Having a legal status and a general business office in this state, as shown by the evidence, it is now too late to question the right of its legally authorized agents upon a contract made in its general scope of business. In such a case, as before stated, special limitations of authority of agents will not prejudice those dealing with it when relying upon the statement and action of its duly authorized representatives.

In view of the many cases presented for adjudication, we are unable to review in extenso the authorities cited in the elaborate briefs presented. We cannot disturb the findings of fact in this case upon the evidence and after due consideration, I think the judgment appealed from should be affirmed, with costs. BOOKSTAVER, J., concurs.

SAMUEL LEWIS et al., Resp'ts, v. CASPER IBA, App'lt.

(New York Common Pleas, General Term, Filed June 2, 1890.)

TRIAL-MOTION TO DISMISS.

Where there is evidence sufficient to warrant a finding in favor of one of several plaintiffs, a motion to dismiss the case generally is properly denied.

APPEAL from a judgment in favor of the plaintiff, rendered in the district court in the city of New York for the fourth judicial district.

H. C. Botty, for app'lt; M. H. Gottlieb, for resp'ts.

PER CURIAM.-We have carefully read the testimony in this case and find that there was sufficient evidence to justify the justice in rendering a verdict in favor of both plaintiffs, as there is proof that they were jointly interested in the work done, and the receipt given by Lewis was sufficiently explained. Even if it were not so, there certainly was sufficient testimony to warrant the justice in finding in favor of the plaintiff Lewis, and defendant's motion to dismiss was therefore properly denied, as it was a motion to dismis the case entirely and not as to the plaintiff Procha alone.

The judgment should, therefore, be affirmed, with costs.
LARREMORE, Ch. J., and BOOKSTAVER, J., concur.

JOHN D. Ross, App'lt, v. JOHN SIMON, Impleaded, Resp't.'

(New York Common Pleas, General Term, Filed June 2, 1890.)

MECHANIC'S LIEN-PLEADING.

The case of Cornell v. Barney. 94 N. Y., 394, does not affect the question of what is necessary to plead in the complaint in order to admit evidence to hold the lessor, but only goes as to what evidence would be required in such a case.

MOTION for a re-argument of an appeal heard at the March general term of this court, or for leave to go to the court of appeals.

Stephen Philbin, for motion; J. C. De La Mare, opposed. ·

1 See 30 N. Y. State Rep., 545.

PER CURIAM. The appeal was from a judgment of the general term of the city court affirming a judgment upon demurrer. There were but two questions upon the appeal. The first was whether or not the statement in the lien was sufficient as against the owner; and the second was whether the allegations in the complaint that the defendant, the owner, had full knowledge of and consented to the doing of the work was a sufficient pleading of the facts. The re-argument is asked for on the authority of Cornell v. Barney, 94 N. Y., 394, which the respondent claims his counsel through inadvertence overlooked and to which he failed to draw the attention of the court. But that case does not touch the question of the sufficiency of the notice of a lien in any way, and the sole question decided there was that, in order to bind the owner, the work must be done or materials furnished at his instance or that of his agent, and in the absence of evidence that the lessor had some connection with plaintiff's contract, plaintiff is not entitled to have or enforce a lien against the interest of the lessor in the land or building, but only against that of the lessee. This does not affect the question of what is necessary to plead in the complaint in order to admit evidence to hold the lessor; it only goes as to what evidence would be required in such a case, and that distinction was expressly made by the general term which reversed the judgment in this case.

The motion for a re-argument or for leave to go to the court of appeals will, therefore, be denied, with ten dollars costs. LARREMORE, Ch. J., and BOOKSTAVER, J., concur.

FRANCIS C. LAWRENCE, Resp't, v. THE METROPOLITAN ELEVATED R. Co. et al., App'lts.'

(New York Common Pleas, General Term, Filed June 2, 1890.) APPEAL-REARGUMENT.

The evidence for the admission of which the judgment was reversed appearing not to affect plaintiff's right to an injunction, but only the amount of damages, Held, that as there was a probable error in directing a reversal of the judgment in its entirety a reargument should be ordered.

MOTION for reargument.

John A. Weeks, Jr., for motion; Edward S. Rapallo and Brainard Tolles, opposed.

BISCHOFF, J.-The appeal herein was argued at the January general term (1890), and reversal of the judgment was directed, the opinion of the chief justice, concurred in by me, being to the effect that alleged incompetent testimony concerning the fee value of the premises affected by this action was admitted upon the trial.

The respondent thereupon moved at the March general term for a reargument. A careful consideration of the briefs submitted upon the last mentioned motion shows a probable error in directing a reversal of the judgment appealed from in its entirety.

The admission of such alleged incompetent testimony does not 1 See 29 N. Y. State Rep., 138.

seem to affect the plaintiff's right to an injunction restraining the defendants from the further operation of their road in front of the plaintiff's premises as directed by the judgment. And there is thus presented to this court a fair question as to whether so much of the judgment as directs the injunction should not have been affirmed, and the reversal limited to the award of the fee damages. I think, therefore, that the respondent has shown himself to be entitled to a reargument of this appeal within the provisions of rule 16 of this court, and that such reargument should be ordered. DALY, J., concurs.

CHARLES M. KITTREDGE et al., Assignees, Resp'ts, v. J. WESLEY VAN TASSELL, App'lt.

(Supreme Court, General Term, Second Department, Filed May 12, 1890.) ASSIGNMENT FOR CREDITORS-PREFERENCE TO WIFE OF Assignor.

An indebtedness of a husband to his wife for a loan of money which she has earned under an agreement with him that she might keep boarders and have the profits arising therefrom is one which the husband may legally incur and as such it may be the subject of preference in his assignment for the benefit of creditors.

APPEAL from judgment in favor of plaintiffs.

Action for conversion of personal property by defendant as sheriff under attachment and execution against one James M. Davis, of whom plaintiffs are the assignees under a general assignment for creditors.

The court below found as follows:

I. That for three years prior to the 16th day of March, 1889, James M. Davis was engaged in the retail dry goods business at Fishkill Landing, Dutchess county, N. Y.

II. That on the 16th day of March, 1889, the said James M. Davis made a general assignment for the benefit of his creditors to the plaintiffs, Charles M. Kittredge and Jennie Davis.

III. That said Charles M. Kittredge and Jennie Davis, as the assignees of said James M. Davis, immediately took the actual possession of the assigned property.

IV. That on or about the 18th day of March, 1889, the said assignees filed their bond, as required by law, in the office of the clerk of the county of Dutchess, duly approved by the Hon. D. W. Guernsey, county judge of Dutchess county.

V. That on or about the 21st day of March, 1889, the defendant, J. Wesley Van Tassell, seized and carried away from the custody and possession of said plaintiffs, goods and merchandise, and converted the same to his own use, of the value of $1,353.72. That said goods were a part of the property assigned to said plaintiffs by said James M. Davis.

VI. That in the fall of 1878 the said James M. Davis, then living in the city of New York, entered into an agreement with his wife, Jennie Davis, that she might engage in the business of keeping boarders, receive all the money from all the boarders, pay all the expenses of said business and to have all the profits arising from said business, the said James M. Davis on his part

to pay the rent of the house in which said business was to be carried on, and was to have his board and washing free from any charge.

VII. That in pursuance of said agreement the said Jennie Davis engaged in and carried on said business from the fall of 1878 until the 1st day of March, 1886, and during all that time. received all the money from her boarders for their board and paid from the same all the expenses of carrying on said business, and the profits arising therefrom she gave at various times to James M. Davis to deposit for her in the North River Savings Bank in the city of New York, which he did.

VIIL That during the year 1884 she drew from her money in said savings bank the sum of $1,500 and loaned it to M. L. Doyle, a merchant in the city of New York.

Subsequently she called in the money loaned to Doyle and loaned the sum of $1,500 to Isaac M. Davis, of Fonda, Montgomery county, in the month of December, 1884, who paid the same back to said Jennie Davis about the 1st day of March, 1886.

That on or about the 1st day of March, 1886, the said Jennie Davis loaned the said $1,500 to her husband, James M. Davis, who used the same in his business at Fishkill Landing, and the same has not been paid, nor any part thereof.

IX. That said James M. Davis at the time he made said assignment was indebted to Maggie Wert in the sum of $302.56 for money she had loaned to said James M. Davis at various times previous to the 5th day of July, 1888, on which day he gave her his promissory note for that amount.

And as conclusions of law, that the contract entered into between James M. Davis and Jennie Davis, by which she was to engage in the business of keeping boarders, was a valid and legal contract; that said business was her separate and independent business, and that the profits arising therefrom was her separate estate and belonged to her; that the taking of said goods and merchandise from the custody and possession of the plaintiffs by the defendant and converting the same to his own use was a wrongful and unlawful taking of the same, and without any justification; that the plaintiffs are entitled to recover of the defendant. the value of said goods and merchandise, to wit, the sum of $1.353.72, with interest thereon from the 21st day of March, 1889, being $60.90, and amounting altogether to the sum of $1,414.63.

John B. Green, for app'lt; II. II. Hustis, for resp'ts.

DYKMAN, J.-This is an action against the sheriff for the seizure of a stock of goods. The plaintiffs are the general assignees of James M. Davis, and were in possession of the property in question when the sheriff seized the same under a warrant of attachment issued against the property of the plaintiffs' assignor.

The cause was tried before a judge without a jury, and he found all the facts against the defendant and rendered a judgment in favor of the plaintiffs.

The conclusions of law reached by the trial judge follow legiti

mately from the facts found, which were amply justified by the evidence introduced upon the trial.

The principal assault upon the assignment was directed to the preference of the debt of the wife of the assignor, but the proof showed her claim to be such an obligation as the husband might legally incur, and being such, it might be the subject of preference in his assignment for the benefit of creditors. We coincide with the decision of the trial judge and find no error in the record. The judgment should be affirmed, with costs.

PRATT, J., concurs.

ANDREW J. WIGHTMAN, App'lt, v. AUGUSTUS N. BRUSH et al.,

Resp'ts.

(Supreme Court, General Term, Second Department, Filed May 12, 1890.) CONVICTS-ACTION FOR CRUEL PUNISHMENT.

An action by a convict for unnecessary and cruel punishment cannot be maintained where the complaint fails to allege that the acts complained of were not in accordance with the regulations of the superintendent, or that they were not necessary for his proper punishment or to secure submission and obedience on his part, or that the same was not administered in accordance with the legal regulations on that subject.

APPEAL from judgment dismissing the complaint.

Action to recover damages for cruel and unnecessary punishment inflicted upon plaintiff while a convict in Sing Sing prison. The complaint alleged that defendants, maliciously intending to injure the plaintiff, did begin a course of most cruel and unlawful illtreatment of the plaintiff and abused and inflicted unnecessary cruel punishment upon the plaintiff. That said ill-treatment and cruel punishment consisted in hand-cuffing plaintiff's both hands, rendering them useless, then confining him in wet dungeons for a period of eight days; that said dungeons contained no place on which the plaintiff could rest and when exhausted was compelled to lie on the floor in the water; that through the hand-cuffing aforesaid, the plaintiff was unable to assist himself in the calls of nature and was otherwise cruelly, inhumanly and brutally treated. That during said periods of confinement, the plaintiff received no food but four ounces of bread with water daily, and on being removed from said dungeons was for a long time placed in solitary confinement.

That by reason of aforesaid abuse and cruel and brutal treatment and unlawful and unnecessary punishment the plaintiff was made sick, sore and lame, and his health permanently impaired from aforesaid ill treatment, and contracted severe and lasting diseases, and suffered from numerous complaints, and injuries to his person, from which he has suffered great pain and agony, and still suffers excruciating pain and trouble, and as he is informed and believes he will never recover from said injuries, and his ill health resulting therefrom will incapacitate him from engaging in any laborious or exhaustive work for the rest of his life, and he will be unable to attend to the duties of his regular profession or business with the same degree of proficiency as before the infliction of these injuries on the plaintiff.