performance.

Plaintiff has not been placed in a situation which is a fraud upon him unless the contract is executed. 2 Story Eq. Jur., $761; 1 Johns. Ch., 149; 14 Johns., 15; 66 N. Y., 227; 17 W. Dig., 104; 45 N. Y., 589; 52 id., 494. The revocation by W. of his will was a mere failure to transfer his property by will to plaintiff. The latter lost nothing; he simply failed to acquire by will the estate of his brother. He was deprived only of an expectancy. The element of fraud which equity will recognize in support of the right to execution of a contract within the statute does not appear in this case. Mass., 408.

103

Johnson v. Hubbell, 2 Stockt. Ch., 332; S. C., 5 Am. Law Reg. 177; Parsell v. Stryker, 41 N. Y.,

480; Podmore v. Gunning, 7 Sim., 644; Stephens v. Reynolds, 6 N. Y., 454; Williams v. Fitch, 18 N. Y., 546; Todd v. Weber, 95 N. Y., 181; Re O'Hara's will, id., 403; Sherman v. Scott, 27 Hun, 331, distinguished.

Judgment affirmed, with costs. Opinion by Bradley, J.; Haight, Angle and Childs, JJ., concur.

LEASE.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

Robert Simpson, respt., v. George B. Swikehard, applt.

Decided Jan., 1885.

The lessor in a lease under seal in which there is no undertaking on his part to make repairs is not chargeable with the expense of repairing.

While the covenants in a lease under seal

cannot be modified by parol executory agreement, yet the complete execution of the parol agreement may operate as a satisfaction of the undertakings in the lease.

Appeal from judgment on referee's report. On April 1, 1879, plaintiff by his agent B. made a lease under seal of certain premises to defendant, for three years, rent payable in monthly instalments. In this action plaintiff recovered judgment for the rent for April and May, 1879. When the lease was made one D. was in possession of the premises under a prior lease which terminated March 31, 1879. D. remained in possession until May 1, 1879. The evidence fairly authorized the referee to find that D.'s possession was continued at the request of plaintiff's agent B. with the understanding that such possession through April should be

taken as satisfaction of the rent as

against defendant for that month, and that at the end of the month of April that agreement became executed. There was conflict of testimony as to whether B. promised to make repairs. When defendant took possession on May 1, repairs were made which defendant paid for. B's agency was evidenced by a power of attorney under seal giving him merely power to lease the premises and collect the rents.

Patrick McIntyre, for applt.
W. H. Whiting, for respt.

Held, By the terms of the lease defendant was liable to pay rent from its date and plaintiff was not chargeable with repairs. 45 N. Y., 119; 3 Duer, 464; 52 N. Y., 572.

The term of the lease could not before breach be substantially modified nor surrendered by parol executory agreement of the parties to it. 21 Wend., 628; 3 Rob., 7, 16; 7 id., 544; S. C., 36 How., 275; 30 N. Y., 306; 72 id., 141. But the complete execution of that agreement might operate to satisfy pro tanto the undertaking to pay.

the judgment the amount of April rent with interest. Then judgment so modified affirmed without costs of appeal.

Opinion by Bradley, J.; Barker, Haight and Rumsey, JJ., con

cur.

PRACTICE.

Duer, 208; 72 N. Y., 141: 15 Wend., 400; 2 Barb., 180; 25 Hun, 116. The parol lease for April to D. was valid between the parties, and when executed might be treated practically, if not strictly in a legal sense, as a surrender of so much of the term demised to defendant. 10 Adol. & Ell., N. S., 944; 2 Barb., 180; 15 Wend., 400; 30 N. Y., 453. The arrangement was within B.'s agency. 21 Wend., 279; 3 Hun, 591.

Defendant is not entitled to be re-imbursed for repairs. It was not within B.'s agency to bind plantiff for repairs, and it is not important that defendant was not actually advised of the extent of B.'s power. 25 N. Y., 595; 34 id., 30. Agreement by the landlord to repair will not be implied. Nor would a bare parol promise to that effect, made after the execution of the lease, bind the landlord. 2 Rob., 214; 37 How., 5; 45 N. Y., 119; 43 How., 333. Moreover the question whether B. promised to make repairs was answered in the negative by the referee, whose finding is conclusive.

Judgment reversed with new trial, costs to abide event, unless plaintiff stipulate to deduct from

TERM. FIRST DEPT.

Henry S. Manning, respt., V. Henry Case, impld., applt.

Decided Jan. 9, 1885.

An exception to the refusal of the Court to submit to the jury any other question than the amount of plaintiff's recovery is not equivalent to a request to submit to them a particular question for their consideration. In order to take advantage of an error of the Court in failing to submit a particular question to the jury there should be a distinct request that such question be submitted to them as one of fact for them to consider.

Appeal from judgment entered upon verdict.

Action for goods sold and delivered to a copartnership composed of defendants. The defense of appellant was that he was not a copartner of the other defendant. The trial judge, however, held that the partnership was established by the evidence and submitted to the jury only the question of the value of the goods sold. Appellant excepted to the refusal of the Court to submit any other question to the jury.

E. S. Clinch, for applt.
G. H. Fletcher, for respt.

Held, That the evidence upon the question of partnership was neither clear nor very satisfactory,

but still there was evidence upon that subject quite sufficient to go to the jury.

That the exception to the refusal of the Court to submit to the jury any other question than that of the amount of plaintiff's recovery was not equivalent to a request to submit the question whether or not the partnership was established to the jury. That if defendant desired to go to the jury upon that question as one of fact for them to consider, there should have been a distinct request to submit that particular question. That upon the evidence, however, the jury would probably have found against him and that finding would have been sustained.

Judgment affirmed.

Opinion by Davis, P. J.; Daniels, J., concurs; Brady, J., dissents.

MUNICIPAL CORPORATIONS. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

The City of Rochester, respt., v. Ernest M. Close, applt.

Decided Jan., 1885.

A power to regulate the ringing of bells and the crying of goods or other commodities for sale at auction, or otherwise, relates solely to the manner of advertising a sale by public outcry, and authorizes the Common Council to regulate that custom or manner of advertising, but confers no authority to regulate or prohibit a sale of goods at auction within the store or building of the seller. Therefore, an ordinance prohibiting the sale of jewelers' goods at auction after sunset, under a penalty, is

unauthorized and void.

Certiorari to review the trial and conviction of defendant by the Police Justice of Rochester.

Defendant was convicted for violation of a city ordinance relating to the sale of jewelers' goods at auction. The ordinance provided that all sales of watches, jewelry, etc., at public auction by an auctioneer shall be made in the daytime and between sunrise and sunset, and it shall, after the passage of this ordinance, be unlawful for any person to expose for sale at public auction any goods of the class specified after sunset of any day, under a penalty of $50. It was decided that the only authority for the Common Council to pass this ordinance was derived from this provision of the charter: 'To regulate the ringing of bells and the crying of goods and other commodities for sale at auction, or otherwise, and to prevent disturbing noises in the streets." The question was whether this provision warranted the passing of such an ordinance.

66

C. M. Allen, for applt.
J. N. Bleckley, for respt.

Held, That the charter does not confer any authority on the Common Council to regulate or prohibit a sale of goods at auction within the store or building of the seller, but that it relates solely to the manner of advertising a sale by public outcry, and authorizes the council to regulate that custom or manner of advertising, but not to interfere in any manner with the sale, whether at auction or in any other manner adopted by the seller. That the charter was intended to authorize the council to pass such ordinances relating to the matters aforesaid as would in

sure the peace and quiet of the public and prevent such noises and disturbances in the streets of the city as would cause annoyance and discomfort to the inhabitants.

An ordinance passed by a city must be made to conform strictly to the provisions of the charter. 43 Barb., 48; 6 N. Y., 92.

Judgment reversed, with costs, and plaintiff ordered to restore to defendant the sum of $50 collected from him on execution.

Opinion by Childs, J.; Haight, Bradley and Angle, JJ., concur.

LEASE. SURETY.

N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT.

ing the year, but failed to pay the rent.

The lease contained a covenant that all of the products of the farm and the live stock raised thereon should be and remain the property of the lessor until the rent should be fully paid, and under this covenant the only defense is interposed.

Defendant called and proved by plaintiff that he had taken none of the products and did not know what had become of them. Defendant then offered to show that the products of the farm during the year exceeded $300 in value. This was excluded by the court on the ground that it would not constitute a defense unless defendant

Decided Jan., 1885.

Proof that the value of the products of a farm exceeded the rent, and that the

lessor did not take them will not constitute a defense to an action against the surety on the lease under a covenant that the products should be the property of the lessor until the rent is paid. It must appear that the lessor took them or was negligent in not doing so.

An action may be maintained against the surety on a lease without joining the principal.

Appeal from judgment in favor of plaintiff, entered on verdict directed by the court.

Action brought against defendant as surety on a lease to recover the rent remaining unpaid. Plaintiff leased a farm to one D. for one year from April 1, 1879, for $300 payable at the commencement of the term, defendant signing as surety. D. occupied the farm dur

court intimated what should be shown. Defendant did not state that he proposed to go further and offered no further evidence and thereupon the court directed a verdict for the amount of rent due. James Parks, for applt. J. I. Sayles, for respt.

Held, No error. Defendant did not offer to show that plaintiff took any part of the crops, or that he was in any respect negligent in not taking them; thus failing to bring the case within the rule that a surety is discharged if the creditor surrenders or negligently loses collateral security of sufficient value to pay the debt. A creditor may sue the surety before resorting to any collateral security he may have. 6 Ves., Jr, 714; Burge on Suretyship (1 Am ed.) 324.

Wright v. Austin, 56 Barb., 13, distinguished.

It is claimed that the action cannot be maintained against the surety without joining the principal.

Held, Untenable. As between the creditor and the surety the surety is severally liable. "With respect to the rights of two or more persons joining in a contract as creditors the general rule of construction is to the effect that a contract will be construed to be joint or several according to the interests of the parties if the words are capable of that construction, or even if they are not inconsistent with it; if the words are ambiguous or will admit if it, the contract will be joint if the interest be joint, and it will be several if the interest be several." Leak's Cont.,

457. The interest of the surety in this contract was not a joint, but several one, and the suit is properly brought.

Judgment affirmed, with costs. Opinion by Follett J.; Hardin, P. J. and Boardman, J., concur.

TERM. THIRD DEPT.

James Horace Jones, applt. v. The People, respts.

Decided Feb., 1885.

The prisoner was much younger than his wife, for whose murder he was convicted. They lived on bad terms, and had been married eighteen months. The prisoner had beaten her and had fired a pistol at

her on two occasions. He was a man of bad temper and occasionally drank to excess. On the morning of the murder he

Soon after taking the drinks the deceased came into the bar-room of the saloon which they kept and the prisoner at once commenced to quarrel with her, struck her in the face and pushed her against a table. Her mother interfered and also the son of deceased, a boy. The prisoner knocked them both down. He then knocked the deceased down and kicked her until remonstrated with by a bystander. Thereupon he left deceased, walked around a corner of the saloon, a distance of eighteen feet, got behind the bar, took out a revolver, cocked it and fired a shot at the deceased from which she soon died. He showed no remorse, and did not seem much excited and not at all irrational. The jury found him guilty of murder in the first degree. Held, That the questions whether the verdict was supported by the evidence and of premeditation were rightly decided by the jury.

Appellant was convicted of murder in the first degree for killing his wife on July 3, 1884, at Troy.

Wm. J. Ludden, for applt.
L. W. Rhodes, for respts.

PECKHAM, J. Under § 527, Code Crim. Pro., as amended by Ch. 360, Laws of 1882, this court must review the decision of the Oyer and Terminer and must grant a new trial if the verdict be against law or if justice requires a new trial, whether any exception be taken or not. This section grants new and extensive powers and they should be exercised with great circumspection. A case must be very clear to authorize a court to grant a new trial because justice requires it. The whole theory of our law is based upon the great weight to be attached to the verdict of a jury. It is claimed here that the verdict is against the evi

with a customer, but appeared rational.