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parallel with 111th street 80 feet one intended would create a startto the westerly side of Second ing point for the boundary line of avenue, thence northerly and the property intended to be conalong said Second avenue 50 feet | veyed in the centre of Second ave. to the place of beginning.” Thenue, and would locate the larger same deed also conveyed a lot on part of the preinises granted in the the southerly side of 111th street travelled portion of the public in the rear of the above described highway. The same result would premises. It appeared that F.'s follow if the description should be grantor had title to the premises read as meaning the northeasterly on the west side of Second avenue corner of the said streets. The which would be included in the adoption of neither of the first two above description if reformed so points stated would comply with as to change the word “southeast the requirement of the deed that erly" into “southwesterly.” F. the starting point should be on the conveyed the premises acquired by westerly side of Second avenue or him under said deed by a descrip- that the first line should run partion which gave as its starting allel with 111th street. Neither of place a point in the westerly side the lines run from these points of Second avenue 50 feet and 10 would include the buildings deinches from the southwesterly scribed as being upon the premcorner of said avenue and 111th ises, nor run upon a line partly street. The word southwesterly through a party wall or finally was also used in the description terminate upon the westerly side contained in all the deeds of said of Second avenue by a line which premises subsequent and prior to run along said Second avenue to said deed of 1871 to F. In 1882 the place of beginning. The adopplaintiffs contracted to sell and tion of the term northwesterly as convey said premises to defendant, the corner intended would require describing them in accordance the survey to run over the first line with the corrected description. twice to make out the description, They tendered a deed to defendant and leave a space of ten inches containing a description corre- presumably running through the sponding with that in the deed to outer wall of the building unconF., except the word southwesterly veyed on the line of 111th street, was used in place of the word thus cutting off the property from southeasterly. Defendant refused the street, and would also directly to accept the deed or fulfill his conflict with that portion of the contract on the ground that plain deed which locates the other land tiffs' title was defective because of conveyed in the rear of the dethe use of the word southeasterly scribed premises on the southerly instead of southwesterly in the side of 111th street. deed to F. A diagram of the James M. Fisk, for applts. locality showed that the adoption Ferdinand Kurzman, respt. in of the word southeasterly as the person.

Held, That plaintiffs' title was not

Defendant covenanted with plaintiff that it defective, as the description in the

would pave the streets in and about its rails

in a permanent manner, and keep the same deed to F. contained abundantevi.

in repair to the entire satisfaction of the dence as to the words the draughts- Street Commissioner. Held, That defendman intended to use. In constru- ant's covenant required it to keep the paveing descriptions of land contained

ment in repair between the rails.

Upon failure on the part of defendant after in conveyances courts must adopt

demand to repair the pavement plaintiff, such an interpretation thereof as having done the work, can recover the shall give effect to the instrument amount actually and in good faith expended according to the intention of the

in the ordinary way in repairing the pave

ment between the tracks, although defendparties if that is discoverable from

ant might have procured the work done legitimate sources of information.

for less. 7 Johns., 217; 61 N. Y., 348. In To establish the time expended in doing the giving effect to such intention it is

work it is competent evidence to permit the

general foreman to state from a memotheir duty to reject false or mis

randum the times given by the foreman taken particulars provided enough of each gang twice each day to him, and of the description remains to enable then to show by the foreman of each gang the land intended to be conveyed

that he reported the time correctly to the to be located. 6 Hill, 454 ; 8

general foreman. Wend., 189; 19 Johns., 452; 70 Appeal from a judgment in favN. Y., 154. The rule that a mon- or of plaintiff, entered upon a verument controls other portions of dict rendered under the direction the description in a deed is not in of the Court. flexible. When the monument Action to recover the cost of reis repugnant to another of like pairing the pavement of defendcharacter, or a map gives other re- ant's railroad between the rails, in sults, the truth is to be ascertained the city of New York, on Second from all the facts of the case. 51 avenue between Houston and 420 N. Y., 656 ; 72 id., 94.

streets. Judgment of General Term for As a condition of the permission defendant on case submitted re- to defendant to lay its track on versed and judgment ordered for certain of the streets, including plaintiffs.

that above mentioned, in the city Opinion by Ruger, Ch. J. All of New York, plaintiff required

and defendant executed an agree

ment whereby defendant agreed COVENANT. DAMAGES. to pave the streets in and about EVIDENCE.

the rails in a permanent manner,

and keep the same in repair to the N. Y. SUPREME COURT. GENERAL entire satisfaction of the Street Term. FIRST DEPT.

Commissioner. The Mayor, &c., of New York, The pavement between defend respt., v. The Second Ave. RR. ant's rails became out of repair on

Second avenue between the streets Decided Dec. 21, 1883.

aforesaid, and defendant was noti


Co., applt.


fied to repair the same within 30 general foreman, he stating that days and that in default of so do. he took the same correctly from ing plaintiff would make the re- the statements of the foremen of pairs. Defendant failed to make the gangs, which was followed by the repairs, and plaintiff made the the evidence of the foreman of repairs and brought this action each of the gangs that he kept the for the expense incurred in sp do time of the men and communicaing. On the trial plaintiff was al- ted it correctly to the general forelowed, in order to establish the man, was competent and proper. time the were employed 10 Hun, 528; 7 id., 612; 71 N. Y., about the work, to show by the 598. general foreman that he went Held further, That in the ab- . twice a day and took the time of sence of fraud or proof of an unpach of the men from the fore. usual mode of procedure plaintiff man of each of the gangs and laid was under the circumstances enout the work, and afterwards saw titled to recover the expense inthat it had been done. The fore- curred, and this whether or not men of each of the gangs were defendant could have got it done then permitted to testify that for less. they gave the time to the general The Court was justified in directforeman correctly. A memorandum ing the verdict. of the general foreman containing Judgment affirmed. a statement of the time of the men Opinion by Brady, J.; Daois, as communicated to him by the P. J., and Daniels, J., concur. foremen of the gangs was permitted to go in evidence against ob

SHERIFHS. VENUE. jection and exception.

The actual expense to the city | N. Y. SUPREME COURT. GENERAL in doing the work appeared with

TERM. SECOND DEPT. out contradiction, althouzh there

James Roach, respt., v. Benjawas some evidence that defendant min B. Odell, sheriff, applt. could have done the work for less and that it was reasonably worth

Decided Sept., 1883. less, and defendant's request to An action against a sheriff for an escape is go to the jury upon the reasonable local. value of the work done was de.

Where the sheriff has acted in good faith and

with diligence and the action is based upon nied, and exception taken.

technical grounds, he should not be reAustin G. Fox, for applt.

quired to admit away any legal defense David J. Dean, for respt.

as a condition to retaining the venue in his Held, No error; that defend- county. ant's obligation required it to keep Appeal from order changing the pavement between the rails in venue from Orange Co. to Albany repair. 75 N. Y., 231.

Co. for convenience of witnesses. That the evidence of the memo- The action was brought against randum of the time kept by the defendant as sheriff of Orange Co. for an escape of a defendant held about the application of this law in under an execution against his cases of malfeasance is now reperson. The

The escape complained moved by the Code Civ. Pro., of is the going at large of the pris. $ 983. oner in the city of Newburgh on a The material questions on the bond for the jail liberties, plain trial will have respect to the proper tiff's claim being that the jail lim- jail limits, the identity of the prisits of Orange Co. are not the city oner and the consent of plaintiff of Newburgh.

to his confinement at Newburgh. It appears that defendant acted But few witnesses will be necesin good faith and with diligence; cary on the question of identity, that he confined the prisoner in and, assuining that they will come the jail at Newburgh until he gave from Albany, as plaintiff claims, bond for the jail liberties and then the witnesses to the other two allowed him the privilege secured questions will come from Orange to him by such bond.

county. There is therefore no such The motion to change venue was preponderance of

preponderance of testimony in granted unless defendant would Albany as will overcome the right stipulate to admit the identity of of defendant to have the cause the person named in the execution tried in his own county, or require with the prisoner and also that the court in the exercise of a sound the escape was without the consent discretion to change the venue. of plaintiff.

Under the circumstances of the E. A. Brewster, for applt. case defendant should be at libRiley & Hamilton, for respt. erty to avail himself of every legal

Held, Error. The action is local defense the law places in his powand defendant is entitled to the er and it was not a wise or just exprotection of the statute requiring ercise of discretion to require him it to be prosecuted in his county, to admit away any legal defense or subject to the power of the court lay down any defensive weapon. to change the place of trial. The Order reversed, with costs and old reason assigned for according disbursements. this right to the sheriff was the Opinion by Dykman, J.; Barnecessity of his personal presence nard, P.J., and Pratt, J., concur. at all times within his bailiwick for the safety and convenience of the public ; but in our time the

COSTS. SET-OFF. object of the statute is to protect N Y. SUPREME COURT. GENERAL the officer from vexation and save

TERM. FIRST DEPT. him the expense and inconvenience of a trial at remote places for acts

Stephen Tunstall, respt., v. done in the discharge of official Walter W. Winton, applt. duties. This is an immunity of Decided Dec. 21, 1883. which he should not be deprived Section 779 of the Code of Civ. Pro., profor light reasons. Any doubt

viding for the set-off of motion or interlocu

tory costs, was designed only to provide for them, and allows such person, if the collection or set-off of such costs by unable to collect such costs or tax the party entitled to receive them, and does not sanction a motion for such set-off made

them as part of the final costs, to by the opposite party.

secure their satisfaction by way of Costs awarded to the defendant on the vaca- set-off, but it does not sanction a

tion of an order of arrest belong to his motion by the opposite party to attorney, and cannot be set off, on the plaintiff's motion, against the general costs com pel such set-off. awarded to the plaintiff in a judgment in Order reversed and motion dehis favor in the action.

nied. Appeal from an order of Special P.J., concurs; Brady, J., dissents.

Opinion by Daniels, J.; Davis, Term, granting plaintiff's motion to set off the amount of costs awarded to defendant by a decision PERJURY. CONSTITUTIONAL of the Court of Appeals, reversing

LAW. an order denying defendant's motion for a stay on account of the N. Y. SUPREME COURT. GENERAL failure to

certain pay


TERM. FIRST DEPT. awarded to defendant on the vaca

The People, respts., v. Edward tion of an order of arrest, against J. Courtney, appll. an equal amount of the general costs of the action awarded to the

Decided Dec. 21, 1883. plaintiff upon the trial and ver- Every question in cross-examination which dict.

goes to the credibility of the witness is ma

terial to the issue, so as to come within the Benjamin F. Sawyer, for applt. Edward P. Wilder, for respt.

rule which requires that the evidence

assigned as perjury in an indictment must Held, That the costs awarded to

be material to the issue in the case in which

it is given. defendant on the vacation of the Chap. 678, Laws of 1869, which renders a order of arrest belonged to his

person charged with a crime a competent attorney, 51 N. Y., 140, 143, and witness, in his own behalf, at his option,

and which declares that his omission to consequently could not be set off,

become a witness shall not create any preon plaintiff's motion, against the

sumption against him, &c., is not obnoxgeneral costs awarded to plaintiff ious to the provision of the constitution, in the action and thus be ab- $ 6, Art. 1, which provides that no person sorbed by defendant's debt, for shall be compelled in any criminal case to

be a witness against himself. that would be taking the demand due to one person to pay a de- Appeal from judgment of Court mand owing by a different person, of General Sessions of New York, which would clearly be improper. convicting defendant of the crime

That S 779 of the Code of Civ. of perjury. Pro., providing for the set off of The perjury was assigned in the motion or interlocutory costs, was indictment upon evidence which designed only to provide for the defendant himself gave upon the collection or set-off of such costs trial of an indictment against him by the party entitled to receive for forgery. He was sworn as a

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