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the grantors in the deed under | 1856, from the bankrupt to plainwhich plaintiff claims owned tiff. The deed from the assignee premises answering the descrip. recites that it was made to correct tion therein. It was claimed that such mistake. It was claimed that the deed was void on its face for this deed ras void and in contraindefiniteness.
vention of the statute which proWinchester Britton, for applts. vides that every grant of land Henry G. Atwater, for respt. shall be absolutely void, if at the
Held, Untenable; while prem- time of the delivery thereof such ises upon which a grant is to oper- land shall be in the actual possesate must be described in the deed sion of a person claiming under a so that they can be identified, it is title adverse to that of the grantor. not necessary that they should be 1 R. S., 739.
1 R. S., 739. It appeared that dedescribed by boundaries, courses, fendant was in possession at the or distances, or by reference to time of the assignee's deed to monuments. Words of general plaintiff under a deed from the description are sufficient. Nothi- original grantors of the property, ing passes by a deed except what dated July 3, 1877. is described in it, whatever the in
Held, Untenable; that the astention of the parties may have signee's deed to plaintiff was not been, but when words of general within the mischief at which the description are used oral evidence statute was pointed, or within the is admissible to ascertain the par- intention of the Legislature. ticular subject matter to which Judgment of General Term, afthey apply, without infringing firming judgment for plaintiff, afupon the rule which prohibits firmed. parol evidence to add to or contra- Opinion by Andrews, J. Ali dict the language of written instruments. The object of oral evidence in such cases is to ascertain the intention of the parties as express
HIGHWAYS. BRIDGES. ed in the writing, and not to make
N. Y. COURT OF APPEALS. it operate upon land not embraced in the descriptive words. 4 Ad. & Day, comr., applt., v. Day, El., 32 ; 1 Mer., 653.
comr., respt. A deed was executed December
Decided Nov. 27, 1883. 18, 1880, from P., assignee in bankruptcy of C., to plaintiff, under
Where a bridge is built on the line dividing
two towns, being situated partly in each, the order of the bankrupt court,
both towns are liable for the expense of made upon petition of the bank
maintaining it, and for that purpose it is rupt, showing that plaintiff, in not to be considered as wholly within the 1856, purchased the property in
town to which the road district has been
allotted under the town line road act. question of the bankrupt and paid therefor, and by mistake it was The main question in this case is omitted from a deed of July 24, whether a bridge should be built
and maintained by the towns of R. as distinct subjects from bridges, and H. jointly, or by the town of and that when bridges are intended R. alone. The bridge in question to be included they are specifically is situated partly in each town, mentioned, 17 Johns., 439; that being built on the line dividing the two towns are liable under the them, which runs east and west. Act of 1857, Chap. 383, for the exThe north half of the bridge is in pense of maintaining the bridge in H. and the south half in R. It question, and for that purpose it connects a public highway which is not to be considered as wholly crosses the stream and is divided within the town to which the road through the center by the line di- district has been allotted under viding the towns. The defendant the town line road act, contends that under the provisions Judgment of General Term, afof the Revised Statutes, 1 R. Š., | firming judgment of County Court 516, $$ 73, 74, 75, that when a high- reversing judgment of justice disway is laid out on the line between missing complaint, reversed and two towns it shall be divided into new trial ordered in County Court. two or more road districts in such
Opinion by Rapallo, J. All manner that the labor and expense concur. of “opening, making and keeping in repair " such highway through
BANKS. PREFERENCES. each of said districts may be equal as near as may be, and to allot an
N. Y. COURT OF APPEALS. equal number of the said districts to each of said towns, and that each Coates, assignee, applt., v. Dondistrict shall be considered as nell et al., respls. wholly belonging to the town to
Decided Nov. 27, 1883. which it shall be allotted - for the purpose of opening and improving The cashier of a bank in Missouri, to enable the road and keeping it in repair,"
the bank to tide over a crisis, agreed with
defendants that if the latter would accept and that the bridge in question
certain drafts the bank would at all times being in the district allotted to the
keep on deposit with defendants a sum town of R. should be built by equal to the amount of the drafts ; that de
fendants should have a lien thereon as seplaintiff. Ransom & Joyce, for applt.
curity for their liability and the right at
any time to appropriate the deposit or so Elsworth – Potter, for respt. much as was necessary to pay their acceptHeld, Untenable ; that consid
The bank thereafter failed and ering the context of said provisions
made a voluntary assignment on the same in connection with the general
day, but after defendants had charged up
the acceptances. Held, That the agreement course of legislation on the sub
was one the cashier was authorized to make jects of highways, road districts and was not invalid as against public policy, and bridges, and the judicial con
and that defendants had a right to charge struction which has been put upon
against the bank the face of the drafts and
hold that amount to meet them when they them, it clearly appears that roads
came due. and road districts are considered The statute prohibiting preferences by insol
vent corporations applies to domestic and several years been the correspondnot to foreign corporations.
ent of the M. Bank in New York This action was brought to re- City, and the bank subsequently cover the sum of $34,940.68, with and prior to August 3, 1878, made interest thereon from August 3, other deposits with D. L. & Co. 1878. It appeared that on June Subsequent to June 10, 1878, sight 10, 1878, an agreement was made drafts in favor of customers, in the between the cashier of the M. usual course of business, were Bank of Missouri and defendants, drawn from time to time by the D. L. & Co., that if the latter M. Bank upon D. L. & Co., and would accept four accommodation such drafts as were presented drafts dated June 8, 1878, drawn prior to August 3, 1878, were paid upon them, and which had been by the drawees and charged to the negotiated by the bank, but had account of the bank. On the not yet been presented to the morning of that day the credit to drawees for acceptance, the bank the bank on the books of D. L. & would keep on deposit with D. L. Co. was $50,459.68. Acceptances & Co., in New York, at all times of D. L. & Co. of $35,000 had not until their maturity, a sum equal yet matured, and were held by to the amount of the drafts, and third parties. They did not draw that the drawees should have a interest, and their value at that Jien thereon as security for their time was $34,833.49. On July 27, liability on the acceptances, and 1878, the cashier of the M. Bank should be kept informed of the wrote to D. L. & Co., informing condition of the bank, and have them he apprehended a run on the right at any time to charge the the bank, and directing them to account with the acceptances, and charge up the acceptances to the appropriate or apply the deposit, bank. This letter was received or so much as might be necessary by D. L. & Co. about July 30th, to their payment. The cashier of but they did not immediately act the bank represented to D. L. & upon it. On August 3d the cash Co. at the interview of June 10, ier telegraphed that the bank had 1878, that the bank was in straits failed, and immediately thereafter for money, but that with their D. L. & Co. charged the acceptassistance through the acceptance ances to the M. Bank, and subseof the drafts and other aid which quently at their maturity paid could be procured the bank would them to the holders. On August be able to tide over its embarrass- 3d the M. Bank made a voluntary ments and continue its business. assignment of its property to D. L. & Co. accepted the drafts plaintiff for the benefit of its crediunder the agreement of June 10, tors. The assignment was exe1878. The proceeds were, within cuted on the same day, but after a day or two after they were ac- D. L. & Co. had charged up the cepted, deposited by the M. Bank acceptances. At that time there with D. L. & Co., who had for were outstanding about $40,000 unaccepted drafts drawn by the D. L. & Co. had a right under M. Bank on D. L. & Co., which the agreement to charge against are still unpaid.
the account of the bank the face Leslie W. Russell, for applt. of the drafts and to hold that Rastus D. Ransom, for respts. amount to meet the sum they Held, That the agreement of would be bound to pay at their June 10, 1878, was one the cashier maturity. of the M. Bank was authorized to Judgment of General Term, afmake as incident to his office and firming judgment dismissing comunder the by-laws of the bank. plaint, affirmed. 15 N. Y., 9; 19 id., 152. He also Opinion by Andrews, J. All had authority to negotiate the concur. drafts. A contract for a lien on property
APPEAL. not in esse may be effectual in equity to give a lien as between the
N. Y. COURT OF APPEALS. parties when the property comes
Victory, comr., respt., v. Blood. , into existence and when there are applt. no intervening rights of creditors or third persons. 49 N. Y., 626;
Decided Dec. 4, 1883. 65 id., 459; 71 id., 113.
Where the case contains no recital as to what Also held. That said contract
the motion for a new trial at General Term was not invalid as against public was based upon, or whether it is made upon policy ; that regarding the trans
exceptions, the Court of Appeals has no action, disconnected from the
jurisdiction. equities which surround it, as a An appeal in the above entitled simple preference of one creditor action was dismissed on the supof the bank it was not unlawful. position that it was from an inter1 Story's Eq., $ 370; 2 Kent's Com., locutory judgment only. A motion 532; 5 Johns., 335 ; 15 id., 571; 36 is made for a reargument on the N. Y., 668. A corporation pos- ground that there was also an apsesses in this respect the same peal to this court from an order right as an individual, and may denying a motion for a new trial execute a mortgage or give a lien made at the same General Term which shall operate as a prefer- which affirmed the interlocutory ence, unless restrained by its char- judgment. All the record conter or by statute. L. R., 6 Ch.
L. R., 6 Ch. tains showing that a motion for a Ap., 83; 6 Conn., 233; 5 W. & S.. new trial was made at the General 223; 2 Kent's Com., 315 note; A. Term and there denied is the fol& A. on Corp., $ 187.
lowing : On page one of the printThe provision of the Revised ed case there is this statement Statutes, 1 R. S., 593, $ 9, prohibit- prefixed by the party who proing preferences by insolvent cor- cured the case to be printed : porations, applies to domestic and “ Motion for new trial made and not to foreign corporations. appeal from judgment argued at
General Term September 18, 1881." is no recital to be found in the case On page five is the interlocutory upon what the motion was based, judgment. On page 15 a notice of nor whether it was made upon one appeal from the interlocutory or more exceptions as required by judgment, and on page 20 the or- $ 1001 of the Code of Civil Proder made after the argument of cedure. the appeal at the General Term, as M. L. Stover, for applt. follows: "The above named de. W. L. Vandenburg, for respt. fendant * *
* * having appealed Held, That the record fails to to the court from the judgment in show jurisdiction. The consent of this action entered
the parties cannot give jurisdiction. the 9th day of September, 1880, Motion denied. and said appeal having been Opinion by Earl, J. All conbrought to argument and consid- cur. ered by this court, it is ordered, that the said judgment be, and TITLE. ADVERSE POSSES. the same is, hereby aflirmed in all
SION. things, and the application for a new trial denied, with costs to be
N. Y. COURT OF APPEALS. adjusted in favor of respondent
Bliss, respt., v. Johnson et al., and against appellant.” The case admrs., applts. contains no notice of motion for a new trial. Upon the order a judy.
Decided Dec. 11, 1883. ment of affirmance, with costs, was Proof that the owner of lands adjoining a entered the same day.
highway continually cultivated and mowed 21 there is a notice of appeal to
a portion of such highway, and used it for the Court of Appeals from the
piling lumber, is insuflicient to establ
title in him to that portion of the highway judgment of affirmance, and "from
by adverse possession. the order of the General Term of the permanent occupation of a highway by said court denying the motion for
inclosure or cultivation is manifestly in
consistent with the right of passage by the a new trial herein, entered *
traveling public, and no matter how long on the 15th day of December,
continued, can never ripen into a title as 1881." It does not appear in the against the public, whatever may be its case that any order denying a
effect as to the owner of the soil of such motion for a new trial was entered
high way. on December 15, 1881. The judg- This was an action for assault ment affirming the interlocutory and battery. It is reported on a judgment was the only judgment former appeal in 73 N. Y., 529. entered on that day. The opinion The assault and battery took place of the General Term does not speak in 1875 in the public highway of any motion for a new trial, but which divides the respective farnis simply of the appeal from the in- of plaintiff and J., defendants' interlocutory judgment, and con- testate. On the trial both parcludes with a direction that that ties claimed title to the locus in judgment must be affirmed. There quo, but the evidence established,