nor the usages nor necessities of the office, or the interests of the people demand it. That the office is, in all cases, a continuous one, and the intent always is that the term of one incumbent shall close as another commences, and that at no time shall the trusts of the office be idle or inoperative for want of an agent to exercise them. Hence, when the term of an executive or administrative office is declared to be for one or more years from a designated day, the language must be construed to mean until the hour of the same day at which the successor becomes duly qualified to assume its powers. That usage has established the hour of noon as the time for the assumption of office by a newly elected officer and the resignation of it by the incumbent in the case of the City of N. Y., as well as in those of the Governor of the State and the President of the U. S., and also in the case of the surrender of real property by an outgoing tenant. 9 Wend., 346-8. That, therefore, offices which terminate as that of the Mayor alty of N. Y. formerly did, do not necessarily expire at midnight, but may lawfully remain in the incumbent until such convenient hour of the day upon which a new term commences and at which, by properly qualifying for the place the successor may lawfully take. 25 Wend., 697. But that, if this is not so, then the change made by Chap. 410, Laws of 1882, of the time when the term of his successor should commence, also operated by necessary implication to fix the time at which the term of Mayor Edson should terminate, and that it was not unconstitutional as operating to extend the term of an elective office. 46 N. Y., 57, distinguished. That, even if Mayor Edson's time expired at 12 midnight of December 31, there was no vacancy in the office of Mayor which the President of the Board of Aldermen was empowered to fill, for the provisions of the R. S., familiarly known as the "holding-over act," applied to the office of Mayor of New York City; and, consequently, in that office, no vacancy would accrue, either legally or physically, by the expiration of a term. 18 Wend., 518; 9 Paige, 507; 45 N. Y., 816. That, however, § 2143 of Chap. 410, of the Laws of 1882, expressly provided that the act should not create any vacancy in any office, and, consequently, if any vacancy would or could be created by the designation of the hour at which the new Mayor should take office, this section interferes to prevent such a result. That 32 of Chap. 410, of the Laws of 1882, only empowers the President of the Board of Aldermen to fill a vacancy in the office. of Mayor which occurs during an unexpired term by death, resignation, or the other causes which produce a vacancy according to the statute defining vacancies; and that he was not authorized to take possession of the Mayor's office even if there was a vacancy of a few hours by reason of an interregnum in the office for the purpose of making appointments to office. PARTNERSHIP. ESTOPPEL. N. Y. COURT OF APPEALS. Durant, applt., v. Abendroth, That the defendant was entitled impld., respt. to judgment. Opinion by Davis, P. J.; Daniels, J., concurred, and also held that the power of appointments to office without the necessity of confirmation by the Board of Aldermen, conferred upon the Mayor by Chap. 43, Laws of 1884, was intended by the Legislature to be exercised only by the Mayor himself, and that § 32 of Chap., 410, of the laws of 1882, did not in any event constitute the President of the Board of Aldermen, while filling a vacancy, the Mayor, but at most only empowered him to act as Mayor, and that while so acting, a president of the Board of Aldermen elected before the passage of Chap. 43, of the Laws of 1884, could not exercise the power of appointment conferred upon the Mayor by said act. Brady, J., also concurred for the reasons advanced by Davis, P. J. and Daniels, J., and advanced as an additional reason why judgment should be rendered in favor of defendant that it was the intention of the Legislature, evidenced by the postponement of the time when statute should take effect, that the power of appointment conferred upon the Mayor by Chap. 43, of the Laws of 1884, should be exercised only by a mayor subsequently elected with special reference to the exercise by him of that power. Decided Oct. 7, 1884. On the formation of a limited partnership the usual certificate was filed, but the special partner paid in his share of the capital by check, which was afterwards paid. Held, That the misstatement rendered the special partner liable as a general one for the firm debts, but that the partnership was in form a limited one and liable for the firm debts. One of the general partners instituted proceedings for voluntary bankruptcy of the firm, to which the special was not a party, and the firm was duly adjudged bankrupt. Held, That the decree was not conclusive as to any fact in a subsequent proceeding between the creditors and the special partner, and that the fact that the creditors proved their claims and accepted a dividend in the bankruptcy proceedings did not estop them from litigating as against the special partner any fact litigated or involved in such proceedings. This action was brought against A., G. & W., as co-partners, dealing under the firm name of G. & W., to recover a balance due from that firm to C. & Bro., and assigned to plaintiff. The defendant A. alone defended, claiming that the partnership was a limited partnership formed under the statute, in which he was the special partner, and G. & W. were the general partners. It appeared that when the certificate and affidavit required by the statute (1 R. S., 763, § 1) authorizing the formation of limited partnerships were filed, A. had not actually paid in in cash the sum to be contributed by him, but had given his check for such sum payable several days later than the date at which the affidavit was made, which check was duly paid. Carlisle Norwood, Jr., for applt. Wm. Henry Arnoux, for respt. Held, That the misstatement rendered A. liable as a general partner for the firm debts. 69 N. Y., 148. Also held, That, notwithstanding the erroneous statement in the affidavit as to the payment of capital, the partnership was in form a limited partnership and subject to all the rules applicable to such partnerships. Proceedings in bankruptcy were instituted by W., one of the general partners. A., the special partner, was not made a party thereto. The firm of G. & W. was duly adjudged to be bankrupt. Held, That this did not estop plaintiff's assignors from setting up A.'s liability as a general partner, and the decree in bankruptcy was not conclusive as to any fact in a subsequent personal controversy between A. and the plaintiff or his assignors. In Aug., 1873, McD. & Co., creditors of the bankrupts, presented a petition to the register in bankruptcy, setting forth that on Nov. 21, 1872, two days before the filing of the petition in bankruptcy, certain other creditors had agreed to sell their claims to A. at twentyfive cents on the dollar, and had afterwards proved said debts in bankruptcy, and that such debts so proved had been assigned to A., and praying that said claims be disallowed and the proofs thereof expunged, on the ground that A. was a special partner and that under the statute (1 R. S., 720, § 23) in case of the insolvency or bankruptcy of the firm, no special partner could, except in certain specially excepted cases, claim as a creditor until the claims of all the other creditors are satisfied. The Register overruled this point, holding that in respect to these assigned claims, A. stood in the shoes of his assignors and was a creditor as their representative and not otherwise. This ruling was upheld by the Bankruptcy Court. Held, That even if this decision is an adjudication that A. was only a special partner and not liable as a general partner, it was not binding on the plaintiff's assignors, who were outside of the bankruptcy proceedings and were not parties to the application of McD. & Co. It appeared that the plaintiff's assignors proved their debt against the estate of the bankrupts before they assigned their claims to plaintiff, and received a dividend thereon, for which plaintiff allows credit in this action. Held, That while the receipt of the dividend may have had the effect of precluding the creditors receiving it, or those claiming under them, from attacking the proceedings in bankruptcy, it could not have had the effect of estopping them personally from a subsequent controversy with A., as to every matter adjudicated in those proceedings or involved in adjudication, though not litigated. Judgment of General Term affirming judgment on verdict for defendant reversed, and new trial witness to testify to the circumgranted. stances surrounding the accident Opinion by Rapallo, J.; all and the steps he took to release concur. EVIDENCE. DAMAGES. N.Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Arthur Quinn, respt., v. The Long Island R. R. Co., applt. Decided Dec., 1884. In an action to recover damages for personal injuries sustained by reason of the negligence of defendant, it is not error for the Court to charge the jury that plaintiff is entitled to compensation for anything that increased his suffering, his mental agony, and that they could take into consideration "his situation at that time, how painful, how trying it was." Appeal from judgment in favor of plaintiff entered upon verdict, and from order denying motion to set the verdict aside as excessive, and for errors committed upon the trial. plaintiff. He found plaintiff so jammed in and' fastened by the broken pieces of the train that he could not extricate him. He stated that he extricated another passenger and then returned to aid in extricating plaintiff, the result of which testimony was vital to plaintiff's case, in that it showed that plaintiff remained in a condition of extreme pain and under circumstances calculated to inspire The evidence shows that plaintiff terror, for thirty or forty minutes. was held down by a portion of the fragments of the train which were the apparent support of the tender and locomotive. The tender was thus supported about two feet above him. Plaintiff was conscious of the risk of removing the obstruction which held him lest such removal should cause him to be crushed by the tender when the The facts sufficiently appear support to it was removed. In from the opinion. Cooke & Salmon, for respts. Hinsdale & Sprague, for applts. Held, That plaintiff was carried by the defendant as a passenger and was negligently injured without any fault on his part, Although the pleadings put in issue the liability of defendant, its liability was admitted as part of the case upon the trial. The cause of the accident does not appear. There was a crash and the front of the car in which plaintiff was sitting seemed to cave in. Plaintiff Plaintiff was thrown under the wreck. It was not erroneous to permit the this extremity he desired Smith to kill him. The judge charged the jury that they could take into consideration "his situation at that time, how painful, how trying it was." This precise question has not been decided in this State. In the case of Ransom v. N. Y. & Erie R. R., 15 N. Y., 415, the Court of Appeals held that bodily pain and suffering of plaintiff from the injuries were proper subjects of compensation, and in deciding this case cited with approval Seger v. the Town of Barkhempstead, 22 Conn., 290. When the instruction to the jury was that "they had the right to consider all the circumstances of danger and peril attending the accident." The conclusion of the appellate court in that case was that the injury "is not confined to his wounds and bruises upon his body, but extends to his mental suffering." Judgment affirmed, with costs. Opinion by Barnard, P. J.; Pratt and Dykman, JJ., concur. EVIDENCE. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. John P. Vidward et al., respts., v. Isaac P. Powers et al., applts. Decided Oct., 1884. The declarations of an assignor made before the assignment and not forming a part of the res gestæ, are not competent against the assignee. Appeal from judgment in favor of plaintiffs, entered on the report of a referee. Action for the recovery of possession of personal property. The complaint alleged that on or about December 18, 1880, defendants wrongfully became possessed of and detained certain goods, the property of plaintiffs and of which they were entitled to the immediate possession, of the value of $409.11, and refused to deliver them up on demand; that on or about November 26, 1880, defendant H., being insolvent, obtained the property from plaintiffs on credit, fraudulently, with intent not to pay for it, and on December 14, 1880, made a general assign ment to defendant P. for the benefit of creditors. H. had two stores, one at E. and the other at L; the former being in charge of a clerk, who on the 25th or 26th of November, 1880, ordered the goods in question. They were shipped on November 26, and received at E. on the 1st or 2d of December. Fraud was sought to be established on two theories; one based on representations in fact made by the clerk at the time the goods were ordered, and the other on the idea that H., when he received the goods was insolvent and did not intend to pay for them. Plaintiff offered to prove by one G., who was a creditor of H., a conversation between him and H. at L., on November 27, 1880, in relation to H.'s financial standing and business. This was objected to as incompetent and immaterial; that it had no relation to the matters in suit, and was immaterial if designed to affect defendant P.; that witness was not acting for plaintiffs and the conversation was not communicated to them. The objections were overruled and the witness allowed to give the conversation, which tended to show that H. was insolvent, and knew it, and in a contingency contemplated an assignment. A motion by P. to strike out this testimony was afterwards denied and evidence by one D., of the same interview, was admitted under objection that the declarations of the assignor were inadmissible as against the assignee. Hannibal Smith, for applt. |