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the title to Norris's invention, he has entered upon the business of advertising and selling that article under the name of "Sutton's Pulley Cover," and plaintiff seeks to enjoin him from so doing.

This action was brought to compel defendant to convey to plaintiff three acres of land, which it was alleged F. C. Bowman and Thos. Darling- were omitted from a deed of a certain ton, for plff. farm to plaintiff by defendant through fraud. It appeared that plaintiff's husband, acting as her agent, executed in his own name a contract under seal for the purchase of the farm of defendant, plaintiff being present during the negotiation, hearing the representations made by defendant. A deed was finally given to her by defendant, pursuant to the contract with her husband, and she paid him the consideration and entered into possession of the farm, including the land in suit, which was not included in the description contained in the deed, but which, the evidence tended to show, defendant's representations induced the belief that it was included.

Richard L. Hand, for applt. Rob't S. Hall, for respt. Held, That this action was properly brought by plaintiff; that she was not precluded by the statute of frauds from maintaining an equitable action to compel a performance of the contract. 2 J. Ch., 585; 3 Paige, 313; 1 Kern, 582; 44 N. Y., 525; 4 J. Ch., 144; 4 N. Y., 410; 36 Id., 327.

Glass v. Hulbert, 102 Mass., 24; and Smith v. Underdonk, 1 Sandf., Ch. 579, distinguished.

Fraud is not to be presumed, and must be established by proof, but this legal presumption is rebutted when the attending circumstances lead to the conclusion that a fraud has been perpetrated.

A deduction of fraud may be made

I. A. Bush, for deft.

Held, That defendent acted in bad faith in attempting to sell and foist upon the community an article which he represented as identical with that sold the plaintiff with exclusive right to all its incidents and benefits.

In the sale of personal property the vendor, without special stipulation, warrants full title, including full possession and enjoyment as against his

own acts.

The act of the defendant in designating the article offered by him for sale as "Sutton's Pulley Cover" is clearly a fraud upon the rights of the plaintiff, and an injunction should - issue restraining him from advertising or offering for sale any article designated for use as Pulley Covers, as "Sutton's Pulley Covers," or in any other manner doing and acting to induce the belief or impression that they were the articles patented by him.

Opinion by Robinson, J.

SPECIFIC PERFORMANCE.
STATUTE OF FRAUDS.

N. Y. COURT OF APPEALS.
Beardsley, respt., v. Duntley, applt.
Decided May 22, 1877.

an action for specific performance; there is nothing in the statute of frauds which precludes it.

Where a contract for the conveyance to him, of lands, is made by an agent in his own name, and, pursuant to the contract, a conveyance of a part of the land is made directly to the principal, the latter may maintain

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not only from deceptive assertions and false representations directly made, but from facts, incidents, and circumstances, which may be trivial in themselves, but decisive evidence of a fraudulent design. 2 Kent's Com., 460 et seq.

Samuel Hand, for applt.
J. H. Clute, for respt.

Held, error; that defendant had a right to use its own land for any legitimate purpose in the prosecution of its business, and that such a use could not be said to be unlawful or negligent, although it might obstruct to some extent the vision of those crossing its track; defendant had the same right in this respect as an individual.

NEGLIGENCE.

The obstructions may and perhaps should have had a material bearing upon the question of contributory neg

N. Y. COURT OF APPEALS.

Cordell, admr., etc., respt.,v. N. Y. ligence of the deceased, and upon the C. & H. R. R. R. Co., applt. Decided June 12, 1877. It is not negligence for a railway company obstruct the view of one nearing a farm crossing if such obstruction is raised in the prosecution of its business and on its own property; it has the same enjoyment of its property in this respect as individuals. But the fact that such an obstruction exists has an important bearing upon the question of negligence.

degree of care and vigilance defendant was bound to exercise in the runtoning and management of its trains and in giving warning of their approach. Richardson v. N. Y. C. R. R. Co., 45 N. Y., 846; MacKay v. N. Y. C. R. R. R. Co., 35 N. Y., 75; and Sutton v. N. Y. C. & H. R. R. R. Co., 66 N. Y., distinguished.

Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Miller, J. All concur.

Judgment of General Term, affirming judgment on verdict for plaintiff, reversed, and new trial granted.

Opinion by Church, Ch., J. All concur, except Allen, J., taking no part.

This action was brought to recover lamages for the alleged negligent killing of plaintiff's intestate by a train on defendant's road while crossing a farm crossing. It appeared that defendant had piled upon the south side of the track, between it and the fence, a large quantity of stumps, roots, and

REFERENCE.

other material, which had accumula- N. Y. SUPREME COURT. GENERAL

TERM. FIRST DEPT.

William T. Tooker and others, applts., v. Marks Rinaldo and others, respts.

Decided June 1st, 1877.

Even in an action to foreclose a mechanic's lien, where it appears that the trial of the action will involve the examination of a long account, the Court may in its discretion refer the action.

Appeal from order directing a ref

ted in preparing additional tracks on the north side, and which was so high as to obstruct the view of any one approaching the crossing from the south. The judge submitted the question whether this act rendered defendant guilty of negligence to the jury, and charged that if so, it was enough to render it liable, providing plaintiff was free from negligence on his part.

TERM. FIRST DEPT. Lawrence P. Cummings v. William. A. Butler.

Decided June 1st, 1877.

erence. Action brought to foreclose SURETY'S DISCHARGE. a mechanics' lien, by the plaint- N. Y. SUPREME COURT. GENERAL iffs as sub-contractors. The defence set up by the defendant Rinaldo, who is the owner of the building, denies any indebtedness to the persons with whom he contracted; also sets up a claim for damages, by reason of breach of contract on the part of the contractors, and also a claim for damages by reason of inferiority of the materials supplied.

George H. Forster, for applt.
Albert Curdozo, for respt.

Where a grantee of mortgaged premises assumes and agrees to pay,the mortgage in his deed, and a subsequent grantee, the owner of the equity of redemption, likewise assumes and agrees to pay the mortgage in his deed and thereafter obtains an extension of time from the holder of the mortgage, the prior grantee is discharged from the liability by reason of the covenant in the deed assuming the mortgage, he being the surety merely, and standing in that relation to the person who subsequently to him assumes payment of the mortgage.

Held, That although this action. brought to enforce a lien for materials furnished towards the construction of a building is in its nature a foreclosure proceeding (Chapter 379, Laws of 1875, Section 10), the right of the plaintiff to recover rests upon the contract with the defendant, the owner and the persons with whom he contracts. The state of their accounts may be a subject of investigation, and if that become necessary, the case may be one involving a long account. The deductions claimed by the defendant, the owner, comprise a large number of items, and whether such an action should be referred is a matter of discretion. The right to compel a reference cannot well be questioned. Code, §§ 252, 254, 270, and 271; 11 How. Pr., 439. It is quite apparent that the examination of a long account is necessary, assuming that the defence be bona fide, which must be done. The discretion of the Court below was properly exercised.

Appeal from an order striking out answer of defendant Butler as frivolous. Action was brought to foreclose a mortgage, executed by Berge to Wells, to secure Berge's bond for eight thousand dollars; mortgage payable in three years from June 1st, 1869. Wells assigned the bond and mortgage to plaintiff, December 6th, 1869. On May 23d, 1870, Berge conveyed the mortgaged premises to one Baum. The mortgaged premises were several times conveyed by the respective owners, and on February 4th, 1873, were conveyed to defendant Butler, he assuming the payment of the mortgage, as part purchase money. The defendant Butler subsequently conveyed the mortgaged premises to one Lichtenstein who assumed the payment of the mortgage, and, on April 29th, 1873, Lichtenstein conveyed them to the defendant Dryer,

Order affirmed, with $10 costs and who assumed the payment of the disbursements. mortgage. The answer of defendant Opinion by Brady, J.; Davis, P. Butler averred that in December, J., concurring.

1875, the plaintiff, without the knowledge or assent of the defendant, made

an agreement with Dryer, the owner of the equity of redemption in the mortgaged premises, whereby he agreed to extend, and did duly extend, the time for the payment of the said bond for one year. The answer further shows that at the time of such extension the premises were of sufficient value to satisfy the said bond, and that thereafter they greatly depreciated; and that any deficiency that may arise on the sale will be by a reason of said extension, and claims that the defendant Butler is not liable"That the clerk of the Common

Appeal from a judgment entered on a non-suit at Circuit. The action is to recover from the defendants the sum of $4,900, incurred, as alleged, to the plaintiff, on the circumstances as follows, viz. :—A resolution of the Common Council, adopted by a vote of three-fourths of all the members elected by each board, directed:

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charter, or by authority contained in or implied from legal enactment, cannot incur expense against the City, except for necessaries to perform their official functions.

Council be, and he is hereby authorized and directed to procure and furnish to each member of the Common

Council a suitable badge or insignia of office." This resolution was adopted in January-,1870, by the Common Council, and approved by the Mayor, January 24th, 1870. The plaintiffs furnished gold badges upon the order of the clerk of the Common Council, and bring this suit for the badges so furnished. The defences set up were:

1st. That the contract for the badges in question was not let on proposals invited by a public advertisement.

2d. That no appropriation was made as required by the 31st section of the Charter of 1857, which provides, "That no money shall be drawn from the City Treasury, except the same shall have been previously appropriated to the purpose for which it is drawn."

After the proofs introduced by the plaintiffs, the Court directed a judgment of non-suit on the grounds set up in defendants' answer.

J. H. Strahan, for applts.
D. J. Dean, for respts.

Held, It does not appear that a gold badge was necessary in order to enable a member of the Common Council to perform his official functions, and the expense incurred for that purpose was ultra vires, and therefore entailed no liability upon the defendants.

This was an action for the foreclosure of a mortgage. It appeared that the time of payment was extended by the mortgagee by a contract with the mortgagor; that time was not of the essence of this contract; that it has been partly performed by defendants, and plaintiff has received his portion of the moneys realized thereby; that he once consented to a postponement of further performance, and when such postponement was enforced upon defendants by the interference of strangers, adjusted with them the results of part performance; that he has not demanded or insisted. upon performance. No specified time had been agreed upon or named by Su-elther party, at or before which there should be a full performance, or in omitting to make it a fatal default. James Emott, for applt. Wm. H. Arnoux, for respts. Held, That plaintiff has not put defendants in default so as to enable him to enforce any right he may have by virtue of the bond and mortgage.

A holder of a bond and mortgage on real estate may make an executory agreement with the mortgagor and a third person for an extension of time of payment, for a decrease of the sum to be paid, and for a different mode of payment; such agreement, however, to be valid, must be founded upon

MORTGAGE. EXECUTORY

CONTRACT.

N. Y. COURT OF APPEALS. Clapp, applt., v. Hawley et al., a new and good consideration. 33 N.

respts.

Decided May 22, 1877.

Y., 648. It takes the place, when made, of the bond and mortgage, or is incorporated with them pro tanto.

The holder of a bond and mortgage on real estate may make an executory agreement with the mortgagor or a third person for an extension of time of payment, for a decrease of the sum to be paid, and for a different mode of payment; but to be valid it must be founded on a new and good consideration.

Judgment of General Term, reversing judgment of foreclosure and sale, affirmed.

Opinion by Folger, J. All concur.

No provision having been made by express enactment for such a purchase, its necessity alone could warrant a resolution to procure it. The contracts of a municipal corporation for an object not essentially necessary, and not comprehended by nor within the power of the municipality itself to make, cannot be enforced. Hodges v. Buffalo, 2 Denio, 110; Gamble v. Watkins, 14 N. Y. preme Court Reports, 418.

If it were otherwise than personal, expenditures under the guise of corporate necessities could be made for a variety of purposes having, in fact, no relation to the municipality, or the discharge of the duty of any of its members.

Judgment affirmed, with costs. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concurring.

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