the defense or counterclaim, that all questions may be determined by the same judgment; but, if the court upon which the power is conferred has no equity jurisdiction, then the power must, in the nature of things, be limited wholly to defensive purposes, and is available only so far as may be necessary to make the same effective. It is to be used as a shield, not as a sword. Interposing an equitable defense does not turn an action or proceeding into an equitable one. Webster v. Bond, 9 Hun, 437.

The amendment of 1893 never contemplated that the jurisdiction of the old court of chancery should attach to inferior jurisdictions to the extent of enabling them to grant under the title of "equitable defenses or counterclaims" affirmative equitable relief of the nature afforded by a cross bill or otherwise. It merely designed that certain minor matters, formerly the subject of a bill in equity, might, without that formality, at the option of the tenant, be used by him to defeat the summary remedy. Indeed, the act may be broad enough to defeat an injunction where the power conferred is adequate to answer all possible requirements, but where, as in this case, further relief of an affirmative character is needed, jurisdiction now as formerly may be invoked. This power existed in courts of equity long before the amendment of 1893, and continues notwithstanding it. Railway Co. v. Ramsey, 45 N. Y., at page 649; Popfinger v. Yutte, 102 N. Y. 38, 6 N. E. Rep. 259; Shepard v. Railroad Co., 131 N. Y. 215, 30 N. E. Rep. 187. Although it was intended that district courts might, within the scope and in the exercise of their limited jurisdiction, consider equitable as well as legal defenses, their powers were not otherwise extended by express enactment, and cannot be by implication or intendment. These courts have neither the machinery nor procedure essential to the exercise of that system of jurisprudence which was exercised and perfected by the old court of chancery, which had no restraint upon it, but certain settled rules, and the conscience of the chancellor. The case of Capet v. Parker, 3 Sandf. 662, serves to illustrate the principle sought to be applied. There the tenant, after the tenancy had commenced, contracted to purchase the property. The landlord failed to convey, and instituted summary proceedings to remove the tenant, on the ground of holding over. The tenant thereupon filed a bill for specific performance of his contract of purchase, and this court enjoined the prosecution of the summary proceeding upon the ground that there were equities involved which the justice entertaining the summary proceeding had no jurisdiction to determine. It is clear that even the amendment of 1893, in regard to equitable defenses or counterclaims, would not give the tenant, in such a case, the relief he required. The inferior court could not, under that amendment, decree or enforce specific performance against the landlord. The most it could do would be to find for the tenant on equitable grounds, leaving either party to seek the necessary substantial relief in a court having equity jurisdiction. Two trials would be made necessary, instead of one. Equity abhors a multiplicity of suits, and will enjoin against them when it can.

Under the circumstances, the rule enforced in Becker v. Church, supra, must be applied, and the injunction continued, with $10 costs, to abide the event.

JEANS et al. v. BOLTON et al.

(Superior Court of New York City, General Term. July 3, 1893.) EVIDENCE-WEIGHT.

In an action for work done by plaintiffs on defendant's house, it ap peared that defendant had contracted with one S. to do certain work on the premises at an agreed price, and that S. subcontracted with plaintiffs. On completion of the contract, extra work was required to be done, and plaintiffs did it at S.'s request. S. testified that defendant requested him to employ carpenters to do the extra work, but defendant denied this, and testified that his contract was solely with S. At a certain time, S. told plaintiffs not to press their claim, as defendant was short, and about the same time collected all that was due him. Held, that a finding that plaintiffs were S.'s subcontractors in doing such extra work was proper..

Appeal from judgment on report of referee.

Action by Edward Jeans and another against Samuel Bolton and others to recover for materials furnished for and work done at certain premises in the city of New York. From a judgment in favor of defendants, plaintiff's appeal. The opinion of the referee is as follows:

Affirmed.

"This action is brought to recover for goods alleged to have been sold to, and work alleged to have been performed for, the defendants, at the premises S. W. corner Sixth avenue and 22d street, in the city of New York, by the plaintiffs, who are builders. The evidence before me discloses the fact that one Elisha Sniffin, an architect, contracted with the defendant Samuel Bolton to supply certain materials and perform certain work in and about the premises referred to, at an agreed price; that the said Sniffin furnished the materials and performed the work pursuant to said contract, and employed or contracted with the plaintiffs to do part of the same; and that plaintiffs were paid therefor by Sniffin's personal checks. Upon the completion of the contracts above referred to, it appears there was certain extra work required to be done, and Sniffin claims that Bolton requested him to employ carpenters to do this extra work. It appears that the plaintiffs entered upon the performance of this extra work at the request of Sniffin. The defendant Samuel Bolton emphatically denies the statements of Sniffin, and testifies that his contract was with Sniffin solely, and that he never knew or heard of the plaintiffs until their bill was presented, and that he paid this bill, or some part of it, at Sniffin's request. From the evidence I am not led to place any confidence in Mr. Sniffin's statement. From the testimony of Mr. Taylor it appears that in the fall of 1890 he told the plaintiffs not to press their claim, as Bolton was short; and the bill was not submitted until December, 1890. Sniffin had been careful, however, to collect his money in full in October, as appears by his receipt of October 8, 1890. He was evidently anxious to get his money, and, after receiving it, to leave the defendants to a lawsuit at the hands of his subcontractors, the plaintiffs. In view of this consideration, and the fact that the testimony of Sniffin has not been corroborated, and is flatly contradicted by Bolton, it cannot be said that the plaintiffs have maintained the issue by a preponderance of evidence; and this the plaintiffs must do, especially in view of the relations formerly existing between them and Sniffin and the defendants and Sniffin. I think the evidence clearly establishes that the plaintiffs were subcontractors of Sniffin. Having reached this conclusion, I have thought it unnecessary to pass upon the ques

tions as to the reasonable value of the work done and materials furnished, and as to the liability of the defendant Mary Bolton, which latter question was raised by the defendants' counsel. The complaint should be dismissed, with costs."

Argued before FREEDMAN and GILDERSLEEVE, JJ.

John H. Hull, for appellants.

W. B. Ellison, for respondents.

PER CURIAM. The judgment should be affirmed, with costs, upon the opinion of the referee.

FORMAN v. FORMAN.

(Superior Court of New York City, Special Term. June 25, 1893.) MARRIAGE-ANNULMENT-INSANITY.

In New York, in order to maintain an action to annul a marriage on the ground that defendant is a lunatic, it must appear that such cause existed at the time of the marriage.

Action by Anna Forman against Frank Willis Forman to annul the marriage contract existing between the parties.

for defendant.

Robert Goeller, for plaintiff.

William H. Clark, for defendant.

Judgment

MCADAM, J. In order to maintain an action to annul a marriage on the ground that the defendant was a lunatic, it must appear that such cause existed at the time of the marriage. Code, § 1743.1 The law proceeds upon the ground that the party was in fact incapable of making such a contract for want of the proper understanding necessary to yield an intelligent assent to the obligation. The defendant seems to have had sufficient mental ability to comprehend the obligation and its function, for his wife cohabited with and had two children by him. Misfortune overtook him, and he is now confined in an asylum for the insane. The subsequent affliction furnishes no ground for divorce. The parties took each other for better or worse, to care for each other in sickness as well as health, and must perform this vow until death discharge the obligation. While the prospects of the wife are blighted by the misfortune, she must bear it with fortitude. suit to annul, a marriage is to rescind it as if the contract had never been entered into, and the aggrieved party must elect to rescind within a reasonable time after the grievance has been discovered. If, however, the party mentally sound continues to cohabit with the alleged lunatic, and has children by him, it proves

A

1 Code Civil Proc. § 1743, provides that an action may be maintained to aunul a marriage "for either of the following causes, existing at the time of the marriage: * (3) That one of the parties was an idiot or a lunatic."

one of two things: (1) That the party was not insane at the time; (2) or that the other party has elected to treat the contract as a valid and subsisting one. Either ground forms a complete answer to the application. In Ward v. Dulaney, 23 Miss. 410, it was observed:

"What degree of mental imbecility, what extent of intellectual aberration, will suffice to annul a contract of marriage, it is difficult to pronounce. Certainly, mere weakness of intellect, or even great eccentricity of conduct, unless it reaches a point that evinces inability to comprehend the subject-matter of the contract, will not suffice; and every principle of sound policy and humanity admonishes us that a contract so important in its social relations, and bearing so materially on the peace and happiness of families, should not be set aside upon slight grounds, or on less proof than would suffice to annul contracts less sacred and important in their nature."

Suppose the defendant should recover, (a thing possible,) and, on seeking his home, found his wife living with another man, to whom she had contracted another marriage under the license of the divorce court. What a commentary that would be on justice. The defendant's present condition almost precludes a trial, for a being in his state of mind can make no defense whatever. The policy of the law is to protect the weak and helpless, and for that reason courts exercise a zealous care over their interests. The court sympathizes with the plaintiff, but can furnish her no relief. Application for decree denied.

ISEAR v. BURSTEIN.

(Superior Court of New York City, Special Term. May, 1893.)

EXPERT TESTIMONY-EFFECT ON COURT.

Where it appears that defendant's wall encroaches on plaintiff's lot, and the only question for the court is the measure of damages, as to which expert testimony has been given, such testimony, though valuable as an aid in determining the amount of damages, is not conclusive on the court, but it may use its own judgment and experience in regard to the matter.

Action by Rebecca Isear against Maurice J. Burstein to compel defendant to remove a wall of his house, No. 182 Henry street, alleged to encroach on defendant's lot, known as No. 184, in the same street, or for damages. Judgment for plaintiff.

S. Sultan and D. Leventritt, for plaintiff.

M. S. & I. S. Isaacs and A. L. Sanger, for defendant.

MCADAM, J. The main question involved is whether the wall of the defendant's house, No. 182 Henry street, encroaches upon the plaintiff's lot adjoining, known as No. 184, in the same street. The defendant denied that his wall overlapped, as charged, and alleged that, on the contrary, the plaintiff's wall trespassed upon his premises. The parties were evidently sincere, for they had surveys made by city surveyors, sustaining the contention urged by each.

In consequence of this conflict the parties wisely agreed,

when the case was called, that the court take the deeds and the different surveys, and appoint some competent, disinterested surveyor to survey the property, and stipulated that the survey made by such indifferent surveyor be accepted as conclusive on the ques tion in dispute. The court acted upon the stipulation, and named Jacob Rudolphy, Esq., who, after a careful survey and examination, reported that the defendant's wall, on the rear extension of his house, encroached upon the plaintiff's lot, from 2 to 23 inches, for a distance of about 14 feet. This was, by the stipulation, made conclusive on the disputed fact, leaving the court charged with the simple duty of determining the measure of damages, which, in an action against a wrongdoer for encroaching on a neighbor's wall, is the amount by which the selling price of the premises trespassed upon is reduced by the wrongful act. Wood's Mayne, Dam. § 569; Sedg. Dam. (7th Ed.) 267, 268. The experts called varied in their estimate as to the extent of the depreciation, placing it from $250 up to $500. While this evidence is valuable as an aid in determining the depreciation, it is not conclusive on the court, which may, notwithstanding, use its own judgment and experience in regard to the matter. Reves v. Hyde, 14 Daly, 431; Muller v. Ryan, (City Ct. N. Y.) 2 N. Y. Supp. 736; Head v. Hargrave, 105 U. S. 45. Upon the entire case, the damages are assessed at $375, and the plaintiff is awarded a decree in the alternative, requiring the defendant to remove the incumbrance complained of within 30 days, or in default thereof that he pay the plaintiff $375 as damages for the injury aforesaid. Judgment accordingly, with costs.

AHLBERG v. AHLBERG.

(Superior Court of New York City, Equity Term. June, 1893.) MARRIAGE-PRESUMPTION-COHABITATION.

A marriage will not be presumed from the mere fact that the parties live together, where their relations were meretricious in their inception.1

Action by Caroline Ahlberg against Magnus Ahlberg for separation and alimony. Judgment for defendant.

A. P. Wagener, for plaintiff.

D. Mathewison, for defendant.

MCADAM, J. A contract of present marriage alone, without form of ceremony superadded, constitutes marriage. Bish. Mar. & Div. § 19. It is a civil contract, to the validity of which the consent of parties able to contract is all that is required by natural or public law. 2 Greenl. Ev. § 460. The parties must intend, and the agreement (whether oral or in writing) must evidence, marriage. If the parties agree eo instanti to take each other for husband

As to what constitutes a marriage, see Fagan v. Fagan, (Sup.) 11 N. Y. Supp. 748, and note.