Error to New York General Sessions to review the conviction of plaintiff in error upon an indictinent for obtaining goods under false pretences. Plaintiff in error was jointly in- found Steinbach had no account at dicted with one Melville.

offered by Lesser, his counsel resting Melville said "I will go and bring his case upon the point of law-that, the money." inasmuch as the transaction occurred on the 28th, and the check was dated the 29th, there was no false representation as to a past or existing fact, and the judge should have directed an acquittal, as the transaction was in the nature of a promise.

W. F. Kintzing, for plff. in error. B. K. Phelps, Dist Atty., for People.

And when he returned with the check, tendered it, said it was good, and that Steinbach had a business, and gave as a reason why it was postdated the following day, that it was after banking hours.

The facts of this case, fairly construed, establish a false representation in regard to an existing fact. The case of Rex v. Parker, 2 C.

tion.

Conviction affirmed and new trial

Held, All the parties understood & P., 825, fully sustains the convicthat the check was drawn upon a fund then deposited in the bank, and not to depend upon the state of an account at a future day. It was a Opinion by Ingalls, J.; Davis, P. purchase to be paid for at the time; J., concurring.

denied.

END OF VOL. 5.

INDEX.

ABATEMENT.

1 Imprisonment of a plaintiff does not abate
the action in the State prison. The plain-
tiff's rights are alone suspended by such im-
prisonment. Bonnell v. The R. W. & O. RR
270

Co.

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.
Id.

ADVERSE POSSESSION.

2 Pendency of an action in the Supreme
Court against an executor or administrator to
recover a legacy is a valid objection to pro- 1 To constitute an adverse possession from
ceedings before the Surrogate for the same which a grant will be presumed, it must have
object. Lewis et al. v. Maloney.
358 been under a claim of title exclusive of any
other right, and it must have been definite,
exclusive and notorious, and for a period of
twenty years uninterruptedly. Robinson et al.
v. Kime.

See MANDAMUS, 10.

ACCORD AND SATISFACTION.

41

1 If the parties to an accord and satisfaction, 2 Where a life tenant conveys the premises by
in settling a claim, act under a mutual mis-

take of facts, there is nothing in the nature of a quit claim deed, a claim of a fee by the
the transaction which prevents a court of law grantee under such deed is a claim under a
from correcting such mistake, or relieving title adverse to that of the reversioners. Chris-
from its consequences, in a proper action for tie et al. v. Gage et al.
that purpose. Caulkins et al. v. Griswold. 134 See DEEDS, 15.

ACCOUNT STATED.

1 Where parties have a settlement of mutual
accounts and one of the parties stands in a
confidential relation to the other, he is legally
bound to state every item against himself, and
such a settlement will be reopened for his
failure to do so. So held of quasi partners in
a sale of real estate. McMichael v. Kilmer.
409

See ESTOPPEL, 4; PRACTICE, 25.

ACTIONS.

AFFIDAVITS.

397

1 If an agent acts without the knowledge of
his principal, the latter is entitled to the bene-
al. v. Frost.

See ABATEMENT, 1; BRANDS, 2; CIVIL fits to be derived from such action. Smith et
DAMAGE ACT, 2.

ADULTERATING MILK.
See COSTS, 9.
ADVANCEMENTS.

1 Where gifts of money or property are made
by a parent to a child, the presumption in gen-
eral is that they are advancements. Beebe v.
Estabrook et al.
149

55

3 Where a power of attorney to sell property
by its terms fixes a limitation to the amount
to be sold, a sale by the agent in excess of
such amount is void, and the purchaser is
chargeable with notice of the limitation.
Bumstead v. Hoadley.
238

2 If the parol testimony to characterize the
acts, purposes and intentions of the intestate 4 Evidence that the property was delivered

Vol. 5.-No. 26

upon tickets issued for that purpose, and that
all the tickets issued had been returned to the
agent, is competent to show that the entire
amount authorized to be sold had been de-
livered.
ld.

5 A principal is bound by the acts of his agent
until notice of the termination of the agency
is given. Barkley v. The R. & S. RR. Co. 390
6 It is a question of fact, and not of law,
whether a corporation has, subsequent to its
organization, ratified acts of agents done be-
fore it was so organized. Chesebrough v. The
N. 2d St. & M. V. RR. Co.

393

7 A party suing upon a contract of an agent,
as if the same had been made by himself, will
be held to have adopted the contract, and in
the form in which the agent made it. Loomis
v. Mowry et al.
456

8 Where a person signs a note, adding to his
signature Agt., and the note is transferred to
a purchaser for value before due, no evidence
tending to show that the person to whom the
note was originally given accepted the same
as the obligation of the principal and in pay-
ment of the principal's debt is competent.
The addition of the word Agent does not vary
it either way, and is mere surplusage. City
Bank of Rochester v. Drake.

477

ANTE-NUPTIAL CONTRACT.

1 An ante-nuptial contract will not be en-
forced against the wife when it appears that
she has been overreached and deceived, or in-
duced by false representations to enter into a
contract which does not express or carry out
the real intention of the parties. Pierce v.
Pierce et al.
390

2 In such case every presumption is against
the validity of the contract, and the burden
of proof is upon the husband or his repre-
sentatives to uphold it.
Id.

APPEAL.

1 Where an action is for the recovery of dis-
tinct and separate items or claims, and error
has been committed in respect to one or more
of the claims, the General Term may reverse
as to the erroneous claims and affirm as to the
residue, but where the recovery sought is gen-
eral damages arising from a breach of contract,
it has no power to find facts and fix the amount;
it can neither enlarge nor diminish the amount
found by the Court below. Whitehead v. Ken-
nedy.
56

2 The reasons assigned by an appellate Court
for reversing a judgment form no part of the
judgment of such Court and cannot be used
to modify its effect. Wilson v. Palmer.

93

9 A broker or agent, although acting for an-
other, makes himself personally liable if he
contracts in his own name and without disclos-3 Where, on appeal from an order granting
ing the name of his principal. Cobb v. Knapp.
a new trial, the Court of Appeals renders
judgment absolute against appellants, it is ob-
ligatory upon the Court below to enter judg-
ment in favor of respondent upon all the is-
sues in the action.
Id.

550

10 In such a case it is not sufficient that the
seller may have the means of ascertaining the
name of the principal.
ld.

See LEASE, 4; RAILROAD COMPANIES, 7;
SPECIFIC PERFORMANCE, 1; TELEGRAPH
COMPANIES, 2, 3.

AGREEMENTS.

See CONTRACTS.

ALIMONY.

See DIVORCE, 6, 7, 8, 12, 13, 14.

ALLOWANCES.
See COSTS.

ALTERATIONS.

1 Immaterial alterations of an instrument
after execution do not render it void. Kinney
v. Schmidt et al.
519

2 Where an instrument is signed with certain
spaces left blank, it will be presumed that the
parties intended to allow the party receiving
same to fill up the spaces with the words
which the context indicated to be proper. Id.
See CONTRACTS, 23; NEGOTIABLE PAPER,
15.

AMENDMENTS.

See PLEADINGS; REFERENCE, 10.

9 Only the party aggrieved by an order can
properly appeal therefrom. Clark v. Savage.
193

10 The Court of Appeals cannot re-examine a
case and correct a remittitur upon affidavits
or extrinsic evidence, making a case different
from that brought up by the appeal. In re
Peugnet.

222
11 Rehearings upon motions and summary ap-
plications are only ordered after a reversal of
an order.
Id.

12 The Court of Appeals can neither direct ac-
tion of the Supreme Court in advance, nor re-
view its action upon an application for relief,
after the exercise of its discretion.

Id.

by required to be conveyed, cannot be raised
on appeal where such discrepancies are not
pointed out by any exception.
ld.

22 Where an appeal has been taken from the
decree of a Surrogate by one of the parties to
the proceeding, any party affected by or in-
terested in the deeree may apply to be made
a respondent. Cox, ex'r. v. Schermerhorn, ex'r.
510

23 An order of General Term giving leave to
appeal where less than $500 is involved, which
assigns no cause for so doing, is insufficient,
and the appeal should be dismissed. Bastable
v. City of Syracuse.

520

24 A reference in the points of counsel to the
opinion of the Court below as reported, is not
a substitute for a compliance with the rule re-
quiring such opinion to be printed with the
ld.

13 Where a party to an appeal has died before
the Code of Civil Procedure went into effect,
an application for the order to show cause
provided for in § 1298, made before the expira-papers in the case.

tion of three months from the time such sec-
tion took effect, is premature. Brokaw et al.
v. Brokaw.
267

14 Where a defendant, in an action to foreclose
a mortgage, claims a prior lien under a judg- |
ment lien on which less than three hundred
dollars is due, an adjudication upon such
claim is not appealable to the Court of Ap-
peals without an order of the Supreme Court.
Petrie et al. v. Adams.

286

15 An order denying an application for an order
directing the receiver of an insurance com-
pany to prefer matured claims for death losses
over the claims of existing policy-holders does
not affect a substantial right, and is not ap-
pealable. In re Miller v. Wickham, rec'r. 311
16 A dismissal of an appeal for want of prose-
cution, made by the Commission of Appeals in
1874, will not be vacated where the appellant
is shown to have been guilty of laches in pro-
curing an attorney to prosecute it. McEwan
v. The Erie R. Co.
344

17 An appeal regularly dismissed cannot be re-
instated in the Court of Appeals where the re-
mittitur has been sent down and judgment
entered thereon. Application should be made
in the Supreme Court to vacate the proceed-
ings there and for a return of the remittitur.
Jones v. Anderson.

344

25 An order vacating an order of reference and
changing place of trial is appealable to the
General Term. Hoffman et al. v. Sparling.

535

26 An order settling issues to be tried by a jury
in an equity case is not appealable. Seymour
v. McKinstry et al.

553

27 Exceptions to a referee's report must be
filed and served before the same can be as-
sailed on an appeal, and likewise an order can-
not be attacked in an Appellate Court unless
an appeal therefrom has been duly taken.
Bearup v. Carraher.

558

28 An order of Special Term requiring defen-
dant to show cause why an attachment for
contempt should not issue against him, and an
order of General Term vacating or continuing
such order, are discretionary and not appeal-
able to the Court of Appeals. The 6th Av.
RR. Co. v. The Gibert Elevated RR. Co. 569

See APPEAL TO COUNTY COURT, 3; BANK-
RUPTCY, 12; CRIMINAL PRACTICE AND PLEAD-
ING, 4, 5; EVIDENCE, 15; PARTNERSHIP, 7;
PRACTICE, 2, 36; RAILROAD COMPANIES, 14;
REPLEVIN, 7; SURETYSHIP, 2; SURRO-
GATES, 3.

APPEAL TO COUNTY COURT.

1 Where, upon appeal to a County Court, the
18 On an appeal to the Court of Appeals from
a judgment of General Term, reversing a judg-plaintiff's claims, for which judgment is de-

ment granting a peremptory mandamus, the
respondents may urge any consideration which
they might have offered at General Term, and
if it appears sufficient, it will uphold such
judgment. The People ex rel. Wetherbee v.
Supervisors of Essex Co.
346
19 Section 1303 of the Code of Civil Procedure
does not apply to appeals from Justices'
Courts. Roberts v. Davids et al.
370

20 Where no objection has been made to the
complaint on the trial, none can be entertained
on appeal. Wilson v. Van Pelt.
501

21 An objection to a judgment on account of
discrepancies in the description of lands there

manded, exceed $50, such claims determine
the right of the parties to a re-trial on the ap-
151
peal. Hayes et al. v. Kedzie.

2 Where a foreign corporation is sued in Jus-
tice's Court, and appeals to the County Court
for the purpose of having a new trial, the ap-
peal gives the Court jurisdiction over the sub-
ject-matter of the action, and the voluntary
appearance of defendant, by its attorney,
jurisdiction over its person. Burton v. The
Wheeler & Wilson Mfg. Co.

384

3 A subsequent appeal by defendant to the
Supreme Court brings up for review the trial
in the County Court only. To bring up the
proceedings in the Justice's Court, the appeal