costs and disbursements and an allowance of five per cent. on plain tiff's claim. A. R. Dyett, for applt. C. Bainbridge Smith, for respts. Held, That, as the complaint stated a clear cause of action under the pleadings, plaintiffs were not required to prove anything, nor was defendant at liberty either to deny the existence of the facts constituting the cause of action or to prove any state of facts inconsistent with such admission. 38 N. Y., 161. Although the agree ment set up in the answer as the one by which the plaintiffs acquired the note is different from the one stated for that purpose in the complaint, that is not enough to put the latter in issue. 44 Barb., 175; 66 N. Y., 210. If the agreement stated by the answer had been established by the evidence it could not help defendant or enable him to avoid the effect of an omission to controvert by answer the plaintiff's allegations. Section 522 of the Code gives to such omission the force of a formal admission and makes it conclusive as such upon the parties and upon the Court. 38 N. Y., 28, 161. One of the plaintiffs, on his examination in behalf of defendant, testified that when they received the note they agreed to credit it to defendant's account, then due, for goods sold at the rate of nine per cent., and that this was done, leaving a balance of $35.83. It was also shown that when defendant applied to plaintiffs to take the note he said it was a business note re | ceived from Z. S., in exchange for other paper. Plaintiffs requested the trial court to direct the jury to inquire whether the representation was in fact made. This request was refused. Held, Error; that if this was so defendant could not be permitted to assert the contrary. His claim that the contract of endorsement. between plaintiffs and himself is illegal has no force when it appears that the plaintiffs acted upon his persuasion and to his advantage, in the belief caused by him that the note was the subject of lawful sale and valid in his hands. 18 Conn., 138; 62 N. Y., 69; 3 Abb. Ct. of App. Dec., 207. The account was enforceable by action at the time of the transfer of the note, and its effect was to suspend that right until its maturity, for until that time the creditor could neither legally commence nor sustain a suit for the original indebtedness. 8 Johns., 389; 3 Den., 512. The transaction. being in effect an extension of credit was sufficient as between the parties to prevent defendant from denying the truth of the representation on the faith of which the extension was obtained. 17 N. Y., 101; 50 id., 575. Plaintiffs' title then is as good by estoppel as it would have been if everything asserted by defendant in regard to the note had been true. The very object and foundation of an estoppel in pais is to prevent a defendant taking advantage of his own fraud. 3 Hill, 215; 6 Ad. & El., 115. Phoenix Ins. Co. v. Church, 81 N. Y., 218; Lawrence v. Clark, 36 | tled to a verdict, he was "entitled id., 128, distinguished. to recover compensation for the time lost in consequence of confinement to the house or of his disability to labor from the injury sustained." Defendant's counsel excepted to this portion of the Order of General Term, reversing judgment for defendant and granting new trial, affirmed, and judgment absolute on stipulation for plaintiffs. Opinion by Danforth, J. All charge on the ground that there. The element of damages which consists of law. erroneous. An exception to such charge is sufficient to raise the question on appeal. It is not necessary for defendant to request an instruction that there was no evidence of the value of plaintiff's time. This action was brought to recover damages for injury to plaintiff by the explosion of gas in the cellar or vault of the house occupied by him, which had escaped from a break in the defendant's main. The character of his injuries was described by the evidence, and it was proved that when injured he was engaged in business and had not been able to attend to business since. It was not shown what his business was, or the value of his time, or any facts as to his occupation from which that value could be estimated. The court charged that if plaintiff was enti Held, That it was not necessary for defendant's counsel to make that request; that the charge of the judge was erroneous; that evidence showing plaintiff's occupation or business and tending to establish his earning power was competent and material, 41 Barb., 384; 58 N. Y., 391; 40 id., 10; that the element of damages which consists of loss of time is purely a pecuniary loss or injury, and for such only fair and just compensation must be given. The jury have no arbitrary discretion but must be governed by the weight of evidence. 37 N. Y., 289. The rule of recovery is compensation. Where the loss is pecuniary it can be measured, but if no evidence is given showing its extent, or from which it can be inferred, the jury can allow nominal damages only. 1 Johns. Cas., 264; 5 Hill, 290; 2 Hun, 539. For pain and suffering or injuries to the feelings there can save the arbitrary judgment of the jury. Judgment of General Term, affirming judgment on verdict for plaintiff, reversed and new trial granted. be no measure of compensation | mortgage. Plaintiff sought, in this action, to recover the land subject to the dower of her mother. Wm. H. Stoddard, for applt. Charles H. Winfield, for respt. Held, That on the death of S., under the provisions of 2 R. S., 65, § 49, the real estate in controversy descended to plaintiff the same as if her father had died intestate, subject to the dower of the widow, and the power of sale contained in the will failed. Opinion by Finch, J.; Andrews, Ch. J., Rapallo and Earl, JJ., concur; Danforth and Tracy, JJ., dissent. POST TESTAMENTARY N. Y. COURT OF APPEALS. Where a testator by his will authorized his executor to sell all his property and pay the proceeds to his widow and thereafter died without making any alteration to provide for an after-born child, Held, In an action of ejectment, that the real estate descended to such child, subject to dower, the same as if her father had died intestate and that the power of sale failed. Affirming S. C., 11 W. Dig., 530. This was an action of ejectment. It appeared that the premises in question belonged to one S., who, on September 5, 1862, being married, but having no children, made a will by which he authorized his executor to sell all his property, both real and personal, and pay the proceeds to his widow. On April 17, 1864, plaintiff, the testator's only child, was born. In about a month after the testator died, without having altered his will, in which no provision was made for plaintiff. On December 1, 1865 the executor sold the premises in suit to defendant, subject to a The remedies given by statute against devisees to recover a portion. of the property where only a portion descends to an after-born child do not operate to subject the estate of such child to a power of sale contained in the will or to confine his remedies to a pursuit of the proceeds of sale. He is entitled by the plain terms of the statute to recover the same portion of the corpus of the estate he would have been entitled to if his father had died intestate. Order of General Term, reversing judgment dismissing complaint and directing new trial, affirmed, and judgment absolute on defendant's stipulation, without prejudice to the purchaser's right to a lien for the amount paid to discharge the mortgage or to be subrogated to the rights of the mortgagee. Opinion by Rapallo, J. All concur, except Andrews, Ch. J., in result, and Earl, J., dissenting. FALSE REPRESENTATIONS. | fendant liable for the false repre WARRANTY. N. Y. COURT OF APPEALS. Leese, respt., v. Heins, applt. To authorize a recovery against a defendant sentations of J., as to his title to the horse, or for breach of warranty of the title on such sale, it was necessary to show that J. was authorized by defendant to make the sale. Judgment of General Term, affirming judgment for plaintiff, reversed and new trial ordered. Per curiam opinion. All con for the false representations of a third per- This was an action to recover damages for false representations as to the ownership of a horse purchased by plaintiff, made by one J., a brother of defendant. There was no evidence that J. was authorized by defendant to sell or deliver to plaintiff the horse in question, or that defendant ever ratified such sale, or received any part of the proceeds. Plaintiff dealt wholly with J., and did not know defendant in the transaction. It appeared that J. represented that he had taken the horse in question in part payment on the sale of his livery stable, and it was proved that on one occasion, before the delivery of the horse by J. to plaintiff, defendant stated in the presence of third parties that he owned said stable. Defendant swore that the stable was bid in in his name at a sheriff's sale, but that he gave up the purchase with in twenty-four hours after it was made. A motion was made for a nonsuit, which was denied. F. L. Backus, for applt. cur. POLICE. N. Y. COURT OF APPEALS. The People ex rel. Riley, applt., v. Jourdan, Police Com'r, respt. Decided Oct. 10, 1882. Relator, a police captain, sent two policemen in the middle of the night to the house of one Mrs. J., against whom no warrant was issued or complaint made, and caused her to be brought to the station house, where he examined her for an hour in a vulgar and coarse manner as to matters of which she knew nothing. For this he was discharged. Held, No error; that he had no right or authority to do so. The relator was a captain of the police in the city of Brooklyn, and while on duty, on May 26, '81, charges were presented and filed against him, with respondent, by Mrs. J., charging him with misconduct on May 24th, he having sent two police officers to her house between 2 and 3 o'clock A. M., and made her get out of bed and accompany them to the station house, where the relator asked her several questions about which she knew nothing, and when she said so, he would say, "I do not believe you," and that he said sevde-eral times during the conversation, "Did not Sergeant Campbell say so and so?" and appeared to want her to say something against Campbell. Plaintiff was put on trial, and the evidence showed that the relator, at 2 or 3 A. M. of May 24th, sent two police officers to the house of Mrs. J., with directions that they should tell her he would like to see her and have an interview with her at the station house, One of these officers testified that they were instructed to see Mrs. J. and fetch her to the station house -request her to come. On arriving at Mrs. J.'s house they aroused the inmates, who were all in bed, and told them they had come after Mrs. J. They were informed she was sick, but they insisted she should go with them or they would remain all night. She went with them, accompanied by her father, and, on reaching the station house, was taken into relator's presence, in a room from which her father was excluded, and he there examined her for an hour, asking her questions about Sergeant Campbell and other matters in a coarse and vulgar manner, frequently saying that he did not. believe her and would have to keep her. After he had finished his examination he permitted her to return home. No complaint had been made against Mrs. J., and no warrant had been issued for her arrest. The relator was found guilty of the misconduct charged, and dismissed. Jerry A. Wernberg, for applt. Samuel Hand, for respt. Held, No error; that the relator had no right or authority from any facts appearing to send officers to the house of Mrs. J. in the night time, without any warrant, to disturb or annoy her, she being charged with no offense. Also held, That he was not justified in detaining her from her home and conducting his examination of her in a coarse and vulgar manner. Order of General Term, affirming order dismissing relator, affirmed. Opinion by Earl, J. All concur, except Tracy, J., not voting. PAYMENT. N. Y. COURT OF APPEALS. Johnson et al., applts., v. Donnell et al., respts. Decided Oct. 10, 1882. Defendants paid certain drafts to plaintiffs' messenger boy, who paid the money to P., who was plaintiffs' confidential clerk, and had authority to receive money and receipt bills. P. embezzled the money. In an action for conversion of the drafts, Held, That although payment to the messenger was irregular, yet the receipt of the money by P. was a valid payment to plaintiffs. This action was brought to recover for the conversion of certain drafts belonging to plaintiffs, and payable at sight to their order. They were drawn on defendants, who were private bankers in the city of New York. It was conceded that the drafts were paid by the defendants to a messenger boy in the employ of plaintiffs, whom the latter had directed to obey the orders of P., their confidential clerk and book-keeper. By direction of P., the boy took |