dent alone answered, setting up that he was a special partner. It appeared that he was a resident of Cuba, as were the other defendants, and that the partnership was there made, and celled, that the plaintiff recover of the defendants the sum of $500, with costs, and that a fine of $1,000 be imposed upon the defendants, in pursuance of § 5 of the act entitled "An act in reference to apprentices that he had complied with the laws and employers," passed 27th May, of Spain respecting special and lim1871. At the trial the plaintiff re-ited partnerships, so as to protect himcovered a verdict for $30 damages, self there from liability as a general and the Court thereupon ordered that partner, and that by the laws of the plaintiff have judgment therefor, Spain his liability was limited to the and cancelling and annulling the in- amount he had contributed to the denture, with costs. partnership: The contract upon which the action was brought was not made in the name of respondent, or with any special claim on the part of the contractors to represent him. The plaintiffs were citizens of this State. The appellants' counsel claim that as the plaintiff recovered less than $50 damages, she is not entitled to costs. Roger & Jenny, for applts. Fuller & Vann, for respt. Held, That the case falls within. the class of actions provided for by § 306 of the Code, and that costs were properly awarded to the plaintiff in the discretion of the Court. Order affirmed, with ten dollars costs of the appeal and disburse ments. Opinion by Smith, J. LIMITED PARTNERSHIP. N. Y. COURT OF APPEALS. King et al., applts., v. Sarria, impl'd, &c., respt. S. P. Nash, for applts. F. R. Coudert and A. P. Whitehead for respt. Held, That the respondent could not be held liable as a general partner, 15 N. Y., 227; 6 Paige, 627; 6 Hill, 526; 3 B. & Ald., 353; 6 Mass., 358; 18 Pick, 215; 10 Wheat.. 66; 3 Metc., 207; 3 Story, 465; 6 B. & S., 100; L. R., 1 P. D, 107; L. R., 6 Q. B., 1; 2 Bing., N. C., 781; 9 R. I., 446; 25 Vt., 73; 28 Id., 168; that the other meinbers of the firm, as to respondent, were agents acting under an authority special, express and limited, and could give plaintiffs no more claim on him than such authority warranted; that plaintiffs were subject in their dealings with respondent to the limitations he had put upon the powers of his agents. Judgment of General Term, affirm Decided March 20, 1877. A member of a limited partnership in a foreign country, who has complied with the laws of that country regulating such partnerships, by which his liability is limited to the amount actually contributed by him, is not liable as a general partner to residents of this State' in transactions with such part- ing judgment dismissing complaint, nership. This action was brought against defendants as partners. The respon Vol. 5-No. 1*. affirmed. Opinion by Folger, J. All concur. FIRE INSURANCE. N. Y. COURT OF APPEALS. Decided February 13, 1877. The insurer is estopped from setting up a which is never brought to the knowledge of livered before the policy in suit was Wm. C. Ruger, for applt. Held, That the said condition was a condition precedent; that L. was to be deemed the agent of defendant in procuring the insurance, and that his information as to the title of the property was that of his principal, 3 Keyes, 87; that defendant was estopped from setting up the condition as a defence; that the fact that the policy was delivered, and the premium received with full purpose of insuring the building, and of making This was an action upon a policy of fire insurance. It contained this condition: "Any interest in property insured not absolute, or that is less than a perfect title, or if a building is insured that is on leased ground, the same must be specifically represented to the company, and expressed a valid and obligatory contract, is in this policy in writing, otherwise evidence that through neglect or forthe insurance shall be void." It ap-getfulness one of the forms of making peared that the building insured was the contract was not observed, or on leased ground, and this fact was that it was waived by the parties. not expressed in the policy. It was 3 Keyes, 557; 18 N. Y., 392; 14 shown that, previous to the issuing of Id., 253; 24 Id., 302; 51 Id., 117; the policy, the facts in relation to the 60 Id., 619; 19 Id., 305; 26 Id., title of the property were told to one 460; 32 Id., 619; 35 Id., 131; 48 L., an insurance agent; that L., when Id., 384; 46 Id., 532. the policy in suit was issued, having this information, and with a view to this insurance, asked if there was any change in the property, and was told there was not. It appeared that one D. was the commissioned and nominal agent of defendant, and was in partnership with L. in the business of soliciting and procuring insurance; that L. acted with the assent of D. in procuring this insurance; that defendant knew of such action, and did not disapprove of it; that a joint commission had for some time been promised L. and D. by defendant, which was delayed, but finally de Such a condition may be waived by the insurer by express words to that effect, or by acts done under such circumstances as would otherwise impute a fraudulent purpose, and as will estop him from setting up the condition against the insured. Pindar v. Res. Ins. Co., 47 N. Y., 114; Rohrback v. Ger. Ins. Co., 62 N. Y., 613. Chase v. Ham. Ins. Co., 20 Id., 52; Ripley v. Ætna Ins. Co., 30 Id., 136; distinguished. When defendant decided to take the risk, it was with the condition that plaintiff would agree to keep a certain quantity of water in the building, and under certain conditions to keep it from freezing. It was not proved that this was ever made known to plaintiff as a requirement. It never came to his personal knowledge. Held, That a failure to keep water in the building according to the requirement did not avoid the policy. Judgment of General Term, affirming judgment for plaintiff affirmed. Opinion by Folger, J.; Church, Ch. J., Andrews and Miller, JJ., concur.; Allen, Rapallo, and Earl, JJ., dissent. N. Y. COURT OF APPEALS. De Forest, respt., v. City of Utica, applt. Decided April 17, 1877. In an action to recover for injuries received by reason of a defect in a sidewalk, the accident happening on Saturday, evidence as to the condition of the walk on Monday is admissible. Where the injured party is a pregnant woman, and at her confinement there is a malposition of the child, it is a question for the jury whether such malposition was occasioned by the accident, and if they find it was, they are to consider it in estimating the damages, and evidence in relation to the additional suffering at childbirth caused by such malposition is admissible. This action was brought to recover damages for injuries received by plaintiff through the alleged negligence of defendant in failing to keep a sidewalk in repair, by reason whereof plaintiff stepped into a hole in the walk, was thrown down and injured. The accident occurred on Saturday evening, and evidence was received to show the condition of the walk on the next Monday. O. A. White, for applt. Held, no error; that the condition of the plank and the walk so soon after furnished some evidence of its condition at the time of the accident. After L., a witness for plaintiff, had testified to the bad condition of the walk in the summer of 1874, a year before the accident, he was permitted under objection to testify that in May before he discovered that new pieces of plank had been put in, and that the walk was in better condition than it was the year before. Held, no error. Plaintiff testified that at the time of the accident she was pregnant, and when it occurred she felt as if "her inwards turned upside down," and was sick at her stomach. A physician who attended her testified that the accident might have caused malposition of the child in her womb. At her confinement this was found to exist. The physician was then asked: "Did the malposition of the child cause the mother any more pain at childbirth than if the child was in its natural position?" Defendant's counsel objected, and the objection was overruled. The witness answered yes, and that it was necessary to use instruments for the delivery of the child. Held, no error; that the evidence was competent; that whether the malposition was the result of the accident was a question for the jury, and if they decided it was, they were to consider it in estimating the damages, as they would any other pain or suffering to which plaintiff was subjected by the accident. Judgment of General Term, affirming judgment for plaintiff, affirmed. Per curiam opinion. All concur. BREACH OF COVENANT. N. Y. COURT OF APPEALS. 1860, they commenced an action. against plaintiff's tenant to recover Taylor, respt., v. Barnes et al., possession of it. Notice of said action applts. Decided April 27, 1877. In an action to recover damages for a breach of covenant of seizin and for quiet enjoy ment, the plaintiff is entitled to recover the value of the premises at the time of eviction with interest. The rule of damages prevailing in such cases by which the recovery is limited to the purchase money paid and interest, does not apply to a case of an executory contract, where the vendor has sold land to which his title is not perfect and which he undertakes to make perfect. This was an action for breach of a covenant. Defendants, about April 10, 1852, purchased a lot in Syracuse at a public sale, receiving the certificate of the state engineer and surveyor in the usual form, paying down $56.29, and leaving unpaid $168.75. In September following defendants sold said certificate to plaintiff, and made under their hands and seals an assignment on the back of said certificate, and covenanted to make the payments to the State according to the terms of said certificate, and to hold plaintiff free from all payments, loss, or damage on account of said payments. Defendants neglected to make the payments, and the premises were in pursuance of the Statute offered for sale and purchased by the State Engineer and Surveyor, and about February 1, 1860, sold to D. Plaintiff upon her purchase of the certificate took possession of said lot, built a house on it, and remained in possession by herself and tenant until she was eyicted therefrom in June, 1872. D. sold one undivided half of the lot to C., and on February 27, and a request to defend it was served on defendant B., and the defendants appeared by their attorney, put in an answer, and defended the same on behalf of plaintiff and her tenant. The plaintiffs therein recovered judg ment for the lot. The referee held that plaintiff was entitled to recover the value of the premises at the time of the eviction with interest from that date. Frank Hiscock, for applts. Held, no error; that plaintiff was entitled to recover the damages awarded her. 4 Seld., 115; 6 B. & C., 31; 16 Me., 164; 24 Barb., 100; 6 Id., 646; Hardin, 41. Also held, That the rule of damages prevailing in this State in actions of breaches of covenants of seizin and for quiet enjoyment, by which the recovery is limited to the purchase money paid and interest, is not applied in a case of an executory contract, where the vendor has sold lands to which his title is not perfect, and which he undertakes to complete and make perfect. Judgment of General Term, affirming judgment for plaintiff on report of referee, affirmed. Opinion by Allen, J. All concur. Church, Ch. J., and Earl, J., in result. NEGOTIABLE PAPER. N. Y. COURT OF APPEALS. The Grocers' Bank of N. Y., respt., v. Penfield et al., applts. Decided May 22, 1877. The maker of an accommodation note, made without restriction as to the mode of using it, is liable thereon to one to whom it has been transferred in payment of, or as collateral security for an antecedent debt. The rule is otherwise where there is a restriction and the note has been fraudulently diverted. This was an action upon two promissory notes made by defendants P. and S. to defendant T., and by him indorsed and delivered to plaintiff before maturity and discounted by it. P. and S. claimed that the notes were given without consideration and sole CONTRACT OF SALE. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Joseph D. Higgins, respt., v. John H. Murray, applt. Decided May 21, 1877. Notice of completion of goods manufactured to order is necessary only to allow an inspection to ascertain whether they comply with the order, and where it is admitted that they did so correspond proof of notice of completion is unnecessary. ly for the accommodation of T., and Where goods are shipped by a certain line to upon his promise to take them up and pay them at maturity; that plaintiff was not a bona fide holder for a valuable consideration, but received the notes with notice of the foregoing facts and as collateral security for the payment of an antecedent debt. Wm. F. Shepard, for applts. Edmon Blankman, for respt. Held, That the makers were liable; that the rule is now well settled that the holder of an accommodation note, made without restriction as to the mode of using it, may transfer it either in payment of, or as collateral security for an antecedent debt, and the maker is liable. The rule is otherwise in this State when there is a restriction and the note is fraudulently diverted. 6 Hill, 93; 1 Pars. N. and B., 296; Story on Bills, § 192; Story on Notes, § 195; 48 Barb., 104; 5 Wend., 66; 5 Sandf., 7; 16 Pet., 1; 40 Md., 540. Order of General Term, reversing judgment for defendants, affirmed. Opinion by Rapallo, J. All con cur. a point beyond the terminus of that line, and the bill of lading provides that they shall be delivered to forwarders to be carried to their destination, in absence of proof on the question, it will be presumed that there was a connecting line, and that a shipment by the former line, directed to the place of destination, was a shipment to such place of destination. Evidence of particular sales, upon special agreements as to credit, is not admissible to prove a general custom of dealing between the parties on credit. Appeal from judgment entered upon report of referee. Action upon contract to recover for certain circus tents manufactured for the defendant by the plaintiff. Defendant gave plaintiff an order for the tents to be completed in about three weeks' time. Nothing was said about their delivery. Defendant afterwards ordered them shipped to him at Lewiston, Me. Plaintiff shipped them by the Maine Steamship line to Portland, the bales containing them being marked "John H. Murray's Circus, Lewiston, Me," and by the terms of the bill of lading were subject to collection on delivery of $1,395, their price. The bill provided for their delivery at Portland unto agents to forward, &c. There was no proof of a continuous line |