Action to recover damages for the wrongful diversion and discharge of water by defendant upon plaintiff's land. A verdict was ordered for defendant. The evidence tended to show the following facts: Defendant is owner of a farm north of and higher than plaintiff's farm. There was a low and swampy part of defendant's land, sometimes a pond, into which two streams ran and where surface water also collected. This swamp naturally discharged its surplus waters to the west and not upon plaintiff's land. It was separated from plaintiff's land by high ground which is impenetrable to water. Through this high ground defendant dug a deep and wide ditch to a point on his own land, some 24 rods south of the deepest part of the pond or marsh. Through this ditch defendant discharged the whole of the waters of said pond and marsh upon his own land, where the same was so gravelly as immediately to take up such waters and transmit them under ground down upon plaintiff's land some 30 rods below, where it again came to the surface and caused plaintiff damage. The jury found that an increased quantity of water was thrown upon plaintiff's premises by reason of the ditch made by defendant and that plaintiff's premises had been damaged thereby in the sum of $375, but it was not allowed to pass upon the main question, whether defendant had unlawfully diverted waters from their ordinary and natural course or had discharged such waters in an un usual manner and with unaccustomed force and quantity upon plaintiff's land. Jno. C. McCartin, for applt. O'Brien, Emerson & Ward, for respt. Held, That the case was erroneously taken from the jury and decided as a question of law. If there were streams running into this pond on defendant's land he had no right to change their course and pour their waters upon plaintiff's premises. The character of the streams was a matter of proof on the trial. It was fairly before the court and jury and the court erred when it refused to submit to the jury whether plaintiff was not entitled to recover on the facts proved, and instead thereof directed a verdict for defendant. But assuming that the water in question was all surface water, defendant would have no right by ditches and artificial channels to take it from its natural course and accustomed channels and throw it upon plaintiff's premises to her injury. There is no conflict of authorities upon this point. Wash. on Ease., 2d ed., 432, 427-31, 439; 26 Penn St. 407, 413; 47 Id., 155; 4 Lans., 47; 79 N. Y., 470. The case relied upon by the learned justice at circuit, 86 N. Y., 140, announces the same rule. At p. 147 the learned judge says the owner of land is the absolute owner of surface water thereon, and he may "get rid of it in any way he can, provided only that he does not cast it by drains or ditches upon the land of his neighbor," and again, "The owner of wet and spongy land cannot, it is true, by drains or other artificial means, collect the surface water into channels and discharge it upon the land of his neighbor to his injury. This is alike the rule of the civil and common law." 16 Moaks Eng. Rep., 299, note. Defendant may insist that he dug this ditch and discharged this water upon his own premises, 20 rods or more from plaintiff's land, where it sank into the soil and by percolation through the soil reached plaintiff's premises. Conceding that to be true it does not relieve defendant. The injury is the direct cousequence of the water from defendant's ditch. Though discharged at first upon his own land it ran of necessity immediately upon plaintiff's land, and it is immaterial whether on or above or below the surface. Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by Boardman, J.; Hardin, P.J., and Follett, J., concur. VILLAGES. HIGHWAYS. Decided Feb., 1885. Defendant is a village corporation carved out of the territory of New Castle, and incorporated under Chap. 291, Laws of 1870. Plaintiff's horse was killed by reason of a defect in a bridge which was within the limits of the village. Held, That the town and not the village is liable. The facts sufficiently appear from the opinion. Held, That the primary duty of keeping bridges in repair is imposed upon the town. It is the duty of the Town Commissioners of highways to keep the bridges safe and in good repair. 1R.S. 460. Defendant is a village corporation carved out of the territory of New Castle and incorporated under Chap. 291, Laws of 1870. Plaintiff's horse was killed by reason of a defect in a bridge which was within the limits of the village, and the question is whether the village or town is liable for the injury. *** It is necessary to examine the village charter act and determine whether or not the duty of keeping up safe the bridges is taken from the town and imposed upon the village, under circumstances like those in respect to defendant. The act permits the incorporation "of any part of any town" with certain population. Title 1, § 1. The trustees have power "to make and repair all bridges which may be necessary within the bounds of the village" Title 3, § 1, sub. 25. The village thus incorporated is a separate highway district exempt from the superintendence of any one except the Board of Trustees, who shall be commissioners of highways in and for such village and shall have all the powers of commissioners of highways of towns in this State subject to this act." By title 8, § 27, it is shown what the duty in respect to bridges really is intended to be and what the power over roads and bridges in villages is subject to. § 27: "Nothing in this act giving the board of trustees of a village power to make and repair bridges within the village bounds, or making them commissioners of highways, or making the territory of the village a separate highway district subject to the board of trustees alone, shall be construed as divesting the commissioners for any town in which a bridge may be located of power or control over the same or as relieving such town from the expense of constructing or repairing any bridges within its bounds, though such bridge may be within the territorial limits of a village incorporated under this act. In case the board of trustees of any village so incorporated shall think proper to construct or repair any bridge within the corporate limits, then the expense of such work shall be a charge on the taxable property of the village and be paid out of the corporate funds." The village is not bound to repair bridges. The stipulation shows that it did not do so before the accident. The town duty continued in full force. The breach of duty must be enforced against the town and not the village. The village could repair at its own expense, but it was not bound to do so, and thus no duty absolute and imperative is cast upon the village. It had at best a right to spend its own money in repairing a bridge, which it never exercised. The town commissioners were still bound to keep safe the bridge if the village did not elect to do so, and the town commissioners were bound to see to it N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Ella J. Hopkins v. Alexander Hopkins. Decided Feb., 1885. It is improper after the death of a plaintiff in an action for divorce for the attorney to take further steps in the action in the name of the deceased plaintiff. The action dies at the death of such party. This was an action for a divorce. An order was made that defendant pay to plaintiff or her attorney fifty dollars for counsel fee therein. Defendant was committed to jail by reason of failure to make payment according to the terms of the order, and remained there some five months. Then an order was made, Dec. 10, 1883, discharging him from further imprisonment. On the 19th of May, 1884, another order was made, vacating the order of Dec. 10, 1883, and again committing defendant to jail. When the order of May 19, 1884, was made plaintiff was dead. An order was made Oct. 15, 1884, discharging defendant from his imprisonment, and this is an appeal therefrom. Albert Day, for applt. the plaintiff. She was a sole plain- | from C., plaintiff's intestate, to S., tiff, and the cause of action did defendant's testator. It appeared not survive. It was improper after that on June 5, 1874, C. received her death for the attorney to take from a savings bank two checks of further steps in the action in the $1,000 each, payable to cash or name of the deceased plaintiff. At bearer. The next day S. had said the time of plaintiff's death the checks and used them with other attorney had no right to enforce money in his business. C. was not the payment of the fifty dollars by at that time engaged in business, any order of the court, and he but resided with S., in whose house could not get such a right after her he died March 1, 1875. The checks death. The case is not like Lach- in question were paid by the banks enmyer v. Lachenmyer, 17 W. upon which they were drawn in Dig., 310; 65 How., 422. The at- the usual course of business. The torney in that case had a bill of answer of S., sworn to in his lifecosts and expenses incurred in de- time, denied wholly the alleged fending a motion to vacate an order loan or advance, and set up counof arrest. He had the remittitur terclaims for which judgment was of the Court of Appeals, and the asked. One of these was for medparty, his client, died soon after- ical services stated in a bill of parwards. Then he had leave to issue ticulars furnished and running execution for the costs in his own. back twenty years. Another was name against defendant's property. for board and lodging from DeIn this case, as has been observed, cember, 1874, to March, 1875. A he had no right whatever. third was for the payment of a note to one A., one-half of which was the debt of C., and a fourth was a receipt by C. of moneys belonging to S. upon a land contract. William Tiffany, for applt. D. P. Morehouse, for respt. Order affirmed. Opinion by Barnard, P.J.; Pratt and Dykman, JJ., concur. LOAN. N. Y. COURT OF APPEALS. Poucher, admr., applt., v. Scott, exr., respt. Decided March 3, 1885. In an action to recover an alleged loan it was shown that plaintiff's intestate received certain checks, and that on the following day they were in the possession of and used by defendant's testator, with whom intestate resided. Held, That no loan was proved; that if there was a direct transfer it must be deemed a voluntary delivery in payment of an existing liability rather than a loan. This action was brought to recover an alleged loan of $2,000 Held, That plaintiff was not entitled to recover; that no loan was proved, there being a clear failure of proof. A fraud or felony cannot be presumed; if the transfer was direct it must be deemed a voluntary delivery in payment or discharge of an existing liability rather than a loan. 78 N. Y., 290. Judgment of General Term, affirming judgment dismissing complaint, affirmed. Opinion by Finch, J. All concur. ATTACHMENT. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. The Marine National Bank, respt., v. Ferdinand Ward et al. Decided March 4, 1885. A person who has acquired a lien upon or interest in property after it has been attached may found a motion to vacate the attachment upon the insufficiency of the papers upon which the warrant was granted. An affidavit made for the purpose of obtaining an attachment in an action in which a national bank is the plaintiff is not sufficient for that purpose when it is made by a person who is stated to be the vice-president and a director of plaintiff, but who is not shown to have had any special knowledge of or connection with the business affairs of the bank beyond what is implied by said statement, and the allegation in regard to counterclaims is that " 'the plaintiff is, as deponent is informed and verily believes, entitled to recover of the defendants the sum of $700,000 over and above all counterclaims known to the plaintiff or to deponent." In order to warrant the granting of an attachment upon the ground that the defendant has made a fraudulent conveyance of a portion of his property, such fraudulent conveyance must be shown by something more than allegations merely upon information and belief. Appeal from an order of Special Term, denying motion to vacate attachment. The motion to vacate the attachment in this case was made by one H., as the general assignee of the defendant Ward for the benefit of creditors, claiming that as such assignee he had an interest in the property attached, which interest was acquired subsequent to the attachment. The motion was made upon the ground that the affidavits upon which the warrant was granted were fatally defective in two particulars, one of which was that they failed to show that the plaintiff was entitled to recover the sum stated therein over and above all counterclaims known to plaintiff. The principal affidavit upon which the attachment was granted was made by one S., who was stated to be the vice-president and a director of the plaintiff, but who was not shown to have had any special knowledge of or connection with the business affairs of the bank beyond what was implied by said statement. The statement upon which the objection arose was in these words: "And deponent further says that the plaintiff is, as deponent is informed and verily believes, entitled to recover of the defendant the sum of $700,000 over and above all counterclaims known to plaintiff or to deponent. T. H. Hubbard, for applt. Held, That there was no statement, based upon the knowledge of any affiant, that the plaintiff was entitled to recover the sum named over and above all counterclaims known to it. The affiant merely stated that he was informed and verily believed that such was the case, and did not give the source of his information nor the grounds of his belief, nor state any facts from which the judge granting the attachment could see that his belief was well founded. That while the affidavit in this respect might undoubtedly be made by an agent of the plaintiff or an officer of a corporation to whom |