Ely & Smith, for respt.

Held, That while the evidence is perhaps sufficient to establish a quasi partnership as to third persons, it is insufficient to show that the defendant ever consented to enter into that relation with the plaintiff.

That the agreement as testified to by the defendant does not constitute a partnership inter se. 74 N. Y., 30; 76 id., 55.

That the oral testimony relied upon by the plaintiff in corroboration is more favorable to the defendant than it is to him. The plaintiff and defendant did buy the blotter together-i. e., one negotiated the purchase and the other paid the price. That the testimony of the defendant that the plaintiff was to attend to the manufacturing and selling for an agreed compensation is as consistent with the non-existence as with the existence of a partnership.

That the use of a name of a fictitions corporation has no legal significance in favor of either party. Having been used foreign to a purpose of designating a partnership, it furnishes no evidence pro or con upon that subject.

That it is evident from all the circumstances that the defendant continued the business under the belief that he alone was interested in it, whatever was the actual agreement between the parties.

The judgments and order ap pealed from reversed, order of reference vacated, and new trial granted, with costs to abide the

event.

Opinion by Gilbert, J.

WILL. ANNUITY. CONSTRUCTION.

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

V.

Emserett Johnson, respt., et al., exrs., Sarah Cornwall applts.

Decided Feb., 1882.

Defendant's testator directed in his will that support be given to plaintiff during her natural life, to be paid out of the whole property according to the exceptions above named. The defendants were executors and the residuary legatees. Held, That the whole estate left by the testator was charged with an annuity for plaintiff's support indefinite as to the nominal amount, but limit ed only by her reasonable needs, and that plaintiff is to be paid a sum and not clothed or fed by the defendant; that it is the duty of the court to determine the amount intended to be bequeathed; that as defendants accepted and held the estate devised to them they became personally liable for the payment of the annuity, and that no demand was necessary as preliminary to a right of action to enforce such liability.

Appeal from judgment entered on decision of the Special Term.

Action to enforce the provisions of the will of defendant's testator. Defendant's testator directed in his will that "support be given to (plaintiff) during her natural life, to be paid out of the whole property according to the exceptions above named."

The defendants were the executors and residuary legatees.

Plaintiff was a domestic servant who had been in the family for forty years. The testator's property

amounted to about $28,000. The court found that plaintiff was entitled to her support absolutely and that the value thereof was $360 a year, and directed that se

curity be furnished for the payment thereof.

Wolcott & Kent and W. T Thorn, for respt.

A. Ryder and C. Frost, for applts.

Held, That the language of the bequest indicated the intent that the plaintiff should be furnished with sufficient pecuniary means for her support according to her condition in life. That the defendants took only what remained after the satisfaction of the legacy.

That the legal effect was to to charge the whole estate left by the testator with an annuity for the plaintiff's support, indefinite as to the nominal amount, but limited only by her reasonable needs, and that plaintiff is to be paid such sums and not clothed or fed by the defendants.

That it is the duty of the court to determine the amount intended to be bequeathed. 2 Hun, 610; 2 Russ., 511 n; 2 Keyes, 165.

That the amount fixed was not unreasonable.

That as defendants accepted and held the estates devised to them charged with payment of the annuity, they became personally liable to pay the same.

CONTRACT. PROSPECTIVE

PROFITS.

N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Charles A. Danolds, respt., v. The State of New York, applt. Decided Jan., 1882.

The State is liable for prospective profits on its contract repudiated or abandoned by it before completion and without the consent of the other party.

The plaintiff's assignor had a valid contract with the State for the erection of a portion of the Reformatory at Elmira. The contract provided that the work was to be done under the direction of a board of commissioners appointed by the Legislature.

After the contract was partly performed a law was passed abolishing the board of commissioners and appointing a superintendent in their stead.

The superintendent refused to recognize the contract or to permit its further performance.

When the contract was repudiated by the superintendent, the assignee of the contract sought to recover the amount of prospective profits on the unfinished portion of the contract. The State contested this claim.

The Board of Audit duly allowed the plaintiffs $65,000 on his claim. From this award the State appeals.

Held, That the proofs being sufficient to sustain the award it should be affirmed. Sedgwick on Damages, $$ 73, 416.

Opinion by Mullin, P. J.; Smith and Hardin, JJ., concur.

C. E. Crowell, for plff.

O. E. Bright, for deft., Twentythird Street RR. Co.

D. M. Porter, for deft., Sixth Avenue RR. Co.

taken by the defendant the TwentyHeld, That no appeal can be

third Street Railroad Co. from the order that was made upon the trial on motion of the defendant the Sixth Avenue Railroad Co. dismissing the complaint as to that defendant or from the judgment upon that order.

Motion to dismiss the appeal granted, with $10 costs.

Opinion by Sedgwick, Ch. J.; Freedman and Arnoux, JJ., con

cur.

RAILROADS, ELEVATED.

DAMAGES.

for the injury, alleging that each was negligent. The case was tried before a judge with a jury, and the complaint was dismissed as to the Sixth Avenue Railroad Co., and the trial proceeded as to the other defendant and resulted in a verdict against it for $10,500, and judgment was entered by the plaintiff against the Twenty third Street Railroad Co., for that amount and costs, and dismissing his complaint as to the Sixth Avenue Railroad Co., and for its costs.

Thereupon the Twenty-third Street Railroad Co. appealed, both as against the plaintiff and its codefendant, the Sixth Avenue Railroad Co., and the Sixth Avenue Railroad Co. moved to dismiss the appeal as to it.

TERM. SECOND DEPT.

In re application of the E. R., B. & C. I. Steam Co.

Decided Feb., 1882.

Where the evidence taken before commissioners to pass upon the construction of an elevated steam railroad showed that injurious consequences to the abutting property owners would follow on the construction and operation of such road, and it did not appear that the requisite consent of the property owners had been obtained, or that the railroad corporation had made any provision for compensating such property owners as might sustain damage by reason of the construction and operation of such road, Held, That the right to construct and operate such a railroad should be made dependent upon the said railroad providing a suitable and sufficient indemnity to such property owners against such damage, or that provision should be made by law for such indemnity in some mode, and that

until said indemnity therefor, in suitable form, shall have been provided, the de

termination of the commissioners favorable

to the construction and operation of such

railroad should not be confirmed.

Application by the corporation to confirm a determination of commissioners that the railroad which it proposes to construct on streets of the city of Brooklyn, and to operate by steam power, ought to be constructed and operated. The requisite consent of property owners had not been obtained, and the corporation had made no provision for compensating such owners as might sustain damages by reason of the construction and operation of such railroad.

Johnson & Lamb, for petitioner. A. H. Clement and David Barnett, for owners.

Held, That this court has the power, and it is its duty to review the report of the commissioners upon the facts, and, after a consideration of all the circumstances, to determine the question whether private rights and interests should be yielded for the sake of the public good. 82 N. Y., 95. That no man's property should be taken for or injuriously affected

whether owners of property injuriously affected, yet not "taken” by the railroad corporation, are protected by the constitutional provision referred to. This question should be set at rest before railroad corporations are permitted to inflict further injuries upon private property, and their rights to construct elevated roads in streets should be made dependent upon their providing a suitable and sufficient indemnity to abutting owners against any damage which they may sustain thereby, or, if that may be justly deemed too onerous, then provision should be made by law for such indemnity

in some other mode.

That, inasmuch as the evidence shows that injurious consequences to the abutting property will fol low the construction and operation of the proposed railroad, until indemnity therefor, in a suitable form, shall have been provided, the report ought not to be confirmed.

Application denied.

Opinion by Gilbert, J.; Barnard, P. J., and Dykman, J., concur.

PLEADING.

That while ample protection against direct invasion of the rights of private property is afforded by the fundamental law, in that it cannot be taken for public use without compensation, yet it is still a mooted question

TERM.

Inness, applt., v. Willis, respt.

· Decided April 3, 1882.

A complaint which alleges defendant's hopeless insolvency at and since the time of making the contract; that defendant concealed his want of title with fraudulent intent, knowing that he could not convey to plaintiff said premises as agreed in the

contract; that plaintiff was ignorant of defendant's lack of title, etc., contains sufficient allegation of fraud to justify rescission of a contract for the purchase of real estate, and to support a recovery of damages to the amount paid on the contract

defendant be not actually in default under the contract.

Action to recover $950 damages sustained by plaintiff by reason of a contract claimed to have been obtained from him by fraud and deceit, and rescinded upon discovery of the fraud. The complaint alleges that in May, 1880, defendant received from plaintiff $750, part payment on a contract then entered into whereby defendant agreed to sell to plaintiff certain real estate, the deed to be delivered in June, 1880; and that plaintiff paid his counsel $200 for searching the title to the property; that defendant had at the time the contract was signed, and still has, judgments against him to the amount of $40,000, and was and is hopelessly insolvent; that he did not have and has not since acquired title to the property sold, and that he concealed his want of title with a fraudulent intent and well knowing that he could not convey to the plaintiff the said premises, as agreed in said contract; that plaintiff was wholly ignorant of defendant's want of title, etc. The court below sustained defendant's demurrer upon the ground that performance by plaintiff was a condition precedent to that of the defendant, and that no demand was made for the deed, nor did plaintiff show that he was prepared to take title.

and the recovery sought. While a concealment of want of title would not be, per se, fraudulent, yet it is so when accompanied by a fraudulent intent to deceive and defraud, and with a positive knowledge that the vendor cannot acquire title to the property sold, and that he cannot deliver to the other party what he has contracted to sell.

Further held, That the action being for fraud and not for breach of the implied warranty of title, plaintiff was not bound to fully perform on his part, nor to wait till the time fixed for transfer of title before bringing action.

Judgment reversed with costs. and demurrer overruled with costs, with leave to defendant to answer, etc.

Opinion by Russell, J.; Sedgwick, Ch. J., and Freedman, J.,

concur.

ΤΑΧΑΤΙΟΝ.

N.Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Archibald H. Yates, applt., v. Frank Hughson et al., respts.

Decided Jan., 1882.

If a person claiming to be erroneously as

sessed does not furnish evidence to discharge himself from such assessment on grievance day and the assessors have in good faith used all proper means in their power to ascertain whether he is liable, the assessment is valid.