RAILROADS.

17. An action to restrain the operation of an elevated railroad and for dam1061 ages is an action in equity for an injunction in which the question of damages is merely incidental and alternative, and the defendant is not entitled to a jury trial as to the claim for damages. Sanders v. New York El. R. R. Co. et al. (N. Y. C. P.), 544.

18. Section 12 of chap. 531, Laws 1889, which provides that any street surface railroad company may operate any portion of its road by cable or electricity, or any power other than steam, instead of by animal or horse power, on consent of the owners of one-half the property on that part of the route, is in conflict with art. 3, § 18, of the constitution, which requires also the consent of the local authorities to the construction or operation of a street railroad. Matter of Third Ave. R. R. Co. (Sup. Ct.), 645. 19. An existing street railroad cannot, under said act, dispense with the consent of the city authorities to the use by it of cable power in the operation of its road. Id.

20. Chapter 531, Laws 1889, simply confers the right to adopt a new motive power and so far it is a regulating act. It confers no substantial franchise to conduct or operate a road and hence is not violative of the constitution. Although it confers a new or additional franchise on an existing railroad company and authorizes it to impose on the streets a greater or different burden, there is nothing in the constitution which prohibits this. Matter of Third Ave. R. R. Co. (Ct. App.), 693.

21. By the terms of a consolidation agreement between three railroads a fund of five million dollars was raised from the stockholders of these roads and placed in the hands of defendants as a committee to complete the construction of the roads and form a continued line from Toledo to Richmond, for building a bridge and for other purposes, a certain proportion to be given to each road to complete its line. The R. & A. road was unable to obtain legislative sanction to the arrangement and did not come into it. Notwithstanding this fact the committee advanced to said road the amount specified in the agreement. poses were designed to allow the fund to be used for purposes of the Held, that the words "other pursame general description and not to allow the committee to make any disposition thereof which they might consider fit or proper; that it was their duty to use it solely to carry out the objects for which it was created, and that they had no authority to make the loan in question, but were liable to account to the stockholders for this portion of the fund. Gould v. Seney et al. (Sup. Ct.), 729.

22. It is no defense to an action for such an accounting that the committee had divided bonds and stock of the new company among the stockholders, where the misappropriation prevented the completion of the road, and the subscribers were thereby prevented from obtaining any advantage from such distribution. Id.

23. Payments were also made from this fund upon coupons of one of the other railroads, but by whom did not clearly appear. Held, that if such appropriation was thorized or rightfully made the committee should clearly prove that act before this expenditure could be allowed to them. Id.

24. The committee received securities for the loan made by them, which upon their settlement with the new railroad were turned over to it and hypothecated as security for a loan made to it by a bank. Held, that plaintiff could not require an accounting from the committee for the moneys loaned and at the same time enforce a liability against the bank for the receipt of these securities, and that the complaint was properly dismissed as against the bank. Id.

25. The whole issue as to defendant's negligence being with reference to the management of the gates, and there being no issue or question in respect to ringing a bell, a request to charge that defendant was not bound as matter of law to ring the bell or sound the whistle is immaterial, and a refusal to so charge is not error. Kane v. N. Y., N. H. & II. R. R. Co. (Sup. Ct.), 741.

26. A charge that raising the gates is an assurance of safety and an invitation to travelers to proceed is not error. Id.

27. The complaint alleged that, without plaintiff's fault, his cows strayed upon defendant's track, and that defendant, by his servants and agents, so carelessly managed its cars that they killed two cows and injured two others. On the trial plaintiff was allowed to amend, by alleging that the cows strayed on the premises through a fence which defendant was bound to maintain, and that four cows were killed and three injured. The referee found that there was no negligence in the management of the train, and that defendant's only negligence was in failing to maintain fences. Held, that the amendment did not involve a new cause of action, but was only an amplification of the original complaint. Becker v. N. Y., L. E. & W. R. R. Co. (Sup. Ct.), 750.

28. When cattle are upon the track by the fault of the company, a killing or injuring by the train imposes a liability without regard to the care or prudence with which it is operated. Id.

29. The case of Story v. The N. Y. Elevated R. R. Co., 90 N. Y., 122, did not overrule or change the principle of law that a duly incorporated steam surface railroad company, having authority from the state to build its road, and laying its tracks and operating its road through and upon the surface of the streets of a city under the protection of a license from such city, takes thereby no portion of the property of an individual who owns land adjoining the street, but bounded by its exterior line, and the company is not liable to such an owner for any consequential damages to his adjoining property arising from a reasonable use of the street for railroad purposes, not exclusive in its nature and substantially upon the same grade as the street itself, which leaves the passage across and through the street free and unobstructed for the public use. Fobes v. 1., W. $ 0. 1. R. Co.

(Ct. App.), 828.

30. Nor did the Story case so alter the law as to permit a recovery in cases where the easement of the adjoining lot owner, through the building and operation of a steam surface or horse power road, is injuriously affected by deprivation or diminution of light, air or access, even though he did not own the fee to the center of the street. Id.

31. Defendant's road ran about fifty-nine feet north of a mill, whose owner had bound the railroad to leave its land opposite his mill unfenced so as to permit free passage to it. Plaintiff's driver, while delivering a load of wheat, left a team standing unattended upon a strip of land in front of the mill, which strip was so narrow that part of the wagon occupied a part of the right of way of the railroad, and the team escaping upon the railroad tracks was killed by an approaching train. Held, that defendant was not liable. Dolan et al. v. Newburgh, D. & C. R. R. Co. (Ct. App.), 852.

32. The fencing statute was not designed to prevent the owners of a team from voluntarily driving it onto the lands of the corporation, or being so on, to compel the corporation to indemnify its owners for the loss occasioned by the negligence of their agent in permitting the team to escape onto the track in front of a moving train. Id.

33. The railroad, under the circumstances, was not required to fence its road at this point within § 8 of chap. 282, Laws 1854. Id.

34. An owner of property abutting on a street of which the city has the fee, cannot recover damages of a railroad for raising the grade of the center of the street, compelling him to drive back some distance in order to cross the track by means of such changed grade. Rauenstein v. N. Y., L. & W. R. R. Co. (Ct. App.), 911.

See EMINENT DOMAIN, 1; INJUNCTION, 6; NEGLIGENCE, 8, 9, 22-24; MUNICIPAL CORPORATIONS, 25-27; TRESPASS; TRUSTEE, 1, 2.

RAPE.

1. There is no rule as to the amount of resistance necessary to constitute the crime of rape, but each case must rest on its own peculiar facts and circumstances. The mere fact that there was no outer, is not necessarily fatal to the prosecution where it is apparent that it would have done no good, and the complainant was overwhelmed by the suddenness of the attack. People v. Connor (Sup. Ct.), 162.

2. Facts sufficient to show the commission of the crime of rape. Id.

3. A man who has sexual intercourse with a female under sixteen years, not his wife, commits rape upon her. Id.

4. Testimony as to an examination by the police of defendant's clothing and the discovery thereon of blood stains, is competent. Id.

RECEIVER.

See CORPORATIONS, 13; INJUNCTION, 5; PARTIES, 2, 3; PARTNERSHIP, 1.

RECORD.

See EASEMENT, 3.

REFERENCE.

1. In an action to recover advances and loans made by plaintiffs as commission merchants, the answer alleged, by way of counterclaim, damages sustained by reason of plaintiff's neglect in selling the goods as directed, and selling the same at less prices than directed, and at less than their market value, stating numerous items. Held, that the action was not one in which a compulsory reference could be ordered, even though the counterclaim might require the examination of a long account, as such account was only collaterally involved. Mitchell et al. v. Oliver (Sup. Ct.), 120.

2. Notice to terminate a reference for failure to file the report in time must. be served before the report is filed or delivered. O'Neill v. Howe (N. Y. C. P.), 272.

3. An action against a county clerk to recover moneys illegally obtained by fraudulent charges which wer paid by the supervisors upon bills consisting of a large number of items purporting to be statements in detail of services rendered by the defendant, involves the examination of a long account, and is eferable. People v. Wood (Ct. App.), 860.

4. The injured party in such an action has the right to waive the tort and rely upon the assumpsit. Il.

5. Code Civ. Pro., § 1969, authorizing the state authorities to bring actions to recover property taken without right from subordinate political divisions of the state, created no new causes of action, and does not purport to take away those existing in favor of counties, etc. Id.

See EVIDENCE, 6; EXECUTORS, ETC., 9.

RELIGIOUS CORPORATIONS.

1. Plaintiff was stationed in March, 1885, as a preacher by the Newark Conference of the M. E. Church at Spring Valley, and preached until January, 1886, when he was suspended from ministerial services and church privileges, which was effectual as a suspension until the next annual conference. On March 17, 1886, defendants, trustees of the church, forcibly ejected plaintiff from the parsonage, which he had occupied from the time of his coming. Held, that the use of the force used by the defendants to expel him from the house was without justification, and made them liable for doing so, and the question of damages only was properly left to the jury. Bristor v. Burr et al. (Ct. App.), 566.

2. Plaintiff was not a mere servant of the church, residing in the house in that relation. He was placed there by the conference pursuant to the regulation and discipline of the M. E. Church, and no contractual relation existed between him and the Spring Valley Church, and he had the right to protection against eviction by violence without the aid of legal process. Id.

3. An injunction to restrain action upon an agreement between two Episcopal churches, under chap. 176, Laws 1876, cannot properly be granted, as the effect thereof would be to forbid the statutory remedy, and draw the whole inquiry and ultimate determination of the controversy away from the appointed tribunal; the statute making the agreement simply the necessary preliminary to the action of the bishop and standing committee, and of the supreme court. MacLaury v. Hart (Ct. App.), 939.

REPLEVIN.

1. In an action by the vendor of goods, who was induced to sell them by fraudulent representations, to recover such goods from the sheriff, who has levied upon them as property of the vendee, evidence of the representations inducing the sale and their falsity are admissible. Lewis et al. v. Flack (N. Y. C. P.), 252.

2. After certain goods had been replevined and delivered to plaintiffs, the defendants made a general assignment. The assignee never claimed the goods, and refused to have anything to do with the action. A motion to substitute him as defendant was granted, unless defendants served an offer of judgment for the retention of the property and costs. Such offer was made and accepted, and judgment entered. As the costs could not be collected of defendants, the assignee was ordered to pay the same from the trust estate. Held, error; that defendants could not be considered as though plaintiffs in the replevin action, and that the assignee was not a transferee of a cause of action within the meaning of § 3247 of the Code. McCarthy et al. v. Wright et al. (Sup. Ct.), 371.

3. Where an appeal is taken by defendant in an action of replevin from a judgment awarding possession to the plaintiff, and pending such appeal the property depreciates in value, the plaintiff may maintain an action for such depreciation. Crn Exchange Bank v. Blye (Sup. Ct.), 469.

4. Plaintiff, the inventor of a certain machine, under an agreement with defendant, manufactured and placed in the latter's factory fourteen of the machines, in the use of which he was to instruct defendant's employees, and defendant to furnish work to the full capacity of the machines, and the pay for the employees to come out of the saving made by their use. At the expiration of a certain period, defendant had the option of returning or buying the machines at a certain price. In an action for the recovery of the machines and damages for their detention, Held, that the measure of damages was the interest on the value of the machines from the time of their wrongful detention to the trial. Redmond v. American Mfg. Co. (Ct. App.), 573.

5. Plaintiffs employed one George Ford to go to Cheyenne and buy hides for them, drawing upon them for expenses and salary. He was to engage in no other business and give them his entire services. He violated his agreement by becoming connected with two other firms, and used the proceeds of drafts drawn upon plaintiffs, without their knowledge, for the benefit of said firms. Ford bought hides with defendant's money and gave a bill of sale of the same to creditors of one of his own firms. Held, that if the hides were bought by Ford or his agents with money furnished' to him for that purpose by the plaintiffs they were plaintiffs' property at the time Ford sold them. Edwards et al. v. Dooley et al. (Ct. App.), 710. 6. Plaintiffs became the owners of the hides as soon as they were paid for, whether or not Ford used for that purpose the specific proceeds of the drafts drawn upon the plaintiffs, or used such proceeds for his own purposes and made up the amount by substituting other funds for such proceeds. Id.

7. Where the agent purchases the very property which his principal authorized him to purchase, the act of purchasing is the act of the principal, and the title passes by the contract of sale from the seller to the principal. Id.

8. Defendants had reason to believe from a letter written by plaintiffs that Ford was not the sole owner of the goods and that plaintiffs were interested in them, and had knowledge of the manner of Ford's agency. They made no inquiry, but relied on Ford's statement that he was the owner. Held, that they were not bona fide purchasers. Id.

RESIDENCE.

See DIVORCE, 3.

SALE.

1. Where a son, for whom his father had become guarantor, was in failing circumstances, and executed to his father a bill of sale of goods in a store, and immediately after the father and son went to the store, and the former locked the door, and handed the key to the son, and upon the following morning early the goods were levied upon under an execution of another creditor, Held, that a question for the jury was presented whether there had been such a change of possession from the son to the father as satisfied the statute. Woodworth v. Hodgson et al. (Sup. Ct.), 66.

2. Where it appears that the parties to a bill of sale had never talked of an actual sale of the goods covered by it, but had spoken entirely of securing the vendee (the father), an instrument executed upon such a basis is, in fact, a chattel mortgage, and unless filed as such is void as to creditors.

Id.

3. An affirmation of title is implied when one sells chattels in his possession, unless the facts and circumstances of the sale show that he did not intend to assert title in himself, but simply to transfer such interest or title as he has. Cohn v. Ammidown et al. (Ct. App,), 429.

4. Defendants, as trustees, held a chattel mortgage upon the machinery, etc., of a manufacturing corporation, and, under a power of sale therein sold the chattels at public auction in a single lot to plaintiff. The latter, being unable to obtain possession of certain articles, sought to recover from the defendants individually the value thereof, alleging that they had asserted title to the property, when in fact they were without title or power to sell. Held, that defendants did not assume to warrant the title, and the circumstances were such that a personal warranty could not be implied as against them. Id.

5. In an action for the price of carts ordered by defendant to be made the same as those of the preceding year, he defended on the ground that those made the preceding year were of a different size from the order, and that he had never seen them. He admitted having frequently been in the neighborhood where they were stored, and said he paid for them without examination or report from his employees. Held, that he had full opportunity for inspection, and that there was no question of fact in that respect. Pugsley et al. v. Devlin (City Ct. B'klyn), 814.

See CONTRACT, 3; REPLEVIN, 5–7; TRIAL, 5.

SCHOOLS.

1. The trustee of a school district may terminate the employment of a teacher at his pleasure, the remedy of the latter, if discharged without cause, being an action for breach of the contract. Swartwood v. Walbridge (Sup. Ct.), 757.

2. The teacher has no right after such discharge to force an entrance into the school house in order to resume her duties, and where she endeavors to do so the trustee is justified in resisting force by force and is liable only for excess of force employed. Id.

SERVICE.

1. Service of summons in an action against a sheriff for an escape from the jail limits may properly be made upon the under sheriff. Didsbury v. Van Tassell (Sup. Ct.), 204.

2. Service of process is not invalid because made on a legal holiday. Chapter 30, Laws of 1881, designating the holidays to be observed in the presentation and acceptance of bills of exchange, checks and notes and the closing of public oflices was not intended to diminish the number of judicial days. Id.

8. On motion to vacate a judgment on the ground that the summons was not served, defendant's affidavit stated that he was not at the hotel where the affidavit of service alleged he was served at the time of such service; N. Y. STATE REP., VOL. XXXI. 134