distinguished.

That § 1773 of the Code of Civ. Pro. expressly authorizing this proceeding was applicable to this case, for while it is true that it refers to judgment and orders made and prescribed in the article of the Code containing it and the two preceding articles, still the sections thus referred to and contained in the two preceding articles are the same as those previously contained in the Revised Statutes empowering the court to provide for the payment of alimony in favor of the wife, 3 R. S., 5th Ed., § 58 and 238, § 67, and what the Code has done therefore has been to re-enact and continue in force without interruption these preceding provisions, and for that reason a judgment rendered before the enactment of this portion of the Code is a judgment rendered as prescribed in the articles already mentioned, and § 1773 the husband was subjected to a proceeding of this nature for a failure to comply with the directions contained in a judgment so recovered.

That 45 Supr. Ct. 355; 46 id., 218; 23 Hun, 360, are distinguished from this case by the authority given by § 1773 of the Code of Civ. Pro.

That the defendant could not relieve himself of the obligation to comply with the direction contained in the judgment by opposing this motion with his affidavit to the effect that he was unable to pay the alimony ordered. That that is made the subject-matter of a motion on his part by § 2286 of

he can be relieved under its provisions an opportunity must be afforded to the plaintiff to controvert the statements made by him for that purpose and that is not secured where the affidavit is interposed merely as an answer to an application for his punishment. 13 Hun, 368, distinguished.

Order affirmed.

Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur.

LIQUIDATED DAMAGES. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

Jane Reilley, as executrix, &c., respt., v. The Mayor, &c., applt.

Decided Oct. 31, 1884.

A contract with the city for the regulating and grading of a certain street contained a provision authorizing the city to retain out of the moneys which might be due or become due to the contractor under the agreement, as liquidated damages and not as penalty for the non-completion of the work within a time specified, a certain sum for each day that the time taken to complete such work exceeded the stipulated time. Held, That the sum so forfeited was stipulated damages and not a penalty.

Appeal from judgment entered upon verdict directed by the court.

The plaintiff's testator entered into a contract with the defendants for the regulating and grading of 141st street from 8th avenue to St. Nicholas ave. The contract provided that the work should be completed in 125 days, and contained a provision authorizing the defendants to deduct and retain out of the moneys which might be

due or become due to plaintiff' testator, under the agreement, as liquidated damages, and not as penalty for the non-completion of the work within the time stipulated for its completion, a certain sum for each and every day that the time taken to complete the work exceeded the time stipulated for its completion. The time occupied in the completion of the work exceeded the contract time by 54 days, and the defendants refused to pay $972 of the amount earned by the contractor, claiming that they were entitled to to retain that amount by the clause of the contract above mentioned. The plaintiff thereupon brought this action to recover said sum.

Upon the trial the court ruled that the clause in question gave the defendants no right to make any deductions from the money due the contractor, except to the amount of actual damage suffered by them, and, in the absence of any proof of such damages, directed a verdict for plaintiff.

E. H. Lacombe, for applt.
L. L. Kellogg, for respt.

NEGLIGENCE. COLLISION.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

Niles Case respt., v. Frank Perew, applt.

Decided Oct., 1884.

A propeller, in trying to reach her dock without a tug, collided with a canal-boat. Held, Error to admit evidence that the propeller, after the accident, hired a tug to assist her to her dock, and to admit evidence to prove that it was not the custom to obey an ordinance as to keeping a light on canal-boats.

Appeal from judgment on verdict at Circuit, and from order denying new trial.

Action for damages resulting from the collision of defendant's propeller with plaintiff's canalboat. The accident happened at night. The canal-boat was lying moored in a slip at an elevator dock in Buffalo harbor. The propeller attempted to enter the slip without the aid of a tug, and ran into the canal-boat. After the collision the master of the propeller used a tug while passing through the slip to her own dock. There is no positive law requiring the use of a tug while navigating any part of the harbor. The Common Council of Buffalo have control of the harbor, and passed an ordinance requiring "canal-boats to keep an out-port and conspicuous light." Defendant gave evidence

Opinion per curiam.

boat did not observe the ordinance, and plaintiff was permitted to prove that it was not the custom of canal-boats to conform to the ordinance.

property, under which one of plaintiff's deputies levied on all said goods, including those levied on by W. He did not remove any of the goods, but claims he took possession of the goods and received from K. the key of the store. Afterward, while the store was closed, and the deputy having the key, W. and the other appellants, in the deputy's absence, broke open the store and began to remove the goods levied on by W., and the deputy going to the store for bade the removal. When W. made the levy the deputy was present and was informed thereof. At that time the deputy claimed control of the goods under a chattel mortgage from K. to a third person, as whose agent the deputy had advertised the goods for sale. Shortly before appellants removed the goods the evidence tends to show that the deputy, at the store, offered some of the goods for sale under the mortgage. After all the evidence was in the Court ruled that the execution in the hands of W., though regular on its face, was no protection to him, and that he was bound to show a valid judgment on which the same was issued.

William H. Burton, for applts.
D. Coats, for respt.

Held, Error. The questions whether W. surrendered possession to the deputy, or whether the deputy required, in any way, complete possession under the attachment, were for the jury. The justice's judgment was valid against defendant therein. The omission of the affidavit on behalf

$103.25, subject to opinion of General Term, on case to be made by plaintiff. Plaintiff moves for judg

ment.

Defendant was incorporated under Title 9, Chap. 555, Laws of 1864. An action had been begun against defendant for wages claimed to be due a former teacher employed in the schools maintained by defendant, and at a meeting of the Board of Education, by a resolution in due form, B., then a member of the board, was employed as attorney and counsel to defend the action; he acted as such, and performed services worth $103.25, and has assigned his claim to plaintiff.

John W. Byam, for plff.
James Wood, for deft.

Held, That the Board of Education as the agent of the corporation, had the power to employ legal counsel to conduct for them their legal business, and to give them advice from time to time. 75 N. Y., 303; 3 Seld., 340; 2 Kent's Com., 298; 2 Denio, 110; 25 Conn., 552; 45 N. Y., 199.

It was proper to employ a member of the board. 2 N. Y. S. C. R., 643; 58 N. Y., 623; 14 Hun, 483; 27 Vt., 433; 28 id., 401; 1 Green. (N. J.) 225.

The provisions of § 7, 8 and 9 of Title 9, are limited in their application to school district trustees proper, and are not limitations upon corporations created under the act, or upon the power and authority of the Board of Education, who act as the officers, agents and managers of the corporation.

Judgment for plaintiff on ver

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

Jonathan Champlin, respt., v. The Village of Penn Yan, applt.

Decided Oct., 1884.

A municipality is liable for damages resulting from the frightening of a horse by a banner hung over the roadway, although the banner was fastened to supports outside of the roadway.

In an action for such damages it is competent to prove that on a former occasion a similar banner frightened other horses.

Appeal from judgment on verdict at Circuit, and from order of Special Term denying motion for new trial.

An advertising banner was hung directly over the traveled part of Main street, in Penn Yan. It was held by ropes, fastened to the battlement and chimneys of stores on opposite sides of the street, and was stayed at the bottom by two guy ropes, one fastened to a post standing in the street, outside of the sidewalk, and the other to a spike in a window-sill of the opposite store. The bottom of the banner was from twenty to thirty feet above the surface of the street, and the banner itself was twentyfour feet long and twelve feet wide. Plaintiff's horse was being driven along the street, and under the banner, at which latter it took fright, ran away, and plaintiff was