ing his rights should be at least as fatal to his claim as to that of any ordinary suitor. But in the enforcing of remedies of this character, depending upon the equitable powers of the court, and, to a certain extent upon its discretion, it will, in general, be governed by the analogy of the statute of limitations, and certainly ought not to encourage the extraordinary laches which has been manifested in this case. Order appealed from reversed, with costs and disbursements to appellant. Opinion by Talcott, J.; Barnard, P. J., concurring. Defendant claimed that this was such an infringement upon her right of exclusive enjoyment and occupation of the dwelling portion of the building, as to amount to a constructive eviction. She therefore surrendered the premises and refused to pay rent. In an action on a lease, when eviction In August, 1869, plaintiff rented the whole of a certain house of one Pike, except a store in the front basement, which was reserved to said Pike. Plaintiff wrote upon the lease an agreement to let such tenants as might thereafter rent the store have free passage through the dwelling part of the house to the water closet in the rear. On the trial defendant, in order to sustain her position, sought to introduce plaintiff's agreement with Pike which was excluded. Verdict for plaintiff. W. W. Niles for respt. Held, That the exclusion of plaintiff's agreement as to the passage-way destroyed the foundation of the defence, and no other valid reason being shown to the contrary, the result was a verdict. against the defendant. It was necessary, in order to establish violation of the covenant as to quiet enjoyment, for defendant to show that the act by which it was accomplished was that of her lessor, the plaintiff, and not a mere third party; that act was an agreement by which a part of the demise was granted to another by a prior agreement of her lessor. Exactly what the offered evidence. would have demonstrated does not appear, owing to its exclusion; but judg ing from the offer, it would seem to have been possible for defendant to have made out her case. No reason is given for this exclusion, and none is apparent. Judgment should therefore be reversed and a new trial ordered. Opinion by Brady, J.; Davis P. J. and Daniels, J., concurring. In October, 1869, plaintiff rented the same premises to defendant (the store reserved as before,) but with no agreement as to right of way to the water closet. Thereafter, certain parties rented the store of Pike, who, under plaintiff's agreement, insisted upon and exercised the right of access to the water N. Y. SUPREME COURT, GENERAL TErm. USURY. closet. FIRST DEPARTMENT. The Real Estate Trust Company, respt. v. Thomas Keech, applt, Decided May 4, 1876. An usurious agreement to extend the payment of a debt does not vitiate the debt or its securities; the agreement alone is void. The amount paid as consideration for such an agreement should be applied as part payment on the original debt. Appeal from judgment recovered in an action to foreclose a mortgage. Defendant, in May, 1871, executed a purchase money mortgage to one Jno. Congdon for $19,000. In January, 1872, Congdon assigned it to the plaintiff. In November of 1872, defendant entered into an agreement with the president of plaintiff, by which, in consideration of $1,000, he agreed that the payment of the debt should be extended six months. The amount agreed upon was paid, and the time accordingly extended. Defendant seeks to defend the action. to foreclose the mortgage, on the ground that the agreement was usurious, and therefore the securities given for the original debt were void. Wm. A. Boyd, for applt. it is not dependent upon the statutory provision which allows the recovery of usurious premiums by the debtor only, if sued for in one year. Judgment should be reduced in its amount by deducting the $1,000 and interest, and as so modified, should be affirmed. Opinion by Daniels, J.; Davis, P. J., and Brady, J. .,concurring. MECHANICS' LIEN. PUBLIC N. Y. SUPREME COURT. GEN'L TERM, John Leonard, applt., v. Thomas Reynolds and the city of Brooklyn, impleaded, etc., respts. Decided February Term, 1876. Property held by the public for specific public uses, is held in trust for government purposes, and cannot be taken by an individual for the satisfaction of his private claim. Appeal from an order of the special term, sustainining a demurrer to the complaint. The plaintiff was a sub-contractor, under Thomas Reynolds, for labor and materials furnished in the erection of a certain "fire bell tower," in the city of Brooklyn, for the erection of which the Held, That the original debt being void, it was not affected by the usurious agreement made for the mere ex-city had contracted with Reynolds. tension of the time for its payment. The proceeding is under the mechan The usury simply rendered the ics' lien law. The complaint avers that agreement of forbearance invalid, with- the tower in question is owned and held out avoiding the debt or its securities. and used by the city for public purThe only effect of the agreement, and poses. The complaint seeks to estabthe $1,000 paid, or its consideration, was lish and enforce a lien on said bell towto create an equitable right in favor of er. The city of Brooklyn demurred to the defendant to have that amount ap- the complaint. The demurrer was susplied as a part payment on the mort- tained at the special term, and this apgage debt. On the facts alleged and peal is from the order sustaining the proved, such an application should have demurrer. been made in this case. The right to James Troy, for the applt.. Jno. H. Knaebel and Wm. T. De services performed and materials furnished, and for money paid and expend Witt, for the respts. Held, The property held by a munic-ed for the defendants, and at their reipality, which is a branch of the gov- quest, in repairing the pavements of ernment, for specific public uses, is held certain streets in the city of New York, in trust for governmental purposes, and between the 1st day of June and the cannot be permitted to be taken by an 31st day of August, 1871. The comindividual for the satisfaction of his plaint alleges that the particulars of the private claim, without interfering with work performed, and of the materials. the discharge of the duties of the gov- furnished, and expenditures made by ernment, and the performance of its the plaintiff, were duly furnished by public functions. Such interference him to the Department of Public can not be permitted under color of Works, and that after said particulars general laws, intended to secure the ap. had been fully examined into by the plication of the property of a debtor to officers of said department, to each of the satisfaction of the claims of cred- the bills was attached a certificate of itors. the Commissioner of Public Works, The order of the special term sustain- certifying the necessity of the expendiing the demurrer is affirmed. Opinion by Talcott, J.; Barnard, P. J., and Pratt, J., concurring. NEW YORK CITY. CONTRACTS WITH. N. Y. SUPREME COURT, GENERAL TERM, FIRST DEPARTMENT. John B. Leverich, v. The Mayor, Aldermen, &c., of the City of New ture and approving the account. Such bills were transmitted to the Department of Finance, with the necessary requisition for the payment to the plaintiff of the sums due therefor. The defenses set up are as follows. That no notice inviting bids or proposals for doing the work, or furnishing the materials, was ever published, nor was any contract made therefor as was required by statute; that no appropriation covering the expense of the work was ever made; and that the necessity of the work was never certified by the heads of Department, nor the exA substantial compliance with the 53d penditure authorized or appropriated section of the charter of New York previous to the performance thereof, City, requiring heads of departments as required by the charter. to certify to the necessity of the work, is sufficient to enable a party to recover a just claim against the city York. Section 104, of chap. 137, of the Laws of 1870, with reference to founding contracts on sealed bids, considered and applied to a peculiar case. even though there has not been a strict and formal compliance with the statute. Motion for new trial by plaintiff, on exceptions ordered to be first heard at General Term. The plaintiff sues to recover from the defendants a large sum for labor and It appeared from the evidence that the work which was done and for which the materials were furnished was in repairing holes in the street pavements all over the City of New York, and the evidence tended further to show that charges made for the labor and materials supplied for each separate work in no one instance exceeded the sum of five hundred dollars. The separate bills of the plaintiff were below that | necessity of the work, still, they were amount. These bills were rendered for so substantially. For they contained each work about once every two weeks, the implication that the work directed to the Department of Public Works, had been found to be necessary. The by which they were aggregated into ac- statute (53d sec. of the charter), in this counts for repairing sundry streets, and respect, was substantially, though inthe gross amount only stated, in sums formally, complied with. varying from between three and four, to four and five thousand dollars. The aggregate accounts were certified as correct by the commissioner. The evidence herein tended further to show that complaints were made in Yerdict set aside, new trial ordered, costs to abide event. Opinion by Daniels, J.; Brady, J., concurring; Davis, P. J., dissenting. MARRIED WOMAN. CONTRACT. writing, showing the necessity of these N. Y. SUPREME COURT, GENERAL Term. repairs. Some were made by citizens, and the others came from the Police Department and the Board of Health. Upon these complaints instructions were endorsed, directing the performance of the necessary work, to make the repairs, and they were then handed to the plaintiff, who went on and performed what was so required to be done. Robert H. Strahan, for plaintiff and applt. D. J. Dean, for deft. SECOND DEPARTMENT. Decided February Term, 1876. Appeal from a judgment of the special term dismissing the complaint as to the defendant Eliza L. C. Cruger. Heid, That these depressions or holes in the pavements were necessarily disconnected, and the repairing of each The action is brought against the dewas in and of itself "a particular job," fendant, Eliza L. C. Cruger, upon a as that phrase has been used in this sec-bond signed by her, whereby she became tion of the statute (Sec. 104, of chap. one of the sureties of Edwin R. Olcott, 137, of the Laws of 1870), and as nei- as the guardian of the plaintiffs, then ther involved an expenditure of more being minors. The special term disthan the sum of one thousand dollars, it was not necessary that the work required to restore or repair it should be let by contract under the provisions of the above section of the statute. missed the complaint as to Mrs. Cruger, who, it appeartd, was a married woman at the time of the execution of the bond, upon the ground of her cover ture. Elihu Root, for the applts. Held further, That though formally, perhaps, the endorsements upon the complaints made by citizens,showing ne- Held, The decision at the special cessity for repairs, and directing the per- term was in accordance with the settled formance of the work necessary to make law of this state, as laid down in sevethe repairs, were not certificates of the ral decisions of the court of last resort, by which it has been determined that after his decease who should live to atthe contract of a married woman, ex- tain the age of twenty-one years, then I cept such contracts as relate to the busi- give the same farm and hereditaments ness in which she has been engaged on unto such son and his heirs if he shall her own account, under the statute live to attain the age of twenty-one which authorizes her to carry on busi- years; but in case my said nephew ness on her own account, is void at law; should die without leaving a son who and any separate estate which she may should live to attain the said age of own at the time of making the contract, twenty-one years, then I give the aforecan be charged with liability for a debt said hereditaments, after the death of founded on such contract, only when him, my said nephew Charles Muskett, the intent to charge it is "declared in to George Muskett Eaton and his the contract which is the foundation of heirs." the charge, or when the consideration is for the direct benefit of her separate estate." Judgment affirmed with costs. The testatrix died in 1871. Charles Muskett entered into possession of the farm and hereditaments called "The Folly," and died on the Opinion by Talcott, J.; Pratt, J., 22d of February, 1875, having made a concurring. WILL. ESTATE FOR LIFE. OF ENGLISH HIGH COURT JUSTICE. Muskett v. Eaton. will and appointed Charles Eaton, John Thomas Muskett, and William Muskett Elliott, executors and trustees thereof, and leaving the plaintiff, his only son, an infant of the age of six years. The plaintiff, by his next friend, filed his bill against George Muskett Eaton, Devise to C. M. for life, and in the and the trustees and executors of event of his leaving a son born or to be born in due time after his decease Charles Muskett, deceased, as defendwho should live to attain the age of ants, praying that the true construction twenty-one, then to such son and his of the will might be declared. The heirs if he should live to attain only point calling for a report related to twenty-one, with remainder over: Held, That on the death of C. M. his infant son took a vested estate in the devised property, subject to be divested if he should die under twenty one. the construction of the above-stated devise. Held, The question is whether the words "attain the age of twenty-one years" are part of the description of the devisee, so as to bring the case within the rule laid down in Nesting v. Allen, where the gift was, in substance, a gift to "such child of A. as shall attain Lucy Martin, the testatrix in the cause, by her will, dated the 21st of March, 1866, after appointing her nephew Charles Muskett, Charles Eaton, and Charles Thomas Muskett, her executors, twenty-one." But it cannot be so. It and giving them each a legacy, proceeded as follows: "I give and devise to Charles Muskett, the farm and hereditaments called 'The Folly' for his life, and in the event of his leaving a lawful son born or to be born in due time is an immediate gift to the son of Charles Muskett, with a proviso as to his attaining the age of twenty-one years; because the words are, "a lawful son born or to be born in due time after his decease;" and the testatrix must be taken to have |