the grant to be issued. That, therefore, both by the ordinance and the resolution the future action of the comptroller was left to his own volition as that might be controlled by what he deemed to be just or expedient regarding the interests of the city. That the comptroller having exercised the discretion thus conferred upon him in opposition to the grant, plaintiff could not compel him to act differently by the intervention of an equitable action.

Argus Co. v. Mayor, etc., of Albany, 7 Lans., 264, distinguished. Judgment affirmed. Opinion by Daniels, J.; Brady and Churchill, JJ., concur.

ADVERSE POSSESSION.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Rudolph Bohm, respt., v. Michael Fay, applt.

Decided Oct. 15, 1886.

In an action to compel specific performance of a contract to purchase real property in

the city of N. Y., it appeared that on July 9, 1818, one M. acquired the title to the

property in question and that no conveyance of said property by M. or his heirs was on record, but that there was on record a deed executed by J. B. S. to J. M. S., dated July 17, 1828, purporting to convey said premises. It further appeared that J. M. S. and his grantees had paid the taxes upon and been in the undisturbed possession of said property since 1840, no claims to any part of said premises or attempts to convey or interfere with them ever having been made by M. or his descendants. Held, That a good title by adverse possession was established and plaintiff was entitled to judgment directing specific performance of the contract. Appeal from judgment of Special Term, directing specific performance of a contract to purchase certain real property known as No. 33 Stanton street, N. Y. City.

It appeared that on July 9, 1818, one M. acquired the title to the property in question and that no conveyance of said property by M. or his heirs was on record, but there was on record a deed executed by J. B. S. to J. M. S., dated July 17, 1828, purporting to convey said premises. It further appeared that J. M. S. and his grantees had paid the taxes upon, and been in the undisturbed possession of said property from 1840 to the date of the making of the contract in 1885, no claims to any part of said premises or attempts to convey or interfere with them ever having been made by M. or his descendants. Earley & Prendergast,

applt.

Lewis Sanders, for respt.

for

Held, That it not unfrequently happens that a chain of title is broken by the absence of a deed while the title itself is distinguished by long and continued possession, so long indeed, that a

conveyance is presumed to have been executed justifying the possession so obtained and continued. That the facts of this case established an adverse possession from July 17, 1828, by J. B. S. and his grantees which perfected a title to the premises.

Judgment affirmed.

Opinion by Brady, J.; Daniels, J., concurs upon the authority of 33 Hun, 466.

EVIDENCE. DIVORCE.

evidence, holding that plaintiff was not competent to testify to any fact save the marriage.

John H. Clayton, for applt.
T. C. Campbell, for respt.

Held, That while & 831, Code Civ. Pro., rendered plaintiff incompetent as a witness against his wife save as to the marriage, he still remained a competent witness in her favor. That the witness might have availed himself of his personal privilege and refused to answer the question as to his adultery, but this he did not do, and the

A husband or wife is competent to testify in favor of the other in an action for an absolute divorce on account of adultery as to other facts than the marriage. Section 831, Code Civ. Pro., renders them incompetent as witnesses to such facts only in their own behalf.

Appeal from judgment directed by the court.

Action for an absolute divorce upon the ground of defendant's adultery. Defendant was a lunatic and appeared by guardian ad litem, who interposed the usual general answer. Upon the trial plaintiff was called as a witness in his own behalf and testified to the marriage. Defendant's counsel then sought to prove by him, on cross-examination, adultery on his part and also the insanity of defendant at the time of the commission of the offense alleged on her part. The court excluded the

dence of condonation or the wife's insanity as to which the personal privilege of the witness would not apply.

Judgment reversed and new trial ordered.

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

HIGHWAY. JURY.

N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT.

Ward Buckley, individually and as exr., applt., v. Wm. A. Drake et al., Comrs., respts.

Decided July, 1886.

A person who signs an application to open a highway is not disqualified as a juror under the statute as a person "interested in the land."

Appeal from judgment dismissing complaint.

Proceedings were taken to open a highway. The application was signed by a great many persons. The town clerk is directed by statute to deposit in the jury box