It was agreed by the counsel for the plaintiff and defendants in the court below, that the motion to quash should be set down for hearing upon a statement of facts, substantially the same as those embodied in the plea, and which we deem it, therefore, unnecessary to recite.

Whereupon the court, on the 22d of May, 1875, ordered that the attachment be quashed, from which order the plaintiff appealed.

Held, That the composition proceedings extinguished plaintiff's debt, and that the attachment must fall to the ground.

Order affirmed.

Opinion by Bowie, J.


The People, &c., ex rel., Ferdinand Kurzman, applt. v. Andrew H. Green and others, composing the Bureau of Revision and Correction of Assessments, and the Board of Assessors of the City of New York.

N. Y. SUPREME COURT-GENERAL TERM. ments, February 11th, 1874; and on March 26th, 1874, said assessment lists were returned by said Board of Revision and Correction of Assessments to the


Board of Assessors, with directions to

them "to omit the assessments for and awards of damage by reason of change of grade," for the alleged reason that the Board of Assessors had no power to include the sums awarded to the relator and others in said assessment lists, or to

make the said award.

Decided March 6, 1876.
Jurisdiction of Central Park Com-


The owner of land at the time the change of grade is in fact completed is the person who is damaged, and is the person entitled to the award for damages done to property by a change of grade.

Appeal from order of Special Term denying mandamus.

The grade of said street was established in 1853, and said grade was changed and a new grade therefor established in 1867. After said change of grade, and after May 31st, 1872, said street was regulated and graded in conformity with such new grade, the expense of so regulating and grading said street was assessed by the Board of Assessors upon the property benefited thereby; and the damage to the land of the relator by reason of the change or alteration of the grade of said street, and the regulating and grading thereof according to said new grade, assessed at $1,888.

The relator is the owner of a house and lot of land on the northerly side of 123d street, New York City, between 6th and 7th Avenues. The building upon said lot of land was erected after the grade of said street was established in 1853, and in conformity with such established grade and before the change of grade in 1867.

The assessment lists, including and containing said award or assessment of damages, were transmitted to the Board of Revision and Correction of Assess

The relator asks for a writ of man

damus compelling the Board of Revision and Correction of Assessments to receive and enter the title of the assessment list for regulating and grading 123d street from Mount Morris Square to Eighth Avenue, in the City of New York, as duly confirmed, as of the 15th March, 1874. And that the Board of Assessors retain without amendment or alteration the awards made to this relator for damages done by reason of the change of grade of said street, and that the amount allowed to this relator for damages be included and allowed in and by said assessment list. The following questions were raised by

The said house and lot of land were purchased by the relator in May, 1872. the appeal:

1. Whether the Commissioners of Central Park had jurisdiction to alter the grade of 123d street at the point where the appellant's dwelling house had been erected.

Error to the Quarter Sessions of Alleghany Co.

2d. Whether the appellant is entitled to damage, he not being the owner of the The defendants were indicted on a property at the time the change of grade single count for a feloneous assault. Plea was determined upon by the Park Com-non cul. et de hoc; similiter and issue. missioners.' Verdict, "guilty of an assault."

A motion in arrest of judgment, on the ground that the indictment for a felony did not warrant a conviction for misdemeanor, having been overruled, the defendant took this writ of error, assigning for error the overruling of the motion and the entry of judgment on the verdict.

Held, That the common law rule that upon an indictment for a felony, there can be no conviction for a misdemeanor no longer exists in Pennsylvania. Judgment affirmed. · Opinion by Paxon, J.

Kurzman & Yeaman for applt.
Hugh L. Cole for respts.

Held, We think the Commissioners of Central Park had full jurisdiction to alter the grade of 123d street at the point where the appellant's dwelling house had been erected, and that the provisions of section 3, chap. 52 of the laws of 1852, in respect to the estimate of loss and damage sustained by reason of such change of grade are applicable to this case.

That the time within which the Board of Revision had to act had expired..

That the owner of the property in 1967, when the new grade was established, is not the person entitled to the award, as the change of grade had not been completed. It is impracticable, we think, properly to ascertain and determine such damage, until the change in the grade be in fact completed. And it seems to us quite apparent that no damage within the contemplation of the law is done until that event occurs; and that if the action of the Park Commissioners had never been carried into effect by an actual change, it is clear there would have been no loss or damage sustained.

The order below should be reversed, and
the writ of mandamus granted.
Opinion by Davis, P. J.; Daniels and
Brady, J. J., concurring.


Hunter et al, v. The Commonwealth.
Decided November 15, 1875.

On an indictment charging a felony, the jury may acquit of the felony, and convict of the constituent misdemeanor.


U. S. SUPREME COURT. Magdalena A. Zeller, et al., plffs. in error, v. Edgar A. Switzer, defts. in


Decided January, 1876.

To give this court jurisdiction to review the decision of a State Court, the judgment of the latter must be final.

In error to the Supreme Court of the State of Louisiana.

This action was brought upon a bond given to release the steamboat Frolic from a provisional seizure. The defendants answered the petition November 25, 1870, setting up several defenses, and, Dec. 5, 1870, filed a peremptory exception. The court below upon hearing sustained this exception, and gave judgment in favor of the defendants. The defenses set up in the answer were not passed upon.

From this judgment an appeal was quantity of dry weeds and rubbish which taken to the Supreme Court, where a had been pilled up and deposited the prejudgment was entered as follows: vious autumn by the company's workmen on the roadway between the track and the plaintiff's fence. The fire thus reaching the fence destroyed a few panels thereof, and thence, impelled by a strong wind, burned across two dry grass fields to another fence, which communicated the fire to a tract of woodland inclosed by it. The distance between the railroad and the adjoining fence was five or six feet, and from the railroad to the woodland six hundred feet.

"On appeal from the second judicial court, parish of Jefferson, it is ordered and adjudged that the judgment of the lower court be set aside; that the exception be overruled; that the case be remanded to be proceeded with according to law, and that the appellee pay costs of appeal."

To reverse this judgment the present writ of error has been prosecuted. and a motion is now made to dismiss the writ because the judgment is not final.

There was also evidence for the plaintiff that this engine, about a mile west of this farm, was on that day throwing out an unusual number of sparks, and was kindling fires along the roadside at every hundred yards. On the other hand, the defendants proved that the engine was provided with a spark-arrester as good as any then in use, and called two stack inspectors, who testified that the engine on that day started from Philadelphia and arrived at Harrisburg with its spark-arrester in perfect order. The defendants, in three distinct points, asked the court to charge that there was no sufficient evidence of negligence on their part as to


Pennsylvania Railroad Company, V.

Decided February 7, 1876.

In an action against a railroad for negligently firing plaintiff's wood- either the rubbish or the roadway or the land, whether or not the injury was condition of the engine; and, in their the direct natural consequence of de-last point, asked the court to instruct the fendant's negligence, is a question for the jury.

jury as matter of law, that

Error to the Common Pleas of Chester county.

"The sparks emitted from the engine and the fire thereby caused upon the line of the defendant's roadway, were not the

Case, ex delicto, by Hope against the Pennsylvania Railroad Company for dam-proximate cause of the burning of the fence between the pasture land and the ages caused by the negligent firing of his woodland, or of the woodland itself, both property by the defendants. Plea, "Not the fence and the woodland being at least guilty." where the fire originated." six hundred feet distant from the place

The facts were these: The plaintiff was the owner of a farm through which the railroad passed east and west. On the morning of March 18, 1873, immediately after the mail train had passed west, fire was discovered at the end of a cross tie of the track; thence it spread to a small

Held, The judgment was not final. The State Supreme Court having merely reversed the judgment, the inferior court must now proceed further.

Writ dismissed.

Opinion by Waite, C. J.

The court below declined to affirm these points, and left it to the jury to say whether the burning of the woodland, and of the fence inclosing it, was the direct natural consequence of the defendant's negligence.

Verdict and judgment for the plaintiff rods long, being the easterly end of a farm for the full amount claimed, to which the known as the "Cross-lot," with damages defendants took this writ of error, assign- for withholding the same, Plaintiffs ing for error the answers to their points claimed that the easterly boundary of and the charge of the court. their farm is a fence which was erected in Held, That the question of the proximi- 1812 by one T., who was then in possesty of the injury to the original cause was sion, and that he cultivated the land up a question of facts peculiarly for the jury. to the fence. The evidence showed that How near or remote each fact is to its the fence was erected to protect a crop of next succeeding fact, in the concatenation wheat which T. had planted upon the of circumstances from the prime cause to land in controversy, and that this land the end of the chain of facts, which is im- continued until in 1866 in the actual posmediately linked to the injury, necessarily session of T. and his grantees as part of must be determined by the jury. These the Cross-lot farm, and that for upwards facts or circumstances constitute the case of fifty years the adjoining owner had and depend upon the evidence. The jury occupied up to the fence. In 1820 the must determine, therefore, whether the fee of the farm was conveyed to T. by a facts constitute a continuous succession deed which described it as then in the of events so linked together that they be- possession of T., and stated the eastcome a natural whole, or whether the erly boundary to be "the east line of the chain of events is so broken, that they be- Montressor Patent, as the same ought to come independent, and the final cause can- be established." It was also proved on not be said to be the natural and probable the part of the plaintiffs that in 1844 one consequence of the primary cause, the V. O. owned the Cross-lot farm and lived negligence of the defendants. Per curiam opinion. on it, and one B. owned the farm now belonging to defendant, and was in possession of it seven years. That each agreed to keep one-half of the fence in repair and did so. In 1866 defendant tore down the old fence and erected a new one to the westward of it, on what he claims to be the true line of the Montressor Patent, cutting off the land in dispute. Defendant proved that the new fence was on the true easterly line of the Montressor Pat

ent. Plaintiffs contended that the di



N. Y. COURT OF APPEALS. Jones et al. applts. v. Smith, respt. Decided February 22, 1876. In an action of ejectment, evidence tending to show an acquiescence in and practical location of a boundary line for more than twenty years is admissible, although such line is not the true line described in plaintiff's grant.

vision line had been established by practical location, and the old fence must be A witness being interrogated as to a regarded as such line, whether on the true conversation with B., and B. being line of the patent or not. The complaint called, testified to a particular con- was dismissed on the ground that as the versation with witness, the witness deeds under which the plaintiffs derived can be recalled to deny specifically the alleged conversation testified to by B.

title, declared the easterly line of the farm

to be the easterly line of the Montressor patent, as the same "ought to be estab

This was an action of ejectment brought lished." This was an admission that the by the ancestor and intestate of the plain- line was not established, and by implicatiffs, in his lifetime, to recover a strip of tion, that the fence was not on the true land about twenty rods wide by seventy line.

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R. L. Hand for applt.
Robert S. Hale for respt.

Held, error; that the evidence of acquiescence in the fence as a boundary line should have been submitted to the jury; that the jury might have found from the evidence a practical location of a line between the two farms, and a possession of more than twenty years in pursuance of such location.

Assumpsit by Shriner on a note drawn May 11, 1871, at three months, by the firm of Young & Worth to the order of G. W. Minsker, and by him endorsed to R. T. Barber for value before maturity. Barber was one of the firm of Young & Worth, which firm became insolvent before the maturity of the note, and was On the trial V. O. was interrogated as dissolved; a bill for an account was filed to conversations with one B., and denied and a receiver appointed. The note was that B. had ever claimed that the fence not paid at maturity, and was duly proteswas not on the true line. B. was after- ted. In May, 1873, Barber endorsed it wards called and testified to a particular to Shriner, who brought suit on it in the conversation with V. O. as to whether the court below. It did not appear that Barfence was a division fence. V. O. was ber was personally insolvent. The note then recalled by plaintiffs, and they had been discounted by Barber out of his offered to disprove by him the alleged con- own funds, and there was no evidence that versation with B., and to contradict B. in Shriner knew that Barber was a member that respect. Defendant objected on the of the firm. ground that V. O. had been fully examined. The objection was sustained and exception taken. Defendant urged that the effect of the acts of acquiescence proved was destroyed by this evidence of

Upon the trial the plaintiff, after proof of the note, offered it in evidence; the defendants objected on the ground that Shriner, being an endorsee after maturity, could not sue on it in his own name. Objection overruled, and note admitted.


Error to Common Pleas of Union county.

Held, That the court in excluding the re-examination of V. O. must have assumed that such evidence had been in substance denied by V. O., otherwise the refusal was error, and if denied it was a question for the jury. Judgment of General Term reversed, and new trial ordered.

Opinion by Rapallo, J.

The defendants offered to prove that Barber was a member of the firm of Young & Worth, and that the partnership had become insolvent, and had been dissolved before the maturity of the note, which offer was refused.

Verdict for the plaintiff and judgment thereon, to which defendants took the writ, assigning for error the admission of the note in evidence, and the rejection of defendant's offer.


Decided February 7, 1876.

Held, The note is admitted to have been good in the hands of Minsker, the payee, and was taken from him by Barber for a full consideration paid out of his indi

It is not competent for the maker of a promissory note to set up, as a de-vidual funds. Though Shriner took the fense to a suit by an endorsee for note after it was overdue and protested, it value after maturity, any equities existing between the maker and an intermediate endorsee. not connected with the transaction between the original parties.

was without notice that Barber was a partner of Young & Worth. There was nothing to put him on his guard, and no want of consideration or of equity to af

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