et al., respts., v. Zoll et al., as- Common Council on December 15, sessors, applls. The charter of the city of Buffalo provides that "the grade of the streets shall be established and described, and the description of such grade and of all alterations thereof shall be recorded by the city clerk." Laws 1870, Chap. 519, Title 9, & 12. A later section enacts (17) that "when the city shall alter the recorded grade of any street or alley, the owner of any house or lot fronting thereon may, within one year thereafter, claim damages by reason of such alteration. Upon presentation of such claim the Common Council shall refer it to the assessors to hear such claim, and if they shall allow any damages, to assess the same upon the real estate benefited by the alteration. The amount so assessed shall, when collected, be paid over to such claimant." The legal grade of the street in front of the relators' premises was changed by a resolution of the 1873. More than one year thereafter their intention to do the work of changing the grade was announced by due publication, and in August, 1876, the work was completed. Within one year after the relators presented their claims for damage to the Common Council, which referred them to the assessors. The latter made their report, certifying that no damages had been sustained. had been sustained. The relators then sued out a writ of certiorari directed to the assessors, and, it appearing from their return that damages had been sustained, and they had assumed to balance them by benefits, the General Term set aside their report, and the assessors appealed to this court. P. A. Matteson, for applts. Delavan F. Clark, for respts. Held, That the report of the assessors was properly set aside; that the relators' claim was presented in time; that under the provisions of the charter the claim for damages may be made within one year after the actual change of the grade. 22 Minn., 527. Also held, That as the assessors offset against the damages suffered the benefit received, whether any rule of law was violated to the injury of the adjoining owners was a question raised by the writ. It was a question of law and the decision of the assessors upon it was open to review. Also held, That a conclusion of fact, if without competent proof to support it, or opposed by a decided and strong preponderance of evidence, may be assailed by Nagle, respt., v. McFeeters et viz., all they should realize over al., applls. Decided Oct. 31, 1884. An agreement by which a party to whom goods are consigned for sale from time to time is to give acceptances to the amount of goods in his hands, necessarily implies that the assignee is to have a lien upon the goods to protect him against such accept ances. On March 1, 1876, plaintiff was engaged in business in Philadelphia, under the firm name of N. & Co., as a blank-book manufacturer, and defendants were engaged in business in the city of New York as blank book jobbers, under the firm name of McF. & Co. On that day they entered into a contract, in writing, whereby it was, among other things, agreed that defend. ants were to act as sole agents of plaintiff in the city of New York to sell his blank books, for three years from that date, for a stipulated salary, plaintiff to consign to them $6,000 worth of blank books and to replenish their stock from time to time, as the business required. The goods consigned to defendants were, under the contract, to remain the sole property and above certain specified prices at which the books were to be billed to them by plaintiff. The parties acted under this contract until January, 1878, when a dispute having arisen plaintiff demanded the goods which defendants then had in their possession, and upon their refusal to deliver them, in February, 1878, brought this action to recover possession of the same. Defendants set up in their answer a lien they had on the goods for certain outstanding drafts drawn on them by plaintiff and accepted by them for his accommodation. Upon the trial defendants gave evidence tending to show that subsequent to March 1, 1876, plaintiff asked permission. to draw drafts on them, which they were to accept, under an agreement that he was to keep in their possession goods in value to the amount of the drafts, and that they should hold such goods as their indemnity against liability on the drafts. on the drafts. Plaintiff did not dispute the existence of an arrangement that he should draw drafts on defendants, which they were to accept for his accommoda- | stock, about $7,000. You agreed tion, and that he was to keep in with us last fall to give us acceptheir hands goods to about the tances to cover the amount of amount of the drafts, but he de- goods you held belonging to us, nied that there was any agreement and it is very hard in these times that defendants were to have a for us to carry them unless we can lien on them. That question was have your paper to cover the full submitted to the jury. It appear amount, subject to the usual terms, ed that when this action was com- i. e., we are to pay them if you menced defendants had in their cannot from your receipts. We possession goods of plaintiff worth could use $2,000 of your paper at about $2,600, and proceeds of once, and we are in immediate goods sold, including accounts want of it. You would very much uncollected, amounting to about oblige us by accepting and return$3,000, and there were drafts out- ing the inclosed drafts." On Febstanding which they had accepted ruary 16, 1877, plaintiff again for plaintiff's accommodation, wrote them: "We find you have which were past due and under about $2,600 of stock and about protest, amounting to about $6,300. $2,500 of accounts unpaid, or a Plaintiff's agent, who acted under total of $8,700. We have of your a power of attorney, and transact- paper about $5,000, which leaves a ed nearly all the business on the balance of $3,700. We inclose you part of plaintiff under the agree- drafts for that amount for acceptment, testified that the agreement ance, as we can use some of those under which the drafts were drawn acceptances at once. We would and acceptances given was verbal, be obliged to you if you would and that some letters passed on return them to us at once.' In the subject. He swore that plain- pursuance of that request the actiff agreed that defendants should ceptances were sent. A motion give acceptances to the amount of for a nonsuit was denied. the goods they had of him in their possession; that defendants agreed to give plaintiff their acceptances to the amount of the goods and the money they had in their hands belonging to plaintiff; that they agreed to give accommodation paper to the amount of the goods and value they held. On January 16, 1877, plaintiff wrote defendants stating, among other things, that he had of their acceptances certain drafts, describing them, amount ing to $1,000, and saying: "You have of ours, in accounts and Vol. 20.-No. 8a. Samuel Hand, for applts. C. E. Tracy, for respt. Held, Error; that plaintiff was not entitled to recover; that the evidence showed clearly an agreement that defendants were to have a lien on the goods in their hands to protect them against their acceptances. When it was arranged that defendants should accept to the amount of the goods in their hands it was necessarily implied that the acceptances should be upon the credit and security of the goods in their hands. Judgment of General Term, affirming judgment for plaintiff, reversed, and new trial granted. Opinion by Earl, J. All concur, except Rapallo, J., absent. WILLS. N. Y. COURT OF APPEALS. the age of twenty-one, and the same is devised accordingly. Edward C. James, for executors, applts. George S. Hamlin, for Charles Kuhn, applt. Nelson J. Waterbury, for respt. Held, That there was no unlawful suspension of the power of alienation; that the provision for Radley et al., respts., v. Kuhn the two grandsons, W. and T., if a et al., exrs., applts. Decided Oct 7, 1884. A will devised certain real estate to the executors in trust to receive rents, &c., and to pay to two of testator's grandsons or to the survivor of them a specified sum on becoming twenty-one, the trust to continue until testator's son C. arrived at the age of 25, he to have the income less said sum during life, and if he should die leaving lawful children said real estate to be theirs on arriving at the age of 21. Held, That there was no unlawful suspension of the power of alienation. This was an action for the construction of the will of K. The testator devised certain real estate to his executors, in trust, to receive the rents and profits and out of them to pay to his two grandsons W. and J. each the sum of $700 on his arriving at the age of twenty-one years. If either of them died before coming of age the survivor was to have the whole $1,400. The will provided that this trust should continue until the testator's son C. arrived at the age of twenty-five years, C. to have the net income, less the $1,400, during life, and "if he should die leaving any lawful children the said real estate*** is to become theirs in fee when they arrive at trust, is merely a mode of secur ing the payment of the amount of the legacy and not a provision for the maintenance of the infants, and does not render the estate inalienable; the interests of the cestuis que trust are assignable, the trust being for the payment of a sum in gross. 1 R. S., 730 § 63. When the testator's son C. attains the age of twenty-five years, or dies, the trust would terminate. If living after that time C. takes the rents as tenant for life, charged with the payment of the amount still unpaid of the $1,400, and the remainder in fee goes to his children, if he leaves any; when they come of age should any surplus arise during the years the trust continues it would go to C. as the owner of the next eventual estate. If C. should die without leaving lawful issue, the fee would, on his death, vest in the heirs of the testator. If he should have a child or children it would vest absolutely in them, and be alienable and descendible. 43 N. Y., 380; 24 id., 463. In case the child or children of C. die under age the fee vests in their heirs, and not in the heirs of the testator. 3 Co. R., 19; 43 N. Y., 381-383. It seems, that it is only a trust to receive rents and profits of land and apply them to the use of a person generally, and a trust to accumulate rents and profits generally for the benefit of one or more minors, which renders the estate inalienable. 1 R. S., 729, § 55, sub. 3. A contingent remainder over, limited on the fee, to take effect in case of the first devisee dying before twenty-one, operates to reduce the absolute fee of the devisee first named to a determinable fee. The condition on which the remainder over is to take effect is a condition subsequent, and does not prevent the vesting of the fee in the first devisee, but merely renders such fee defeasible by condition subsequent. 43 N. Y., 380; 24 id., 463. While such a contingent remainder over suspends the absolute power of alienation during the minority of the first remainderman, such suspension is permitted as to real estate. 1 R. S., 723, § 16. Judgment of General Term, modifying decree of surrogate, reversed. cannot be dispensed with even where the clerk of the court is appointed such guardian. Application for an order appointing the clerk of the court guardian. ad litem of infant defendants without security, no person having consented to become guardian. The action was brought to partition lands. Chas. D. Adams, for motion. Held, That this could not be done; that Chap. 227, Laws of 1833, providing that in case a disinterested person did not consent to become guardian the Court of Chancery might appoint either of the clerks of said court guardian, and dispense with the security required, was repealed by Chap. 245, Laws of 1880, and has not been re-enacted; that 2 R. S., 317, §4, requiring security of guardians, was repealed by said act, but was, in substance, re-enacted by § 1536, Code Civ. Pro. It is urged that requiring an officer of this court to give security is, in effect, requiring security of the court. The court acts through its agents, from whom security is required, Opinion by Rapallo, J. All con- except in cases otherwise provided cur. PARTITION. GUARDIANS. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Mary L. Fisher et al. v. Mary Mary L. Fisher et al. v. Mary B. Lyon et al. Decided Oct., 1884. The security required by statute to be given by guardians of minors in partition cases for by law. A receiver is an officer of the court, but security is seldom or never dispensed with. The practice in partition cases has been regulated by statute in this State from the earliest times, 12 Jones & V. 185, and it was held in 2 Paige, 27, that the practice prescribed by statute in partition cases must be followed by the Court of Chancery as far as practicable. In that case the guardian |