taking would justify upon May 3d was at the same time served upon plaintiff's attorneys. The court at special term delivered the following opinion: TRUAX, J.-The Code of Civil Procedure, § 1723, authorizes a defendant in an action for a chattel to defend on the ground that a third person was entitled to the chattel without connecting himself with the latter's title. Section 1704 says that the affidavit required by that section must contain "an allegation," etc. There is such an allegation in the affidavit delivered to the sheriff. That it is made on information and belief is inmaterial, for he is authorized to defend on information and belief. Motion denied, with costs to abide event. Carter, Hughes & Cravath, for app'lt; Hays & Greenbaum, for resp't. PER CURIAM.-This is an appeal from an order denying plaintiff's motion to compel delivery by sheriff to plaintiff of property which the sheriff, on plaintiff's requisition, had taken in replevin. It appears that the defendant is a ware' useman; that he received the goods in question from one Alexander Agar on storage and issued his receipt therefor, and that he prevented a delivery to the plaintiff by delivering to the sheriff the notice, affidavit and undertaking required by § 1704 of the Code of Civil Procedure. The affidavit was sufficient for the reasons stated by the learned judge below, and we can see no merit in any of the points raised by the appellant. The order should be affirmed, with ten dollars costs and disbursements. FREEDMAN and O'GORMAN, JJ., concur. GEORGE T. NEWHALL, Resp't, v. WILLIAM H. APPLETON et al., App'lts. (New York Superior Court, General Term, Filed June 27, 1890.) CONTRACT-BOOK CANVASSERS. In an action for commissions as canvasser for books, plaintiff claimed that he was entitled to pay when his orders were sent in, while defendants contended that he was not entitled thereto until the subscription was proved. This plaintiff denied. It appeared that the contract was not the same with all canvassers, and that there were some that would not work on proved orders. It was also shown that plaintiff had a good name as a canvasser. Plaintiff was corroborated by other witnesses. Held, upon all the evidence, that there was a preponderance in plaintiff's favor, and that he was entitled to judgment. APPEAL from judgment entered on the report of a referee. GEO. M. VAN HOESEN, Referee.-We start with the undisputed fact that Newhall was in the employ of Appleton as a canvasser. The terms of the employment are in dispute, Newhall insisting that he became entitled to his pay when he obtained for, and delivered to the Appletons a bona fide subscription, and the Appletons, on the other hand, insisting that it is not enough that a subscription should be bona fide, but that it must also be proved. A subscription is not proved until the subscriber has paid a certain part of the subscription price of the book for which he has subscribed. Where a book is issued in parts, or serial numbers, the publisher determines how many parts must be paid for by the subscribers before the canvasser shall be entitled to compensation for his services in procuring the subscription. When the subscriber has paid for the number of parts that the publisher has designated, the subscription, in the language of book publishers, is "proved." There is no rule as to the number of parts necessary to "prove" a subscription. At the option of the publisher, it may be five, or ten, or fifteen, or any other number. The canvasser could never know when he would be entitled to his pay unless the publisher, in employing him, should tell him what number of parts would be required to prove a subscription, which is commonly called an order. The pay was not the same to all canvassers. For obtaining a subscriber to Picturesque Europe or Picturesque America, four dollars was allowed to some and only three dollars to others. Nor was there an inflexible rule as to the time at which canvassers became entitled to payment. With new men, and with men who had not proved their ability and their trustworthiness, it was the rule to withhold payment until the order or subscription had been proved. The contract with such men usually provided that they should not be paid until the subscriber had taken the prescribed number of parts. Experienced canvassers would naturally inquire, and without such inquiry fair dealing publishers would voluntarily inform the canvasser, with whom they were negotiating, how many parts would "prove" the order. But, as canvassers are commonly men of small means, it has been customary for publishers to make to them small advances for their living and traveling expenses. These advances were not a matter of right, but were made because it was to the advantage of the publishers to make them, for without them it is probable that many canvassers would not have been able to keep the field. There were other canvassers, men whose reputation in the business was established, who would not work on "proved" orders. These men, the elite of their profession, insisted on getting their pay when they delivered to the publisher the orders they had procured. That there were such men, and that they were paid when they turned in their orders, seems to me to be established by the evidence. Testimony of Fish, Haskell, Thum, Rust, Rowland, Horsfell, Reed, Neilson, Searle. The plaintiff, Newhall, had not at all times had the same arrangement with the Appletons. He had been employed as a canvasser at a salary, and he had also worked for a stipulated sum per order. He denies that his pay ever depended upon his orders being "proved," and I think that he is supported in his assertion by a preponderance of evidence. The principal witness for the defense, Mr. Davis, contradicts him, but I do not attach much, if any, weight to the testimony of Davis. His statement on the direct examination is clear, and, if it were not shaken by the crossexamination, would be convincing, but a careful reading of his cross-examination satisfies me that no reliance can be placed upon him. His attempt to explain why a note should have been made payable on demand, though a distinct oral agreement was made with Newhall that it should not be paid till the orders had been proved, why, if the amount to be paid was definitely and unchangeably agreed on, it was necessary to wait for the proving of the orders, and why interest should have been paid if the note were not payable till the orders had been proved, seems to me not merely lame, but rather to manifest a disposition not to tell the truth. I find, moreover, that Newhall had gained a good name as a canvasser, for Davis says: "Hall (Appleton's superintendent), told me that Newhall's orders were running very good, and I could afford to pay him almost up to the full price; that they were delivering up very fairly, and that Newhall took very good orders." This seems to me to have been likely to induce Davis to regard Newhall as entitled to admission into the select circle of canvassers who were paid when their orders were presented, especially when strong inducements were needed to get the latter to go to Texas. Newhall had objections to canvassing in Texas, and Davis was compelled to use persuasion. In face of that fact, I think it most improbable that he made any such declarations as he professes to have made respecting buying out Newhall's list. To read Davis' testimony, one would think that Newhall was anxious to go to Texas, and that Davis was utterly indifferent as to whether he went or not. But, the truth is, Davis was persuading, and was not dictating terms. Besides, I find that Newhall, ante litem motam, whilst in Arkansas and in New Orleans, took the position that his pay did not at all depend upon his orders being proved. His employment of Holbrook and his statement to Baker, which I see no reason to suspect that he made with a view to a dispute with the Appletons, show that whilst at work he actually believed that he was to be paid when his orders were presented. Furthermore, he is corroborated by Genin and Glover, neither of them strong as a witness, but both, I think, men who wished to be truthful. The preponderance of evidence seems to me to be on the side of the plaintiff, and, therefore, it is my duty to direct judgment in his favor. I am aware that men of excellent judgment have reached a different conclusion, and I see why they have done so. There is a good deal to be said, and a strong argument can be made in support of the position taken by the defendants. The risk that publishers would run if they should pay every canvasser as he presented the name of an alleged subscriber is so great that men of good judgment have doubted if any canvasser is ever paid in full before his orders had been proved, but the safety of the publishers lay in their power to discriminate between good canvassers and bad. The plaintiff should have judgment. William W. Badger, for pl'ff; Campbell & Paige, for def'ts. PER CURIAM.—Judgment appealed from is affirmed, with costs, on the opinion of the referee. FREEDMAN and TRUAX, J.J., concur. RUTHETTE BOGARDUS, Pl'ff, v. FRANCIS CARAGHER, Def't. (New York Superior Court, General Term, Filed June 27, 1890.) VENDOR AND PURCHASER-CLOUD ON TITLE-COVENANTS. A deed from the city of lands under water recited that it was the inten tion of the parties that there should forever remain adjoining said premises certain slips for the use of vessels, and contain ́d a covenant by the grantee, for himself, his heirs, representatives and assigns, to erect and maintain wharves or streets twenty-five feet wide along said slips into the river on the premises so conveyed. It also contained a reservation by the city of the right to open one or more streets across the premises so granted without compensation. Subsequently a further grant was made extending further into the river, and on the latter premises the wharves and streets were constructed. The city has exercised its option and opened streets on said premises. Held, that the aforesaid covenants do not constitute a cloud on the title of a subsequent grantee of a portion of the premises first granted. SUBMISSION of controversy without action. Plaintiff contracted to sell to defendants a lot of land, and the building thereon, situated on the north side of Broome street, twenty-five feet west of Mangin street, free and clear of all incumbrances, by the usual full covenant and warranty deed. Such deed was delivered, but defendant retained $200 of the purchase price, claiming that the title was not free and clear, but was incumbered by certain provisions and covenants in a former deed. The premises in question were a part of certain lands under water which were conveyed by the city in 1787, to one Marinus Willett, subject to an annual rent. The grant included lands from De lancey to Broome streets inclusive, and from what is now Goerck street 200 feet into the East river. The grant recited that it was the intention of the parties that there should remain forever, for the use of the city, slips for vessels, 100 feet wide, in front of Delancey and Broome streets, and contained a covenant by Willett, for himself, his heirs, executors and assigns, to erect and maintain wharves or streets along said slips twenty-five feet wide, and extending 200 feet into the river, upon the land which he was to fill in. It also reserved the right to the city to open one or more streets from north to south, across said premises, without compen sation. Said rent was subsequently released, and the city, in 1830, opened Goerck and Mangin streets through said premises. In 1825 the city made a further grant to Willett of lands under water extending 600 feet further into the river, containing similar provisions as to maintaining piers, wharves and slips. Willett filled in and made the land on the last granted premises and erected the wharves or streets upon such premises. Streets have also been opened by the city on the last mentioned premises. Defendant claims that the covenants in the first grant are binding on the grantees and assigns of Willett and run with the land, and are a cloud on plaintiff's title and an incumbrance, and could be enforced by the city, and that the title is thus rendered unmarketable. Plaintiff demands judgment that her title is in fee simple, free and clear from incumbrances; that such covenants are not incumbrances and clouds on her title; that the deed tendered was in conformity and full compliance with her contract and that defendant pay her the sum of $200 so retained. J. E. Ludden, for pl'ff; George W. McAdam, for def't. PER CURIAM.-Upon the facts agreed upon and submitted the plaintiff is entitled to judgment that her title to the premises in question is in fee simple, free and clear from incumbrances; that the covenants and restrictions in question are not incumbrances and clouds upon her title; that the deed tendered was in conformity and full compliance with her contract with the defendant, and that the defendant pay her the sum of $200. FREEDMAN and TRUAX, JJ., concur. JOSEPH H. WILCOX et al., App'lts, v. LEWIS S. JOSLIN, Resp't. (Supreme Court, General Term, Fourth Department, Filed May 23, 1890.) 1. EVIDENCE. In an action for goods sold, where the answer sets up a counterclaim for logs cut under an agreement, and the reply is a general denial, evidence of non-performance by defendant of a prior contract is not within the issues and is not admissible. 2. SAME-EXPLANATION OF SWORN STATEMENT. Testimony of a witness as to the meaning of a sworn statement made by him is inadmissible. The operation of his mind is not competent. 3. NEW TRIAL-NEWLY DISCOVERED EVIDENCE-DILIGENCE. An affidavit for a new trial on the ground of newly discovered evidence, which states that deponent had forgotten that the newly discovered witness was present at the transaction in question; and that although he used every effort to discover everything he thought would be of service on the trial, he was unable to procure this evidence until after the trial, is not sufficient to show diligence; the affiant should show what he, in fact, did and what effort he put forth to procure testimony. 4. SAME. Where the reply to a counterclaim is simply a general denial, newly discovered evidence of a settlement or payment of such claim is not a ground for a new trial, as such issue is not presented by the pleadings. APPEAL from a judgment entered in Lewis county on 17th June, 1889, upon a verdict at the Lewis circuit in favor of the defendant for $53.28, and from an order denying a motion on the minutes for a new trial. Also, appeal from an order, made at the Onondaga special term on the 24th August, 1889, and entered in Lewis county on the 3d October, 1889, denying a motion for a new trial on the ground of newly discovered evidence. William H. Hills, for app'lts; Walter Ballou, for resp't. MERWIN, J.-The plaintiffs in their complaint alleged that on the 14th March, 1888, the defendant was indebted to them in the sum of $116.86 for goods, wares and merchandise previously sold and delivered to him to that amount and value. This was proved at the trial and not disputed by the defendant. The defendant, however, set up a counterclaim, which was the subject of the contest at the trial, and the verdict of the jury represented |