of a like kind, were to be reviewed | if they were erroneous, by appeal, or, if matters of irregularity, by motion. The appellant has been unsuccessful in his attacks upon the order by appeals, and the irregularity as to the bond has been cured by the order now appealed from, which should be affirmed. Terry v. Bange, 546. 3. Held also, that it is not a substantial objection to the order that "The N. Y. Superior Court" was named instead of the correct name, "The Superior Court of the city and county of New York." The words used sufficiently identified the court. Ib. 4. By the Code of Procedure, notice to the judgment creditor was not a condition precedent to the exercise of the power to appoint a receiver. If it be assumed that the receiver is not a resident of the state, and for that reason should be removed, there should be no removal unless the same be accompanied by a substitution of a qualified receiver in his place. Ib. SURETIES. A bond executed to the corporation of the city of New York by sureties to secure the performance of such a lease by the lessee is valid, notwithstanding it was not executed by the lessee. Being joint and several, it binds all who execute it, especially if the intention of the sureties sufficiently appears. Mayor v. Kent, 109. TAXES AND ASSESSMENT. Contract for the payment or vacation of an assessment-Deposit as security or indemnity-Forfeiture not favored in the law. See Pirsson v. Arkenburgh, 474. TRESPASS. See ELEVATED RAILROADS. TRIAL. 1. It appeared on the trial that the judgment debtor had deposited the moneys in question with the Union Trust Company; that the account was with William N. Griswold in trust," and there was no designation of any kind as to the trust, nor as to any person for whose benefit the trust was created. It was an obligation on the part of the Trust Company to the judgment debtor, personally, and would remain such in its character until legally applied to the legitimate claim of a third person. On these facts alone the plaintiff as judgment creditor would be entitled to a judgment, and the appellant was bound to establish, on the trials affirmatively, that equitably thǝ moneys should be paid to her, as being the remainder of money, that belonged to her. The trial judge found that the appellant had not established by credible witnesses that her money had been deposited, but did find that the moneys belonged to the judgment debtor, and it is not material that this finding was found as a conclusion of law. It must be sustained and upholds the judgment. Green v. Griswold, 24. 2. The objection that the complaint does not state facts sufficient to constitute a cause of action is not waived if not expressly taken by demurrer or answer, but may be made at the trial. It is an objection every plaintiff is bound to meet at the trial if then and there made. Nethercott v. Kelly, 27. 3. The court, at the close of this case, allowed the jury to take the pleadings into the jury-room, instructing the jury "that the pleadings may be regarded as in evidence, but only so far as they relate to questions at issue and presented at the trial, and as to which evidence has been taken, or where the facts are admitted." The counsel for plaintiff requested the court to instruct the jury "that the matters alleged in the answer are not to be taken as admitted, because there is no pleading on the part of the plaintiff in reply." The court refused the request of counsel, and he excepted. Held, that it was error to submit the pleadings to the jury with the instructions given by the court and without the modification asked for by the counsel for plaintiff. Carroll v. Sweet, 100. 4. Requests to the court to charge, and exceptions to refusals to charge, must be made before the jury retires. Exceptions to refusals not taken at the time of the ruling of the court. have no validity and cannot be heard on appeal. An exception to the charge, as made, can be taken at any time before the jury has rendered a verdict. Walker v. Second Ave. R. R. Co., 141. 5. The plaintiffs made out a slight case. On the close of the testimony on both sides the case was submitted to the jury who found for the plaintiffs; but in view of all the evidence in the case, Held, that a motion made by defendant, at the close of the evidence on both sides, for a direction of a verdict in its favor, should have been granted; and the judgment and the order denying a motion for a new trial were reversed and a new trial ordered. Kilpatrick v. Columbia Bank, 144. 6. The jury rendered a verdict for plaintiff of $30, damages for injuries received by him through the defendant's negligence. There was evidence of incidents and appearances tending to show that the injuries were slight and trivial, and that their nature and extent had been exaggerated by plaintiff in his testimony. Held, that it was the province of the jury to determine on the evidence as to the nature, character and extent of the injury, and to measure their verdict according to their finding thereon; and that the court could not say that the finding of the jury thereon called for a larger verdict than that which they rendered. Brooks v. Ludin, 145. 7. On the trial it appeared that the physician who attended the plaintiff rendered him a bill for $160 for about twenty attendances, and that the bill had not been paid. There was no testimony that the charge was reasonable or customary. Held, under this state of the evi 9. Held, that it is irregular to make an exception by inserting in the case that "defendant excepts to foregoing italicized portion of the charge." An exception must be taken at the trial, and at that time the charge is not in print, and no part of it can be italicized. This exception can be entertained only by supposing that on the trial there was an exception to a part of the charge represented by the italics in the printed case, and then proceeding to consider the supposed exception. Looram v. Third Ave. R. R. Co., 165. 10. An exception to refusals to charge in the following form, “I except to the refusal of the court to charge each and every request submitted by me as requested that he has declined to charge, and to the refusal of the court to find any requests as requested which he has charged in substance," raises no question for determination by the general term.. Dresler v. Hard, 192. 11. Where evidence bearing on a certain question of fact is admitted under exception, yet, if the excepting party is not injured, the exception cannot be sustained on appeal, even if the evidence was improperly admitted, à fortiori, not when certain exhibits which were put in evidence and which might of themselves have been a sufficient ground for the ruling, are not contained in the appeal book. Mortimer v. N. Y. El. R. R. Co., 244. 12. When finding of fact is in irreconcilable conflict with the conclusions of law and the judgment based thereon, the judgment must be reversed on appeal; this although there are other findings which fully sustain the conclusions of law and the judgment. Pappenheim v. Met. El. Ry. Co., 281. 13. A judgment should not be reversed because of inconsistent conclusions of law when the judgment is in accordance with the correct conclusions of law upon the facts found. Welsh v. Met. El. Ry. Co., 408. 14. On the trial the plaintiff was a witness on the stand. After a lengthy cross-examination by defendants' counsel to show that plaintiff had notice of the construction of the railroad, and took no proceedings against the company, and that he (plaintiff) had used the defendants' road as a means of travel, the defendants' counsel asked the plaintiff the following question: "And during all this time you were reserving your objections?" when the court interposed and said "you have gone far enough on that point; you can ask no more questions on these points," to which the counsel for the defendants duly excepted. The court, on appeal, held, that the question was entirely irrelevant and immaterial. The examination of witness as to facts had been exhausted, and if counsel had desired to ask any further question he should have asked the same and taken the ruling of the court as to its admissibility. The extent to which such a cross-examination should be allowed is largely within the discretion of the court and such discretion was properly exercised in the refusal of the court to allow questions to be put that were absolutely immaterial; that did not tend to prove any issue of the pleadings, and that could not be asked for any other purpose than to waste time. Ross v. Met. El. Ry. Co.,412. 15. In the case at bar, the substantial controversy between the parties, and by the evidence competently given, hinged upon the disputed question of fact, whether, by the settlement of March 5. 1884, the entire account of the plaintiff was closed, and upon this question there was quite a conflict of evidence. The refusal of the court to submit the question clearly constituted error. Quimby v. Carhart, 452. 16. This action was tried at special term by the court without a jury, and the record shows that certain requests to find were presented by plaintiff and defendants and passed upon as required by section 1023 of the Code, but no decision of the court was filed pursuant to section 1022 of the Code, and judgment was subsequently entered without such decision. Held, that in the absence of a decision of the court directing the judgment to be entered pursuant to section 1022 of the Code, the judgment is entirely unauthorized, and not in a condition for review, and, therefore, should be reversed and the case remanded to the special term, to be decided as provided in section 1022 of the Code. Putzel v. Schulhoff, 505. 17. Further held, that if the judgment was in a condition for review, that some of its provisions cannot be sustained, and there are other defects and errors that cannot be reconciled to the existing practice. 1b. 18. A new trial will not be granted on the ground of newly-discovered evidence unless it is of a character that would probably produce a different verdict if a new trial were had, nor where the party asking the new trial could with due diligence have procured the evidence before the close of the trial. Mayer v. Haaren, 574. Questions addressed to expert witness to draw out his opinion formed from the evidence produced on the trial-when incompetent. See Loveless v. Man. Ry Co., 3. When judgment may be sustained by facts found as a conclusion of law. See Green v. Griswold, 24. Testimony of experts as to value of real estate in action for an injunction and damages because of the construction and maintenance of the elevated railroad of defendants in front of plaintiff's premises. See Kernochan v. N. Y. El. R. R. Co., 434. Trial-stay of, pending appeal to general term in another action. See Brady v. The Mayor, 571. Trial conduct of, as to failure to request the submission to the jury of questions of fact as to admission of evidence producing no injury, as to written communications by the court to the jury, the parties and their counsel being present, as to sending papers to the jury after their retirement.-Infant, immaterial instruction as to acquiescence by in contract, an instruction as follows: "I do not wish to charge you that mere delay on the part of the plaintiff in making a demand after arriving at maturity is of itself an acquiescence in the contract made by him while an infant"-held immaterial in view of the charge as actually delivered which in effect withdrew from the jury all question as to invalidity of the contract by reason of the infancy of the plaintiff and submitted the case to their determination solely on the ques tion as to whether the contract had in fact been made and the plaintiff had received the advantage of it. See Thorp v. Riley, 589. TRUSTEES. 1. A question arises upon the validity of bonds issued by the plaintiff, a corporation, some of which were sold to defendants, trustees of the same or some of them, at seventyfive per cent of their face value. Held, that the transaction in itself was not invalid. Lyceum v. Ellis, 532. 2. Assuming, however, that such of the defendants as were trustees of the company when they took the bonds and held such a relation to the company, that the latter could avoid the transaction, the right to avoid was an equitable right. The transaction was not void but only voidable, and might be ratified. If the stockholders ratified the same expressly or by acquiescence after knowledge for a sufficient time, the plaintiff cannot avoid the transaction, and the facts in this case fully establishing such a ratification and acquiescence, the transaction cannot be avoided. Ib. respect thereof. See Columbia Bk. v. Gospel T. Ch., 149. TRUSTS. It 1. It appeared on the trial that the judgment debtor had deposited the moneys in question with the Union Trust Company; that the account was with William N. Griswold in trust," and there was no designation of any kind as to the trust, nor as to any person for whose benefit the trust was created. was an obligation on the part of the Trust Company to the judgment debtor, personally, and would remain such in its character until legally applied to the legitimate claim of a third person. On these facts alone the plaintiff as judgment creditor would be entitled to a judgment, and the appellant was bound to establish, on the trial, affirmatively, that, equitably, the moneys should be paid to her, as being the remainder of moneys that belonged to her. The trial judge found that the appellant had not established by credible witnesses that her money had been deposited, but did find that the moneys belonged to the judgment debtor, and it is not material that this finding was found as a conclusion of law. It must be sustained, and upholds the judgment. Green v. Griswold, 24. 2. The land and premises in question, the subject of this action, were conveyed to one Clarissa E. Curtis, subject to a prior purchase money mortgage, and she and her husband conveyed the same to Eliza Racey in trust, "to receive the yearly income, rents and profits during the natural life of said Clarissa, and to her sole and separate use, and at the death of said Clarissa, to convey said land to the children of said Clarissa, living at her death, and the surviving children of such of them as may then be dead, in equal portions per stirpes and not per capita." The deed further provided that in case of the death of said Clarissa, leaving no child or grandchild her surviving the lands shall belong to and vest in the heirs of said Clarissa, to whom the trustees shall convey the same, etc. The mortgage to which the lands were subject was foreclosed by action. Clarissa Curtis and her husband, and Eliza Racey, the trustee and holder of the estate for the life of Mrs. Curtis, were made parties thereto, and the lands were sold under the judgment in said foreclosure action, and the defendants claim title to the same under the Master's deed. Mrs. Curtis died in 1886, leaving children and grandchildren, none of whom were made parties to said foreclosure action, and after her death the plaintiff began this action to recover the possession of four undivided tenths of said lands that had been conveyed to him by certain of the children and grandchildren of Mrs. Curtis. Eliza Racey, the trustee, never made any conveyance of the lands under the trust deed. Held, That this action of ejectment cannot be sustained. The rule given by Chitty prevails in this state. "The lessor of the plaintiff must also have a strict legal right, a mere equitable and beneficial interest without the legal title will not suffice." The facts do not admit a presumption that those under whom the plaintiff claims have received a conveyance from Mrs. Racey, the trustee, or her heirs. The trust in question was not merely nominal, or such a trust that equity will execute it by deeming the conveyance made, although not actually made, etc. That under the statute and at common law the execution of a power implied the occurrence of the event or the doing of the act, which is the future existence of the use intended by the grantor. The cestui que trust, represented by the plaintiff, took no estate by the trust deed, but will have an estate according to the act done and the appointment of the use provided in the trust deed. When that act is done, and not until then, the rule applies that "the appointment relates back to the deed of the grantor of the power." The plaintiff had no legal interest in the land that entitled him to maintain an action of ejectment, and, if he had no such legal interest, it is not necessary to inquire if he had an interest of some other kind, and then to inquire into its characteristics. Townshend v. Frommer, 90. Matters which will not raise a trust or an implication of fraud in favor of parties concluded thereby, or their assignee, in respect of particular assets. See Murphy v. Philbrook, 204. See CONTRACTS, 6. UNDERTAKING. See COSTS 2. USURY. The assignee of collateral securities, which the maker of a usurious note pledged as security for its payment, by his complaint seeks equitable relief in an action, namely, the cancellation of the note (also assigned) and the delivery of the collaterals, etc. A demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, was sustained by the court below. Held, that the right of action, claimed by the complaint, is expressly given by section 1911 of the Code of Civil Procedure, and that before that action was maintainable on equitable principles generally; and plaintiff is entitled to the equitable relief sought, and is not bound to proceed at law. An action at law will not lie to cancel a transaction, nor will an action at law lie to recover things pledged without the alternative of damages, if not delivered. A tender of the amount advanced on the collateral is not necessary. The offer in the complaint to pay is sufficient. Dickson v. Valentine, 128. VENDOR AND PURCHASER. 1 Where a vendor of real estate is ready and able on the day specified in the contract of sale for its completion to give a good and marketable title, and tenders to the vendee the deed called for by the contract, and demands the payment of the purchase |