ceedings taken for opening and improving the new avenue. James A. Deering, for applt. Franklin Bartlett, for respts. Held, That plaintiffs have failed to establish their right to the money. It is clear from the use of the land constituting the road, and the effect which must be given to the release, that De Peyster himself retained no such available in terest in the title to the land in the road as would justify a substantial award for it when it might afterwards, to perpetuate its use, be taken and vested in the public. After the right to use the land as a street or highway has been created, the fee is of no greater value than that of a mere nominal sum. 2 Wend., 472; 9 id., 487; 17 id., 651; 19 id., 28; 5 Denio, 919; 73 N. Y., 179; 73 N. Y., 185. The plaintiff has received his title, unchanged from the first De P. The consequence is that this action cannot be sustained. It does not entitle plaintiff to the money, simply because defendants are

bond that it has been altered by adding a clause charging the separate estate of the obligor, the question whether such clause was inserted before or after execution should be left to the jury.

Motion by defendant for new trial after verdict ordered for plaintiff.

Action on a bond executed by one C., a married woman, for the debt of her husband. C. having died, the action was revived against defendant, as her executor. The answer contained a defense alleging a material alteration of the bond after execution by the insertion of a clause charging C.'s separate es

and bind her separate estate with payment of the bond upon which she was to be made a surety were essential and material to its validity as against her; therefore, if the clause charging her separate estate was inserted after the execu

tion of the bond it was a material alteration and such an alteration as to avoid the instrument as to her; that whether such words. were inserted before or after execution of the bond by her was a question of fact which should have been submitted to the jury, 14 Barb., 122; that before the testimony of plaintiff and the attorney could be taken as true the same

must be submitted to a jury, 45 N. Y., 553; 70 id., 177; 73 id., 609; 78 id., 287; 13 W. Dig., 399; that such indications upon the bond of a change after it was originally prepared, in a material part of the bond, called upon plaintiff to explain them, and establish by satisfactory evidence that the alteration or addition was made before the bond was signed by C., and after such explanations were in evidence it was for the jury to say whether they were satisfacttory.

New trial granted, costs to abide

event.

Opinion by Hardin, J.; Smith, P. J., and Haight, J., concur.

VERIFICATION.

N. Y. SUPREME COURT. GENERAL

A verification of a complaint in an a. tion on a written instrument for the payment of money only, made by the attorney, which states that such instrument is in deponent's possession and is the source of his information and belief, is sufficient.

Appeal from order denying motion to set aside judgment entered for want of an answer.

Action on a draft drawn by plaintiffs and accepted by defend

ants.

The verification of the complaint was made by one of plaintiffs' attorneys, and was in the usual form, with the additional statement that the action was founded on a written instrument for the payment of money only, "now in deponent's possession for collection, which said instrument is the source of deponent's information. and belief."

Defendant served an answer

which plaintiffs returned because it was not verified, and entered judgment. Defendant claimed that the verification of the complaint was defective, because it did not state the reason why it was not made by the party, and because it did not state the grounds of deponent's belief and knowledge, and that therefore an unverified answer could be served.

S. I. Billington, for applt.
Kennedy & Tracy, for respts.

TERM. FOURTH DEPT.

v. George Salg, applt.

Decided June, 1882.

exact language of $526 of the Code. The provision of § 525

allows the verification to be made by an attorney when the action is founded upon a written instrument for the payment of money which is in the possession of the attorney, and those facts, when stated, constitute the reason why the attorney verifies. If otherwise those facts appear, he is by the statute authorized to verify, and we cannot see any more beneficial compliance with the statute to be gained by requiring the attorney to state as a reason why he verifies that the facts he has stated authorize him to verify. He has, by the statement of these facts, brought his case within the provision of the statute, and therefore he has shown "the reason why" the verification is not made by the party. 24 How., 49; 11 id., 442; 5 Sandf., 650; 14 Abb., 441; 3 Duer, 613. The notice accompanying the return of defendant's answer was sufficiently definite. 13 Hun, 495.

Appeal from order of County Court, refusing new trial and placing canse on law calendar, and from judgment affirming judgment of justice.

Action brought before a justice of the peace to recover penalty for violation of Excise Law. Answer, denial and a counterclaim for moneys loaned to plaintiff as overseer of the poor. The justice. overruled plaintiff's demurrer to the counterclaim.

Sale of liquor by defendant was shown, and that he had no license. The justice rendered judgment in favor of plaintiff for $50.

On appeal the County Court ordered that portion of the answer setting up a counterclaim to be stricken out, and that the appeal be argued on the justice's return. After argument the court affirmed the justice's judgment, with costs.

George E. Ripson, for applt.
John M. Davy, for respt.

Held, That the justice erred in

know of no statute which authorizes the overseers of the poor of towns to borrow money and offset or counterclaim therefor in a penal action, and the attempt of defendant to set up a claim for money loaned to plaintiff, as overseer of the poor, against a demand for a penalty for violation of the Excise Law, is without precedent and sanction of any statute.

Also held, That it was properly held by the County Court that an improper pleading cannot be made the basis of a demand for a new trial in that court, under § 352 of the Code of Procedure, 38 How.,

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

William J. Piper et al., respts., v. Giles Van Buren, impld., applt. Decided June, 1882.

The specification in a notice of appeal from a judgment of an intermediate order, the time to appeal from which has expired, is a

condition precedent to the right to review the order on such appeal.

Earl & Prescott, for applt.

J. J. Dudleston, Jr., and A. H. Prescott, for respts.

Held, Error. When the notice of appeal was served the only right that remained in plaintiff to review the order denying the motion for a new trial depended on $$ 1316, 1301 of the Code. Apparently the object of these sections, in their provisions in respect to an interlocutory judgment or an intermediate order, was to give an appellant a second opportunity to appeal therefrom, if he desired to do so, in conjunction with an appeal from a final judgment; and as a condition of the enjoyment of

cation to be inserted in the notice after the time to appeal from the judgment has expired.

Appeal from order allowing an amendment of a notice of appeal.

Action on a promissory note. Judgment was rendered for defendant and plaintiffs moved for a new trial, which was denied. The time to appeal from the order denying such motion expired March 26, 1881. Judgment was entered March 7, 1881, and notice of appeal therefrom was served April 5, 1881. In January, 1882, plaintiffs moved to amend the notice by adding a specification that they also appealed from the order; the notice of motion specifying that they omitted to appeal from such order through inadvertence. The Special Term held that it was

the statute made it necessary, as a condition precedent, that in the appeal from the final judgment appellant must "distinctly specify the interlocutory judgment or intermediate order to be reviewed." Such specification is as essentially a condition precedent to the right to exercise a second opportunity to appeal as any other condition as to the right of appeal. That condition was not observed in this case; therefore there was no compliance with the provisions of the statute.

Such specification cannot be inserted in the notice of appeal after the time has expired for bringing an appeal from a judgment. Courts have not the power to enlarge the time which the statutes allow for bringing an appeal. Code Civ.