the partition. and conveyed by sale, under order of the court, such undivided interest to one S., who conveyed the undivided interest to another. Prior to such conveyance to S. the assignor had conveyed one of the lots set apart to him by the partition to defendant. To recover possession of which lot action was brought by S. in behalf of one who had purchased from his grantee. Held, That the only interest which S. acquired by the sale was the undivided interest of the bankrupt, and that having claimed in his complaint to recover the whole lot, he could not, without amending, have judgment for an undivided part.-Smith v. Long et al., 321. 4. Section 1501 of the Code, permitting an action by a grantee in the name of a grantor where the grant is void by reason of actual adverse possession at the time of said grant, is limited to the first grantee.-Id. 5. In an action of ejectment plaintiff proved a deed to her, her entry on some land, at least, under it, and the building of a house upon it, of which she was then in possession. She alleged that defendant had entered upon and staked out forty-one feet in width of land west of its track. The answer admitted this allegation and claimed title to the strip of land. Held, That this claim justified the action; that the fact shown, that the strip of land takes off a part of the stoop of plaintiff, showed possession in plaintiff, who should succeed as to a part of such strip of land; that, moreover, plaintiff showed prima facie title to and possession of the whole lot, save the part actually occupied by the railway; that though the conveyance to plaintiff was subject to the defendant's right of way, yet, as the extent thereof is not described therein, it was incumbent on defendant, claiming thereunder, to show that the right of way exceeded the space actually occupied by the railway.-Harrison v. The B., B. & C. I RR. Co, 362. 6. Though the complaint was defective in failing to describe accurately the premises claimed by defendant, so that a proper judgment could be entered thereon, yet, as this objection was only raised on the appeal, it would not be heard.—ld. Sub 7. One F. executed a mortgage on certain premises and subsequently conveyed to L., who assumed payment of the mortgage. In an action of ejectment brought by prior owners of the property, L. suffered default and plaintiffs were put in possession. sequently the mortgage was foreclosed and the mortgagees became the purchasers. Held, That the mortgagees were assignees" of L. within the meaning of § 1,525 of the Code, and were entitled to apply for a new trial in the action of ejectment.-Howell et al. v. Leavitt et al., 377. 8. In an action of ejectment it appeared that B., through whom defendants claimed, held a mortgage on the premises, and also a tax lease thereof; that a notice of sale was posted on the premises, and in 1840 B. sold his interest in the tax lease to C., who sold to defendants. Evidence was given that the mortgagor continued to occupy until 1843, and there was no evidence of any possession by B. except what might be implied from the notice of sale. Held, That the question as to B.'s possession was one for the jury.-Gross et al. v. Welwood et al., 434. 9. Where, in an action of ejectment, plaintiff succeeds in the first instance and is put into possession, and thereafter the judgment is reversed at General Term, the defendant will be entitled to a provision in said General Term judgment restoring him to possession upon a suggestion on the record that plaintiff has gone into possession.-Martin v. Rector, 547. 10. It seems, that, in the absence of such suggestion, defendant would not be entitled to enter judgment for his restoration to possession upon the mere judgment of reversal and without application to the court.—Id. See ADVERSE POSSESSION. ELECTIONS. See CONSTITUTIONAL LAW, 1, 2. EMINENT DOMAIN. 1. The widening of Sackett street, in the city of Brooklyn, directed by Chap. 631, Laws of 1868, was a local and municipal improvement as completely as if it had been primarily undertaken by the city under the general powers conferred by its charter.Sage et al. v. The City of Brooklyn, 37. 2. Section 16 of the charter, providing that damages awarded in street openings shall be paid without deducting fees or commissions, was incorporated in the Act of 1868, and the city was thereby rendered liable for the amount awarded, although the amount collected on the assessment for the improvement had been all paid out before the awards were presented to the Comptroller for payment.-Id. 3. Lands situated under the waters of a navigable stream which have been granted to a party by the Commissioners of the Land Office for the purpose of being filled up and docked out are subject to condemnation for railroad purposes upon payment of its value, although the terms of the grant have not been complied with; if there has been no re-entry the title has not been divested and the obstruction is legalized and does not therefore come under section 18, sub. 5, of the General Railroad Act, prohibiting obstructions in navigable waters.-In re The N. Y., W. S. & B. RR. Co., to acquire title of Walsh et al., 93. 4. A description in the petition of lands sought to be acquired by a railroad company which designates the east and west lines thereof as being those described in the deed to the present owners and the south line to be at a specified distance from the south line of petitioner's land is not sufficient. In re The N. Y. C. & H. R. RR. Co. to acquire lands of Mumford et al., 201. 5. Where land is dedicated to the purpose of .a public highway the grantor retains no such available interest 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 as a street and vested in the public.-De Peyster v. Mali et al., 209. 6. It is the duty of commissioners appointed to assess damages upon private property caused by the cutting through, or improving public streets, after taking the oath of office, to view the premises affected by the improvement, and to acquire information which there are no means of bringing before the Court. In re opening of the Boston Road, 223. 7. When the original jurisdiction is exercised in this manner, it is impossible that there should be anything like a judicial review. It is impossible, therefore, for the Court to determine upon all the elements existing whether the judgment of the commissioners was right or wrong.--Id. 8. A turnpike divided appellant's land into two parts, but these parts were used together. The eastern part, bounded by the river, was quite small, and was known as the water lot;" in the western part were the house and barns. The respondent took the water lot only. Evidence offered as to the value of the house lot was excluded. Held, Error; that in making an award the two parts should have been considered as one lot. In re The N. Y., W. S. & B. RR. Co. v. Lefebre et al., 315. 9. Plaintiff and defendant agreed to submit the question of compensation for damages to plaintiff's leasehold by defendant's road to arbitration, and agreed that the award should be made on the general principles of the railroad act. Held, That in estimating the damage to that particular estate, the arbitrators did not necessarily err in considering the repairs made by the tenant as part of said damage; if the arbitrators had erred in that respect it is doubtful whether their award could be set aside for such error. -Gillespie v. The N. Y. C. & N. RR. Co., 480. 10. In 1773 the city conveyed a tract of land by deed, which provided that the grantees should construct certain streets thereon, including Front street, and declared that said streets should forever thereafter continue and be for the free and common passage of and as public streets and ways. Held, That this was a covenant on the part of the city; that the construction of the streets by the grantees would amount to a dedication of them to the public use, and the covenant of the city constitutes an acceptance of the lands thus dedicated; that the grantees by the deed acquired the right to have Front street kept forever as a public street, which right was a private easement which passed to plaintiff as owner of adjoining lots, and that no part of such easement could be appropriated to the public use without compensation.-Story v. The N. Y. Elevated RR. Co., 564. 11. The legislature has no power to authorize a structure on a public street which is subversive of and repugnant to its use as a public open street. Whether a particular structure is consistent with the use of a street as such is a question of fact depending on the nature and character of the structure.--Id. 12. By the act of 1813 the city acquired the fee in the streets in trust to be used as public streets and not a fee simple absolute. -Id. See RAILROADS, 27; VILLAGES, 2. ESTOPPEL. 1. Where one has profited by the filing of a bond, he is estopped from denying its regularity.-Cropsey v. Perry, 138. 2. Where a party purchases a usurious mortgage upon the false representation that it is a valid instrument, the false representation as to its validity acts as an estoppel as against the person making such representation to prove it otherwise. The estoppel in such cases only operates to protect a bona fide purchaser to the extent of money actually paid by him in reliance upon the false representation as to the character of the instrument purchased.—Coffin v. Brooks, 167. 3. The note was assigned to plaintiffs in payment of an account due from defendant, who stated it was business paper, Held, That he was estopped thereby from asserting the contrary, as the effect of the transfer of the note was to suspend until its maturity plaintiff's right of action on the account.— Fleischman et al. v. Stern, 274. 4. Where a dispute between two parties, as between themselves, is settled by reference to a committee appointed for that purpose, the decision does not affect the rights of third parties.-The Seneca Nation v. Folts, 390. 5. One having entered and continued in possession under a lease is estopped from denying that his lessor has title; and under the Act of Congress, approved February 19th, 1875, authorizing the Seneca Nation to lease lands, &c., the council cannot divest one of any right which he has according to tribal rules, by any action of its own in a proceeding to which he is not a party.-Id. 6. A grantee in a quit claim deed is not estopped from denying his grantor's title. The occupant of land is not estopped from denying his grantor's title when he is under no obligation to surrender up the possession at some time, or in some event.-Grout v. Cary, 410. 7. Whether the grantee has accepted anything from his grantor depends upon whether the grantor had any interest to convey.—Id. 8. Where one gives an absolute receipt for a bill against an estate, he is estopped from denying the payment, as against the administrator who has been led to pay money on the strength of such receipt.-Gilbert v. Groff, 425. 9. Defendant was secretary and treasurer of plaintiff, and, being indebted upon his stock subscription, made his check to plaintiff for the balance unpaid, and then, as treasurer, made a check to himself for the same amount to represent a loan, and made entries thereof on the books of the company, but no money was actually paid on these checks. This was done under a general scheme that the books were to show that all subscriptions were paid in full, which was to be done by taking payment from each stockholder and then loaning him the same amount. Held, That defendant having, by his own acts, put his indebtedness to the company in the form of a loan, he should stand by it.-The Patent Elastic Felt Co. v. Spencer, 535. See APPEAL, 23; BANKS, 4; DOMICIL, 1 ; LIMITATION, 3, 8; PRACTICE, 24; TRESPASS, 2; TRUST, 2. EVIDENCE. 1. Where evidence has been given of a collision with a tier of boats, that the third boat was crushed and sunk, with all the details of the occurrence, the, opinion of an expert that such a blow as the one described | could not at such a distance produce the result claimed is inadmissible.-Crosier v. The Cornell Stmbt. Co., 34. 2. The fact of a refusal to insure a vessel is not equivalent to testimony that it was uninsurable.-Id. 3. Evidence of the price at which the owner of a vessel offered to sell her after she was crushed and sunken is not admissible on the question of her value before those events.— Id. 4. Evidence that a witness for plaintiff, who had been discharged from defendant's employ, had on another occasion tried to procure one of defendant's drivers to make a false statement as to the condition of his car, for the purpose of fixing liability on the company, is competent to prove that he was hostile in his feelings toward defendant and entertained malice towards it.-Schultz v. The Third Ave. RR. Co., 80. 5. Testimony on plaintiff's part of attempted subornation of perjury by defendant is competent as affecting credibility.-Gulerette v. Mc Kinley, 96. 6. A party calling witnesses to general reputation cannot ask what they heard said.- Id. 7. Where an impeaching witness, called by defendant, testified on cross-examination that he had heard stories about plaintiff, and plaintiff's counsel asked what the stories were, the testimony was properly excluded. -Id. 8. In an action by a female for an indecent assault, specific acts of lewdness on her part with others than defendant may be shown in mitigation of damages, although not pleaded.-Id. 9. An objection to incompetent evidence is waived by admitting the same without objection. Incompetent evidence must be objected to when offered or a motion made immediately after its receipt to strike it out, or objection thereto is waived. - The Union Trust Co. v. Whiton, 108. 10. Where the plaintiff tenders an issue as to whether a memoranda is a contract and proceeds part way through the trial on that theory, he cannot, after offering evidence to sustain that issue, object to contrary proof by the defendant on the ground that the evidence is contradicting a written contract.-Id. 11. In an action to recover damages for negligence in collecting a draft, the record of a judgment rendered in another State in an action brought by plaintiff against the drawer, adjudging that the action of the collecting agent (defendant), in taking a check from the drawee and failing to present it in time, constituted a payment of the draft, is competent evidence on the question of damages.-The First Natl. Bk. of Meadville v. The Fourth Natl. Bk. of N. Y., 116. 12. A tender of the draft is not incumbent on plaintiff as a condition of recovery in such an action.-Id. 13. Interest at the rate of six per cent. should be allowed for the whole period after the right of action accrued.—Id. 14. Where a pass-book contains numerous items which witness could not carry in his head, the book may be introduced to show these items. Wheelock v. Looney, 126. 15. Proof that the consideration of the assign ment of a claim was much less than the sum mentioned in the assignment is inadmissible to show that the claim was not genuine.-Id. 16. Declarations of the vendor of personal property are not admissible against the purchaser for value.-Putnam v. Mathewson et al., 128. 17. Where an entry on a justice's docket shows certain proceedings, they are pre-i sumed to have been according to law.Cropsey v. Perry, 138. 18. In an action of replevin for goods alleged to have been sold on a misrepresentation by vendees regarding their pecuniary circumstances, evidence of the statements of the vendees is inadmissible unless it appears they were communicated to plaintiffs before they sold and delivered the goods.-Peck et al. v. Parker, 142. 19. Hypothetical questions should state the facts assumed to be proved, upon which the witness' opinion is asked for.-Butts v. The Village of Lowville, 144. 20. A waiver of privilege cannot be inferred from witness' not specifying the ground upon which he, personally, objected.--Id. 21. An attorney's interest in the costs of a suit is not such as to exclude his testimony under 829 of the Code.-Sherman et al. v. Scott et al., 149. 22. Conversations between an attorney and his two clients are not privileged communica tions in a suit between those clients' respective representatatives.-Id. 23. An objection to testimony on the ground of incompetency of the witness should be raised before the testimony is given.-Id. 24. Where evidence as to communications which are privileged has been taken without objection, it is too late to move to strike it out.-Loveridge v. Hill et al., 190. 25. Where other testimony amply sustains a judgment against some of the defendants, it will not be presumed that certain declara- | tions of their co-defendant, admissible against himself, were allowed to have any weight against them.-Medberry v. Short, | 227. 26. In an action to recover damages for the killing of plaintiff's cattle, alleged to have been caused by negligence of defendant in not keeping its fences in repair, evidence showing that plaintiff, prior to the accident and during the same season, allowed his cattle to run at large on the highway is immaterial.-Hodge v. The N. Y. C. & H. R. RR. Co., 251. 27. Where a witness has testified that the fence was in good condition and on crossexamination swore that he did not tell plaintiff that there were no good fences along the track it is proper for plaintiff to contradict him on that point.-Id. 28. A party on cross-examination, for the purpose of discrediting a witness, may show that he has ben convicted or was guilty of a crime.-Grow v. Garlock et al., 259. 29. Declarations made by the mortgagor at the time he made application for the loan that his son had forged paper and that he had to arrange the matter are a part of the res geste and competent on the question as to whether the loan was made to the mortgagor or his son.—Id. 30. In an action of ejectment plaintiff showed a conveyance to P. H. by warranty deed, dated March 11th, 1880, of the premises in controversy, the death of P. H., June 11th, 1880, and that P. H. devised the premises to plaintiff. Defendant, to show the deed to P. H. was given as a mortgage, was allowed to prove the declarations of P. H. to third persons, by which he admitted the deed was given as a mortgage to secure money advanced by him to defendant. Held, No error.-Hutchings v. Hutchings, 870. 31. An agreement between P. H. and defendant at the time when the deed was given that the land should be reconveyed to defendant when he had paid P. Ĥ. his debt and interest may be established by the declarations and admissions of the grantee in the deed and the conduct and acts of the parties.-Id. 32. Where evidence was excluded of the submission of the matters in suit to referees, whose decision was to be final, Held, Error. -Folts v. Patterson et al., 390. 33. When the testimony of experts is proper counsel in putting a hypothetical question may assume the existence of any state of facts which the evidence fairly tends to justify. Such a question is not improper because it includes only a part of the facts in evidence.-Stearns v. Field, 409. 34. In an action to recover for services in printing bonds ordered by defendant, where the defense was that defendant was only an agent, defendant testified that he called at plaintiff's office and procured samples and was told that S., one of the partners, since deceased, would call on him about it and that S. did call. He was then asked what S. said and whether he and S. conversed about bonds of another railroad subse- "sur- 35. Where one of two makers of a joint and 36. A contract made by a physician with the 37. Such papers as are original, made by the 38. After an express contract for services as 39. In an action to recover the price of goods - 40. Admissions of a defendant, wherever 41. The son of the plaintiff, a witness, is not 42. Defendant read the items of his account and that he knew the entries, when made, 43. An objection that the cash items were not See ADVERSE POSSESSION, 1; ATTORNEYS, 14; EXCISE. 1. A person who brings an action in the name 2. A claim for money loaned to a plaintiff, as 3. The omission, in an indictment for selling EXECUTION. If 1. Where, in an action to set aside a sale of |