assignee of De Leon, to enforce De Leon's rights under an order for the delivery of goods which has been accepted by defendants. The action was for damages for nondelivery, in the amount of the value of the goods. The jury gave a verdict for this amount.

These are the material facts: Defendants signed an agreement, "We have to-day sold to Messrs. Raisin 1,000 tons of super-phosphates at $24 a ton on a cash basis, goods to be delivered free on board buyers' vessels and in bulk. Setlements are to be made on delivery to buyers of bills of lading by their notes." This was also signed by the vendees. The Messrs. Raisin The Messrs. Raisin had contracted to sell and deliver to De Leon 2,000 tons of phosphates of their own manufacture, and they proposed to De Leon that in the place of the 1,000 tons of the kind to be delivered under their contract, he should accept the 1,000 tons which were to be delivered under defendants' contract. This offer was accepted. Messrs. Raisin told defendants that they had sold to De Leon phosphates that they had not on hand to deliver, and they would have to take the goods under defendants' contract and deliver them to De Leon under his contract. Defendants assented to this. Afterwards the following was presented to them for accept

ance :

"December 7, 1881. Messrs. Reed & Co.-Gentlemen: Please deliver to P. M. De Leon 1,000 tons of ammoniated super-phosphates sold to us. R. W. L. Raisin & Co." Upon this order defendants

wrote December 10: "Accepted. Reed & Co." Defendants wrote a note to Messrs. Raisin: "We will deliver to Mr. P. M. De Leon, on your order dated December 7, accepted by us to-day, one cargo, say 500 tons to vessel, to begin leading about the 19th of December, and the remainder of the 1,000 tons to a vessel to load the latter part of December or early in January, 1882; vessels to be furnished by De Leon.” Messrs. Raisin took the accepted order and the note, delivered them to De Leon, who thereupon, on December 10, paid the price agreed to be paid by him, under his contract with the Messrs. Raisin. On the same day the Messrs. Raisin delivered to defendants their notes. the agreed price of the goods, under their contract, and defendants accepted them in payment. On December 16 the Messrs. Raisin & Co. became insolvent. Defendants gave notice to all parties that the order and acceptance were void on that ground, also contending that title to the phosphates did not pass, as they were to be manufactured and did not exist at the time of giving the sold note.

Sullivan & Cromwell and W. J. Curtis, for appits.

E. Louis Lane, for respt.

Held, That the judgment must be sustained. While De Leon was holder of the accepted order the condition upon which defendants were to deliver, namely, payment in the manner provided by the contract, had been performed, so far as contract obligations were concerned. All that was left to the vendors was what may be called a

contingent right to keep possession. The vendor may waive this right, or the facts may show that the special contract excludes it. In this case they have no right to assert it against De Leon. The acceptance was something more than a promise to Raisin & Co., who drew it for the benefit of Raisin & Co. It was made for the benefit also of De Leon. It was intended to become operative when delivered to him. Its form, coupled with the other facts, establishes between defendants and De Leon an imniediate relation.

The controlling consideration is that when for sufficient consideration the vendor promised to deliver possession to the sub-vendee, if De Leon may be deemed one, the vendor abandoned the right to withhold delivery that would rest upon the vendee becoming insolvent.

Judgment and order affirmed, with costs.

Opinion by Sedgwick, Ch.J.; Truax, J., concurs.

WARRANTY.

N. Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT.

Jehial Hymes, applt., v. William W. Esty et al., ex'rs, respts.

Decided April, 1885.

The opening of a public street or highway to its legal width, or using it as a street, is not a sufficient eviction to enable the owner to maintain an action against his grantor for breach of a covenant of warranty.

Appeal from order granting motion for a new trial on a case after verdict for plaintiff.

Vol. 21-No. 12a.

Defendant's testator on May 1, 1869, conveyed a lot in the village of Ithaca with covenant of warranty to one T., who Aug. 29, 1876, conveyed with covenant of warranty to plaintiff. In 1881 plaintiff enclosed the whole lot, a strip of which, twelve feet in width, the village claimed had long been appropriated for a public street. The village then brought action to restrain him from enclosing or obstructing the street, of which action plaintiff gave defendants notice and asked them to defend, but they did not. He then an swered denying the existence of the street. On the trial of that action it was found that prior to 1860 the then owner of the lot dedicated a part of it to the public for the purpose of a street and that the village authorities accepted it, constructed and for twenty-five years prior to 1881 maintained a public street on the land in dispute, and judgment was entered restraining this plaintiff from obstructing the street and for costs.

This action was brought on the covenant of warranty to recover $250 damages for the eviction and the expenses of defending the former action. The jury rendered a verdict for $457.24, and subsequently the Special Term, on motion, granted the order appealed from.

F. E. Tibbetts, for applt.
Almy & Bouton, for respts.

Held, No error. The existence. of a public street or highway, legally laid out and openly traveled, upon land conveyed with a covenant of warranty, does not, if the

public have but an easement, amount to a breach of warranty. 15 Johns., 483; 46 Pa., 229. If the soil of a street or highway is appropriated or used for other purposes the owner may maintain trespass or ejectment against the intruder. 1 Burr., 133; 2 Johns., 357; 15 id., 447. In this state, opening a public street or highway to its legal width, or using it as a street, is not deemed a sufficient eviction to enable the owner to maintain an action against his grantor for the breach of a covenant of warranty. Whether the existence of a public street or highway is a breach of a covenant against incumbrances is a question upon which the decision of the various states do not agree. 3 Washb. R. P., 4th ed., 460, 462.

The sole foundation of this action is the judgment in the case of the village of Ithaca against this plaintiff, the judgment roll in which case was introduced in evidence by plaintiff, by which it appears that the land from which plaintiff

claims to have been evicted was a legal public street at the date of the grant of defendant's testator to T., and also at the date of the grant of T. to plaintiff. Plaintiff cannot use this judgment as a verity so far as it tends to establish his cause of action and then turn and treat it as a falsity, subject to be contradicted and overthrown by oral evidence, in so far as the findings upon which it rests are found unfavorable. The judgment roll which plaintiff invokes to establish his cause of action destroys it.

Order affirmed, with costs to abide event.

Opinion by Follett, J.; Hardin, P.J., concurs; Boardman, J., not voting.

CIVIL DAMAGE ACT. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

Phineas O. Stevens, applt., v. Harrison C. Cheney et al., respts. Decided April, 1885.

A parent of an adult child is not entitled to recover damages for injury to his means of support under the Civil Damage Law in absence of proof that he is a poor person unable by work to maintain himself, and that the child was, before and at the time of the injury, under a legal obligation to support him; and that by reason or in consequence of the child's intoxication his accustomed means of maintenance have been cut off or diminished.

Appeal from judgment entered upon a nonsuit and from order denying motion for a new trial made upon a case and exceptions.

Action to recover damages which plaintiff claimed to have sustained to his means of support by reason of the intoxication of his son Carlton, who was a married man of the age of thirty-one years.

from the liquor sold to him by defendant, and on his way home he was unable to properly care for himself, and in consequence of such intoxication was run over by the cars, making it necessary to amputate both of his legs. Carlton had always lived with plaintiff. Plaintiff testified that his son furnished some of the wood and provisions for the use of the family; that he cut hay, and drove plaintiff

He became intoxicated

personal property out of which the said execution, or any part of the same, can be made, but I have thereunder levied upon the real estate mentioned in the annexed notice of sale, and have advertised the same for sale as in said notice provided. I have found no other property out of which to satisfy the same." Held, That no order for the examination of

defendant in proceedings supplementary

to execution could be based on such return. An order for the examination of a defendant in supplementary proceedings cannot be upheld upon a motion to vacate it for the reason that it is based upon a return to the execution which did not warrant its granting, upon proof that a sufficient return should have been inade. The remedy is to require the sheriff to make the proper return and, if he refuses, to move to compel him to do so.

Appeal from order denying motion to vacate order for the examination of defendants in proceedings supplementary to execution.

The motion was made upon the ground that the return of the sheriff to the execution was not such as warranted the granting of the order. The return was in the fol

lowing form:

"In pursuance of the demand of plaintiffs' attorneys, I make the following return to the within execution: I have collected nothing under, and have not found any personal property out of which the said execution, or any part of the same, can be made, but I thereunder levied upon the real estate mentioned in the annexed notice of sale, and have advertised the same for sale as in said notice provided. I have found no other property out of which to satisfy the same." The motion was opposed upon an affidavit tending to show that the execution should have been returned nulla bona.

A. Thain, for applts.

S. Untermeyer, for respts.

Held, That the code does not justify proceedings supplementary to execution where the execution has not been returned for the reason that the sheriff has levied upon and is about to sell real estate of defendant, nor ought the right to the supplementary order to be made to depend upon the result of a controversy upon motion to set it aside upon conflicting affidavits on the question whether the sheriff should not have made the return required by law as the basis of the supplementary examination.

That if the sheriff has not made the proper return the remedy is to require him to do so, and, if he refuses, to move to compel him to make it.

TERM. FOURTH DEPT. The People, respts., v. Antonio Rego, applt.

Decided May, 1885.

If upon a trial for murder there is evidence, or inferences arising therefrom, which may bring the case within the crime of manslaughter, the question whether the crime was murder or manslaughter should be unequivocally submitted to the jury. Reading the sections defining manslaughter preceded by the remark that the court does not see their applicability to the case is error.

Appeal from judgment convicting defendant of the crime of murder in the first degree.