premises by process of law. It is enough if the tenant yield the possession of the premises to the person having the legal title thereto, or to the person who has been adjudged to be entitled to the possession of the premises. American & English Encyclopedia of Law, Vol. vii, p. 36, and cases cited. The rule to be gathered from all the authorities, said the court of appeals in Home Life Insurance Company v. Sherman, 46 N. Y., 373, and which accords with good sense, is that when a judgment of a competent court has determined that a tenant shall deliver possession of demised premises to a particular person, he need not wait to be forcibly ejected but may acquiesce in the judgment of the court and voluntarily obey its mandate. It would be unreasonable to insist that plaintiff should have remained in the premises until he had actually been dispossessed by a marshal and his property put out on the sidewalk. There was a judgment of a competent court, made in a proceeding to which both plaintiff and defendant were parties, that determined that the premises should be delivered to a person who had a better right to them than either plaintiff or defendant had. Plaintif obeyed that judgment and by so doing was evicted and the covenant of quiet enjoyment was broken. Judgment reversed and a new trial ordered, with costs to the appellant to abide the event. O'GORMAN, J., concurs. CORNELIUS GEORGE CROWLEY, Resp't, v. MARY MURPHY, App'lt. (New York Superior Court, General Term, Filed June 27, 1890.) EJECTMENT-PARTIES-AMENDMENT. In an action of ejectment commenced in 1888, one of the defenses was adverse possession. There were two trials and defendant has availed herself of her right to a new trial under § 1525 of the Code and paid the necessary costs. Held, that plaintiff should not be allowed to amend by bringing in another party plaintiff who was claimed to be interested in the premises, both on the round of laches and because defendant is entitled to a trial of the same issues. APPEAL from an order made at special term allowing the plaintiff to amend the summons and complaint in this action by adding the name of one Ellen Daly as party plaintiff, and by adding to the complaint such allegations as might be appropriate to set forth her interests in the premises mentioned in the complaint. The action was commenced in the year 1888, in the name of Cornelius George Crowley, grantor, and Joshua C. Sanders, grantee against Mary Murphy and others, under § 1501 of the Code of Civ. Proc., to recover the possession of certain premises situate within the city and county of New York. David B. Odgen, for app'lt; Townsend & Mahlon, for resp't. TRUAX, J.-It is not necessary for us to determine the interesting questions suggested by counsel for respondent. If Ellen Daly was not a necessary party, plaintiff should not have made the motion that he did make. We think that in view of the fact that there have been two trials of this action and that defendant had paid one large bill of costs to plaintiff and because of the laches of paintiff in making the motion, the motion should have been denied and plaintiff left to commence his action anew. There is another and more important reason why the motion. should have been denied. This is an action of ejectment. before stated, the case has been tried twice. And the defendant has availed herself of the statutory right given by § 1525, and has paid the costs required by that section in order to obtain a new trial. This new trial should be of the same issues as those that were tried in the first action. One of the issues tried in the first action was whether as against the plaintiff in that action. there had been adverse possession. Now, if the amendment sought for is allowed, a new issue will be presented in this action, viz. Whether the defendant can show adverse possession not only against the plaintiff, Cornelius G. Crowley, but against another person, Ellen Daly. The plaintiff, if he saw fit to do so, could have discontinued this action, and could have begun another, in which new action he could have brought in all of the necessary parties. The order appealed from is reversed, with costs, and the motion is denied, with ten dollars costs. FREEDMAN, J., concurs. DORETTA R. MORIARTY, by guardian, Resp't, v. JEREMIAH J. MORIARTY, App'lt. (New York Superior Court, General Term, Filed June 27, 1890.) DIVORCE ALIMONY. Alimony will not be granted in actions for absolute divorce where all the charges of adultery are made on information and belief if the defendant positively denies the charges. APPEAL from an order directing the payment of alimony and counsel fee. Peter Mitchell, for app'lt; George F. Martens, for resp't. TRUAX, J.-The action is brought to obtain an absolute divorce on the ground of the adultery of the defendant. Alimony will not be granted in every action for divorce a vinculo brought by a wife against her husband. The plaintiff is bound, said the court of appeals in Collins v. Collins, 71 N. Y., 275, to present a case to the court showing that she has a fair prospect of success in the action. In the action at bar no such case was presented. The moving papers do not contain a single allegation relating to the adultery of the defendant worthy a moment's consideration by a court of justice. There are many vague statements in the moving papers to the effect that plaintiff had learned that defendant was living with a woman who claimed to be his wife; that other affiants had ascertained that defendant was keeping house with a woman who was known in the house, and who was reputed to be the wife of the defendant; that on one occasion one of the affiants was informed by this woman that she had been living with defendant for two years, and had occupied the same bed with him the night before, but we are not told from whom plaintiff obtained this information, and the statement that plaintiff had learned that defendant was keeping house with a woman is not an allegation that defendant was in fact keeping house with a woman. This court has lately held in the case of Martin v. Gross, 50 Super. Ct., 512; 22 N. Y. State Rep., 439, that a general assertion of a fact upon information and belief proves nothing. In the case before us it does not even appear that plaintiff believed what she "ascertained" or was "informed" about the defendant, and the defendant and his alleged paramour deny that they are living together as husband and wife, or that they occupied a bed as above stated. I think that the rule to be followed in a case of this kind is well stated in Monk v. Monk, 7 Rob., 153, that alimony will not be granted in an action of this kind where all the charges of adultery on the part of the husband are made on information and belief, if the defendant positively denies the charges. Order appealed from reversed, and the motion for alimony denied, without costs, with leave to plaintiff to renew motion. FREEDMAN, J., concurs. EDWARD AVERY, Resp't, v. THE NEW YORK MUTUAL INSURANCE Co., App'lt. (New York Superior Court, General Term, Filed June 27, 1890.) INSURANCE (MARINE)—TOTAL LOSS-SALE BY MASTER. A sale by the master is justified or not, as to the underwriters, according to the apparent circumstances at the time and the statements and advice of competent persons first obtained, and not according to the result of an experiment by the purchaser at the sale. Where the sale is justifiable, no notice of abandonment is necessary. APPEAL from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant's motion for a new trial. John Berry, for app'lt; John A. Mapes, for resp't. FREEDMAN, J.-This action was brought upon two policies of marine insurance, one on the vessel, Anna L. Taylor, and the other on her freight. Both policies were valued. They were issued while the vessel was at sea, and they covered a voyage from Barbadoes to Turk's Island and thence to Baltimore. The action proceeded upon an alleged total loss, subject, however, to salvage on the vessel policy. The question of total loss was fully and fairly submitted to the jury under a charge which carefully guarded all the rights of the defendant. There was no error in the charge, or in the refusals to charge otherwise, if the case was one for the jury, nor can I discover any error constituting ground for reversal in the admission of testimony. The real question, therefore, is, whether the defendant was, or was not, entitled to a dismissal of the complaint as matter of law. Upon an examination of the whole case it appears that abundant evidence was given to the effect that plaintiff's loss under the freight policy was a total one. There was also sufficient evidence that under the vessel policy the loss was total to the insured, and was also total as to the insurers (subject to salvage), if the sale by the master in the port of distress, viz: Gonaives on the Island of St. Domingo, was justifiable. Upon that point the facts were quite complicated, but inasmuch as the plaintiff clearly showed that the vessel had met with a disaster on the high seas which practically left her a wreck; that thereafter she could not be navigated, but was at the mercy of the winds and waves; that she had brought up at an harbor where there were no docks, wharves, materials or men to repair her, nor facilities of any kind to put her in condition to go to sea; that the master had called upon the consti tated authorities to advise him what to do; that, after the successive surveys, he had been advised that the vessel was not worth repairing and should be sold; that such advice corresponded with the master's own judgment; and that the master had sold the vessel in pursuance of such advice, and that the sale had taken place under the direction of the consul, the question was one for the jury and could not be withdrawn from their consideration. A sale by the master is justified or not, as to the underwriters, according to the apparent circumstances at the time and the statements and advice of competent persons first obtained, and not secording to the result of an experiment by the purchaser at the sale. The jury having found, upon a consideration of all the circumstances shown by both parties, that the sale of the vessel was justifiable, no notice of abandonment was necessary. The judgment and order should be affirmed, with costs. JACOB F. BAMBERGER et al., Resp'ts, v. THE FIRE ASSOCIATION JACOB F. BAMBERGER et al., Resp'ts, v. THE MUTUAL FIRE INS. Co., App'lt. JACOB F. BAMBERGER et al., Resp'ts, v. THE ARMSTRONG Fire INS. Co., App'lt. (New York Superior Court, General Term, Filed June 27, 1890.) REFERENCE-SHOULD NOT BE GRANTED WHERE FRAUD IS INVOLVED. If, upon examination of all the papers, it appears that a charge of serious fraud is involved in the issues, the court, in its discretion, may well deny a motion for a reference even if the action be referable, and the appellate Court will not interfere with such excercise of its discretion. So held, where the charge of fraud was set up in the answer. APPEALS from orders denying defendant's motions for a refer exce Sine & Calman, for app'lts; Hoadly, Lauterbach & Johnson, for FREEDMAN, J.-These three actions have been brought to recover eys due on account of three policies of insurance covering intiffs' stock of merchandise at their store in Louisville, Ky. Trese policies form a part of a total number of 144 policies upon the whole stock of said merchandise. In each of these actions the defendant has set up a charge of fraud on the part of the insured. For this reason the motion made by each defendant for a compulsory reference was properly denied. True, the character of the action is to be determined from the complaint. But, in exercising its discretion upon the question whether a reference shall or shall not be compelled, the court will look at the papers submitted by both sides, and, if it should appear that a charge of serious fraud is involved in the issues, the motion may well be denied, even if the action be referable. With the exercise of that discretion the general term will not interfere. The views already expressed render it unnecessary to determine the question of power. In each case the order appealed from should be affirmed, but there should be only one bill of costs. INGRAHAM, J., concurs. MARGARET J. O'HARA, Adm'rx, Resp't, v. SAMUEL W. EHRICH et al., App'lts. New York Superior Court, General Term, Filed June 27, 1890. BILL OF PARTICULARS-NEGLIGENCE. * The complaint in an action for negligence alleged that the death of plaintiff's intestate was caused by the negligence of defendants in shutting down the doors over a certain shaft or elevator way * * from the negligent and improper construction, management and operation of said elevator thereat by defendants. Held, that defendant was entitled to a bill of particulars showing in what respect the elevator was negligently or improperly constructed, managed or operated. APPEAL from an order made at special term denying a motion. made by the defendants for a bill of particulars as to the respects in which defendants acted unlawfully, carelessly and negligently in shutting down the doors or with the elevator shaft mentioned in the complaint; also, in what respect the elevator was negli gently or imperfectly constructed, managed or operated, and also in what respect it was inadequately lighted. Action brought to recover the statutory $5,000 damages for the death of John T. O'Hara, alleged in the complaint to have been caused "by reason of the unlawful, careless and negligent acts of the defendants in shutting down the doors over a certain shaft or elevator way situate on said premises, from the negligent or improper construction, management and operation of said elevator thereat, by defendants, and which was affixed to and a part of said premises, and under the control of defendants, and propelled by steam power furnished by the defendants * and the failure of defendants to furnish adequate light thereat." The bill of particulars was moved for, after issue joined, to enable the defendants to prepare for trial. * * Samuel W. Weiss, for appl'ts; Harvey Weed, for resp't. TRUAX, J.-Counsel for plaintiff in his brief on this appeal stated that the plaintiff alleged the negligent act of the defendants that caused the death of the plaintiff's intestate, was the "shutting |