the terms of the acceptance of the order by the defendant, and also the claims which such order gave the plaintiffs upon the defendant. The agreement of the defendant was to pay when Vandewater was entitled to the ninth payment under the contract. It seems to be clear that there was no promise upon the part of the defendant to pay until the builder was entitled to the ninth payment according to the terms of the contract. There was no evidence that Vandewater was ever entitled to the ninth payment, he never having completed the preliminary steps to entitle him to such payment. The mere fact that the defendant chose to advance to Vandewater certain moneys on account of that ninth payment, leaving sufficient due thereon to meet the order given to the plaintiffs, does not justify the plaintiffs in claiming that they had been defrauded of any of their rights. They are only entitled to claim against the defendant when the builder is entitled to the ninth payment, and that has never been shown; and it is entirely immaterial what arrangements the defendant and Vandewater made between themselves in reference to this payment. The defendant had a right to give Vandewater any money that he pleased, or as much as he pleased, or on what account he pleased. But when Vandewater or his assignee comes to claim, as a matter of right, money from the defendant, he must show that he has fulfilled his contract, and has done those things which the contract requires to be done, before he can insist upon such payment. This the plaintiffs have not done. They have not shown that the work was completed which entitled Vandewater to the ninth payment. Neither have they produced the required certificate.

As to the claim made by the plaintiffs that they are entitled to the first money paid upon the ninth payment, there seems to be no foundation therefor. They were to be paid when the ninth payment was due, and it is entirely immaterial whether it was the first or the last that they got. Until that whole payment was due they were not entitled to anything. We think, therefore, that the learned court below was right in dismissing the complaint, as no cause of action was made out, and the judgment should be affirmed, with costs.

(70 Hun, 381.) BERGIN V. DEERING.

(Supreme Court, General Term, First Department. June 30, 1893.) CIVIL CONTEMPT-SUFFICIENCY OF ORDER.

Where an order adjudging defendant guilty of a civil contempt does not describe the acts which constitute the contempt, nor what defendant shall do to purge himself from contempt, nor adjudges that any particular acts were done or omitted which amounted to a contempt, nor that such acts impaired the rights of any party to the action, the order will be reversed.

Appeal from special term, New York county.

Action by Edward J. Bergin against John J. Deering. From an order adjudging him guilty of a civil contempt of court, defendant appeals. Reversed.

The following is the order appealed from:

"A motion having been made by George N. Veritzan, receiver of the firm of Deering, Bergin & Company, why John J. Deering and James Hanse should not be punished and fined for contempt of this court: Now, upon reading and filing the order to show cause dated March 20, 1893, the affidavit of George N. Veritzan and Edward J. Bergin, both verified March 20, 1893, and the schedule marked 'A,' annexed thereto, and the affidavit of John J. Deering and James Hanse, both verified March 27, 1893, and the statements thereto annexed, and after hearing Nathaniel Levy, attorney for said receiver, in favor of said motion, and James Kearney, of counsel for said Deering and said Hanse in opposition thereto, and due deliberation having been had, it is ordered, that the motion to punish James Hanse, for contempt of court be, and the same hereby is, denied, without costs; and it is further ordered, that the motion to punish John J. Deering for contempt of this court be granted, with ten dollars costs, unless within five days after the entry and service of a copy of this order upon his attorney he pay over to the receiver or his attorney the sums of money collected by him since February 9, 1893, and belonging to the firm of Deering, Bergin & Company; and it is further ordered that, should said John J. Deering fail to comply with the provisions of this order within five days after the entry and service of a copy of this order upon his attorney, then the order for his commitment shall be issued forthwith, and the sheriff is hereby directed to execute and enforce the same."

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

James Kearney, for appellant.

Nathaniel Levy, for respondent.

PER CURIAM. This is an appeal from an order adjudging the defendant guilty of a civil contempt of court. The order does not describe the acts which were committed or omitted by the defendant which constituted the contempt, nor is there any adjudication that any particular acts were done or omitted which amounted to a contempt. The order does not show what the defendant shall do, or how much he shall pay, if anything, in order to purge himself from contempt, nor is it adjudicated that the acts done or omitted impair the rights of any party to the action. These three provisions are necessary parts of every order adjudging a party guilty of a civil contempt.

The order should be reversed, with $10 costs and disbursements.

(70 Hun, 379.) BERGIN v. DEERING.

(Supreme Court, General Term, First Department. June 30, 1893.) ACTION TO DISSOLVE PARTNERSHIP-RIGHTS OF JUDGMENT CREDITORS.

Where copartners cannot agree on the management of the business, and finally consent that an action be brought to wind up their affairs through the aid of a receiver, but before his appointment creditors of the firm recover judgments, and executions are levied by the sheriff, an order directing the sheriff to turn over to the receiver all property taken on execution should be reversed when the validity of the judgments are not impeached nor security offered for their ultimate payment.

Appeal from special term, New York county.

Action by Edward J. Bergin against John J. Deering to dissolve the partnership of Deering, Bergin & Co. From an order granting a motion, made by George N. Veritzan as receiver of said firm, to require the sheriff to deliver up certain property, which, previous to the appointment of the receiver, the sheriff had seized on executions issued on judgments obtained by appellants against said firm, Bartholomew Peck and John Mulholland, judgment creditors of the firm of Deering, Bergin & Co., appeal. Reversed.

JJ.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER,

James Kearney, for appellants.

Nathaniel Levy, for respondent.

PER CURIAM. The litigants were partners, but in what business they were engaged, its extent, the amount of capital employed, or their liabilities, are not shown. It does not appear that the firm or the individual members thereof are insolvent. Indeed, nothing is affirmatively shown, except that the parties were engaged in some kind of business as partners, and disagreed about its management, but in what respect is not made known. However, they finally agreed that this action should be brought to wind up their affairs through the aid of a receiver, pursuant to which a receiver was appointed. Before the appointment was made, two creditors of the firm recovered judgments, upon which executions were issued, and levied by the sheriff. Upon motion of the receiver, the sheriff was directed to turn over to the receiver all property taken on the execution. The validity of the judgments is in no wise impeached, nor was any security offered for their ultimate payment. We are unable to see any reason for depriving these judgment creditors of their legal liens for the sole purpose, so far as is disclosed by the papers, of permitting this receiver agreed on by the litigants to prosecute the business which they would not agree to manage. The order should be reversed, with $10 costs and printing disbursements, and motion denied, with $10 costs.

(70 Hun, 351.)

In re OPENING BEACH AVE.

(Supreme Court, General Term, First Department. June 30, 1893.) DEDICATION OF CITY STREET-EVIDENCE-SUFFICIENCY.

In proceedings by a city to acquire the fee to a certain street claimed to have been dedicated to the public by the executors of the deceased owner, the city introduced two conveyances by the executors, in which the street in question was made a boundary of the lots conveyed, and in which reference was made to a map on which the street was laid out. At the time of the conveyances the street, with other lands, was inclosed by a fence, and leased as a pasture, and remained inclosed until the commencement of these proceedings. It appeared from the deeds that no part of the street was intended to be conveyed, and the executors and attorney who drew the deed all testified that the purpose of so describ ing the land conveyed was to prevent any contention that there was an intention to dedicate the street. The map was not a public map, and rep

resented the fences as they actually existed when the conveyances were made. Held, that the evidence was insufficient to show a dedication of the street.

Appeal from special term, New York county.

Proceeding by the city of New York to acquire the fee to Beach avenue. From an order setting aside the report of the commissioners of estimate and assessment the city appeals. Affirmed. Argued before O'BRIEN, P. J., and FOLLETT and PARKER, JJ. T. Connoly, for appellant.

G. P. Hawes, for respondent.

PARKER, J. The city of New York by this proceeding seeks to acquire the fee of a certain piece of land commonly called "Beach Street." Commissioners of estimate and assessment were by the special term appointed, who, after taking evidence and hearing counsel, decided not to award to the owner of the fee of such land its value, but to allow nominal damages only. Such determination was based on the conclusion reached by the commissioners that the respondents here, who are the executors and trustees under the last will and testament of John McConville, who died seised of the premises, dedicated the same to the public, to be used as a street. A motion was thereupon made at a special term of this court to confirm the report and award of the commissioners, resulting in an order setting aside the report, and referring the matter back to the commissioners for revision and correction, with a direction that the commissioners award to the owners of Beach avenue the value of the property. This decision, we think, was required by the evidence, but, in the view which we have taken, it is unnecessary to consider one of the propositions discussed by the learned judge at special term, relating to the power of the executors and trustees under the will to dedicate to the public for street purposes any portion of the land devised, for the evidence fully justifies the conclusion that the executors and trustees did not attempt nor intend to dedicate Beach avenue to the public. The land in controversy called "Beach Avenue," extended from 149th street to Kelly street. The evidence presented by the city for the purpose of showing a dedication consisted mainly of two conveyances by the executors, in which Beach avenue was made one of the boundaries of the lots conveyed, and in which reference was made to a map on which Beach avenue was laid out. It may be observed that none of the parties assessed have filed objections or appeared on this appeal; therefore no question of estoppel is presented as between grantor or grantee, and we have only to consider the bearing which this evidence has on the question of dedication for public use. The conveyances were made in January and February, 1890. At that time Beach avenue, with other lands devised by the will, was inclosed by a fence, and leased to a tenant for pasturage purposes; the lease containing a condition that the fences should be maintained as then existing, and they have been so continued substantially down to the time when these proceedings were instituted. One of the lots

conveyed fronted on Kelly street, its westerly boundary being the easterly side of Beach avenue. The other conveyance was of a lot fronting on 149th street, the easterly side of Beach avenue being its westerly boundary. Thus it appears from the deeds that no part of Beach avenue was intended to be conveyed; and the grantors, as well as the attorney who drafted the deeds, testified that the purpose in so describing the lands was to prevent any possible contention that there was an intention to dedicate the lands to the public. No conveyance was made of any lot on Beach avenue between the lots already referred to, which fronted, as we have observed, one on 149th street, and the other on Kelly street. The map referred to in the deeds was not a public map, and on it was represented the stone walls and fences as they actually existed at the time of the execution of the deeds. The deeds and map, considered in connection with the manner in which the property was fenced and used, and the conduct of the grantors in respect thereto, compel the conclusion that the executors did not intend to offer to dedicate the land to the public; nor were their acts of such a nature as to warrant a finding of constructive dedication. But if it could be found either that the executors intended to dedicate the land, or that their acts were of such a character as to estop them from insisting that they did not so intend, there would yet be lacking an element essential to a complete dedication, the element of acceptance. Until the offer of the owner to dedicate his land for a public use be accepted, the dedication is not complete. At any time prior to such acceptance he may revoke his offer. The acceptance may be actual or implied. It is actual when the public authorities having charge of the subject by some formal act or in terms accept it. It is not pretended here that such action was taken by the officers of the city. Acceptance is implied when the public use it so generally, and for such a length of time, that an interruption of such use would result in great inconvenience. this case it cannot be said that there was such use by the public. Until 1890, at least, it was fenced. It has never been thrown open for use, nor generally, if at all, used. The leading witness for the city was not quite sure that there was even a wagon track there. Indeed, there is no evidence that even one team was ever driven from Kelly street to 149th street, through Beach avenue. The order should be affirmed, with the costs and printing disbursements. All

concur.

In

(70 Hun, 283.)

CARMAN et al. v. FARMERS' LOAN & TRUST CO. (Supreme Court, General Term, First Department. June 30, 1893.) 1. ACTION TO RECOVER MONEY-SUFFICIENCY OF COMPLAINT.

A complant alleged that plaintiff's assignor deposited certain N. bonds with defendant under a written agreement with defendant and others, and received a certificate which entitled him to stock in a new company, when formed, which certificate was duly assigned to plaintiffs; that the company was never formed, and in a suit to terminate the trust a decree was entered that defendant sell the bonds deposited by the holders of