ordinary care, prudence, and skill in its structure or in its maintenance. Carlton. v. Franconia Iron and Steel Co., supra. consequence of a failure to exercise acter, consisting in not previously overhauling the building, ascertaining its defects and weakness, and supplying the needed strength and support. For this omission, or its resulting consequences, a stranger has no right to call it to account. Judgments reversed, and cause remanded. Opinion by Boynton, J. ADVANCEMENTS. If the N. Y. SUPREME COURT. GENERAL His presence at the depot was uninvited, and the company did not owe to him the duty to keep its stationhouse in a safe and secure condition. Its negligence, if any, was necessarily negligence of omission, negligence in having omitted the exercise of ordinary care to ascertain the dangerous character of the building. question was between the company and its employees, whose duty it was to occupy the building, or if it arose between the company and those who came to take passage on its cars, or to accompany a friend about to depart, or to await the arrival of one expected, or to engage in any business connected with the operation of the road, or business with those engaged in its service, and having a legal right to be and remain there; or, if the company had possessed knowledge, in fact, of the dangerous character or condition of the building, and gave no notice thereof to those it permitted to enter or occupy, other considerations would arise. It, however, is not charged with intentional wrong, nor with that gross or reckless misconduct that is difficult to distinguish from it, and therefore is equivalent to it. All it could have done, when the storm approached, to save the deceased from harm, was to see that he left the building, and thereby escaped the danger. This was not a legal duty. He was injured by no act of the company, or its servants or agents, occurring at the time. The fault was of past origin, and negative in char Dwight C. Beebe, respt., v. Robt. C. Estabrook, adınr., &c., et al., applts. Decided September 20, 1877. Where gifts of money or property are made by a parent to a child, the presumption in general is that they are advancements. If the parol testimony to characterize the acts, purposes and intentions of the intestate is conflicting, but there is enough to sustain the presumption arising from the gifts, the court is not at liberty to reverse the findings of a referee, that the gifts are advancements, on the ground that such findings are opposed to the weight of evidence. The word "children," as used in 2 R. S., 97, 76, stands in a collective sense for grandchildren, when the justice and reason of the case require it. Appeal by defendants from a judgment entered on the report of a refcree. Plaintiff is a grandson of Hobart Estabrook, deceased, who died intestate, and he brings this action for an accounting and settlement of the estate of said deceased. Two of the defendants, who are infants, are also grandchildren of deceased. The deceased had seven sons and two daughters, and as they respectively became of age or married he gave to each the sum of $500, took a receipt therefor and entered the payment in his day- of other evidence. We are not at liberty therefore to reverse the findings of the referee on the ground that they are opposed to the weight of evidence so clearly as to call for such action. It is contended that the grandchildren have no right under the statute (2 R. S., 97, § 76), to raise this question or claim a share in the gifts made to the children. Held, That the purpose to be accomplished by, and the reasons for the law of advancements as contained in our R. S. are alike hostile to this view. They were made with reference to the statute of distribution in case of intestacy, and do not in terms contemplate any different rule. The word "children" stands in a collective sense for grand-children when the justice and reason of the case require it. 4 Kent's Com., 419, and cases cited. Judgment affirmed with costs against appellant. Opinion by Boardman, J.; Learned, P. J., and Bockes, J., concur. NEGLIGENCE. TERM. THIRD DEPT. E. P. Hart, for respt. J. McGuire, for applts. Held, That where a gift of money or property is made by a parent to a child, the presumption in general is that it is an advancement. Such presumption, however, may be repelled by evidence of a different intention. Hatch v. Straight, 3 Conn., 31; Clark N. Y. SUPREME COURT. v. Wanser, 6 Id., 359; and see cases cited in 1 Wait's Actions and Defences, 205-212. Enough was shown upon the trial to sustain the findings of the referee. It seems quite plain that the intent of the intestate was to distribute a part of his estate in anticipation of his death among his adult heirs. The parol testimony to characterize his acts, purposes, and intentions is conflicting, but there is enough to sustain the presumption arising from the gifts in the absence GENERAL William J. Randolph, respt., v. The Boston and Albany RR. Co., applt. Decided September 20, 1877. Where a contract was made with the defen dant to build a new bridge in place of an old one, which old one was to be taken down by defendant, and a servant of the contractors, while lawfully at work on the new bridge, with the knowledge and consent of the defendant, was injured by the negligence of defendant in removing the old bridge, Held, that such servant was entitled to maintain an action for damages. Under such a state of facts, defendant was bound to exercise reasonable care and diligence. Whether it did so, and whether plaintiff was guilty of contributory negligence (there being conflicting testimony), should be left to the jury. Held also, That the questions of negligence on the part of defendant, and of contributory negligence on the part of plaintiff were properly submitted to the jury, and their findings are conclusive. There is a good deal of conflict as to the degree of care used by defendant's servants in taking down the old bridge. As to contributory negligence, there is no conceded state of facts such as to make it a legal question. Order denying new trial affirmed. Motion for new trial denied, and judgment ordered for plaintiff on the verdict, with costs. J. ; Opinion by by Boardman, Bockes, J., concurs, Learned, P. J., not acting. Verdict for plaintiff at the Circuit. Appeal from an order denying motion for a new trial on the minutes, and motion for a new trial ordered heard at General Term in the first instance. Defendant made a contract with C. H. Parker & Co. to build an iron bridge at Greenbush, in place of an old wooden one. Defendant was to take down the old one. Plaintiff was one of Parker & Co.'s workmen, and while engaged in working on the iron bridge, he was injured by the falling upon him of a heavy piece of timber from the wooden bridge. The motion for a nonsuit and the exceptions to the judge's charge, as well as to his refusals to charge, all present the question of plaintiff's right to be where he was injured, and the duty of N. defendant towards him in that position. George W. Miller, for applt. Parker & Countryman, for respt. Held, That the findings of the jury that plaintiff, as a servant of the contractors, was at the place where he was injured with the knowledge and consent of defendants, through their agents, and engaged in the work of performing the contract; that he The defendant received a draft, payable to was legally and rightfully there, and that defendant, by its servants, so negligently conducted the removal of the old bridge as to cause the injury to plaintiff, are abundantly sustained by the evidence. Plaintiff. therefore, was not present as a trespasser or by mere sufferance, and if injured through the negligence of defendant, a right of action followed. COUNTY COURT. ACTION ON Y. SUPREME COURT. GENERAL Bryan Hayes et al., respts., v. Adam Decided September, 1877. plaintiff's claims, for which judgment is other persons, and promised to deliver the same to the payees, but failed to do so, and the draft was afterwards presented to the drawee, by some one, and paid, and when called upon by the payees the defendant took the ground that he had, in fact, delivered the draft to the payees. Held, that these facts, as matter of law, made out a prima facie case against the defendant, in an action by the payees; and that the onus was cast upon him to show something discharging him from the liability for the amount of the draft. Appeal by the defendant from a judgment of a County Court in favor of the plaintiff, and from an order denying a motion for a new trial. taken charge of the draft to make delivery of it to them. That the draft became the property of the plaintiffs in the hands of defendant, and he was liable to them for it to the extent of the obligation which he assumed. Judgment affirmed. Opinion by Bockes, J.; Learned, P. J., dissenting. TERM. THIRD DEPT. George McNamara, applt., v. Philotas Edmister, respt. The action was brought to recover, among other items, the amount of an order or draft which the plaintiffs alleged the defendant had received under a promise to deliver it to them, which they had neglected and refused to perform. H. B. & Co. (the plaintiff's assignors), had a claim against N. the County of Broome for relief to a pauper, which was presented to the Superintendents of the Poor (the defendant being one), and the same was audited and allowed at $24.13. A draft or order for that sum was drawn, by the superintendents, on the county treasurer, payable to H. B. & Co., or bearer, and the payees not being present to receive it, the defendant took it to deliver to them. The draft was not delivered to the payees, and it was presented to the county treas urer, by some one, and paid. By the judgment the plaintiff was allowed the amount of the draft. T. & A. More, for applt. Alex. Cumming, for respts. Held, That upon appeal to a County Court, the amount of the plaintiff's claims, for which judgment is demanded, determine the right of the parties to a new trial in that Court. Also held, That the facts, as matter of law, made out a prima facie case against defendant, and that the onus was cast upon him to show something discharging him from liability. That the plaintiffs having elected to hold the defendant to the obligation he assumed to perform for their benefit, the case was the same as if the defendant, on the plaintiff's request, had Decided September, 1877. Where grain which has been sold by an executory contract of sale, is stored in the vendor's warehouse by direction of the vendee, the transaction from that time is to be deemed an executed sale so as to pass the title. Appeal from a judgment entered upon the report of a referee. The action was replevin, brought to recover 450 bushels of buckwheat, which the plaintiff claimed to have purchased of one Daniel J. Murphy, and which the defendant, as sheriff of Broome County, subsequently attached as the property of Murphy, in | pursuance of an order made in an action brought in this Court, by Isaac Comstock, against said Murphy. The attachment was levied after the grain was stored in Murphy's granary. Murphy sold to plaintiff these 450 bushels of buckwheat, parcel of a lot standing in a field, in shooks, which was pointed out at the time, Murphy agreeing to thresh it out and winnow it as soon as the weather would permit, and to deliver it at B. or G. when threshed. A bill of sale was executed, and the purchase money paid. When Murphy was ready to thresh, he was directed by the plaintiff to put the grain in his granary, and keep it there until the plaintiff should call for it. Murphy threshed it out, and put it in the granary, as directed. The referee found, as a conclusion of law, that at the time of the levy by the sheriff upon the buckwheat, the title thereto was in Murphy, and not in the plaintiff. He, therefore, reported in favor of the defendant. Scovill & De Witt, for applt. D. S. Richards, for respt. Held, That from the time it was stored at plaintiff's request, the transaction must be deemed an executed sale, so as to pass the title to the purchaser. Judgment reversed, and new trial granted, costs to abide event, and reference discharged. Opinion by Bockes, J. COMPLAINT IN EJECTMENT N. Y. SUPREME COURT. GENERAL Decided September, 1877. In an action of ejectment for dower, the complaint averred that D. was the husband of the plaintiff at, and for many years next previous to, his death; that he died May 31, 1874; that at the time of his death, and for many years prior thereto, he was seised in fee simple and in possession of the premises described therein; that the plaintiff was entitled to one undivided third part of such premises, for her life, as her reasonable dower; and that the defendant was in the actual possession of the premises, and wrongfully withheld from her the possession of such third part, Held, on demurrer, that the facts averred were sufficient to consti tute a cause of action. Ejectment brought by the plaintiff to recover her dower in lands which Vol. 5-No. 7* belonged to her husband, Thomas W. Draper, in his lifetime. The defendant, Clarissa Draper, is in possession of the lands, and the complaint alleges that she wrongfully and unjustly withholds from the plaintiff the possession of her one-third part thereof, as her dower. The defendant, Clarissa Draper, demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and that there was a defect of parties, plaintiff and defendant. The demurrer was overruled, at Special Term, with leave to the defendant to answer, in twenty days. The defendant appealed. Waters & Knox, for applt. King & Montgomery, for respt. Held, No error; that the complaint stated facts sufficient to constitute a cause of action. Order affirmed. INSOLVENCY. ASSIGNMENTS. N. Y. COURT OF APPEALS. Rockwell et al., applts., v. McGovern et al., respts. Decided April 10, 1877. An assignment made in insolvency proceedings which are void conveys no title to the assignee. The mention of a nominal consideration in such an assignment is not material where the other parts of the instrument show the intention to be to create a statutory trust, and to convey no other estate or interest than is required for that purpose. Affirming S. C., 1. W. Dig., 393. This action was brought to recover possession of a lot in New York City. It appeared that in 1845 this lot belonged to one P., who had applied under article 3, chapter 5, title 1, part |