11. Plaintiff was appointed administrator two years after the death of his intestate and brought this action to recover for her death under an act of parliament. The answer alleged that said act required actions to be brought within twelve months after the death, and that this action was not brought within that time. The reply denied knowledge or information sufficient to form a belief as to the first allegation of the answer, and denied the last on information and belief. Held, that the latter portion of the reply was properly stricken out as sham, as it was disproved by the facts disclosed upon the record. Cavanagh v. Oceanic Steam Nav. Co. (Sup. Ct.), 903. 12. A denial of knowledge or information sufficient to form a belief as to the truth of an allegation is equivalent to a denial of such allegation, and cannot be stricken out as sham. Id. 13. In an action to foreclose a lien on certain securities pledged to plaintiffs by a firm, this defendant denied that plaintiffs were bona fide holders and demanded judgment for certain of the securities claimed by him, but subsequently asked leave to amend by claiming superior equities to the owners of other securities which were included in the foreclosure. Held, that the motion was properly denied, as the answer did not show that all the parties in interest were before the court so that their rights could be determined and the assets marshalled. Work et al. v. Rexford (Sup. Ct.), 1001. See DISMISSAL OF COMPLAINT; FALSE REPRESENTATIONS; PARTNERSHIP, 4; RAILROADS, 17; SET OFF, 1; TRIAL, 5; VENDEE AND PURCHASER, 2. PLEDGE. See PLEADING, 13. POLICE. See MUNICIPAL CORPORATIONS, 10, 16, 18-20, 29, 30, 32. POOR. The denial of liability for support of a pauper alleged to have been improperly removed from one county to another need not follow the language of 60 of 1 R. S., 629. An unequivocal denial of the liability asserted in the notice is sufficient to set running the thirty days statute of limitation. Stilwell v. Coons (Ct. App.), 262. POWERS. See EXECUTORS, ETC., 10; WILL, 6, 7. PRINCIPAL AND AGENT. While the general rule is that the agent's authority in all cases must be shown to charge the principal with an act performed by the agent, in many instances the fact may be established by presumptive evidence, and in this case the presumption established by the circumstances was not overcome by defendants. Martin v. Niagara Falls Paper Co. (Ct. App.), 318. See BOND; CORPORATIONS, 15, 16; Mortgage, 7. PRINCIPAL AND SURETY. See ASSIGNMENT FOR CREDITORS, 3-5; JUDGMENT, 8. RAILROADS. 1. The legislature did not intend by chap. 241, Laws 1832, incorporating the Tonawanda R. R. Co., to limit to the term of fifty years the easements acquired in lands thereunder, and such easements by the successive consolilation acts and agreements became vested in the New York Central Railroad Co. And at the expiration of the fifty years named in the act the land would not revert to the original owner. Miner v. N. Y. C. & II. R. R. R. Co. (Ct. App.), 211. 2. The land was taken for a permanent public use. There is nothing in the act which limits the use to fifty years or any other term, and the ease ment would continue so long as it was needed for the purposes of the railroad, by whomsoever owned, for which it was appropriated. Id. 3. The defendant having, since 1850, held under a claim of right adversely, the action by the original owner is barred by adverse possession. Id. 4. Caroline Dustan died December 17, 1881, naming plaintiff in her will as her residuary legatee. The latter in May, 1884, brought this action for injury to the rental value of premises acquired under said will, for six years prior thereto, although the executor of Caroline Dustan did not file final accounting until July, 1884. Held, that plaintiff could only recover damages accrued since December, 1881, as she did not acquire by the devise of the land to her the right to recover for the rental value while testatrix was the owner of the fee. Griswold v. Metropolitan El. R. Co. et al. (Ct. App.), 232. 5. Until the filing of his final accounting the executor was entitled to receive the damages sustained during the life-time of the testatrix, which plaintiff might have insisted upon his recovering. Id. 6. Plaintiff Woodruff leased a certain railroad, covenanting in the lease among other things to pay the interest coupons on certain bonds as they accrued, and the principal at maturity. Woodruff sub-leased to the Erie Railroad, conveying by the lease all the rights he had taken by his lease, and the company agreed to perform all the obligations he had assumed. The Erie Co. gave a mortgage to the F. L. & T. Co. for $40,000,000, but defaulted on the original bonds in January, 1875, and in June the F. L. & T. Co. began foreclosure of their mortgage, announcing at the sale that it did not include the Woodruff lease. Held, that the lease was neither destroyed nor affected by the foreclosure of the F. L. & T. mortgage, nor by the subsequent action to dissolve the Erie Co.; that the leasehold estate had been expressly exempted from the sale by the court, the receiver and the grantees. Frank et al. v. Erie & Genesee Valley R. R. Co. et al. (Ct. App.), 235. 7. A mortgagee out of possession has no lien upon rents. Until he elects to take possession, or moves for a receiver, the rents belong to the lessor, who may contract as he chooses with the lessee or his assignee in regard to them. Id. 8. When the mortgagee takes possession he does so subject to all arrangements made in good faith between a lessor, lessee and assignee for the relief of the latter, unless there was an express promise by him enuring to the mortgagee's benefit. Id. 9. As the appellant company, the purchaser at the foreclosure sale, was induced not to abandon possession of the road by the arrangement under consideration, so long as it remained in force it effectually reduced the amount payable by it as assignee in possession. Id. 10. The owner of a lot on a public street, which is bounded by the side of the street, has incorporeal private rights in such street, consisting of easements of light, air and access, which are incident to his property, and which may be so impaired as to entitle him to damages. Abendroth v. New York El. R. R. Co. et al. (Ct. App.), 475. 66 11. Such rights are private property" within the meaning of the constitution, and for damages to which by the construction and operation of an elevated railroad in front of the premises an action may be maintained, and the fact that the road was constructed under legislative authority is no defense to such action. Id. 12. In an action for the recovery of damages arising from the construction and operation of an elevated railroad, the conduct of the plaintiff in using the road as a passenger, and his delay in bringing suit until his right to do so had been decided in suits by other parties, is not a defense. Id. 13. Where one of the defenses to an action for damages caused by the operation of an elevated railway is that plaintiff saw the work of construction going on and never objected or interfered to prevent it, it is not error to admit testimony to show that in building the road defendant put posts in plaintiff's vaults and that plaintiff protested against its so doing. Taber et al. v. New York El. R. R. Co. (N. Y. Supr. Ct.), 706. 14. The owner of real estate in the neighborhood of the property described in the complaint, who testifies to facts, is not an expert within the meaning of a stipulation restricting each side to three real estate expert witnesses. Id. 15. Plaintiff purchased a ticket entitling him to a seat in a drawing-room car of defendant, which was good for that day and train only, but lost the same. The agent who sold it gave him a personal card of explanation, but the conductor required him to pay again, and on his refusing, requested him to leave the car, which he did, and traveled in a common coach. No other person claimed the seat. Held, that the conductor exceeded his authority, and that defendant was liable for his act. Buck v. Webb (Sup. Ct.), 824. 16. In such a case, where no personal injury was done to plaintiff and no physical force used, a verdict of $1,000 is excessive. Id. 17. An objection to the joinder of a cause of action for damages caused by the erection of an elevated railroad in front of plaintiff's premises with one to restrain its future maintenance is waived if not taken by demurrer. Jefferson et al. v. New York El. R. R. Co. et al. (Sup. Ct.), 916. 18. Such action is one in equity, and a refusal to send it to a jury for trial is proper. Id. 19. There is no error in allowing real estate brokers to give their opinion as to the decrease in value of the premises because of the existence and operation of the road. Even if such evidence is considered to include all damages due to the road, and not simply those due to the taking of plaintiff's easements, it is proper to admit it in the absence of proof that defendant had a legal right to construct or maintain its road. Id. 20. A failure to find that the railroad has been a benefit to plaintiff's premises is not prejudicial error, in the absence of proof of the value of such benefit. Id. 21. Plaintiff was the owner of a four-story building adjoining a street, the title to which was in the city. Prior to the time plaintiff became the owner, and in 1870, the defendants erected their structure in front of said premises. There was a wooden awning extending from the building to and supported by the girders of the railroad. This action was brought in 1889 to restrain the operation of the road, and for damages sustained by the taking of plaintiff's easements, and judgment was rendered for such damages, and an injunction granted unless defendants paid the value of such easements. Held, no error. Mattlage v. New York El. R. R. Co. et al. (Sup. Ct.), 918. See CONTRACT, 16-18; EMINENT DOMAIN, 1-3; FRAUD, 1-4; MASTER AND SERVANT, 4, 5, 10; MUNICIPAL CORPORATIONS, 21-23, 25; NEGLIGENCE, 11-16, 19-22, 28, 30; NUISANCE, 7. RAPE. 1. On the trial of an indictment for rape and for assault with intent to ravish, the evidence showed that complainant, who was under thirteen years of age, with other girls of her age, visited the room of defendant, a physician, who with their assent took indecent liberties with them, and that on a second visit he had sexual intercourse with each. Held, that the evidence proved the commission of the crime of rape and not that of assault in the second degree, as the crime intended to be committed was in fact consummated, and that what took place at the first visit would not sustain a verdict of assault in the second degree, as no intent to commit a felony at that time was made to appear. People v. Aldrich (Sup. Ct.), 790. 2 The court was requested to charge "that there is no evidence here to sustain any verdict except the crime of rape," and refused to instruct otherwise than as had already been charged. No similar instruction had been given. Held, error. Id. RECEIVER. See APPEAL, 11; ASSIGNMENT FOR CREDITORS, 8; CORPORATIONS, 12; INJUNCTION, 2, 3; MASTER AND SERVANT, 5. RECORD. 1. D. B., owner of the fee of certain premises, E., and F. S. B. entered into a sealed agreement which stated that F. S. B. had an interest in the premises of $650 which he had, for value, transferred to E., and that this was to remain a lien on the premises which D. B. must pay from the rent or use. The instrument was recorded in the county clerk's office in a book of leases. Held, that such record was not notice to a subsequent purchaser in good faith and for value. Edwards v. Maeder (Sup. Ct.), 126. 2. Such a contract is not a covenant running with the land. Id. 3. Where the grantee binds himself to support the grantors during life it is a sufficient consideration. Id. 4. Defendant Reynolds purchased the premises in question of Henry J. Vrooman, without any notice of an agreement which existed between Vrooman and plaintiff, by which the former had assumed the payment of a mortgage given by his mother, who only had a life estate in the premises, to plaintiff. Reynolds had not paid $860 of the purchase price when he received notice of this agreement, but had agreed with Vrooman to pay certain mortgages and other indebtedness of Vrooman's to a much larger amount. Held, that Reynolds was not charged with the payment of that sum to Vrooman, so as to give plaintiff a right to judgment against it on Vrooman's agreement, but that the assumption of the payment of these debts of Vrooman's was really a part of the consideration which Reynolds was bound to pay to other parties and which he no longer owed to Vrooman. Watkins v. Reynolds et al. (Ct. App.), 173. See DEED, 4. REDEMPTION. See EXECUTION. REFERENCE. See CONTRACT, 4-6; Costs, 2-4. REFORMATION OF WRITTEN INSTRUMENT. 1. There is no presumption of fraud or mistake for the purpose of contradicting the plain tenor of an instrument in writing, but he who alleges fraud as the basis of an action for reformation, must prove it by a clear preponderance of credible evidence. Kelsey v. McNair (Sup. Ct.), 749. 2. In an action to reform an absolute assignment of insurance policies, in one of which plaintiff's testatrix was the beneficiary, so as to make it a collateral one only, it appeared that the assignee was the agent who issued both policies; that he had paid the premiums for three years, but refused to advance more and insisted upon payment, but agreed to take the policies for $500, and apply the amount on the indebtedness. It also appeared that testatrix had executed a separate assignment of the policy in which she was named, absolute in form. Held, that the complaint was properly dismissed. Id. RELIGIOUS CORPORATIONS. See DEED, 7. REPLEVIN. 1. Possession is sufficient to maintain the action of replevin and one who takes property out of the hands of the person in possession must defend his act upon his own title and cannot do so by showing title in another. Guilford v. Mills (Sup. Ct.), 37. 2. The property in question belonged in March, 1888, to B. & C., who in February, 1889, gave a chattel mortgage upon it to plaintiff. On March 6, 1889, plaintiff took possession of it and on the 29th sold and bought in the property and kept it until April 20. On April 12th, B. & C. made an assignment. On April 20 the sheriff levied upon it under executions against B. & C. It is now claimed. that the chattel mortgage was fraudu REPLEVIN. lent. Held, that if the mortgage was valid defendant had no case; if fraudulent the title was in the assignee, with whose title the defendant could in no way connect himself, and hence could not justify the taking. Id. 3. Where an appeal was taken by defendant in an action of replevin from a judgment awarding possession of certain bonds to plaintiff and pending such appeal the bonds depreciated in value, a second action cannot be maintained for such depreciation. Corn Exchange Bank v. Blye ((t. App.), 75. 4. The taking of such an appeal by defendant does not constitute a new and separate detention of plaintiff's bonds because they remained in defendant's possession after delivery to him by the sheriff in accordance with the law of the chosen remedy. Id. 5. In April, 1886, one F., in making a purchase from plaintiff, represented that he was solvent, and worth $15,000. In October and November following plaintiff repeatedly solicited him to purchase more goods, which he did with some reluctance, and thereafter gave a bill of sale thereof to defendant as security for indebtedness. defendant took possession under the bill of sale. Upon his death, insolvent, in 1857 brought action to replevin the goods, alleging fraud in the sale. No proof Plaintiff thereupon was given that F. knew he was insolvent, or that the representations were untrue at the time they were made. Held, that the proof of the solicitations to purchase, and F.'s reluctance, negatived the presumption that he obtained the goods with intent not to pay for them; that the title to the goods vested in F., and he had a right to dispose of them to defendant, and that the action could not be maintained. Hotchkin v. Third Nat. B'k of Malone (Sup. Ct.), 195. 6. In an action to replevin goods alleged to have been purchased through fraudulent representations, the referee found, on sufficient evidence. that H. B. Claflin & Co. were not innocent bona fide purchasers thereof from the firm to which plaintiff's assignors sold the goods, but obtained possession with full knowledge of the insolvency of the firm and with intent to aid in defrauding their creditors. Defendants gave no evidence. Held, that the judgment in favor of plaintiff would not be disturbed. Eckhardt v. Epstein (N. Y. Supr. Ct.), 806. 7.__Plaintiff and his assignors were induced by false representations of one K. as to his standing to sell goods to him. It appeared that K. was aware of his insolvency, but notwithstanding such knowledge continued to purchase goods until the day before he sold out his entire stock to H. B. Claflin & Co edge of K.'s condition. Claflin & Co., in consideration of the sale, satisThis sale was made through one J., who had knowlfied an indebtedness of K. amounting to $3,000, and gave a check for the balance of the purchase price, $10,000. They immediately sold the same to one O. for $500 less, and he placed the goods with defendants for sale at auction. No inventory was taken or any special examination of the goods made at either of these sales. O. paid Claflin from the proceeds of the auction sale. Held, that under these circumstances the finding that Claflin & Co. had notice or knowledge of the fraudulent intention of K was supported by the evidence. Grossman v. Walters et al. (Sup. Ct.), 921. 8. In the absence of proof warranting a different conclusion, the presumption is that the property continued to be of the value for which it had been sold by the plaintiff and his assignors to K. Id. 9. Sworn statements made by him on supplementary proceedings are admissible to remind or refresh the recollection of a witness, and he may then be asked whether such statements were true. Id. 10. Where the sales counted upon are separate and distinct, an error as to one of them may be corrected by deducting the amount thereof from the judgment with the assent of the plaintiff. Id. 11. In an action to replevin goods on the ground of fraud in their purchase, |