parallel with 111th street 80 feet one intended would create a start to the westerly side of Second avenue, thence northerly and along said Second avenue 50 feet to the place of beginning." The same deed also conveyed a lot on the southerly side of 111th street in the rear of the above described premises. It appeared that F.'s grantor had title to the premises on the west side of Second avenue which would be included in the above description if reformed so as to change the word "southeasterly" into "southwesterly." F. conveyed the premises acquired by him under said deed by a description which gave as its starting place a point in the westerly side of Second avenue 50 feet and 10 inches from the southwesterly corner of said avenue and 111th street. The word southwesterly was also used in the description contained in all the deeds of said premises subsequent and prior to said deed of 1871 to F. In 1882 plaintiffs contracted to sell and convey said premises to defendant, describing them in accordance with the corrected description. They tendered a deed to defendant containing a description corresponding with that in the deed to F., except the word southwesterly was used in place of the word southeasterly. Defendant refused to accept the deed or fulfill his contract on the ground that plaintiffs' title was defective because of the use of the word southeasterly instead of southwesterly in the deed to F. A diagram of the locality showed that the adoption of the word southeasterly as the ing point for the boundary line of the property intended to be conveyed in the centre of Second avenue, and would locate the larger part of the premises granted in the travelled portion of the public highway. The same result would follow if the description should be read as meaning the northeasterly corner of the said streets. The adoption of neither of the first two points stated would comply with the requirement of the deed that the starting point should be on the westerly side of Second avenue or that the first line should run parallel with 111th street. Neither of the lines run from these points would include the buildings described as being upon the premises, nor run upon a line partly through a party wall or finally terminate upon the westerly side of Second avenue by a line which run along said Second avenue to the place of beginning. The adoption of the term northwesterly as the corner intended would require the survey to run over the first line twice to make out the description, and leave a space of ten inches presumably running through the outer wall of the building unconveyed on the line of 111th street, thus cutting off the property from the street, and would also directly conflict with that portion of the deed which locates the other land conveyed in the rear of the described premises on the southerly side of 111th street. James M. Fisk, for applts. Ferdinand Kurzman, respt. in person. In Held, That plaintiffs' title was not defective, as the description in the deed to F. contained abundant evidence as to the words the draughtsman intended to use. In construing descriptions of land contained in conveyances courts must adopt such an interpretation thereof as shall give effect to the instrument according to the intention of the parties if that is discoverable from legitimate sources of information. 7 Johns., 217; 61 N. Y., 348. giving effect to such intention it is their duty to reject false or mistaken particulars provided enough of the description remains to enable the land intended to be conveyed to be located. 6 Hill, 454; 8 Wend., 189; 19 Johns., 452; 70 N. Y., 154. The rule that a monument controls other portions of the description in a deed is not inflexible. When the monument is repugnant to another of like character, or a map gives other results, the truth is to be ascertained from all the facts of the case. N. Y., 656; 72 id., 94. 51 Judgment of General Term for defendant on case submitted reversed and judgment ordered for plaintiffs. Opinion by Ruger, Ch. J. concur. COVENANT. DAMAGES. EVIDENCE. Defendant covenanted with plaintiff that it To establish the time expended in doing the Appeal from a judgment in favor of plaintiff, entered upon a verdict rendered under the direction of the Court. Action to recover the cost of re pairing the pavement of defendant's railroad between the rails, in the city of New York, on Second avenue between Houston and 42d streets. As a condition of the permission to defendant to lay its track on certain of the streets, including that above mentioned, in the city All of New York, plaintiff required N. Y. SUPREME COURT. GENERAL The Mayor, &c., of New York, respt., v. The Second Ave. RR. Co., applt. Decided Dec. 21, 1883. and defendant executed an agreement whereby defendant agreed to pave the streets in and about the rails in a permanent manner, entire satisfaction of the Street and keep the same in repair to the Commissioner. The pavement between defendant's rails became out of repair on Second avenue between the streets aforesaid, and defendant was noti fied to repair the same within 30 days and that in default of so doing plaintiff would make the repairs. Defendant failed to make the repairs, and plaintiff made the repairs and brought this action for the expense incurred in so doing. On the trial plaintiff was allowed, in order to establish the time the men were employed about the work, to show by the general foreman that he went twice a day and took the time of each of the men from the foreman of each of the gangs and laid out the work, and afterwards saw that it had been done. The foremen of each of the gangs were then permitted to testify that they gave the time to the general foreman correctly. A memorandum of the general foreman containing a statement of the time of the men as communicated to him by the foremen of the gangs was permitted to go in evidence against objection and exception. general foreman, he stating that he took the same correctly from the statements of the foremen of the gangs, which was followed by the evidence of the foreman of each of the gangs that he kept the time of the men and communicated it correctly to the general foreman, was competent and proper. 10 Hun, 528; 7 id., 612; 71 N. Y., 598. Held further, That in the absence of fraud or proof of an unusual mode of procedure plaintiff was under the circumstances entitled to recover the expense incurred, and this whether or not defendant could have got it done for less. The Court was justified in directing the verdict. Judgment affirmed. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concur. SHERIFFS. VENUE. The actual expense to the city N. Y. SUPREME COURT. GENERAL in doing the work appeared without contradiction, although there was some evidence that defendant could have done the work for less and that it was reasonably worth less, and defendant's request to go to the jury upon the reasonable value of the work done was denied, and exception taken. Austin G. Fox, for applt. David J. Dean, for respt. Held, No error; that defendant's obligation required it to keep the pavement between the rails in repair. 75 N. Y., 231. That the evidence of the memorandum of the time kept by the TERM. SECOND DEPT. min B. Odell, sheriff, applt. James Roach, respt., v. Benja Decided Sept., 1883. An action against a sheriff for an escape is local. Where the sheriff has acted in good faith and with diligence and the action is based upon technical grounds, he should not be required to admit away any legal defense as a condition to retaining the venue in his county. Appeal from order changing venue from Orange Co. to Albany Co. for convenience of witnesses. The action was brought against defendant as sheriff of Orange Co. about the application of this law in cases of malfeasance is now re for an escape of a defendant held under an execution against his person. 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 bond for the jail liberties, plaintiff's claim being that the jail limits of Orange Co. are not the city of Newburgh. It appears that defendant acted in good faith and with diligence; that he confined the prisoner in the jail at Newburgh until he gave bond for the jail liberties and then allowed him the privilege secured to him by such bond. The motion to change venue was granted unless defendant would stipulate to admit the identity of the person named in the execution with the prisoner and also that the escape was without the consent of plaintiff. E. A. Brewster, for applt. Riley & Hamilton, for respt. Held, Error. The action is local and defendant is entitled to the protection of the statute requiring it to be prosecuted in his county, subject to the power of the court to change the place of trial. The old reason assigned for according this right to the sheriff was the necessity of his personal presence at all times within his bailiwick for the safety and convenience of the public; but in our time the The material questions on the trial will have respect to the proper jail limits, the identity of the prisoner and the consent of plaintiff to his confinement at Newburgh. But few witnesses will be necescary on the question of identity, and, assuming that they will come from Albany, as plaintiff claims, the witnesses to the other two questions will come from Orange county. There is therefore no such preponderance of testimony in Albany as will overcome the right of defendant to have the cause tried in his own county, or require the court in the exercise of a sound discretion to change the venue. Under the circumstances of the case defendant should be at liberty to avail himself of every legal defense the law places in his power and it was not a wise or just exercise of discretion to require him to admit away any legal defense or lay down any defensive weapon. Order reversed, with costs and disbursements. Opinion by Dykman, J.; Barnard, P.J., and Pratt, J., concur. COSTS. SET-OFF. TERM. FIRST DEPT. Stephen Tunstall, respt., v. Walter W. Winton, applt. object of the statute is to protect N Y. SUPREME COURT. GENERAL the officer from vexation and save him the expense and inconvenience of a trial at remote places for acts done in the discharge of official duties. This is an immunity of which he should not be deprived for light reasons. Any doubt Decided Dec. 21, 1883. viding for the set-off of motion or interlocu tory costs, was designed only to provide for the collection or set-off of such costs by the party entitled to receive them, and does not sanction a motion for such set-off made by the opposite party. Costs awarded to the defendant on the vacation of an order of arrest belong to his attorney, and cannot be set off, on the plaintiff's motion, against the general costs awarded to the plaintiff in a judgment in his favor in the action. Appeal from an order of Special Term, granting plaintiff's motion them, and allows such person, if unable to collect such costs or tax them as part of the final costs, to secure their satisfaction by way of set-off, but it does not sanction a motion by the opposite party to compel such set-off. Order reversed and motion denied. Opinion by Daniels, J.; Davis, P.J., concurs; Brady, J., dissents. PERJURY. CONSTITUTIONAL to set off the amount of costs awarded to defendant by a decision of the Court of Appeals, reversing an order denying defendant's motion for a stay on account of the N. Y. SUPREME COURT. GENERAL failure to awarded to defendant on the vacation of an order of arrest, against an equal amount of the general costs of the action awarded to the plaintiff upon the trial and verdict. pay certain costs Benjamin F. Sawyer, for applt. Held, That the costs awarded to LAW. TERM. FIRST DEPT. The People, respts., v. Edward J. Courtney, appll. Decided Dec. 21, 1883. Every question in cross-examination which goes to the credibility of the witness is material to the issue, so as to come within the rule which requires that the evidence assigned as perjury in an indictment must 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 attorney, 51 N. Y., 140, 143, and consequently could not be set off, on plaintiff's motion, against the general costs awarded to plaintiff in the action and thus be absorbed by defendant's debt, for that would be taking the demand. due to one person to pay a demand owing by a different person, which would clearly be improper. That 779 of the Code of Civ. Pro., providing for the set off of motion or interlocutory costs, was designed only to provide for the collection or set-off of such costs. by the party entitled to receive person charged with a crime a competent witness, in his own behalf, at his option, and which declares that his omission to become a witness shall not create any presumption against him, &c., is not obnoxious to the provision of the constitution, 6. Art. 1, which provides that no person shall be compelled in any criminal case to be a witness against himself. Appeal from judgment of Court of General Sessions of New York, convicting defendant of the crime of perjury. The perjury was assigned in the indictment upon evidence which defendant himself gave upon the trial of an indictment against him for forgery. He was sworn as a |