and on the second day of the trial plaintiff asked to amend his complaint by inserting the words " and a director" after the allegation that the testator of the defendants Rathbun and Fassett was the Vice President of the First National Bank of Elmira. The referee allowed the amendment, and thereupon the defendants asked leave to demur, which the referee also allowed. A demurrer to the whole complaint was then served and the trial was adjourned indefinitely. Plaintiff Smith was a stockholder of the First National Bank of Elmira, and the complaint alleges that the president of the bank wrongfully appropriated or wasted large sums belonging to the bank, so that its stock became of little or no value, and that defendants' testator, Simeon Benjamin, who was Vice President of the bank, and the defendant Rathbun, who was a director, negligently permitted, and allowed, and aided, and countenanced, and assisted him in so doing. It was not alleged that Benjamin was a director, and on the trial any evidence going to show this fact was objected to and excluded. It was to meet this objection that the amendment was made to the complaint. E. H. Benn, for applts. II. Boardman Smith, for respts. Held, That this amendment did not introduce a new cause of action and that therefore the referee could allow it under 173 of the Code, or it might be considered as an amendment to meet an immaterial variance under §§ 169 and 170. If the defendants were taken by surprise or misled to their prejudice, it was their duty to make proper proof of that fact, and they would then have been entitled to an adjournment for the purpose of applying to the Special Term for leave to answer or demur. The Special Term has power to allow a demurrer or a new defense, but a referee or the Court on the trial has not. Order of Special Term reversed, and demurrer stricken out. Opinion by Boardman, J.; Learned, P. J., concurs; Sawyer, J., does not act. MUNICIPAL CORPORATIONS. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Bridget Tormey, respt., v. The Mayor, &c., of the City of New York, applt. Decided January 4, 1878. When a municipal corporation derives a pecuni ary benefit from the existence of one of its departments, it is liable for the acts and misdeeds of the officers of such department while in the discharge of their duty. Appeal from an order overruling a demurrer to the complaint. The plaintiff alleges in her complaint the existence of the defendant as a municipal corporation, and the creation of the Board of Health as a department of the defendant, with authority to enact a Sanitary Code, for the violations of which a pecuniary penalty was imposed by law, to be sued for and recovered in defendant's name, and for its benefit. That during the latter part of May, Also held, That the defendant had 1871, plaintiff was sick with the not the right to answer or demur of measles, and that while she was so course, and that the referee had not sick, the defendant through its said the power to grant him that privilege. I department, or Board of Health, falsely claiming that this plaintiff And that being the case, and as the was sick with sinall-pox, took her defendant is alleged also to have defrom her house and family, and re-rived a pecuniary benefit froin the exmoved her to the Bellevue Hospital; istence and acts of the Health Departand that she was thereafter confined ment, a case was presented which, for some time among those who were under the authorities, was sufficient sick with the small-pox. to render the defendant liable as a municipal corporation. 2 Dillon on Municipal Corporations, § 772, and cases there referred to; Bailey v. The Mayor, 2 Denio, 433; Weightman v. Corporation of Washington, 1 Black., 39; Nebraska City v. Cambell, 2 Ibid., 590. That the servants of the defendants, although expressly requested thereto, wholly failed and neglected to cause any medical examination to be made of her disease, before removing her to said hospital. That after she had been for some time at said hospital, the physicians As the facts now appear, even if in charge discovered that her disease the wrong was in part committed by was measles, and yet they and the the Health Departinent, acts of an other employees of the defendant, unlawful nature are also shown to having charge of said hospital, alleg-have been perpetrated by the officers ing that they had no power in the of the defendant, and for them, and premises, refused to permit her to be to the extent the plaintiff was injurtaken to her home. ed by them it should be held legally And that by reason of these facts responsible. she suffered great, damage. The defendant demurring to the complaint, claim that the duties of the Board of Health being purely public and governmental, and not being exercised for the benefit of the defendant, but solely for the benefit of the citizens of the State, the defendant could not be held liable for its acts or misdeeds. D. J. Dean, for applt. Geo. W. Wingate, for respt. Held, That the allegations in the complaint are material, and consequently are admitted by the demurrer, and must for the present consideration of the case be accepted as true. They show that the plaintiff was made the subject of the most cruel wrongs on the part of persons in the employment of the defendant, and in the course of the discharge of their duty. The order should be affirmed. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur in the result. PLEADINGS. WAIVER. Decided January, 1878. The plaintiff's pleadings are to be taken together, and if they together state facts sufficient to constitute a cause of action, the action may be maintained, although the complaint alone may not be sufficient. Although a reply be irregular, the irregularity will be waived by the defendant accepting it and not moving to strike it out. Action for money had and received by defendants upon a sale of personal property, belonging to the plaintiff, which they had caused to be levied up on and sold under an execution issued upon a judgment recovered by them against the plaintiff, and which had subsequently been reversed. The complaint alleged that the defendants took and sold certain personal property which was owned and possessed by the plaintiff, and received the pay therefor, whereby the defendants became, and were, and still are, indebted to the plaintiff, &c. The answer sets up the judgment and execution. The reply averred that the judgment had been reversed. At the trial the defendants moved that the complaint be dismissed on the ground that it did not state facts sufficient to constitute a cause of action. public use, is held in trust for the purpose of administering the government, and is exempt from seizure and sale under execution. An execution on a judgment under the Lien Law of 1862 (relating to Kings and Queens Counties), stands in no better position than any other execution. Affirming S. C., 2 W. Dig., 327. This was an action to enforce a a mechanic's lien for labor and materials furnished by a sub-contractor in erecting a "fire bell tower" in the city of Brooklyn. The lien was claimed under Chapter 478, Laws of 1862, which relates to mechanic's liens in the counties of Kings and Queens, and places the proceedings and judgment in enforcing a lien upon the same basis as in actions to enforce any other lawful demand, and gives The motion was denied, and de- no special advantage or preference fendants appeal. to a lien on property belonging to a D. B. Prosser and J. E. Roe, for city. applts. W. Rumsey, for respt. Held, No error. For although the complaint might not be sufficient alone, and the reply be irregular, yet the irregularity having been waived by the defendants in accepting it and not moving to strike it out, the pleadings were to be taken together. And together they presented a state of facts upon which the plaintiff was entitled to recover. Judgment affirmed with costs. Opinion by Smith, J.; Mullin, P. J., and Talcott, J., concur. James Troy, for applt. Held, That the action could not be maintained; that property held by a municipal corporation for public use is held in trust for the purpose of administering the government, and it is exempt from seizure and sale under execution; that an execution on a judgment under the Lien Law of 1862 stands in no better position than any other execution; that nothing is to be intended in favor of an enactment which interferes with a well-established principle and changes a rule which has long been settled. To make such MECHANIC'S LIEN. PUBLIC a material alteration, the law should PROPERTY. N. Y. COURT OF APPEALS. be plain, clear, and explicit; and a right to a lien upon city property will Leonard, applt., v. Reynolds et al., not be held to have been conferred respts. Decided December 21, 1877. Property held by a municipal corporation for Vol. 5-No. 24.* unless there is an express permission to that effect. Judgment of General Term, affirm ing judgment dismissing complaint, affirmed. Opinion by Miller, J., all concur. ATTORNEYS. CHAMPERTY AND MAINTENANCE. N. Y. COURT OF APPEALS. ly served a complaint, and defendant answered, setting up the settlement in bar of the action. The referee found that defendant's attorneys acted in good faith, having no knowledge of the agreement between plaintiff and his attorney, but that it Coughlin, respt., v. The N. Y. C. & was fraudulent and collusive against H. R. RR. Co., applt. Decided December 18, 1877. A plaintiff in an action for a mere personal tort cannot give to his attorney or any one else an interest in the cause of action until judgment has been recovered. Where an agreement to do so has been made between the plaintiff and his attorney, the Courts will not intervene to protect the attorney against a settlement made by his client. The statutes in relation to champerty and maintenance have not been abrogated by 303 of the Code. Reversing S. C., 2 W. Dig., 564. Plaintiff was injured by a collision on defendant's road. One S., an attorney, called upon him and offered to bring an action for damages if plaintiff, who had no money to pay the expenses of the litigation, would agree to give him half of the amount recovered; S. to pay the expenses and in case he did not succeed, he was to receive nothing. An agreement to that effect was entered into between plaintiff and S. This action was commenced by the service of a summons, and a notice that S. was interested in the claim for services to the extent of one-half. Subsequently plaintiff called at the office of defendant's attorneys, and offered to settle. After asserting that he had done nothing to deprive himself of the right to do so, he was paid $1,000, and plaintiff executed a release of all claim for damages. All this was done without the knowledge of S. He subsequent S. That this settlement was a bar to the action, and S. could not prosecute and maintain the action for the sole purpose of reaping the fruits of his contract with plaintiff. A. P. Laning, for applt.' 19 Held, No error; that plaintiff could not give S., or any other person, an interest in the cause of action until a judgment had been recovered. Wend., 73. If a judgment had been recovered, S. would have had an equitable interest therein; that the Courts will not intervene to protect an attorney against a settlement by his client. in such a case. 62 Barb., 500; 52 N. Y., 73. Mere personal torts cannot be separated from the person upon whom they are inflicted. Also held, That § 303 of the Code has not abrogated the provisions of $$ 71, 72 of R. S., p. 288, the first of which prohibits attorneys from buying claims for prosecution and the latter the loan or advancement of any money as an inducement to place in the hands of the lenders or any other person any debt, demand, or thing in action for collection; that the agreement between plaintiff and S. was a violation of said statute. Judgment of General Term reversing judgment for defendant and granting new trial, reversed and judg ment for defendant affirmed. Opinion by Earl, J.; Rapallo and Andrews, JJ., concur; Church, Ch. J., concurs in result; Folger, J., concurs on first ground; Allen, J. not sitting; Miller, J., absent. BILLS OF EXCHANGE. Decided January, 1878. An instrument in the form of a draft, which provides that the payment thereof shall be charged to apply on a certain contract between the drawer and drawee, is a bill of exchange; the direction as to the application of the payment does not make the draft payable out of the moneys due and to become due under the contract, but is a simple direction to the drawee how to reimburse himself. dence was a bill of exchange, payable, at all events, in money only, and that the direction to charge the same to apply on contract for building did not make the draft payable out of moneys due, or to become due on the contract, but was simply a direction to the drawee how to reimburse himself. Judgment affirmed. Opinion by Smith, J.; Mullin, P. J., and Talcott, J., concur. MARINE INSURANCE. EX- N. Y. COURT OF APPEALS. Decided December 18, 1877. The term "port risk" in a marine insurance Where the ordinary voyage policy blank is used Action against the defendant as acceptor of an instrument in these words: "Rochester, July 17, 1875. Edward L. Hopkins. One month after date pay to the order of Hollis-Whether a witness offered as an expert is ter & Co., seven hundred and eightytwo dollars and thirty-four cents, and charge the same to me, to apply on contract for your building on Lake Avenue. J. R. Floroaday." Plain- | tiff proved the acceptance and indorsement and rested. Defendant moved for a nonsuit on the ground that the instrument proved was not a bill of exchange, but was merely an assignment of a fund, and the plaintiff could not recover without showing the existence of such fund. The motion was denied and judg ment ordered for the plaintiff. The defendant appeals. A. J. Wilkin, for applt. J. B. Perkins, for respt. qualified to speak as such is to be determined by the Court. This was an action upon a contract of insurance upon a ship. A printed blank was used, such as is generally used in a voyage policy, in which it was written that the risk was a "port risk in the port of New York." The vessel was damaged after she had taken her departure and begun her voyage. The complaint was dismissed on the ground that the port risk, as used in the policy, had ended when the injury occurred. Henry J. Scudder, for applt. Held, No error; that the policy was not a voyage policy; that the risk was restricted by the words, Held, That the instrument in evi- "port risk;" and that it was proper |