provisions of the contract so expressly declare. A covenant of one party to sell or purchase might imply a corresponding covenant of the other party to the contract to purchase or sell. Barton v. McLean, 5 Hill, 256; Baldwin v. Humphrey, 44 N. Y. 609; Butler v. Thompson, 92 U. S. 412. And when any act of the parties, or either of them, is essential to carry out the intention of the parties, appearing by the provisions of a contract, the stipulation for the performance of such act will be deemed within its provisions, as effectually as if actually expressed. Jones v. Kent, 80 N. Y. 585; Booth v. Mill Co., 74 id. 15. The terms of the agreement fairly import the intent of the parties, which is deemed within its covenants, that so long as the defendant should continue the business so purchased by him of the plaintiffs, the latter should sell to him, and he should purchase of them, gloves for his trade, provided the plaintiffs continued to manufacture gloves. This qualification quite clearly appears by the provisions of the contract, and there is no op portunity to spell out or imply a covenant on the part of the plaintiffs to continue in the business of manufacturing, or which denied to them the right at their pleasure to discontinue the production of gloves. It may have been assumed by the parties that the making of gloves, and the sale to and purchase by the defendant, would be continued as long as the latter desired to carry on, in New York, the business so purchased by him, and that such expectation on his part was a leading inducement to him to make the purchase. It is in that view that the defendant's counsel urges that the intent to accomplish such purpose should be treated as within the covenants, and that any other view would render the contract unreasonable, and place him at the mercy of the plaintiffs. Reference is made to Russell v. Allerton, 108 N. Y. 288, in support of such contention. There the rule was well stated, to the effect that when there was doubt or uncertainty as to the meaning of language employed, the court, for the purpose of construction, would seek for the intent of the parties, and would not give to it such interpretation as would make the contract unreasonable, and place one of the parties entirely at the mercy of the other. Second Division, March 18, 1890. Jugla v. Trouttet. Opinion by Bradley, J.

CONTRACT-IMPLIED-GRATUITOUS SERVICES.-In an

action against a corporation for services rendered by plaintiff as its treasurer, evidence that plaintiff was a stockholder of defendant, and a member of the firm having its banking business; that the salaries of other officers were fixed by the by-laws of defendant, with plaintiff's knowledge; and that he performed his duties as treasurer without any express understanding that he should have compensation-justifies a finding that he accepted the office without any view to compensation, and performed the services gratuitously. If the officer expects to have compensation, and the corporation intends to pay him for his official services, it may easily be provided for, by resolution or agreement, before he enters upon his services. This is, at all events, a salutary rule, as applied to an officer who is a stockholder of the corporation. Loan Association v. Stonemetz, 29 Penn. St. 534; Kilpatrick v. Bridge Co., 49 id. 118; Smith v. Putnam, 61 N. H. 632; Gill v. Cab Co., 1 N. Y. Supp. 202; Barril v. Water-Proofing Co., 2 id. 758. Second Division, March 11, 1890. Mather v. Eureka Mower Co. Opinion by Bradley, J. Affirming 44 Hun, 333.

PERFORMANCE - JURY.-Plaintiffs agreed to furnish a large quantity of lumber to defendant, to be inspected and approved by its agents. This inspection was partially defeated by employees of plaintiffs, who procured a die, similar to that of approval used by the inspectors, and marked with it lumber that had been rejected. At the time the fraud was discovered

there was one vessel loaded, and another partially loaded, with the lumber, and defendants paid the amount then payable, less a certain sum, to be retained on account of the delivery of falsely marked lumber. In an action to recover this sum, plaintiffs testified to their personal good faith, and gave evidence tending to show an agreement that plaintiffs should allow defendants such damages as it had sustained, and take back at their own expense lumber not within the requirement of the contract, and supply its place with other lumber, and that the sum retained was reserved as indemnity. There was no question but that all the lumber called for by the contract was delivered and used for the purpose contemplated. Held, that whether there was a waiver of the defective performance of the contract was a question of fact, which should have been submitted to the jury; and if they answered it in the affirmative, the further question of damages in behalf of defendant would then arise for their determination. Second Division, March 21, 1890. Parke v. Franco-American Trading Co. Opinion by Potter, J. Follett, C. J., dissenting. Reversing 44 Hun, 623. CONVEYANCE-DESCRIPTION-CONSTRUCTION.—(1) In ejectment to recover land under water of a part of Great South bay of Long Island, defendant claimed title under a patent to his ancestor from the governor in chief of the province of New York, which recited the issuing of a warrant to the surveyor-general of the province to survey and lay out several necks and tracts of land, beach, bay, etc., situate on the south side of the island formerly called Long Island; " that said surveyor-general had surveyed and laid out "said necks and tracts of land, * * *bay, and islands within said bay, bounded westward from the main sea or ocean," etc.; and then granted the "afore-recited necks and tracts of land within the respective bounds before mentioned, together with the waters, rivers, * * and all lakes, creeks, harbors, bays, islands, * privileges, * rights, * and appurtenances whatsoever to the aforesaid necks and tracts of land, bay, beach and islands within said bay." Held, that the bay was not described as appurtenant to the neck and tracts of land, but was conveyed with all the benefits and privileges appertaining thereto. (2) Testimony that when the survey had been completed and embodied in the patent it was read to the town meet. ing, and approved, and the town voted "to agree and acquiesce in the bounds of the patent," and that on the faith of these declarations the grantee and his descendants held undisputed possession of the land for over two hundred years, presents all the elements of an equitable estoppel against the town to assert its title to the land. It is not necessary, as is claimed in one of the briefs submitted to us by the appellant, to constitute an equitable estoppel, that there should be a false representation or concealment of material facts. Nor is it essential that the party sought to be estopped should design to mislead. If his act was voluntary, and calculated to mislead, and actually has misled, another acting in good faith, that is enough. Bank v. Hazard, 30 N. Y. 226; Continental Nat. Bank v. National Bank, 50 id. 575. Nor is it essential that the declaration of the town as to its title to the land described in Smith's patent should have preceded the date or delivery of the deed. Continental Nat. Bank v. National Bank, supra; Bank v. Keene, 53 Me. 103. If those declarations affected the conduct of Smith with reference to the land purchased, so that it would be unjust or injurious now to those who have succeeded him to permit the plaintiff to set up its title contrary to the truth of its declaration, it is sufficient. That which does not amount to an estoppel at the time the declaration is made may become such by ratification or acquiescence. Big. Estop. (5th ed.) 650; Faxton v. Faxon, 28 Mich. 159. The authorities in this State are all har

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monious on the subject of estoppel in país. When a party, either by his declarations or conduct has induced a third person to act in a particular manner, he will not afterward be permitted to deny the truth of the admission, if the consequence would be to work an injury to such third person, or to some one claiming under him. Wendell v. Van Rensselaer, 1 Johns. Ch. 344, 354; Storrs v. Barker, 6 id. 166; Town v. Needham, 3 Paige, 545; Dezell v. Odell, 3 Hill, 215, also, see dissenting opinion of Judge Bronson, approved in Finnegan v. Carraher, 47 N. Y. 500; Brown v. Sprague, 5 Denio, 545; Plumb v. Insurance Co., 18 N. Y. 393; Canal Co. v. Hathaway, 8 Wend. 483; Thompson v. Blanchard, 4 N. Y. 303; Continental Nat. Bank v. National Bank, 50 id. 575; Armour v. Railroad Co., 65 id. 111-122; Rubber Co. v. Rothery, 107 id. 310-316. Numerous cases where this principle has been applied to real estate are collected in Washburn on Real Property (vol. 3, chap. 2, § 6), to which reference is made. When so applied, it is as effectual as a deed would be from the party estopped. The general rule deduced from all the authorities is that if one is induced to purchase laud by the acts or representations of another, designed to influence his conduct, and creating a reasonable belief on his part, under which he acts, that he is thereby acquiring a valid title to the same, the party who has thus influenced him is estopped from setting up his own title existing at the time of the purchase against that of the purchaser. The various declarations of the town, through the trustees and the town meetings, must be construed as a single representation. They were all in pari materia, and had one purpose, viz., to inform Smith that the town made no claim to the land he desired to purchase. The "necks and tracts" of land reserved to the crown by the Dongan charter could not be identified, except by a declaration by the town, or through the medium of some legal proceedings against the town. We have the fact that when the survey had been completed and embodied in the patent it was read to the town meeting, and approved, and the town voted "to agree and acquiesce in the bounds of the patent." It described particularly the bay," and the patent obligated Smith to pay an annual quit-rent to the crown. There can be no reasonable doubt that Smith sought and obtained the resolutions of the town meetings as muniments of his title, and that they were intended by the town to be such. They were calculated to, and undoubtedly did, influence the purchase; else why was the inquiry made and answered? In the most deliberate manner possible, the town not only disclaimed ownership, but agreed and acquiesced in the purchase, and in the boundaries of the land conveyed. I am unable to see any distinction to be made between the upland and the bay. Both were conveyed by the same instrument and the resolution of the town meetings applied as much to one as to the other. In reliance upon the declaration of the town, and on the supposition that he had title, Smith entered into possession, and he and his descendants, on the faith of these declarations, have had undisputed possession of the land for nearly two hundred years. The town cannot now be permitted to deny the truth of its declarations, and assert its title to the premises in dispute. (3) Evidence of a few resolutions of the town about one hundred and fifty years old, and of a few instances of the townspeople asserting a right to fish in the, bay, does not show such user by the town of the bay as to require the submission to the jury of the question whether title was in the town by the acquiescence of all parties. Second Division, March 11, 1890. Trustees of Brookhaven v. Smith. Opinion by Brown, J. Affirming 43 Hun, 638.

DEED-DELIVERY-EVIDENCE-(1) The production of a deed by the grantee from his own custody, accompanied by proof of declarations by the grantor

that she intended the grantee to have the premises conveyed thereby, and by evidence that the deed was drawn by a scrivener pursuant to the grantor's direc tions, and that after its execution the grantee paid taxes, rented, repaired and exercised control over the property, justifies a finding that the deed had been de livered. (2) One claiming title to land under a deed from the heirs of a former owner, who had previously conveyed the land by an unacknowledged and unattested deed, is not a purchaser within the meaning of 1 Revised Statutes of New York, page 738, section 137, providing that a grant of real estate shall not take effect as against a “purchaser or incumbrancer" unless the execution and delivery of the deed is attested, etc. March 11, 1890. Strough v. Wilder. Opinion by Andrews, J. Affirming 3 N. Y. Supp. 567.

EXECUTORS-ACCOUNTS OF DECEASED.-Under the Code of Civil Procedure of New York, section 2006, which gives the surrogate power on the death of anex ecutor to compel his executor to account for and deliver over any of the trust property which had come into decedent's charge, an executrix of a deceased executor stands in his place for the purpose of such accounting and delivery. (2) A referee's report in a pro. ceeding for settlement of a deceased executor's account by his widow and executrix showed that within four months before his death he received a large sum of money belonging to the estate, and deposited it in bank to his own credit; that no proof was made of any disposition of the money; that his executrix refused to produce his bank-book and check-book; and further stated, "as a conclusion of law," that the funds should be presumed to have come into the hands of his executrix, and found her liable individually and as executrix. Held, that this finding was supported by evidence, and judgment by the surrogate against her as executrix only was error. Feb. 25, 1890. In re Clark. Opinion by Finch, J.

FRAUD-CONVEYANCE—EVIDENCE.—In an action to evidence that it was executed after the commenceset aside a conveyance as being in fraud of creditors, ment of bankruptcy proceedings against the grantor is immaterial, as such transfer by the insolvent by way of preference to a creditor, though prohibited by the bankrupt law, is not illegal under the New York stat utes. March 11, 1890. Talcott v. Harder. Opinion by Peckham, J. Affirming 3 N. Y. Supp. 954.

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INSURANCE LIFE-APPLICATION —" WOUND."-In an application for insurance, the applicant agreed that "any untrue or fraudulent statement by me, or any concealment of facts by me, shall forfeit and cancel all rights" under the contract. To the question whether he had "received any wound, hurt or serious bodily injury," he answered: "No." In an action on the policy, it appeared that about a year prior to the application he had, while fencing, received a blow upon his throat by a foil; that in a few seconds thereafter he raised a little blood; that the force of the blow produced an abrasion, wound or hurt on the inside of the windpipe, and that shortly thereafter he was confined to his bed for the greater part of three days, and during that time was attended by a physi cian; and that no evil consequences resulted from the injury. Held, that a finding that the injury was "seri ous," or that it was a "hurt " or "wound," within the meaning of the contract, was not warranted by the evidence, and that it was error to dismiss the com plaint. The words "hurt" and "wound," as used in the application, mean an injury to the body causing an impairment of health or strength or rendering the person more liable to contract disease, or less able to resist its effects. No such consequences followed from the hurt sustained by the insured. A cut on the face, finger or on any part of the body from which blood

flows, though healing in a few days, and leaving no evil consequences, is a hurt or wound, but not within the meaning of the contract under consideration. Second Division, March 18, 1890. Bancroft v. Home Benefit Association. Opinion by Follett, C. J. Reversing 54 N. Y. Super. Ct. 332.

INSURANCE

LIFE-PREMIUMS-FORFEITURE.-Under Laws of New York, 1876, chapter 341, as amended by Laws of 1877, chapter 321, providing that life insurance policies shall not be declared forfeited by reason of non-payment of premiums until after thirty days' notice given, and that payment made within the thirty days shall be deemed a full compliance with the requirements of the policy in respect to the payment of premiums, an insurance company is liable on a policy, a premium on which was owing at the time of the death of the insured, without payment or tender of the premium; notice of forfeiture under the statute not having been given. The purpose of the statute referred to was to establish a rule which would preserve to the assured the benefit of premiums paid, and to prevent the lapse of policies of life insurance without ample notice, and an opportunity to save them from forfeiture by payment of premiums due within the specified time, and at the same time secure to the company, in case it is obliged to pay, the full amount of the premiums which the policy calls for. When the provisions of this statute are adopted in a contract of insurance for the purpose of modifying the forfeiture clause, and the other strict conditions contained therein, then this clause and these conditions shall be 80 construed as to give to the assured the full benefit contemplated, without altering any other provision of the policy, if this can be done without violating any rule of law. When the scope and purpose of the law, as deduced from the decisions of this court, and the courts of other States, involving a construction of the same or similar statutes, is considered, no good reason is perceived for interfering with the result in this case in the courts below. Phelan v. Insurance Co., 113 N. Y. 147; Carter v. Insurance Co., 110 id. 15; Carter v. Insurance Co., 127 Mass. 153; Boyd v. Insurance Co., 70 Iowa, 325. Feb. 25, 1890. Baxter v. Brooklyn Life Ins. Co. Opinion by O'Brien, J. Andrews, Earl and Gray, JJ., dissenting. Affirming 44 Hun, 184.

JUDGMENT RES ADJUDICATA.-A judgment determing that the property involved belongs to the plaintiff is conclusive on a warehouseman with whom plaintiff's adversary has stored it, and cannot be contradicted in an action to recover its possession. Feb. 25, 1890. Hughes v. United Pipe Lines. Opinion by Earl, J. Affirming 46 Hun, 682.

RES ADJUDICATA. - Defendant was elected president of plaintiff corporation. At a meeting of the board of directors at which he and two others were present, resolutions were adopted fixing his salary as from a certain date; and nine notes therefor, payable to his order, were executed in the name of plaintiff by its treasurer. At a subsequent meeting a resolution was adopted directing the payment to defendant of $1,500, the amount of three of the notes. In an action to recover this $1,500 so paid, defendant counter-claimed for the six remaining notes; and plaintiff offered in evidence the judgment-roll in an action against it by defendant on these notes in Idaho, in which action it was adjudged that the resolutions voting defendant a salary were void, and that the notes were drawn without authority of plaintiff. Held, that it was relevant and conclusive upon the validity of the resolutions and notes. Second Division, March 21, 1890. Atlanta Hill Gold Mining & Milling Co. v. Andrews. Opinion by Follett, C. J. Affirming 55 N. Y. Super. Ct. 93.

LANDLORD AND TENANT-PAROL LEASE TENANCY AT WILL. (1) A parol lease for more than one year is insufficient to vest any term whatever in the lessee, and when he goes into possession under it he becomes a tenant at will merely, subject to liability to pay at the rate of the stipulated rent, as and foruse and occupation. Thomas v. Nelson, 69 N. Y. 118. The mere fact that a person goes into possession under a lease, void because for a longer term than one year, does not create a yearly tenancy. If he remains in possession with the consent of the landlord for more than one year, under circumstances permitting the inference of his tenancy from year to year, the latter could treat him as such, and the tenant could not relieve himself from liability for rent up to the end of the current year; and the terms of the lease, void as to duration of term, would control in respect to the rent. Coudert v. Cohn, 118 N. Y. —. The parol agreement for five years was not effectual to create a tenancy for one year. Nor did the mere fact that the plaintiff went into possession have that effect. He remained in occupation a part of one year only, and the creation of a tenancy for a year was dependent upon something further. While it is not required that a new contract be made in express terms, there must be something from which it may be inferred -- something which tends to show that it is within the intention of the parties. The payment and receipt of an installment or aliquot part of the annual rent is evidence of such understanding, and goes in support of a yearly tenancy, and without explanation to the contrary, it is controlling evidence for that purpose. Cox v. Bent, 5 Bing. 185; Bishop v. Howard, 2 Barn. & C. 100; Braythwayte v. Hitchcock, 10 Mees. & W. 494; Manu v. Lovejoy, Ryan & M. 355; Thomas v. Packer, 1 Hurl. & N. 672; Doe v. Crago, 6 C. B. 90. While there may appear to have been some confusion in the cases in this State upon the subject, this doctrine has been more recently recognized. Reeder v. Sayre, 70 N. Y. 184; Laughran v. Smith, 75 id. 209; Barlow v. Wainwright, 22 Vt. 88. (2) The promise of the plaintiff to pay onehalf the rent was made preliminarily to his entry, and was part of and not distinguishable from the parol agreement with the defendant to occupy for five years, and pay one-half the rent for that term. Second Division, March 18, 1890. Talamo v. Spitzmiller. Opinion by Bradley, J.

MARRIAGE -CONVEYANCES -HUSBAND TO WIFEEVIDENCE. (1) In an action for a trespass to real estate, it is error to admit a conveyance of the property, and an assignment of the cause of action, to plaintiff from his wife, executed and delivered after suit was commenced. (2) Prior to the passage of the Laws of New York of 1887, chapter 537, removing the disability of a husband and wife to convey lands to each other, a deed from a husband to his wife did not operate to divest his title unless the consideration was such as to enable a court of equity to uphold it, and it is therefore incumbent upon a party putting such a deed in evidence to go further and show that it was in fact given upon such a consideration. (3) A wife however can assign to her husband, through the form of a conveyance, a paid-up mortgage. It has been repeatedly held that a husband or wife may assign or transfer personal property directly to each other. Armitage v. Mace, 96 N. Y. 538; Whiton v. Snyder, 88 id. 299; Rawson v. Railroad Co., 48 id. 216; Phillips v. Wooster, 36 id. 412. (4) In an action for trespass, the defense was that plaintiff had no title, and defendant introduced in evidence a deed from plaintiff and wife to a third person. Plaintiff having testified that the deed, although absolute in its terms, was in fact a mortgage, defendant requested the court to instruct that they were not bound to believe plaintiff's statements, because he was an interested witness. Held, that it was