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The plaintiff holds the mortgage by assignment, has foreclosed it, and at the sale became the purchaser.

Abner F. Bostwick, a member of the aforesaid firm, was not made a party. The aforesaid firm of Bostwick & Co. moved to open the default, charging that the assignment to the plaintiff was not bona fide, but was procured by the mortgagor to enable her to control the same, and by it to dispossess her lessees. The motion was denied, and from the order of denial this appeal is taken.

J. A. Shoudy, for applts.

W. O. Bartlett and Franklin Bartlett, for respt.

Held, The moving party desire investigation of certain suspicious facts and circumstances; there seems to be sufficient evidence of a fraudulent combination to entitle them to demand it. The claim on their part that the mortgage sought to be foreclosed does not belong to the plaintiff, but to their landlord, who seeks to dispossess them by its foreclosure, is not an attempt to dispute the title of their landlord. It is an attempt to protect their possession under their lease, and to prevent their legal dispossession by means of the fraudulent conspiracy of their landlord.

Order appealed from reversed, with $10 costs and disbursements, and that the relief asked for should

be granted.

CRIMINAL CONVERSATION.
DIVORCE. EVIDENCE.

N. Y. COURT OF APPEALS.
Wattrich, respt., v. Freedman, applt.
Decided November 20, 1877.

In an action for criminal conversation the record of a judgment of divorce between plaintiff and his wife is admissible to show the status of the wife and her competency as a witness.

A judgment of divorce cannot be attacked collaterally either for error or irregularity.

It is competent for the defendant to prove by

an adverse witness, with a view to his credibility, that such witness has a cause pending against defendant for a similar cause of action, and for plaintiff to give any evidence tending further to explain and qualify the testimony of such witness.

No foundation is needed for evidence as to the usual mode of marriage in a foreign country.

This action was brought to recover damages for criminal conversation with plaintiff's wife. Upon the trial, before calling his wife as a witness, plaintiff offered in evidence the judgment roll in an action divorcing him from his wife. This was objected to as improper and immaterial, and that the record showed upon its face that the divorce was granted upon improper and illegal testi:nony. These objections were overruled. L. E. Carr, for applt.

Samuel Hand, for respt.

Held, No error; that the record of the judgment was material and properly admitted, to show the status of the divorced wife and her competency as a witness, 1 Hill, 63; 6 Cush.,

Opinion by Dykman, J. Gilbert, 306; that the judgment could not

J., not sitting.

be attacked collaterally, either for error or irregularity. 62 N. Y., 372; 3 Cow., 120.

There was evidence of a marriage in fact between plaintiff and his wife, solemnized in Prussia by a

priest officiating in a church, the par-
ties mutually taking upon themselves
the ordinary marital obligations, and N.
being declared by the officiating min-
ister to be husband and wife, and
subsequently cohabiting as such. The
former wife was then asked if that
was the usual way of marriage in that
country. Defendant objected that
the witness was not competent, that
the evidence was improper and im-
material, and there was no sufficient
foundation for its admission.

These objections were overruled. Held, No error; that the evidence needed no foundation to be laid or any preliminary proof to authorize it to be given.

Defendant proved by one of plaintiff's witnesses with a view to his credibility, that he had at the time of his examination, a suit pending against defendant for criminal conversation. Plaintiff then proved, under objection by the witness, that a suit had been brought several years prior to that time for criminal conversation, occurring prior to the offence for which this action was brought, and which had been settled.

Held, That the testimony brought out by the defendant was competent, 5 Den., 108; and that plaintiff could give any evidence tending further to explain the personal relations between the witness and defendant, and to qualify that given by defendant; that it was immaterial whether defendant alone or with the aid of his friends settled the former action.

Judgment of General Term, affirming judgment for plaintiff, affirmed.

Opinion by Allen, J. All concur, except Church, Ch. J., and Andrews, J., not voting.

SPECIFIC PERFORMANCE.
EXTENSION OF TIME.
Y. SUPREME COURT. GENERAL
TERM. SECOND DEPT.
Harway, applt., v. Lott, respt.
Decided December, 1877.

Where the time of performance of a written
contract has been extended by an instru-
ment in writing, the verbal promise at the
time of such extension to extend further, if
requested, is not a legal extension but mere
evidence of a disposition to oblige.

The

Action for the specific performance of a contract to sell real estate. contract was in writing. The tire of performance was the 27th January, 1876. January 3, 1876, it was extended to April 26, 1876. On this. 3d January, 1876, defendant said plaintiff could have still further time. if he desired it. The defendant was ready at the proper place and time prepared to execute the contract, but the defendant was not present and did not come. This is an appeal from judgment for the defendant at Special Term.

J. K. Hill, for applt.

D. P. Barnard, for respt.

Held, That the time of its performance was made of the essence of the contract by the written extension, if not by the original agreement.

The plaintiff has failed to regard this and to perform his part, and is in no situation to compel the defendant to specific performance.

No indefinite extension of the time of performance can be based on the promise of the defendant at the time of the making of the written extension. This promise was in fact no extension at all, but merely a manifestation of a disposition to give it if requested.

Judgment affirmed with costs. Opinion by Dykman, J.; Gilbert, J., did not sit.

DRAINAGE OF MARSHES.
PETITION.

N. Y. COURT OF APPEALS.

ing such drains or channels; " but
the reasons of such inability are not
stated or shown to the Court.

W. W. McFarland, for applts.
Geo. J. Greenfield, for respt.
Held, That the petition was defec-
tive, and the Court did not acquire

In re application of Marsh et al., jurisdiction, 12 Abb. Pr., N. S., 21;

to acquire title to lands, &c.

Decided November 27, 1877.

The petition for the appointment of commis

sioners of appraisal, under Ch. 888, Laws of 1869, must state the reasons why an agreement with the owners of the land is impossible.

Reversing S. C., 10 Hun, 49.

This was an appeal from an order of General Term, affirming an order of Special Term appointing commissioners to appraise damages for the taking of certain lands, for making and maintaining ditches, under Chapter 888, Laws of 1869, providing for the draining of certain swamp lands. It contains a provision that if the commissioners appointed cannot agree with any person as to the compensation for the land taken, "they shall proceed to acquire title to the easement upon and across the lands of such person in the manner, so far as the same is applicable, prescribed by the general railroad law of 1850" (Chap. 140). 14 of said Act of 1850 prescribes the substance, and to some extent the form, of the petition for the appointment of commissioners of appraisal, that it shall state the reason why an agreement with the owners of the land is impossible. The petition herein states that the petitioners "have been and are unable to agree with the persons owning said lands upon the compensation, and damages for making and maintain

Vol. 5-No. 19*.

3 John Ch., 107; that the facts necessary to give the Court or officers jurisdiction must appear in the proceedings and in the petition. 4 Hill, 81; 38 N. J. L. R., 85, 425.

Order of General Term, affirming order of Special Term appointing commissioners, reversed, and application denied.

Opinion by Allen, J. All concur.

LOCATION OF LINE OF RR.

CO.

N. Y. SUPREME COURT. GENERAL

TERM. SECOND DEPT.
In re Coney Island RR. Co. v.
Edward Ridley, applt.

Decided December, 1877.

The mention in the charter of a city railroad company of the streets over which its line shall run is such a practical location as to dispense with the notice of the route usually required to be given to property

owners.

Chap. 324 of the Laws of 1861 made it lawful for the Coney Island Railroad Company to construct and operate a railroad over certain streets therein specifically named. Appeal from an order appointing commissioners of appraisal.

P. S. Crooke, for applt. E. M. Cullen, for petitioner. Held, Ordinarily a route selected for a railroad, or a location made, is liable to change at the instance of the owner of the land proposed to be

taken.

commissioner, laid out certain land for the use of the State, and made and filed a map designating it, and the State afterwards takes possession of and uses such land, Held, That such acts constituted an appropriation of the land.

Hence our statute requires that a certain notice of such route and location shall be given that the landowners may be compelled to move in the direction of such change if they so intend. But the provisions of this statute can have no application to the case at bar. The act of the Legislature referred to is such a practical location of the route as entirely to dispense with the notice to the landowners usually required.

Whether the motive power is to be steam or horse is immaterial here. The landowner is entitled to compensation for the additional burden imposed and the proceedings instituted are proper to determine what this compensation shall be.

The land proposed to be taken is necessary to the construction and operation of this road and the facts exist to anthorize the railroad company to make application for the appointment of commissioners.

This case is therefore brought within the law and the railroad policy of this State, and the order appealed from is affirmed, with $10 costs and disbursements.

Opinion by Dykman, J.; Gilbert, J., not sitting.

APPROPRIATION OF LAND FOR USE OF THE STATE. N. Y. COURT OF APPEALS. Ten Broeck et al., respts., v. Sherrill et al., applts.

Decided November 27, 1877. The, authority for taking land or material for the use of the State under 1 R. S., 220, § 26, is not impaired by the fact that the State

This action was brought to recover for a quantity of gravel taken by defendants from land of plaintiffs. It appeared that defendants, in 1868, contracted to build a new dam across the Mohawk at Cohoes, a short distance below the old dam. The engineer testified that he laid out, in 1868, by direction of the canal commissioner, an acre of land for the use of the State under the statute (1 R. S., 220); and made and filed a map designating the same, and it appeared that the gravel in question was taken from that land, and used in tightening the old dam. The 26th Section of the statute provides for taking lands or materials whenever the navigation of the canals is interrupted, or endangered. The judge found that unless the old dam was kept in repair during the building of the new one, the Champlain Canal could not be kept in navigable order.

Hughes & Northrup, for applts.
O. A. Martin, for respts.

Held, That there was sufficient authority for taking the gravel under said section; that the authority was not impaired by the fact that the State intended to, or had let the work to be done by contract, nor by the fact that the contractors were to furnish materials. 2 Hill, 348.

The map produced upon the trial was not contained in the case.

Held, That the facts sworn to by

intended to, or had let the work to be done the engineer were sufficient to estabby contract, nor by the fact that the conlish an appropriation, as the map was tractors were to furnish the materials.

Where the engineer, by direction of the canal filed and the property taken posses

sion of by the State, and used by its livered by the receiver to the plaindirection. 15 Wend., 569; 26 Id., tiff. 485.

All the rights of the parties to the

Judgment of General Term, affirm-action are left to be determined by it, ing judgment for plaintiffs, reversed and new trial granted.

Per curiam opinion. All concur, except Folger, Andrews, and Earl, JJ., dissenting.

EJECTMENT.

N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Sheridan, respt., v. Jackson. Decided December, 1877.

In an action to recover the rents and profits of premises adjudged to plaintiff by a judgment in ejectment, there is no legal objection to the appointment of a receiver to collect and hold such rents nor to his acknowledgment that he holds subordinate to the plaintiff.

Action to recover the rents of certain premises, of which the plaintiff recovered possession in ejectment some years ago. This is an appeal from an order appointing a receiver of the right, title, and interest of the plaintiff to and in these premises.

E. M. Shepard, for applt. F. P. Bellamy, for respt. Held, The object of the particular order appealed from seems to be to provide that while the receiver is authorized and required to hold possession of the property and collect the rents, yet his doing so shall not be considered hostile to any rights of the plaintiff, but in subordination thereto. The order is made to put the plaintiff in formal possession of whatever estate he may have. By its terms a writing, acknowledging the subordination of the possession of the receiver to the estate of the plaintiff is to be de

nothing is adjudicated for or against any of them. The order therefore is just and is affirmed with $10 costs and disbursements.

Opinion by Dykman, J.; Gilbert, J., not sitting.

RAILROAD COMPANIES.

PRACTICE.

N. Y. COURT OF APPEALS. Dolan, respt., v. The President, &c., D. & H. C. Co., applts.

Decided November 27, 1877. The question whether exceptional circumstances are such in a given case as to require additional and unusual precautions, and if so, what precautions, must be determined by the jury.

A request to charge that "If the jury believe that M., the flagman, is truthful and did what he says he did in the warnings, then the plaintiff cannot recover; if the jury believe the account that M. gave, that he gave the warnings and made the outcry to stop the men in the manner he describes, the plaintiff is not entitled to recover," is objectionable, as it precludes the jury from construing M.'s evidence.

Affirming S. C., 4 W. Dig., 35.

This was an action to recover damages for injuries to plaintiff, claimed to have been sustained through the negligence of defendants. It appeared that plaintiff was driving a truck on which were two other persons, on a street in the city of Albany, which was crossed by defendant's tracks; that before attempting to cross said tracks, he and the persons with him looked and listened for the usual signals and evidences of danger; that a warehouse near, and cars standing on the first and second tracks prevented

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