business as his partners, must be presumed to be acting under his license, and are as much bound by his representations as though they had made them themselves. The defendants cannot take the benefits of the license without sharing in its burdens. Judgment affirmed, with costs. Opinion by Van Brunt. J.; J. F. Daly, J., concurs. FALSE PRETENCES. N. Y. COURT OF APPEALS. The People, defts. in error, v Blanchard, pl. in error. Decided Nov. 14, 1882. An indictment for false pretences cannot be founded upon an assertion of an existing intention, although it did not in fact exist. B., the defendant, was indicted for obtaining property under false pretences. The representations alleged to be false were that B. stated that he was agent for G. of Utica, and that he wanted to buy eighteen cattle for G. and that G. wanted him to buy for and send him eighteen cattle, and that he had a contract with G. for buying cattle for said G. and that said G. had agreed to pay him one dollar a head for buying cattle for him. The vendor sold to B. with no right or recourse against G. and took B.'s individual check, which was post-dated, for his pay, B. saying that he could not make a draft on G. because he would not. allow him to draw on him that he wanted the cattle for G. because they would suit him; that they were for G., who would remit the price in time to meet the check Samuel Hand, for plff. in error. error. Held, That the conviction of defendant under the indictment cannot be sustained. An indictment for false pretences cannot be founded upon an assertion of an existing intention, although it did not in fact exist. Dearsley C. C., 453; 2 Wharton, § 2118; 1 D. & B. C. C., 572; 22 N. Y., 417; 3 Cox C. C., 203; 9 id., 158 Russ. & Ry., 561; 1 Parker's Cr., 238. Lesser v. People, 73 N. Y., 78, distinguished. Judgment of General Term, affirming judgment of conviction, reversed, and new trial granted. Opinion by Finch, J.; Miller, Earl and Danforth, JJ., concur; Andrews, Ch. J., and Tracy, J., not voting. NEGLIGENCE. N. Y. COURT OF APPEALS. two girls ten years old and one nine, were passing southerly on West street, and when they reached the paint shop plaintiff and two of the other girls stopped to look at some pictures on the end of the shop, and one of them, plaintiff's sister, passed on and crossed the railroad tracks, which were immediately south of the shop, the first track being within four feet and two inches of the south side of the shop. After looking at the pictures for a moment, plaintiff and the two other girls started southerly upon the sidewalk, and immediately after Dowling, respt., v. The N. Y. C. she passed the southerly corner of & H. R. RR. Co., applt. Decided Nov. 28, 1882. A child, nine years old, on approaching defendant's track looked to the west and saw no train, but not to the east, as a shop belonging to defendant obstructed the view. She was struck and injured by an engine coming from the east. In an action to recover for such injuries, Held, That the question of contributory negligence was one of fact for the jury to determine. An infant is bound only to exercise that degree of care which can reasonably be expected of one of its age, and in passing on the question of contributory negligence the age of the infant with all the other circumstances is to be considered by the jury. De the shop an engine coming from the east upon the track struck and injured her. There was evidence tending to show that no bell was rung, that there was no flagman at the crossing, that the tender of the engine overlapped the track about two feet, thus coming within about two feet of the southerly side of the shop; that plaintiff looked to the west before entering upon the track and saw no train coming; she did not look to the east, as the shop obstructed her view in that direction, and unless she had stopped and looked at the southerly corner of the shop. she could not have seen the engine. D. Pratt, for applt. Charles W. Oliver, for respt. This action was brought by plaintiff to recover damages for injuries sustained from an engine of the defendant at a street crossing. At the time of the injury plaintiff was about nine years old. fendant had a paint shop in Syracuse 233 feet long, which stood immediately south of and adjoining West street, and having a frontage of 37 feet on said street. On the It seems that under the facts day of the injury plaintiff, with proved, even if the plaintiff had Held, That, under the circumstances, whether the plaintiff was guilty of contributory negligence was a question of fact for the jury to determine. been an adult, the question of her contributory negligence would have been one for the jury. To avoid the imputation of negligence an infant is bound only to exercise that degree of care which can reasonably be expected of one of its age, and in passing upon the question of contributory negligence the age of the infant, with all the other circumstances of the case, is to be considered by the jury. 6 N. Y., 326; 58 id., 248; 83 id., 620. Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed. Opinion by Earl, J. All con Decided Nov. 21, 1882. A motion to modify an order vacating an assessment so as to limit its effect is addressed to the discretion of the court, and such discretion is not reviewable in the Court of Appeals. This was a motion, made over a year after the entry of an order in the above entitled proceedings vacating the assessments, to modify it so as to limit its effect. It appeared that said order was regularly entered upon adequate proof. The motion was denied and the order denying it affirmed by the General Term. D. J. Dean, for applt. Charles E. Miller, for respt. Held, That it was like a motion to open a default, or to vacate or Where an obligee delivers up the obligation with the intent and for the purpose of discharging the debt, where there is no fraud or mistake alleged or proved, such surrender operates as a release and discharge of the liability thereon, and no consideration is necessary to support such a transaction when it has been fully executed. Evidence to show such a transaction is not inadmissible on the ground that it would contradict or impair the legitimate effect of the deed for which the note was originally given. The two transactions are entirely distinct and independent of each other. Affirming S. C., 11 W. Dig., 550. This was an action upon a promissory note given by defendant to L., plaintiff's intestate, upon the conveyance to him of certain real estate, and as a consideration therefor, on October 11, 1870. The evidence showed that the deed and note were executed under somewhat peculiar circumstances, from which a design to protect the property of the grantor from liability to creditors might be inferred; that the grantor on being applied to for the note, and it being stated to him that the business was settled, left the room where he was, returned and pro duced a piece of paper with defendant's signature, said it was such and that settled it," and handed the same to the person who made the application on behalf of defendant. The referee found that the grantor voluntarily and intentionally cancelled, destroyed and surrendered up to defendant said security note, and as a conclusion of law the intestate discharged the defendant thereon and that no recovery could be had either on the note or on the original consideration. J. J. Perry, for applt. Held, That the finding of fact by the referee is sufficiently supported by the evidence, and the conclusion arrived at was the legal and necessary result of such finding. Where an obligee delivers up the obligation he holds against another party, with the intent and for the purpose of discharging the debt, where there is no fraud or mistake alleged or proved, such surrender operates in law as a release and discharge of the liability thereon. No consideration is required to support such a transaction when it has been fully executed. Bouvier's Law Dict., title, "Release," 29 Penn., 50; 51 Barb., 570; 5 Lans., 10. It appeared that the deed was absolute on its face and expressed a consideration. Held, That this cannot affect the right of the holder of the note to cancel and discharge it or to make VOL. 15.-No. 20b. a valid gift by delivery of the same to the maker. Evidence to show such a transaction does not violate the rule that parol evidence is inadmissible and cannot be introduced to contradict a deed or to impair its legitimate effect. The execution of the deed and note and their delivery constitute one transaction and the surrender of the note is another and a different one, distinct and independent of itself and having no relation whatever to the original transaction. Proof of such surrender is not evidence tending to establish an intention on the part of the grantee to reconvey the property, but proof of the act of the grantor by which he released and discharged the grantee from the obligation he assumed. The fact that defendant did not offer to reconvey the premises is not a proper subject of consideration in this action. While the money consideration and acknowledgment of its payment expressed in the deed is prima facie evidence that such was the consideration, this presumption does not interfere with the right to show an independent act by which an obligation taken in consideration of a conveyance was given voluntarily to the party who executed it. Judgment of General Term, affirming judgment dismissing complaint, affirmed. Opinion by Miller, J. All con cur. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Alina A. Parker et al., respts., v. Henry Austin, applt. Decided June, 1882. Where, in an action to restrain foreclosure and to redeem, the mortgagee in possession is charged with rent of the premises after he took possession, interest on the mortgage after that time should not be withheld. In such case the proper basis of settlement would be by computation of interest to the time the first rent was chargeable, a credit of such rent, and a fresh computation with annual rests. A plaintiff who comes into a court of equity to redeem should in general be required to pay costs to defendant, although he obtains the relief prayed for. to the date of the report, over and above all taxes and necessary repairs, is $170, which sum should be applied upon and in payment of the said sum unpaid on said mortgage," and found the balance due on the mortgage to be $158.75. Angel & Armstrong, for applt. Bolles & Moulton, for respts. Held, Error; that the interest accruing between October 16, 1866, the date of the mortgage, at 7 per cent., to November 16, 1879, the date of the report, would amount to $228.95. If we add to that the principal, $250, we have a total of $478.95. From that total if deduct $170, the amount of rent charged defendant by the referee, we have a balance of $308.95 as we Appeal from judgment entered the amount remaining upon the on report of a referee. Action to restrain defendant from foreclosing a mortgage of $250, dated October 16, 1866, given to secure the balance of the purchase price of a house and lot, and also for an account of the value and amount of the use, rents, is sues and profits of said premises enjoyed and appropriated by defendant since he had been in possession thereof, and also of the amount with which he should be charged by reason of the injury and waste suffered by his negli gence and lack of care and failure to repair same. It appeared that no interest had been paid upon the mortgage, and that defendant took possession of the premises in the spring of 1871. The referee found "that the rental value of said premises from the spring of 1871 mortgage at the date of the referee's report. No reason appears in the case for withholding interest from defendant upon his mortgage if he is charged with rent of the premises after he took possession. Even upon the basis of the referee's report, that the rental was worth $20 per year, a better basis for settlement would have been a computation of interest to the end of the first year for which rent was chargeable, an addition of it to the principal, a credit of the rent, and a fresh computation of interest on the balance for a year until the next rent for a year was chargeable and then a deduction from what was then due, and so on, with annual rests until the date of the referee's report. The referee decided that the plaintiffs' costs and disbursements prior to the trial be deducted from |