business, has the right to discriminate against his employees, by selling to them goods or supplies, under similar circumstances, at a greater per cent of profit than he does to his other customers. Such a discrimination is not only unjust, but it is subversive of the first principles of trade; and no employee should buy from such employer. The remedy is in the hands of the employee. He is not compelled to buy from his employer; and the general law, without any special statute, will fully protect him in his refusal to do so. The ground on which this act is condemned is that it is class legislation, and an unjust interference with the rights, privileges and property of both the employer and the employee, and places upon both the badge of slavery, by denying to the one the right of managing his own private business, and assuming that the other has so little capacity and manhood as to be unable to protect himself, or manage his own private affairs.

For these reasons, and upon the principles announced in the opinion of this court in State v. Goodwill, hereinbefore referred to, we hold the said fourth section of the act aforesaid unconstitutional and void. The judgment of the Circuit Court is reversed, the demurrer to the indictment sustained, and the defendant discharged.

ENGLISH and BRANNON, JJ., concurred; GREEN, J., absent.

NEW YORK COURT OF APPEALS ABSTRACTS.

DEED-DELIVERY AND ACCEPTANCE-MORTGAGESRELEASE. The grantee in a deed, by which he assumed payment of a mortgage on the premises conveyed, was informed of the deed, and its record, by the mortgagee's attorney, whom he referred to the parish priest who had succeeded the grantor. The priest thereafter collected the rents, and returned the accounts thereof to the grantee, bis ecclesiastical superior, in whose name he insured the property, and to whose office the deed was delivered after remaining in possession of the grantor for some time after its record. The superintendent of that office, who was a subordinate of the grantee, testified that he ordered the priest to have nothing to do with the property; but his authority was not shown, and his order was not obeyed. No offer of reconveyance was made, and no act of repudiation by the grantee appeared. Held, that the evidence warranted a finding of delivery and acceptance of the deed. A release of the grantee from his liability on the clause in the deed, assuming payment of the mortgage executed by the grantor's executor, after the mortgagee knew of the deed; had accepted it as made for his benefit; had allowed the grantee to appropriate rents for three years; and, after the issuing of a summons and filing of a lis pendens in an action to foreclose, though before service on the grantee is ineffectual as against the mortgagee. Is this release, thus executed, a defense to this action? I shall not undertake to decide, if, indeed, the question is open (Insurance Co. v. Nelson, 78 N. Y. 137; Comley v. Dazian, 114 id. 167), whether, in the interval between the making of the contract and the acceptance and adoption of it by the mortgagee, it was or was not revocable, without his assent. However that may be, the only inquiry now presented is whether it is so revocable after it has come to the knowledge of the creditor, and he has assented to it, and adopted it as a security, for his own benefit. My judgment leads me to answer that question in the negative. Of course, it is difficult, if not impossible, to reason about it without recurring to Lawrence v. Fox, 20 N. Y. 268, and ascertaining the principle upon which its doctrine is founded. That is a difficult task, especially for one

whose doubts are only dissipated by its authority, and becomes more difficult when the number and variety of its alleged foundations are considered. But, whichever of them may ultimately prevail, I am convinced that they all involve, as a logical consequence, the irrevocable character of the contract after the creditor has accepted and adopted it, and in some manner acted upon it. The prevailing opinion in that case rested the creditor's right upon the broad proposition that the promise was made for his benefit, and therefore he might sue upon it, although privy neither to the contract nor its consideration. That view of it neces sarily involves an acquisition at some moment of time of the right of action which he is permitted to enforce. If it be possible to say that he does not acquire it at the moment when the promise for his benefit is made, it must be that he obtains it when it has come to his knowledge, and he has assented to and acted upon it; for he may sue. That is decided, and is conceded. If he may sue, he must at that moment have a vested right of action. If it was not obtained earlier, it must have vested in him at the moment when his action was commenced; so that the right and the remedy were born at the same instant. But there is no especial magic in a lawsuit. If it serves for the first time to originate the right which it seeks to enforce, it can only be because the act of bringing it shows unequivocally that the promise of the grantee has come to the knowledge of the plaintiff; that the latter has accepted and adopted it; that he intends to enforce it for his own benefit, and gives notice of that intention to the adversary. From that moment he must be assumed to act, or omit to act, in reliance upon it. But if all these things occur before a suit commenced, why do they not equally vest the right of action in the assignee? What more does the mere lawsuit accomplish? And so the contract between grantor and grantee, if revocable earlier, ceases to be so when by his assent to it and adoption of it the creditor brings himself into privity with it, and elects to avail himself of it, and must be assumed to have governed his conduct accordingly. I see no escape from that conclusion. But two of the judges who concurred in the decision of Lawrence v. Fox stood upon a different proposition. They held that the mortgagor granting the land accepted the grantee's covenant as agent of the mortgagee, who might ratify the act with the same effect as if he had originally authorized it. While I think the idea of such an agency is a legal fiction, having no warrant in the facts, yet the same result as to the power of revocation follows. While the agency remained unauthorized it might be possible to change the transaction, but after the ratification the promise necessarily becomes one made to the mortgagee through his agent, the mortgagor, acting lawfully in his behalf, and from that moment cannot be altered or released without his sanction and consent. But another basis for the action has been asserted, applicable however only to cases like the present, where, on foreclosure of the mortgage, its owner seeks a judgment for a deficiency against the new covenantor. In Burr v. Beers, 24 N. Y. 179, and again in Garnsey v. Rogers, 47 id. 242, it was pointed out that the liability of the grantee to the mortgagee rested upon the equitable right of subrogation, and had been recognized and enforced long before Lawrence v. Fox made its appearance. It was held, that where the mortgagor acquired a new security for his indemnity against the debt which he owed to the mortgagee, the latter might in equity be subrogated to the right of his debtor, and, under the statute permitting any person liable for the mortgage debt to be made defendant, and charged with a deficiency in the foreclosure, the new covenant became available to the mortgagee. It was so held in Halsey v. Reed, 9 Paige, 446, and the right of the mortgagee was put upon the equity of the statute. That, if a

sound proposition, was all very well, so long as there was supposed to be no equivalent remedy at law; but after the decision of Lawrence v. Fox that remedy ex. isted. And so, in Thorp v. Coal Co., 48 N. Y. 258, the court said that it saw no reason for invoking the doctrine of equitable subrogation, or resting upon it, in such a case. When the law has absorbed in a broader equity the narrow one enforced in chancery, the form and measure of the latter ceases to be of consequence. One does not seek to trace the river after it has lost itself in the lake. And so, I think, the suggestion is well founded. But if I am wrong about that, as perhaps I may prove to be, and the right of the present plaintiff against the cardinal's estate does stand upon the doctrine of equitable subrogation, still I think the same result follows. When does that equitable right arise, and become vested in the creditor? It would seem that it must be when the situation is created out of which the equity is born. If it be possible to adjourn it to a later period, it must certainly attach when the creditor asserts his right to it, and notifies the other party of his intention to rely upon it. As a right founded upon the equity of the statute, it must have come into being before the foreclosure suit was commenced; for the permission reads: "Any person who is liable to the plaintiff for the payment of the debt secured by the mortgage may be made a defendant in the action." His liability must precede the commencement of the action. It must exist as a condition of his being sued at all. And so, assuming that this action can be maintained against him upon his promise, the right of action must have arisen at once upon the delivery of the deed, or, at the latest, when the promise came to the knowledge of the creditor, and he assented to and adopted it. I have been quite favorably impressed with a fourth suggestion respecting the basis of these rights of action, which appears in the opinion of Andrews, J., rendered when this case was before us on a previous appeal. "After all," he says, does not the direct right of action rest upon the equity of the transaction?" If we discard the fictitious theory of an agency, what remains is the equitable right of subrogation, swallowed up in the greater equity of the legal right founded on the theory of a promise made for the benefit of the creditor. It is no new thing for the law to borrow weapons from the arsenal of equity. The action for money had and received is a familiar illustration. May we not deem this another? If we do, and the door is thus opened wide to equitable considerations, I am quite sure it will follow that, while no right of the mortgagee is invaded by a change of the contract before it is brought to his knowledge, and he has assented to it and acted upon it, yet, to permit a change thereafter, while the creditor is relying upon it, would be grossly inequitable, and practically destroy the right which has maintained itself after so long a struggle. It seems to me therefore that however we may reasonably differ as to the doctrine underlying the plaintiff's right of action, yet all the roads lead to the one result-that upon the facts of this case the release to McCloskey was wholly ineffectual. The judgment should be affirmed with costs. Nov. 26, 1889. Gifford v. Corrigan. Opinion by Finch, J.; Danforth and Peckham,JJ., dissenting. Affirming 4 N. Y. Supp. 89. EXECUTOR-ASSIGNMENT-DURESS.-Fear that the debtor's executor might, through his unscrupulousness, defeat or delay the collection of a claim against the estate, or subject the creditor to expense in collecting it, does not amount to duress entitling the creditor to have set aside an assignment of a claim for $10,000 to the executor in consideration of the payment of $8,500. Nov. 26, 1889. Secor v. Clark. Opinion by Earl, J. Reversing 1 N. Y. Supp. 515.

GUARANTY-BANKS AND BANKING.-(1) Defendants, who were directors and officers of a bank, guaranteed

the payment of all deposits of "certain moneys" of the State proposed to be deposited with the bank by the warden of the State prison. The laws of New York then in force required the warden of the State prison to deposit all moneys received by him from any source of prison income in the bank. By a subsequent change made by statute in the labor system of the prison, the amount of money deposited in the bank by the warden was largely increased. Held, that the guaranty covered deposits made after such increase. It is not reasonable to suppose that the sureties, when they signed their guaranty, had in mind the particular source from which the agent and warden received the money. They must have known that they became responsible for all the moneys, from whatever source, coming into his hands to be deposited. It cannot be supposed that they had in mind that the system of labor then in force at the prison would remain unchanged for an indefinite time, or that they cared any thing about it. Much stress is laid upon the words in the bond, "certain moneys" which had been, and were proposed to be, deposited. We think those words have reference to the moneys to be deposited by the agent and warden of the prison, as distinguished from other moneys of the State. They were intended to point out the source from which the moneys of the State to be deposited should come; and the words "such deposits," used later in the bond, have reference to the deposits to be made by the agent and warden of the prison. So that the bond, in the most general terms, covers and applies to all the money to be deposited in the bank, under the direction of the comptroller of the State, by the agent and warden of the prison. The words "certain moneys" and "such deposits" do not indicate that the parties then had in mind the source from which the agent and warden should receive his money, or the particular moneys which he had theretofore deposited, but they manifestly have reference to all the moneys which, under the direction of the comptroller, he might deposit in the bank. The bank desired to get all the deposits it could; and the defendants, who were directors and officers of the bank, desired to secure all the deposits. It cannot be supposed that they contemplated, at the time they signed their guaranty, that their liability was to be limited or restricted to the amounts which had been previously deposited, or that these amounts had any influence whatever upon their action. (2) The bank was organized, to continue a certain time, under the National Banking Act, which provided (§ 65) that Congress might at any time amend or repeal the act. Held, that a subsequent extension of the bank's corporate existence under the act of Congress, July 12, 1882 (22 U. S. Stats. at Large, 162), without changing its corporate identity, and before default, did not release defendants from liability on their guaranty. The counsel for the defendants cites Thompson v. Young, 2 Ohio, 334; Bank v. Ridgely, 1 Harr. & G. 324; Bank v. Barrington, 2 Penr. & W. 27; Brown v. Lattimore, 17 Cal. 93. None of these cases are precisely like this in their circumstances; but so far as they uphold the contention of the defendants, we are quite unwilling to follow them. The contrary doctrine was held in Bank v. Rogers, 7 N. H. 21; and we think our decision in Bank v. Phelps, 97 N. Y. 44, is ample authority for the maintenance of this recovery, notwithstanding the extension of the corporate existence of the bank. In the latter case, under the provisions of the National Banking Act, and of chapter 97 of the Laws of 1865, the State bank was transformed into a National bank, and it was held to be but a continuance of the same body under a changed jurisdiction; but, between it and those who had contracted with it, it retained its identity, and might, as a National bank, enforce contracts made with it as a State bank; that where a State bank, at the time of its change to a National

bank, held a continuing guaranty of loans made by it, upon the strength of which it had made loans, and after the change, had made further advances, an action was maintainable by the National bank upon the guaranty; and that the guarantor was liable for the loans made both before and after the change. Here a new corporation was not formed, but there was a mere prolongation of the existence of the same corporation, whose corporate identity was not changed or lost. The bank which defaulted was the same bank for which the defendants became bound. They were not two banks in succession, but all the time one bank. Its charter was amended so as to extend its existence; and in the original National Banking Act (§ 65) it was provided that Congress could at any time amend, alter or repeal that act. It would certainly be a very inconvenient rule to hold that all the contracts of sureties to the bank, and of sureties by the bank to other persous, should be destroyed by every material change or alteration in its charter. The contract was entered into by the sureties with knowledge of the law, and it became a part of their contract as if they had stipulated that the changes or alterations might be made. The act of 1882 was a mere amendment or alteration of the previous Banking Act. Nov. 26, 1889. People v. Backus. Opinion by Earl, J. Affirming 4 N. Y. Supp. 728.

RAILROADS-NEGLIGENCE AT CROSSINGS.-(1) In an action for personal injury, it appeared that plaintiff was an engineer in charge of a train running on a road crossed at grade by defendants' trains; that defendants left an uncoupled car so standing that it projected over the crossing, and when plaintiff approached, foreseeing a collision, he jumped from his engine, and received the injury; that plaintiff's train arrived, under special orders, sixteen minutes ahead of regular time; and that defendants, having no notice of the special train, put up no signal, but, when it approached, sent a man forward, who hailed it, and waved his hat as a warning. Held, that defendants were guilty of negli gence in leaving the uncoupled car over the crossing; and, as such use of the track was not a legitimate one, the fact that defendants had no notice of the special train was unavailing. (2) It cannot be said that the referee erred in finding plaintiff not guilty of contributory negligence in violating the rules regulating the speed of trains, where there was evidence that his train was restricted to eighteen miles an hour, and he was only running at fifteen; or in not approaching the crossing with caution, where there was evidence that he slackened speed and kept a good lookout, and that the car on the crossing was a flat one, and not so easily seen as a box-car; or in not heeding the signal to stop as soon as it was given, where there was evidence that he attempted to stop as soon as he saw the signal. (3) There was no error in admitting evidence that the special train was not required to stop at the crossing, as plaintiff was entitled to show that he was not guilty of contributory negligence by disobeying orders. Second Division, Oct. 22, 1889. Albert v. Sweet. Opinion by Bradley, J. Affirming 42 Hun, 654, Mem. dec.

RAILWAYS-STREET LICENSE FEES.-A street-railroad franchise was granted on condition of the payment of an annual license fee for each car now allowed by law." At that time license fees were required by an old ordinance for each "accommodation coach" or "stage-coach." Held, that the word “car," in the resolution, and the word "coach," in the ordinance, both referred to a conveyance to accommo date travel, and that the city was entitled to the same license fee on a car as was fixed by the old ordinance on a coach. The general meaning or governing sense of the resolutions which recite the defendant's obligation is obvious enough. It is that in consideration of

the franchise it bargains for it shall pay a license fee. It is to pay such fee from the opening of the road, annually, and it is to pay, not a fee thereafter to be imposed, but a fee already imposed and then existing in favor of the city. The ordinance then actually in force contains every thing necessary to answer those conditions, but the contention of the defendant is that it enumerates as its subjects "a stage,' ""an accommodation coach," "a stage-coach," and is altogether silent as to "railroad car," or even "car." We are unable to see the force of the observation. In definition, a" car 66 "coach" or or stage or a "stage-coach is the same. They are vehicles that turn, or that run by turning, on wheels. Place boards over or between wheels, and we have a platform car, adapted to freight; place benches or chairs upon the platform, and we still have a car, but adapted to passengers, and then easily termed a "carriage." Instead of benches or chairs. put on the platform the body of a "stage-coach," and we have such a "railroad car" as served at the inauguration of the earliest railroad in our State. It is plain that by adaptation and improvement the modern railway car has been evolved from the old-fashioned stage-coach." The American Railway, p. 231. In common language a railroad carriage designed for passengers is called indifferently a "coach" or " car. In every collection of words arranged according to the ideas which they express, these, and others with them, will be found classed together as having the same signification. Neither the word "coach," "stage 37 or can be said to be words of art, or to have any legal or fixed meaning distinguishing one from the other, or any one of them from several other terms implying a vehicle or conveyance. In the nature of things the new mode of transportation would succeed the old. Its purpose was the same. The railroad would drive off the stages, or if travel sufficed the new vehicle and the old would at least run in competition. If driven off, the license fees would be lost to the city; and if both survived there was no reason why one company should be favored and the other not, or the city be denied its revenue from either. In fact, with the competition of the defendant's road the stage lines were completely superseded. The receipt of revenue as part of the consideration of the granting of the new franchise was the object aimed at by the city, and its payment was part of the price agreed upon by the other party. Both then had a license fee in contemplation, and it is conceded that there was no other than that prescribed by the ordinance, on which plaintiff now relies. We think the fee mentioned in the ordinance was within the intention of both parties as expressed in the agreement, and concur with the court below in the conclusion that its payment may properly be enforced. Nov. 26, 1889. Mayor, etc., of New York v. Third Avenue R. Co. (two cases). Opinion by Danforth, J. Affirming 48 Hun, 621, Mem.

"car

SUMMARY PROCEEDINGS-ADVERSE POSSESSION-INJUNCTION. (1) Where summary proceedings have been commenced against a tenant for his removal upon the expiration of an instrument purporting to constitute a tenancy at will, he may maintain an equitable action to cancel the instrument for fraud, and also to enjoin the summary proceedings. (2) V., the owner of a four-acre tract of land bordering on a stream, which he had leased to another, purchased a one-acre tract on the opposite side of the stream. After the purchase, the lessee or his grantees erected a mill on, and occupied, the one-acre tract, but no written lease thereof was made, nor did it appear by what right he or they so occupied. The subsequent occupants of both tracts paid an amount of rent which was the sum previously fixed for the four-acre tract, but no agreement to pay rent for the other tract was shown. Defendant purchased both tracts under a quit-claim deed

ness to recover for the support of the child; nor would it establish that the expenses incurred by the plaintiff in its support were incurred under circumstances which precluded her from enforcing the common-law liability of the mother of a bastard child to provide for its support and maintenance. The fact that the support was furnished by the plaintiff under a contract with the father might constitute a defense to a suit against the mother. But a judgment against the administratrix of the putative father in this action, to which the witness was neither a party nor privy, would not be conclusive upon the plaintiff, in favor of the mother, in a subsequent action against her, that the plaintiff furnished the maintenance under such a contract; nor indeed would the record be evidence that such a contract had been made. The evidence of Lucy Mooney tends to show that the plaintiff took the child as her own, acting in respect to it in loco parentis, thereby precluding herself from claiming that the maintenance was furnished on account of the mother, and on her credit. We think the interest of the witness in the event of the action was, if any, “remote, contingent and uncertain," and was an interest in the question, as distinguished from an interest in the event. Without therefore considering whether the testimony of the witness was concerning a personal transaction between herself and the defendant's intestate, we think the judgment should be affirmed on the ground that she was not a party or a person interested in the event of the action, within the meaning of the Code. Oct. 22, 1889. Connolly v. O'Connor. Opinion per Curium. Affirming 1 N. Y. Supp. 489.

NEW BOOKS AND NEW EDITIONS

LAWYERS' REPORTS ANNOTATED.

66

The fourth volume of this series of selected cases contains decisions rendered between January 4, 1889, and July 11, 1889. The learned editor has, we think, admirably succeeded in separating the cases of general importance" from the great mass of judicial decisions emanating from the many courts of last resort in the country. The annotations are full, important and useful, and a separate index enhances their value. Briefs of counsel are also reported, a feature which, in the judgment of many, adds to the usefulness of the report of a case. We feel assured that with a continuance of the high order of merit evidenced in the present and preceding volumes, the L. R. A. will continue to enjoy a hearty support from the profession, and bespeak for them a deserved success.

NOTES.

Rowell v. Western Union Telegraph Co., Supreme Court of Texas, November 5, 1889, it was held that no action for damages against a telegraph company is maintainable where the only damage alleged is the mental and physical suffering of plaintiff and his wife, resulting from defendant's failure to deliver a message relating to the health of plaintiff's mother-in-law.

The first volume of this clearly entertaining, but not so obviously useless magazine for lawyers (The Green Bag) was completed with the December, 1889, number. The monthly issues as they have come to hand in this sanctum have been preserved and now, being bound in a reasonably luxurious but not madly expensive halfcalf, make a very attractive volume of legal miscellanies for the year 1889. How can any lawyer of taste get on without it? The editorial and contributed matter is uniformly capital, and even the chestnuts are more than half of them of this year's growth. The score or more portraits of eminent lawyers, judges, law profes- |

sors, and legal authors are excellent, and add much to the permanent value of the book. The December number contains a likeness of our brother-in-misery, Irving Browne, and various preceding numbers have been illuminated by poems from his ready pen. This office is not a poet, and upon the score of poetry has no repinings to chronicle at the success of others along that line: but some of our brother's puns do move us to a degree of greenness in envy not readily expressible in black ink, because in the matter of puns we hope we have a modest and growing reputation one indeed des-Irving Browne's occasional commendation. This pun is spontaneous and put forth with diffidence, but it is not copyrighted, because were the copy righted such a thing would not have been put in type.- Railway Corporation and Law Journal.

In the following? appeals the judgment was affirmed with costs: Wm. McCreery and another, appellants, v. Melville C. Day and others, respondents; Wm. H. Manderville, appellant, v. Darius A. Newton, as executor, respondent; Charles W. Cooke, an infant, appellant, v. Lalance and Grosjean Manufacturing Company, respondents; Order of General Term affirmed with costs-In the matter of the petition of A. S. Rosenbaum to vacate assessments, etc; Order affirmed with costs-Abbie C. Fitch, appellant, v. Mayor, etc., of New York, respondents; Twenty-third Street Baptist Church, appellant, v. Jacob W. Cornwell and another, respondents; In re the final accounting of Walton McKinney, as administrator of Nellie Haas, deceased; Pittsburgh Carbon Company, Limited, appellant, v. Frank C. McMillen, as receiver, respondent; Aaron B. Caber, as executor, appellant, v. Joseph Husson, respondent; Wm. H. Gilbert, appellant, v. Charles A. Lydecker, appellant; Van Rensselaer Getman, as executor, appellant, v. Alonzo B. Ingersoll and another, respondents; Wm. S. Hollingsworth, appellant, v. Lucy O. Moulton, executrix, etc., and another, respondents; Frances L. Ledyard, as administratrix, etc., appellant, v. Wm. L. Bull and others, executors, respondents; Julietta Hyland, respondent, v. Yonkers Railroad Company, appellant; Peter Gillen, as administrator, appellant, v. Tucker and Carter Cordage Company, respondent; John Phelan, respondent, v. Mayor of New York, etc.. appellants; Jacob Scholle and others, respondents, v. Mayor, etc., of New York; Staten Island Rapid Transit Railroad Company, respondent, v. Mayor, etc., of New York, appellants; Herman J. Bachman, respondent, v. Benj. Von Rader and others, appellants; Charles H. Ware, respondent, v. Jane Hartley Cowdrey, appellant; Adam Henderson, as administrator, appellant, v. Knickerbocker Ice Company, respondent; Thomas Van Tuyl, appellant, v. Clinton West, respondent; Elbert W. Hauxhurst, respondent, v. Thomas J. Ritch, as administrator, appellant; Fannie J. Bent, as administratrix, appellant, v. Mary E. Bent and others, respondents; People, ex rel. Henry Lanzandoer, appellant, v. Frank G. Schirmer, as sheriff, respondent; Frank E. Maxun, respondent, v. Town of Champion, appellaut.

JUDGMENT REVERSED.

In the following appeals the judgment was in each case reversed, new trial granted costs to abide event: Augusta Otternott, as executrix, respondent, v. New York, Lake Erie and Western Railroad Company, ap