Browne Com. L., 855; 1 Suth. on Dam., 715; 1 Sedgw. on Dam., 7th ed., 53; Field on Dam., 28; 64 N. Y., 440; 56 N. H., 456; 13 How., U. S., 371; 2 Wils., 205; 4 Wend., 113; 7 Hill, 207. If the legislature, in enacting the statute in question, instead of using the words "exemplary damages" had used the common law definition of those words they would have expressed precisely what the statute means now. 26 Hun, 608. When thus construed it does not mean that the jury may award exemplary damages in any case, but only when the defendant has acted from bad motives. If, for instance, in an action against the one who sold the liquor that caused intoxication from which actual damages were sustained, it appeared that he sold in violation of law, or to a person whom he knew to be far gone in the habit of intemperance, or who was already obviously under the influence of liquor, or who habitually squandered in dissipation the wages with which he should support his family, the jury might well infer that he acted from bad motives and award exemplary damages. Also, in an action against the owner of the premises, if it appeared that he leased them to a tenant know. ing that he kept a disorderly place, or sold without a license, or to minors or habitual drunkards, there would be a basis upon which the jury might allow exemplary damages against him. But in this case there is no evidence from which the jury could infer that defendant acted from bad motives. He leased his premises for a lawful purpose. 5 Hun, 530. His tenant had a license, granted under the laws of the State, and so far as appears kept an orderly and respectable hotel. No aggravated circumstances were shown with which defendant was directly or indirectly connected. If the sale of three glasses of whisky to the same person within a few minutes would authorize an award of exemplary damages in a case against a tenant, it would not in in a case against the landlord without further proof. The person against whom exemplary damages are allowed must be connected with and in some way responsible for the aggravating circumstances that authorize the award. See 8 Hun, 112; 28 Mich., 496; 30 id., 492; 9 Neb., 304; 71 Ill., 241; 76 id., 222. Neu v. McKechnie, 95 N. Y., 632; Hackett v. Smelsley, 77 Ill., 109; and Schneider v. Hosier, 21 O., 98, distinguished. Judgment and order reversed and new trial granted, costs to abide event. Opinion by Vann, J.; Hardin, P. J., and Follett, J., concur. FALSE IMPRISONMENT. JUS- Decided Oct., 1884. A justice of the peace who unlawfully issues a body execution against a party is liable in damages for his unlawful arrest by the constable. No force or manual touching of the body is necessary to constitute an arrest and im prisonment, but it is sufficient if the party is within the power of the officer and submits to it. power of the officer and submits to his assumed authority without there being any force or actual touching of the body, and that the evidence was sufficient to sustain the verdict rendered. 1 Appeal from judgment entered Wend., 210; 2 T. & C., 224; 14 upon verdict. Action to recover damages for false imprisonment. Plaintiff had brought a suit before defendant, who was a justice of the peace, to recover for medical services, but before the adjourned day he informed the justice that he wished W. Dig., 384. Judgment affirmed. Opinion by Corlett, J.; Smith, P. J.; Barker and Bradley, JJ., concur. CONTRACT. to withdraw the suit, and asked N. Y. SUPREME COURT. GENERAL him the amount of the costs; plaintiff then paid the constable's fees and afterward sent the amount of the justice's fees by a third person, who paid it to the justice. Afterward, defendant issued a body execution for the costs and delivered it to a stranger, who delivered it to the constable. Plaintiff testified that the constable said to him that he had a body execution against him, that it must be paid, that no further time would be given, and that he placed his hand upon the plaintiff; that plaintiff submitted to Where the offeree either in words or in effect departs from the proposition, or varies the terms of the offer, or substitutes for the contract tendered one more satisfactory to himself, there is no assent and no contract, unless the offerer actually signifies his as sent to the proposition as modified or varied. * An actual forbearance of the debt for the time specified in the modified acceptance of the offeree, but without any communication of assent to give such time, is not sufficient to constitute a contract and render the offeree liable. the arrest, and refused to pay the A subsequent recognition by the parties that execution. There was a conflict of evidence as to what occurred at Held also, That it is enough to constitute an arrest and imprisonment that the party is within the Vol. 20.-No. 7b. a valid contract existed between them is not, of itself alone, material, unless in fact such a contract had actually been made. Appeal from a judgment rendered on the report of a referee. Action to recover upon a written promise or offer to pay the debt of one Wells, against whom plaintiff had recovered judgment to the amount of $3,000. Plaintiff wrote to defendant that, "The time has expired that you wrote me you would endeavor to be in W. to see | ceptance of plaintiff's proposition, what could be done concerning the business between A. L. Wells and myself. I write once more to ask if you intend to do anything about it. I let the matter rest because you gave me encouragement. I gave you my terms. If I can have $700 to pay up the mortgage on my store, which is now due, I will wait a suitable time for the rest if you will see that I have my pay, which is no more than than right Please let me hear from you soon, as the papers are now in the hands of Mr. H., but will wait to hear from you, as I want to do the fair thing." Defendant answered, "Now, what I propose is this: He shall have one year to pay the $700 you demand in full of all obligations to you. He shall take care of your present mortgage interest, &c., and the mortgage shall be paid within the year. If he fails ⚫ to do this out of his own resources I will make up the deficiency. You are to have no further trouble about it, and must not cause him any. Not a cent beyond the $700 will I help to pay. If this is satisfactory to you, well; if not, please do not trespass any further upon the time or patience," &c. Plaintiff made no answer to this letter or acknowledged its receipt, nor did she send any word, verbal or written, in regard to it either to defendant or Wells; but she waited a whole year without taking any further steps to enforce her judgments, and Wells failed to pay the $700. The referee held that this letter amounted to an ac with some amendments, and did not require her to formally accept; or, that her forbearance for a year amounted to an acceptance. Benj. Folsom, for applt. H. C. Kingsbury, for respt. Held, Error; that defendant's letter was in no sense a substantial acceptance of plaintiff's proposition or any part thereof, but was a counter-offer and required an acceptance to render it binding; and it was not sufficient that she acted or relied upon it and forbore from enforcing the judgments. When the answer either in words or in effect departs from the proposition, or varies the terms of the offer, or substitutes for the contract tendered one more satisfactory to the respondent, there is no assent and no contract. If the party answers, not rejecting, but proposing to accept under some modification, this is a rejection of the offer. 5. M. & W., 535; 11 N. Y., 441; 43 id., 245; 32 Am. Rep., 35-51. The parties must assent to the same thing in the same sense. 38 Barb., 528; 58 id., 583; 3 Johns., 535; 12 id., 190; 6 Wend., 103; 13 W. Dig., 256. There must be an actual consent to the terms of the offer, evidenced by some act, to create a binding contract. Acting upon the faith of the offer, without an agreement to accept, creates no binding contract. 17 Johns. 134; 46 N. Y., 467; 61 id., 362-366; 36 id., 207; 12 W. Dig., 563. Even though both parties merely assumed, afterwards, that a bind ing contract existed between them, it was of no importance, unless in fact such an agreement had actually been made. 12 W. Dig., 566. Judgment reversed. Opinion by Corlett, J.; Smith, P. J., Barker and Bradley, JJ., concur. MUNICIPAL CORPORATIONS. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. The court submitted to the jury the questions as to whether the obstruction was dangerous, and whether it had been there a sufficient length of time to notify defendant of its existence. The street in question was one of the approaches to the public park and was within the territory embraced by the park system, and the park commissioners, who were appointed by the mayor and common council, were charged with the duty of keeping the park and its James H. Polley v. The City of approaches in repair; the expense Buffalo. Decided Oct., 1884. A statute authorizing the mayor and common council of a city to appoint commissioners for a public park, and giving them the control over the park and the approaches thereto, and imposing upon them the duty of keeping them in good repair, does not relieve the city from the duty imposed by its charter to keep all the streets in repair, and therefore does not absolve it from liability for damages resulting from defects existing in a street within the jurisdiction of the commissioners. Such commissioners are agents or officers of the corporation entrusted with the performance of a corporate duty for the benefit of the inhabitants, and the city therefore is liable for their neglect, acts or omissions respecting such duties. A memorandum kept in the office of a city engineer that a permit to excavate a street for a sewer had been issued is competent evidence of the fact and to charge the city with notice of the existence of a defect arising from the filling of the excavation. Motion by defendant for a new trial on a case and exceptions ordered to be heard in the first instance at the General Term. Suit was brought to recover damages for injuries to a team of horses and a carriage occasioned by an obstruction in a street of the city. whereof was to be paid by the city. The fee of this street was vested in the city, and the city was charged with the duty of keeping all the streets in repair. Lewis & Moot, for plff. Giles E. Stilwell, for deft. Held, That there was sufficient evidence of the existence of the obstruction and negligence of defendant to warrant the submission of those questions to the jury, and their verdict cannot be disturbed. Held also, That the fact that the park commissioners were charged in repair does not relieve the city with the duty of keeping the street from the same duty imposed by its charter; that they are the servants or officers of the corporation entrusted with the performance of corporate duties for the benefit and advantage of the inhabitants, and the city is liable for their negligence in respect thereto. The park and its approaches are not exempted from the supervision and control of the common council any more than other public places in the city. See Laws 1869, chap. 165, §§ 1, 28; Laws 1875, chap. 569. It would seem illogical and in congruous to hold the city liable for injuries upon streets outside of the park territory and to exempt it from liability for injuries in the park or its approaches, when all are equally within its jurisdiction and subject to its control. 15 W. Dig., 59, Maximillian v. Mayor, 62 N. Y., 160; Ham v. Mayor, 70 N. Y., 459; are not in conflict with those views. There the persons guilty of the negligence were not the servants of the corporation, and not being employed or removable by it, engaged in the performance of any corporate duty, the city was held not responsible. But here the park commissioners are the servants and officers of the city, appointed by the mayor and council, and their duties relate exclusively to property within the city and owned by it, and all their expenses are paid by the city. It being defendant's duty to keep its streets in a safe condition, the commissioners in doing so are engaged in the performance of a corporate duty. 83 N. Y, 528-534; 26 Hun, 587. Plaintiff offered in evidence the "stub" of what purported to be a permit to build a sewer, kept in a book in the city engineer's office, for the purpose of showing that a permit had been issued to a person to excavate the street for a sewer, who, in filling up the excavation, left a ridge of dirt, causing the obstruction complained of, and that therefore the city was chargeable with notice thereof. The prac tice was to issue a permit to a person building a sewer from the engineer's office, and to keep a book containing the stubs of the permits. Exception was taken to the admission of such evidence. Held, That the evidence was admissible. Motion for a new trial denied. Opinion by Corlett, J.; Smith, P. J., Barker and Bradley, JJ., concur. LIMITATION. FRAUD. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. Persons S. Barnard, respt., v. Frank W. Farnam et al., applts. Decided Oct., 1884. Since fraud without damage is not actionable, and as no damage can accrue to an accommodation endorser except upon default of the maker or acceptor and due notice thereof given, it follows that no cause of action arising from the fraudulent procurement of the endorsement can arise until the endorser has become legally chargeable as such, and, therefore, the time within which an action to recover damages for inducing the party to endorse by fraudulent representations may be brought will commence to run, not from the making of the endorsement, but from the time the endorser has become chargeable. Appeal from order denying a motion for a new trial on a case and exceptions. Action to recover damages for false and fraudulent representations in inducing plaintiff to endorse two drafts for the accommodation of defendants, which they procured to be discounted, and which plaintiff was compelled to pay upon the default of the accep |