but as this point has been fully argued by counsel, it will quite probably require decision upon another trial in view of some of the evidence offered on the former trial, it is proper that it be considered now.

tion was examined by the chancellor in the light of the provincial history of New York, and he concluded that the law of England concerning divorces and matrimonial causes was never adopted in the colony of The case is to be considered as New York, in fact or in practice, though the parties were nephew and and was never the law of the colony, aunt; as relatives of the half blood and that the statutes of the states are equally with those of the whole were clearly original regulations inblood included in those degrees of tended to authorize divorces in consanguinity within which marria- cases in which no divorce could beges are deemed incestuous. 1 Hagg. fore be obtained, and he says: "to Cons., 353; 1 Ell., Bl. and Ton., consider them as an adoption of the 447; 1 Best & Smith, 447; 5 Mich., English law of divorces would be a 318; 1 Bish. on Mar. and Div., § violent perversion of the language 317. Marriages between persons and intention of the legislature." in the direct lineal line of con- This case is followed by Palmer v. sanguinity, and between brothers Palmer, 1 Paige, 276, and Perry v. and sisters in the collateral line Perry, 2 Paige, 501. It must be are incestuous and void as held, therefore, that the consanagainst the law of nations. 10 guinity of the parties would not Met., 451; 45 Maine, 367; 4 render their marriage a voidable Johns. Ch., 343. A marriage be- marriage in this state. tween nephew and aunt was pro- But it by no means follows that hibited by the canon law of England an agreement to marry between perand this prohibition was incorpor- sons thus related will be tolerated. ated into various statutes of Henry It is one thing to adjudge that after VIII, and the distinction between marriage the consanguinity of the void and voidable has become parties cannot be invoked to annul crystalized into the later law of the marriage, and quite another to England. Such marriages, while not decide whether an agreement for void, were voidable by the sentence marriage between persons so nearly of the ecclesiastical courts pro- related should be sanctioned. In nounced during the lifetime of both the one case the bastardizing of parties. Whether this distinction the issue and the unsettling of suchas ever obtained in our own cessions would furnish decisive reacountry is an open question, but sons why the marriage should not that it has never obtained in this be annulled. When the parties have state is authoritatively settled. not consummated their agreement these reasons cannot apply.

The commentators recognize it as a part of the body of law brought to the colonies by our ancestors and adopted by us; but in Burtis v. Burtis, 1 Hopk. Ch., 557, the ques

Notwithstanding the extensive research of counsel, no case has been found which determines whether an agreement for a marriage

between a nephew and aunt is obnoxious as contravening morality or public policy. Such marriages are expressly prohibited by the laws of

A new trial is granted.
Opinion by Wallace, J.

England and by the statutes of APPEAL. ENTRY OF JUDGmany of our own states. Where

MENT.

TERM.

Shepherd F. Knapp, as rec'r v. Walter Roche.

Decided May 5, 1880.

It is the duty of the respondent to enter judgment of affirmance, and to prepare and file a proper judgment roll in pursuance of the decision of the General Term. The appellant has a right to insist upon the performance of this duty.

such marriages are prohibited the N. Y. SUPERIOR COURT. GENERAL question would not arise, because it would not be attempted to recover damages for the breach of an unlawful contract. And it is not improbable that the question has not been presented to the courts of the states where there is no statutory prohibition because such marriages are felt to be so unnatural and revolting that they have been very rare, and but few persons have been found willing to contemplate such a union. Appeal from an order denying apBetween what degrees of consan- pellant's motion to require respondguinity the line is to be found which ent to perfect judgment, pursuant determines what marriages are un- to a decision made by the General objectionable, and what are not to Term. The papers upon which the be tolerated, it is not necessary to appeal was heard and determined decide; but the better opinion would were the printed case and excepseem to be that marriages should tions. The case and the proposed not be sanctioned in any nearer de- amendments, and as settled by the gree than cousins german. A mar- judge who tried the cause, were riage between uncle and niece, or filed, but the appellant failed before nephew or aunt, would certainly the hearing of the appeal to file a shock the sentiment of any en- copy of the printed case and exceplightened community, and this, in tions as settled, as required by the the absence of any other test of the rule. The appellant did not succeed propriety or decency of things,should in the appeal, the judgment being be accepted as controlling. It can affirmed on certain conditions. On hardly be doubted that if the parties his motion to require the respondhere had become husband and wife, ent to perfect judgment, pursuant to they would have been regarded as the decision, the motion was dejoined in an unnatural union, and, as nied. victims of a corrupted moral taste, to be pitied and avoided, if not objects of detestation. In this view the plaintiff may consider herself fortunate that she has been saved proper judgment roll, as required from such a future. by § 1238, based on the decision of

Devlin, Miller & Trull, for plff.
John T. McGowan, for deft.
Held, That it was the duty of the
respondent to prepare and file a

the General Term, by which the judgment appealed from was affirm

SPECIFIC PERFORMANCE.

TIME.

TERM.

GENERAL

Edward Selleck v. Jacob Tallman.
Decided June 7, 1880.

Where time is not the essence of a contract by
its terms, and it remains to be seen by the
evidence whether time was made essential by
subsequent notice, it must appear that such
notice was express, distinct and unequivocal
in an action for specific performance in order
to defeat the action. It is otherwise in an
action at law.

ed on certain conditions, and the ap- N. Y. COMMON PLEAS pellant has a right to insist upon the performance of that duty. Lentilhon v. The Mayor, 3 Sandf., 721; Rust v. Hauselt, 69 N. Y., 485. That the motion should not have been denied because no printed case and exceptions as settled were filed, as required by the rule. That it should have been done, and on the argument the certificate of the clerk should have been produced, showing that it was done, and if the respondent had called the attention of Action to compel the specific perthe General Term to the appellant's formance of a written contract, omission in that respect, the court dated February 19, 1879, between would have enforced the rule. That the parties, whereby defendant both parties having invoked the agreed to sell to plaintiff certain action of the court as though all preliminaries had been fully complied with, and the court having acted upon that assumption, the respondent cannot now be permitted to defeat the appellant's right of review in the Court of Appeals by declining to perfect a judgment, pursuant to the decision procured.

real estate in this city for $75,000; $1,500 being paid in cash at the signing of the contract, and plaintiff agreeing to assume $34,500 of mortgages, give a purchase money mortgage for $37,500, and pay $1,500 in cash on the delivery of the deed, April 1, 1879. Defendant on that date produced a deed dated FebruThe order appealed from re- ary 19 1879, and insisted that inversed, with costs, and an order terest should run upon the mortgranted requiring the respondent gages from the date of the contract. to enter judgment upon this Plaintiff objected, claiming that the decision made by the General deed should have been dated April Term, and to file a judgment roll, 1, 1879, and interest on the mortand providing that in doing so he gages should run from that date. may file one of the printed copies Defendant then offered to carry out submitted on the argument, and, the contract according to its terms, further, providing that in case of without intimating that he would respondent's failure to comply with said order within twenty days, the appellant may enter judgment and prepare the judgment roll.

not insist upon his previous construction of it. Plaintiff produced and handed to defendant a bond and mortgage for $37,500, dated April 1, Opinion by the court. Speir and 1879, and a check for $1,500. Then Freedman, JJ., concurred. plaintiff's counsel inquired about

some apparent liens, and asked a few was this objection cured by defenddays' delay to examine them. The ant's subsequent offer to carry out parties now separated, and a few the contract according to its terms. days after plaintiff made repeated There was no retraction on his part efforts to find defendant. Defend- of his previous construction of it, ant's answer in the suit alleged fail- and plaintiff was justified in asure to comply with the terms of the suming that the defendant's intencontract and his own readiness to tion as to the assumption of the payperform it. On the trial the court ment of accrued interest was undismissed the complaint, holding changed. No express notice was

that the fact of defendant's deed given that the contract should be being dated back to February 19 closed on April 1, 1879, or any other was not objectionable, and that day, and there are no facts in the plaintiff, having failed to consum- case from which notice can be fairly mate the contract at the date fixed, was not entitled to the relief sought. Plaintiff appealed. Luther R. Marsh, for plff. James M. Smith, for deft.

Held, That upon the authority of Myers v. De Mier, 4 Daly, 647, affirmed 52 N. Y., 64, the judgment must be reversed.

implied. If this were an action at law, the defendant's theory as to time of performance would unquestionably be upheld. Fries v. Rider, 24 N. Y., 367. But in an action purely equitable the ruling in Myers v. De Mier, supra, must be applied. See also Hubbell v. Van Schoening, 49 N. Y., 326; Merchants' Bank v. Thompson, 25 N. Y., 7.

Opinion by Larremore, J.; Van Brunt, J., concurred.

COSTS. FORMER ACTION.
ELECTION.

N. Y. COMMON PLEAS.
TERM.

GENERAL

That time was not of the essence of the contract by its terms; nor, in view of the fact that suit was brought upon it within eighteen days after the day fixed for its consummation, can it be inferred that there was any such delay as would constitute laches. It remains to be seen whether time was made essential by subsequent notice. Although this is a question of evidence, yet it . must appear that such notice was express, distinct and unequivocal. Fry on Spec. Perf., sec. 728, and cases there cited. The deed which he produced was antedated, and, taken in connection with the void When a party elects to sue in an action for tort, interpretation of the contract, raised a question as to plaintiff's liability for accrued interest on the existing mortgages which the latter was

Isidore Arnold v. Richard S. Clark.

Decided June 7, 1880.

Where it is songht to stay the prosecution of

an action because the costs of a former action have not been paid, it must appear, from the record, that the actions are identical.

arising on contract, he is not thereby barred from suing upon the contract after the first action was dismissed.

Appeal from an order denying a

under no obligation to answer. Nor motion made by the defendant to

stay the proceedings on the part of action they are not now a subject of the plaintiff until the payment of the consideration. The sole question is, costs of a former action between the same parties.

were they involved or passed upon in the previous adjudication? Sweet It appears that, in 1874, an action v. Tuttle, 14 N. Y., 465; Burwell v. was commenced in the New York Knight, 51 Barb., 267; Stowell v. Supreme Court by the plaintiff Chamberlain, 60 N. Y., 271. That against the defendant. On the trial it appears that both actions necesupon the pleadings and evidence sarily arose from one cause, but the court regarded it ex delicto, and this did not destroy the distinctiveso treated it, and dismissed the ness of their character. In the one complaint; and such judgment was exemplary damages might be awardaffirmed by the General Term of ed, in the other actual loss could be that court. The plaintiff subse- recovered. That the plaintiff, by quently brought this action, setting exercising his election, did not waive forth in his complaint the former his present cause of action. Louw suit in the Supreme Court, and his v. Davis, 13 John., 227; Foster v. election therein that it was in tort. Milliner, 50 Barb., 385; Thompson He then alleges the hiring of the v. Wood, 1 Hill, 93. That the two same premises on false representa- actions are not identical to sustain tions of the defendant, and the ex- an injunction at this stage of the penditure of $400 for fixtures and case. improvements on the premises,

which had become a total loss to

Order affirmed.

Opinion by Larremore, J.; Van him in the subsequent agreement Brunt, J., concurred in result.

and neglect of plaintiff to make suit

able repairs, and for the falsity of

ARREST.

said representations, and the alleg- N. Y. SUPREME COURT. GENERAL

TERM. FIRST DEPT.

Charles A. Easton et al. v. Asa R.

Cassidy.

Decided June 11, 1880.

ed breach, on defefendant's part, he claims damages in the sum $10,000. For a second cause of action plaintiff avers a covenant or agreement by the defendant of quiet enjoyment An order of arrest cannot be upheld where of the premises, and a breach thereof, to the plaintiff's damage of $10,000.

Maybaum & Epstein, for plff.
George E. Holt, for deft.

two or more causes of action are united, any one of which does not present a proper case for an arrest.

If the arrest is for fraud, the same must be distinctly alleged in the complaint, so as to present a definite issue for the jury. Appeal from order vacating order of arrest.

Held, That to sustain such an order as asked for by the defendant, it must appear from the record that Defendant was arrested on the the actions are identical, and that charge of having embezzled and the relief sought in each is similar. fraudulently misappropriated from Barton v. Speis, 73 N. Y., 133. That the plaintiffs the sum of $4,210. whatever may be the merits of this Upon the motion to vacate the