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in her lifetime. The result is, that Mrs. Ludlow took an estate in fee, defeasible by law, in the event of her dying before her father, and defeasible by will, in the event of her dying after him, leaving no issue. Having survived her father, and having left issue, her estate in fee both vested and became absolute in her, and as a consequence in her grantor Mr. Phyfe. Judgment for defendant.

CLERKE, J., dissenting. - I am of opinion that Miss Mackaness, afterwards Mrs. Ludlow, took no absolute fee in the estate, notwithstanding the words of inheritance in the first clause of the fourth article of the will, that those words are divested by the subsequent clauses of their usual efficacy, and that the limitations over reduced her interest to an estate for life; and, at her death, an absolute fee vested in her daughter Mrs. Chrystie.

M. S. Bidwell, for plaintiffs.
B. F. Butler, for defendant.

Kalt v. LIGNOT.

Costs under the code of procedure. Section 303 of the Code, provides that there may be allowed to the prevailing party, upon the judgment, certain sums by way of indemnity for his expenses in the action; which allowances are termed costs.

By section 304, costs shall be allowed of course to the plaintiff upon a recovery, in an action for the recovery of money, where the plaintiff shall recover fifty dollars or more.

Section 305 reads as follows: “Costs shall be allowed of course to the defendant, in the actions mentioned in the last section, unless the plaintiff be entitled to costs therein."

CLERKE, J. - Section 305 of the Code does not mean, that the defendant shall be entitled to costs against the plaintiff in all cases where the plaintiff is not entitled to them. This section must be read in connection with and controlled by section 303. A mere reduction to the plaintiff's demand, by set-offs, or any other description of counter claim, below the amount of fifty dollars, does not entitle him to costs against the plaintiff.


September, 1856. Wermore v. STORY.

Ninth avenue railroad · Power of Common Council. ROOSEVELT, J. — Messrs. Wetmore, Hoppoch & Stuart, of this city, and also owners of property on Greenwich and Washington Streets, complain that the defendants, under the name of the Ninth Avenue Railroad Company, and under color of a pretended grant from the city authorities, are about extending their rails through those streets, in front of the plaintiff's premises, to their great

injury and annoyance, and in violation of their rights. An injunction granted in the first instance, on their application to restrain the proceeding, was subsequently at Special Term dissolved, and the complaint dismissed. From that judgment the plaintiffs have appealed, insisting that the injunction originally issued, instead of being dissolved should be made perpetual.

On the part of the defendants, it is not pretended that every citizen has a right to lay a rail-track in the streets of the city. The corporation, however, it is claimed, may do it; or, in their discretion, by a resolution of the Common Council, may grant the privilege, as a franchise, to a particular individual or association of individuals. Such a grant, it is alleged,

has been made in this instance. The judge so held at Special Term. He placed his final decision on that ground. And the question therefore is, can a resolution, adopted by the Board of Assistants in one year, be concurred in by the Board of Aldermen in another year, so as to make it, without consulting the existing Board of Assistants, an ordinance of the Common Council ? Or must it, as in the case of unfinished business in other legislative bodies, be taken up de novo?

When the charter of 1830 declared that “the legislative power of the Corporation of the City of New York should

be vested in a Board of Aldermen and a Board of Assistants, who together should form the Common Council of the city,” it must be considered as having adopted by implication, so far as applicable, the universally recognized principles of legislative bodies, constituted of two inde. pendent branches.

The settled practice and understanding, - indeed, we may say the common law,- of such bodies, as illustrated in the Congress of the United States, the Legislature of this State, and, it is believed, in the Legislatures of every State in the Union, as well as in the Parliament of Great Britain, repudiates the idea that the Board of Aldermen of 1853 could take up and pass the resolution of the politically deceased Board of Assistants of 1852, and give it effect as law, without consulting the newly elected body. It might have been, although not so in the present instance, on the express ground of opposition to the particular act of their predecessors, and for the express purpose of preventing its consummation.

No case has been cited in which the Senate of a State, or of the United States, or of the Upper House of Canada, or of Great Britain and Ireland, has attempted to give effect to the inchoate action of a previous Assembly, House of Representatives, or House of Commons, whose term had expired, and whose places were filled by others newly chosen in their stead.

To allow an opposite practice in the legislation of the City Common Council since its new organization would be at times to defeat the will of the constituents, clearly expressed through the regular channel of the ballot-box, and to render the elective franchise a nullity. Although the corporation of the city is a continuous body, the Common Council, since its division into two branches, is not. Its legal term, like that of the State Legis. lature, upon whose model it was formed, is one year, and no longer. The Common Council of 1852 is not the Common Council of 1853.

The primary object of that act was to prevent the Common Councils of cities from permitting the construction of railroads in the streets of cities without the consent of a majority of property. owners immediately interested; and when it excepted from its operation railroads already " constructed in part,” it meant those constructed under lawful authority, and not under “grants, licenses, resolutions or contracts,” which had never been made, given, passed or entered into according to the charter; and which, therefore, having in judgment of law no existence, could not be “con. firmed."

The confirmation intended was a confirmation as against the State, and not against the Common Council itself. An opposite construction of the act, instead of restraining the Common Council from permitting injurious railroads, would go to sanction roads commenced in violation of law, and which had never been permitted at all.

Having had, therefore, no warrant for its commencement, and none for its continuance, the road in question, under the evidence, is not only a public nuisance, of which the plaintiffs have a legal right to complain as specially injurious to them in their ingress and egress to and from their place of business on the street.

Such a nuisance, it is well established by numerous decisions, can and ought to be restrained by injunction, if demanded as in this case, by the parties specially aggrieved.

The judgment therefore of the Special Term, we all agree, should be reversed, and a perpetual injunction awarded.

CLERKE, J. — For the reasons above expressed in Judge Roosevelt's opinion, I concur in the conclusion at which both my associates arrived.

S. C. Beardsley and J. Van Buren, for plaintiffs.
C. O'Conor, for defendants.

Common Pleas for the City and County of New York.

General Term. July, 1856.



Payment and satisfaction. Action for the unpaid balance of a judgment, by the assignee thereof. The judgment was for the sum of $508. The defendant had paid the agent of the assignors $100 in cash, and given him his notes for $150, and the agent thereupon gave the defendant a

receipt in full payment and satisfaction of the judgment, provided said notes should be paid at maturity. They were so paid.

Held, that notwithstanding the receipt and the fulfilment of the agreement as to the payment of the notes, said agreement was without consideration, and the defendant was not discharged from paying the balance of the judgment.

Bouman and Greene, for plaintiff.
F. Byrne, for defendant.


Wages - Forfeiture. Action for $64 arrearage of wages alleged to be due the plaintiff for the labor of his son. When the son went to work for defendant, defendant said he gave his boys three dollars a week, and kept back half a ollar a week till the expiration of their time, so that if the boy stayed his time out, and behaved himself, it would be a good sum of money for him when his time was out. The boy becaine delinquent and negligent, but not guilty of gross misconduct. Some days he came late to his work, some days he stayed away altogether, and a proportionate deduction was made from his wages for the time thus lost. He was finally discharged.

Held, that the sum of fifty cents a week reserved by the defendant, was so retained for some purpose or object of discipline, and not as an absolute forfeiture on any contingency whatever. Forfeitures by implication are not favored. Judgment for plaintiff affirmed.

A. C. Morris, for plaintiff.
W. G. Brown, for defendant.

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Judgment and execution. Judgments were docketed in these actions, and executions issued in 1848. It was subsequently discovered that the sale under these executions was void, inasmuch as they purported to be on judg. ments in the Supreme Court. In April, 1851, the plaintiffs, on application to this court, obtained leave to issue executions anew, for the whole amount of the judgments. Again, in February, 1856, executions were issued without leave of the court.

INGRAHAM, J. — These last executions must be set aside, as they were issued after the lapse of more than five years from the date of the judgments, without leave of the court, as required by the Code. The order made in 1851 cannot be considered as a substitute for the order required. The order of 1851 was obtained by the plaintiffs, in order to relieve themselves from the consequences of the erroneous proceedings upon the first executions. Those



executions were a nullity, and they might have been disregarded, and the executions of 1851 might have been issued without the order granted in that year.

S. Sanxay, for plaintiffs.
S. Sherwood, for defendant.


Parties Husband and wife. Action for damages for breach of contract to repair premises rented to the plaintiff by Caroline Swazzee. The judgment for plaintiff, on appeal to this court, was reversed; as to the husband, on the ground that inasmuch as the action related to the separate property of his wife, he ought not to have been joined ; as to the wife, on the ground that no next friend was appointed to appear for her as required by the Code.

W. C. Carpenter, for plaintiff.
M. C. B. Wilcoxson, for defendants.

CARPENTER v. Taylor.

Is a restaurant an inn? Action for the value of an opera-glass, left by mistake in defendant's saloon.

Held, that a restaurant is not an inn, so as to subject the keeper to the liability of innkeepers.

In order to charge a party as innkeeper, it should appear that his premises were kept as an inn for the accommodation of travel. lers. Therefore, a person who enters a restaurant for a meal, is not to be deemed a guest or traveller, entitled to the protection which the law gives against innkeepers.

D. Y. Walden, for plaintiff.
S. D. Cozzens, for defendant.

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In the matter of the estate of MARGARET ROBERTSON, deceased.

Law of domicile - Distribution of personalty - Scolch law. THE SURROGATE. - The intestate died at the Marine Hospital, Staten Island. At the time of her sickness she was on her way from Scotland to Canada West. Her surviving relatives are three brothers of the whole blood, and two brothers and two sisters of the half blood. The question is, in what manner distribution of her estate is to be made. The test in respect to succession to the

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