care imposed upon defendant in respect to passengers was quite different from that imposed upon one who simply permits the public, by a bare license, to go upon his premises, of which distinction the request took no notice.

Dudley Field for appellant.

I. T. Williams for respondent.

ANDREWS, J., reads for affirmance.

All concur.

Judgment affirmed.

HENRY ROYCE, Appellant, v. CHARLES WATROUS et al., Respondents.

The doctrine of estoppel is applied to promote justice and fair dealing, never to aid a fraudulent purpose.

(Argued March 19, 1878; decided March 26, 1878.)

THIS action was brought to recover damages for alleged breach of a contract for the sale and delivery of a quantity of lumber.

Plaintiff's evidence was to the effect that he made a selection and agreed with defendants upon the price of the lumber; that defendants agreed to accept in payment therefor the notes of a third person, which were delivered to them, and they agreed to deliver the lumber at a place specified, but failed so to do. Defendants alleged and their evidence tended to show that plaintiff and one Van Horn had entered into a conspiracy for the purpose of procuring the lumber, and palming off therefor as good the notes in question, which they knew to be worthless; that defendants having learned of the conspiracy received the notes, not in consummation of the contract, but for the purpose of instituting criminal pro

ceedings; that the notes were worthless at the time, and had been ever since.

The court directed a verdict for plaintiff, held, error; that if the jury believed defendants' version it would constitute a defense, not on the ground of the rescission of the contract for fraud, but on the ground that no contract was made; that the doctrine of estoppel would not apply in such case, as it is never applied in aid of a fraudulent purpose, but to promote justice and fair dealing, and that the circumstances, if so found, would repel a ratification; that the form of the contract was not decisive, and although plaintiff was led to believe by the defendants that they intended to agree to sell the lumber for the notes, yet the question remained whether they did so agree, and if not, they were not bound; while if the jury had found plaintiff not guilty of the imputed criminal purpose, especially if the claim was resorted to to avoid performance, or for other improper motive without justifiable cause, a verdict for plaintiff would have been demanded; but that these were matters for the jury.

Also held, that if defendants were so far implicated in the criminal intent by aiding and abetting it and leading it on as to be regarded as particeps criminis, or if they intended a fraud to counteract plaintiff's fraud, the court would leave them, where it found them, and would not aid one against the other.

Douglas Campbell for appellant.

D. C. Brown for respondents.

Per Curiam opinion for affirmance of order granting a new trial, and for judgment absolute against plaintiff.

All concur.

Ordered accordingly.

THE PEOPLE ex rel. JOHN T. RILEY, Respondent, v. WIL LIAM WATSON et al., Appellants.

(Argued March 19, 1878; decided March 26, 1878.)

Samuel Hand for appellants.

Isaac L. Sink for respondent.

CHURCH, Ch. J., ANDREWS, MILLER and EARL, JJ., agree to affirm order. No opinion.

For dismissal, ALLEN and RAPALLO, JJ.; FOLGER, J., dissents.

Order affirmed.

LUCY HOOLEY et al. v. ABRAHAM GIEVE et al.

EUGENE L. LYNCH, Receiver, etc., Appellant, v. JAMES E. VAIL, Jr., Respondent.

(Submitted March 19, 1878; decided March 26, 1878.)

Stephen H. Olin for appellant.

R. P. Lee for respondent.

Agree to affirm. No opinion.

All concur.

Order affirmed.

JOHN J. MAY et al., Respondents, v. THE NATIONAL BANK

OF MALONE, Appellant.

(Submitted March 19, 1878; decided March 26, 1878.)

Gilbert, Badger & Weed for appellant.

S. A. Beman for respondents.

Agree to affirm. No opinion.

All concur, except EARL, J., dissenting, and MILLER, J., not voting.

Judgment affirmed.

ANN ELIZA HUNTER, Respondent, v. MARY JANE HATFIELD et al., Appellants.

(Argued March 26, 1878; decided April 2, 1878.)

REPORTED below, 12 Hun, 381.

W. H. Robertson for motion.

I. T. Williams opposed.

Per Curiam opinion for dismissal of appeal, because of default in not having given requisite undertaking.

All concur, except MILLER, J., absent.

Judgment affirmed.

GEORGE CRAWFORD et al., Appellants. v. OWEN O'CONNOR et al., Respondents.

(Argued March 20, 1878; decided April 2, 1878.)

THIS was an action to foreclose a mechanic's lien for materials furnished a contractor.

The referee found that at the time of filing the notice of lien there was due and unpaid from defendants to the contractor more than the amount of plaintiffs' claim, and directed judg ment therefor. Defendants produced papers, signed by the

contractor, showing payment in full. The contractor, however, testified that this was not the fact; that he was paid some money, and that the amounts due plaintiffs and others were counted in to make up the balance, with a secret understanding between him and defendants that they should contest these claims. The General Term reversed the judgment upon the ground that plaintiffs' right to recover depended on their establishing fraud, and there was no finding to that effect. Held, that a finding of fraud was not necessary, as it did not alter the fact that there was, in truth, an amount due and unpaid, and this was sufficient to sustain the judgment; that the fraud simply concealed the truth, and being exposed, the fact was revealed.

D. M. Porter for appellants.

C. C. Egan for respondents.

Per Curiam opinion for reversal of order granting a new trial, and for affirmance of judgment, entered on report of referee.

All concur.

Order reversed and judgment affirmed.

WILLIAM H. REXTER, Respondent, v. JOHN STARIN, Appellant.

It is the duty, as well as the right, of a person, whose property is endangered by the negligence of another, to do what he reasonably can to save and protect it; he cannot stand still and omit such care as he can reasonably and prudently take, and thus suffer a loss and cast it upon another. If, therefore, while exercising such care he is injured, the person guilty of the negligence is liable.

Where a judge has made a full and fair charge, laying down the general propositions of law controlling the case, it is within his discretion and he may ordinarily refuse to go further; he is not bound to charge, upon request of counsel, how the jury shall find, if they find one way or the other, as to particular facts in the case.