term of this court when the case was before us the first time. 1 N. Y. St. Rep. 733. We then endeavored to show that the facts of the case did not bring it within the rule laid down by the court of appeals in Uline v. Railroad Co., 101 N. Y. 98, 4 N. E. Rep. 536; that inasmuch as the defendant in that case had only raised the grade of the street, and had not appropriated it to purposes inconsistent with its use by the public as a thoroughfare, the rule did not apply. But in a case like the one now under consideration, when the street is occupied by an embankment permanent in its character, and devoted wholly to railroad purposes, to the exclusion of the public, it was thought that all the damages which the plaintiff had sustained had accrued, and was capable of being ascertained and determined, and could be recovered in a single action. Since that decision was made, the precise question has been passed upon by the court of appeals so as to leave no doubt of the intention of our highest court to apply the rule in the Uline Case to all cases of this character, whether the obstruction is permanent or temporary. Pond v. Railroad Co., 112 N. Y. 186, 19 N. E. Rep. 487; Hussner v. Railroad Co., 114 N. Y. 433, 21 N. E. Rep. 1002. We are therefore constrained to hold that permanent depreciation in the value of the plaintiff's property cannot be recovered in a common-law action, but he must be limited to a recovery of such temporary damages as have accrued up to the time of the commencement of the action. The judgment must therefore be reversed, and a new trial ordered, with costs to abide the event. In re VINOT'S ESTATE. (Surrogate's Court, New York County. July 18, 1889.) 1. DESCENT AND DISTRIBUTION-LEGACY TAX-NON-RESIDENT DECedent. Both real and personal property within this state, devised by a non-resident decedent, dying after the enactment of Laws N. Y. 1887, c. 713, § 1, extending the collateral inheritance tax to all property within this state which shall pass by the will of a non-resident, are subject to the tax. A vested remainder, limited on a life-estate, is subject to the tax. 3. SAME-EXEMPTIONS-FUNERAL EXPENSES. A bequest for maintenance of decedent's burial plot is exempt as funeral expenses. On motion to confirm report of the appraiser of the estate of Julius T.Vinot, deceased. Gibson & Davis, for comptroller. * RANSOM, S. The decedent in this case died after the passage of the amendatory act of 1887, and therefore comes within the purview of chapter 713 of the Laws of 1887. Section 1 of that chapter provides: "After the passage of this act all property which shall pass by will, * * * or, if such decedent was not a resident of this state at the time of death, which property, or any part thereof, shall be within this state, * * * shall be, and is, subject to a tax of five dollars on every hundred dollars. * The decedent, though a resident of New Jersey, left both real and personal property within this state; and Justice ANDREWS, in delivering the opinion of the court of appeals in Re Enston, 21 N. E. Rep. 87, holding that, under the collateral inheritance tax act of 1885, neither real nor personal property of a non-resident is taxable in this state, says: "By chapter 713 of the Laws of 1887, section 1 of the act of 1885 was so amended as to subject to its operation the property within this state of a non-resident decedent. * * *"" The appraiser was therefore right in reporting the property as subject to the tax. A further objection is made to the report because a remainder, after a lifeestate, was reported as subject to the tax. The remainder is a vested one, there being a party in being who would take should the life-estate terminate, and the value of the remainder is also ascertainable. The appraiser was right in so reporting. I think the bequest of one-half of the income of $2,000 to be applied to maintenance of the burial plot, etc., of decedent should not have been reported as subject to tax. It should, so to speak, be looked upon as a personal expenditure for the benefit of the decedent, and as part of the funeral expenses, and therefore exempt. Under the recent decision of the court of appeals in Catlin v. St. Paul's Church, 20 N. E. Rep. 864, the other half of the income of $2,000 is subject to the tax. An order should be handed up confirming the report of the appraiser in all respects, except as above indicated, and assessing and fixing the tax. BANKS v. BENSKY. (Supreme Court, General Term, First Department. November 7, 1889.) CHANGE OF VENUE-MATERIALITY OF WITNESSES. In an action for assault and battery, where defendant alleges that he was assaulted by, and did not assault, plaintiff, and asks for a change of venue for convenience of witnesses, the fact that no person other than he and plaintiff were present at the time of the alleged assault is no objection to his right to the change, as the witnesses may be material to show defendant's condition after the alleged assault. Appeal from special term, New York county. Argued before VAN BRUNT, P. J., and BRADY and DANIELS, JJ. BRADY, J. This is an action for the recovery of damages occasioned by an assault and battery committed by the defendant in the county of Suffolk, in this state. The defendant applied for a change of the place of trial for the convenience of witnesses. His affidavit complies with the rules of the court to be observed in such applications. The plaintiff responds by asserting that when the assault was committed he and the defendant were the only persons present, and assumes, from that circumstance, that the defendant's witnesses cannot be material. He overlooks the defendant's allegation that the latter was the person assaulted, and the witnesses he names are to prove his condition after the assault, and which indicated violent treatment at the hands of some person. These witnesses, although not present at the occurrence, may be material for the defense, and indeed must be so regarded in view of the defendant's averment that he did not assault the plaintiff, but that the latter assaulted him. The pleadings contain nothing which affects the right of the defendant to have the change made which he asks. The order made should be reversed, therefore, and motion to change the place of trial granted, with $10 costs of this appeal, and the disbursements. All concur. RICE . BAGgot. (Supreme Court, General Term, First Department. November 7, 1889.) 1. PARTNERSHIP-DISSOLUTION-ACCOUNTING. On dissolution of a partnership, the fact that the retiring partner undertakes to carry on a similar business near by, and to divert the former customers of the firm, is proper to be considered in estimating the amount to be allowed him for the goodwill of the business. 2. SAME-RECEIVERS. Where the partners had agreed as to the disposition and control of the property, except as to one item, which, as well as the whole question, had been placed in the power of the court by the evidence, a motion to appoint a receiver to sell the goodwill and lease was properly denied. Appeal from special term. Action by William H. Rice against Atmore L. Baggot for dissolution of a partnership, etc. Plaintiff appeals. Argued before VAN BRUNT, P. J., and BRADY and DANIELS, JJ. BRADY, J. This action was commenced in February, 1888, for the dissolution of a copartnership theretofore existing between the plaintiff and defendant, and for an accounting. Subsequently, and after issue joined, the parties signed articles of dissolution, by which all matters between them were settled, except as to whether the plaintiff should pay to the defendant any sum for the good-will of the business, in addition to the sum already paid, according to the articles of dissolution. The learned justice before whom the action was tried found in favor of the defendant on this subject, determining the goodwill to be reasonably worth $4,000, and this presents the only question of any importance on the appeal. The testimony with regard to it was conflicting, although that in favor of the defendant was more affirmative in character, and better in quality, than that given on behalf of the plaintiff; in addition to which it appeared that the defendant had offered to pay to the plaintiff the sum of $2,000 for the good-will, or to accept that sum. And this offer, in connection with the testimony already alluded to, clearly justified the learned judge in holding that it was worth $4,000. The counsel for the appellant thinks that this amount is erroneous, for the reason that the evidence established that the defendant endeavored to divert the trade from the old concern by opening a store on the opposite corner, and by securing the eye and ear of the old customers as far as possible; which meant that he had distributed circulars to the old customers, advising them that he had opened such a store,-a circumstance which no doubt was taken into consideration by the learned justice, inasmuch as the fact mentioned was one which had appeared in the evidence. If the testimony had not been considered, it would doubtless have been an error, upon the proposition which seems to be correctly stated in Lindley on Partnership, as follows: "The value of the good-will of any business to a purchaser depends, in some cases entirely, and in all very much, on the absence of competition on the part of those by whom the business had been previously carried on." Page 440. This rule is predicate of the character of the good-will, which is the favor the management of a business wants from the public, and the probability that old customers will continue their patronage. Chittenden v. Witbeck, 50 Mich. 401, 15 N. W. Rep. 526; Myers v. Buggy Co., 54 Mich. 215, 19 N. W. Rep. 961, and 20 N. W. Rep. 545. Or, as was said by Chief Justice DALY in Hegeman v. Hegeman, 8 Daly, 4: The goodwill in a business may be acquired from its being established in a particular place, from which the person conducting it has derived profit, and where there is attached to the business a name indicating to the public where or in what manner it is carried on. The judge doubtless took into consideration the fact that the store which was secured by the defendant was small, was the only one suitable to his business that he could find, and was already a shoestore, and had been during the business of the copartners herein; and, as their business was prosperous, it was fair to presume there was little injury from the competition thus existing. It is also supposed that the conclusion in reference to the value of the good-will was erroneous, because there was no finding of fact showing that the lease had any value in excess of the rental charged. But this proposition does not embrace another element, and that is the existence of the business, and its success, which formed necessarily a part of the goodwill. It is also supposed by the learned counsel that his motion, made upon the trial and after the evidence was in, for the appointment of a receiver to sell the good-will and lease, should have been granted. And his proposition rests upon the case of Marten v. Van Schaick, 4 Paige, 479, which simply de cides, what is perfectly familiar, that upon a bill filed by one partner to close up a partnership concern it is a matter of course to appoint a receiver, if the parties cannot agree between themselves as to the disposition and control of the property, and the motion, therefore, is generally made before the issues are tried. Here the whole subject had by the evidence been placed in the power of the court. Not only that, but the parties had not been unable to agree as to the disposition and control of their property; for they had arranged that by their articles of dissolution, except as to the one item, which had been fully investigated before the motion was made. The judgment should be affirmed, with costs. DANIELS, J. The amount allowed by the judgment for the good-will of the business seems to be more than its probable value, inasmuch as the stock was taken at a valuation of 90 per cent. But as the court at the trial had the advantage, not existing on the appeal, of personally seeing and hearing the witnesses, the conclusion there adopted must be accepted as final. There is no such preponderance in the evidence as will justify any interference with the judgment, and it should therefore be affirmed; but considering the large amount allowed, it should be without costs of the appeal. VAN BRUNT, P. J., concurs. BOWERY NAT. BANK v. SNIFFEN. (Supreme Court, General Term, First Department. November 7, 1889.) HUSBAND AND WIFE-CONTRACTS-ACCOMMODATION PAPER. Where promissory notes are executed by a wife to her husband as mere accommodation paper, they do not constitute contracts between them; and under Laws N. Y. 1884, c. 381, giving to married women the power to contract as if they were unmarried, and making them and their separate estate liable on their contracts, whether they relate to such separate estate or not, but excepting from the provisions of the act all contracts between husband and wife, the bank which discounts such notes for the husband is entitled to recover thereon against the wife.1 Motion for new trial on exceptions. Argued before VAN BRUNT, P. J., and BRADY and DANIELS, JJ. VAN BRUNT, P. J. The complaint alleges that the defendant, Catherine Sniffen, made her certain promissory notes in 1887 and 1888 in writing, and copies of such notes are set forth therein. Each of said notes was in the same form, but they varied in amount. The form was as follows: "Four months after date I promise to pay to the order of John Sniffen $2,500, at the Bowery National Bank, value received. "CATHERINE SNIFFEN." The plaintiff alleged that the defendant delivered the said notes to the payee, who thereafter, and before maturity, indorsed the said notes, and for value delivered the same to the plaintiff. The defendant set up that at the time of the making and delivery of the said notes to Sniffen, the payee thereof, the defendant was a married woman, and the wife of said Sniffen, the payee of said notes, and that the same were made and delivered without consideration. The only evidence offered at the trial were the notes, and the testimony of the cashier of the defendant that they were presented for discount by John Sniffen, and discounted for him, and credit given therefor to him in his account with the bank; and it was admitted that the defendant was a married 1 Concerning the extent of the power of married women to contract under the various married women's acts, see Carriage Co. v. Pier, (Wis.) 43 N. W. Rep. 502, and note; Jones v. Holt, (N. H.) 15 Atl. Rep. 214, and note; Nixon v. Whiteley, etc., Co., (Ind.) 22 N. E. Rep. 411. woman, and the wife of John Sniffen. Upon these facts being established, the court directed a verdict for the plaintiff, and ordered the exceptions to be heard in the first instance at the general term. The plaintiff is undoubtedly a bona fide holder of the notes in question, having paid full value therefor to the payee. But notwithstanding this fact, as the law stood prior to the enactment of chapter 381 of the laws of 1884, no right of recovery existed. In the case of Bank v. Miller, 63 N. Y. 639, it was definitely held that where a married woman had made certain notes payable to the order of her husband, which were presented by him for discount to the plaintiff, the notes were nullities, and no implication, presumption, or impression that she was to be benefited by them in her business or estate could be drawn from their form, or from the fact that she had given them to her husband for the purpose of having them discounted, but that, in order to charge her, it must be made to appear by evidence aliunde the instrument that they were in fact made in her separate business, or for the benefit of her separate estate. This same rule was laid down in Bank v. Pruyn, 90 N. Y. 250. The question then presented is whether the enactment of chapter 381 of the Laws of 1884 has made any change in the law which will support a recovery upon the part of the plaintiff. The statute is as follows: "Section 1. A married woman may contract to the same extent, with the like effect and in the same form, as if unmarried, and she and her separate estate shall be liable thereon, whether such contract relates to her separate business or estate or otherwise, and in no case shall a charge upon her separate estate be necessary." It is clear that by this section the rules laid down in the cases cited have been abolished, except so far as relate to the next section, to which attention will be hereafter called; and that it is no longer necessary, in order to hold a married woman upon her contracts, to prove that the obligation was created by her in or about carrying on her trade or business, or that the contract relates to or is made for the benefit of her separate estate, or that the intention to charge her separate estate is expressed in the instrument by which the liability is created. The exception to which attention has been called is contained in section 2 of the act, which provides that this act shall not apply to any contract that shall be made between husband and wife. As already stated, unless the obligation which is the subject-matter of this suit is found to come within the restriction of the section last quoted, the plaintiff has a right to recover. The notes in question were either given for value received by the maker, in which case they would have been given for the benefit of her separate estate, and she would be liable upon them within the principles laid down in Tiemeyer v. Turnquist, 85 N. Y. 521, or it was a loan of her credit by the wife to the husband. The cases already cited show that there is no presumption that the notes were given for value, and therefore it must be assumed that they were mere accommodation paper, and that they were a loan of her credit by the wife to the husband. If that is the case, then the notes were no contract between the husband and wife. There was no obligation which could be enforced by the husband against the wife. Where two parties execute an instrument without any intention of creating an obligation between them, there is no contract. An intention to contract is an essential element of every contract. Therefore, if these were accommodation notes, there was no intention on the part of the maker to contract with the payee, and no intention on the part of either of the parties that any obligation, as between themselves, should be entered into because of the giving of the notes. Although the ordinary rule is that a promissory note is a contract between the maker and the payee, yet, if the parties to the instrument intend differently, it is difficult to see how a contract can spring into existence when neither intended that the act done should result in a contract as between them. It follows from this, then, that the making of this promissory note by the defendant, and the giving of it to her husband, was not the making of any |