must be laid before the several commissioners thus sitting to try the case.

A landlord who rents apartments in a building, but maintains possession and control of the common hall and stairway, is under

the same duty towards persons calling socially upon his tenants to keep such hall and stairway in a safe condition as he is towards the tenants themselves; and his liability to such persons, if injured by his negligence, is the same as his liability to his tenants under like circumstances. In order to charge the landlord, under such circumstances, it must appear that, either with notice of the condition causing the

danger, or under circumstances equivalent

to such notice, he had failed to take the necessary precautions.

The fact that after an accident had happened the landlord remedied the defect which it

was claimed had caused such accident is

not admissible as evidence of knowledge, on the landlord's part, of dangerous condition at the time of the injury.

Appeal from judgment entered on verdict and from order denying motion for new trial.

Defendant owned a building in the city of New York in which he rented apartments to different persons, keeping the hallway and staircase in his own possession and control. Plaintiff paid a visit

cloth with which defendant had covered the stairs, and was precipitated to the bottom, sustaining injuries to recover damages for which she brought this action. Brewster Kissam, for applt. Charles W. Brooke, for respt. Held, That the same measure of liability for injuries sustained by negligence of the landlord extends to one socially visiting or calling upon a tenant as protects the tenant himself; and, consequently, plaintiff was within the scope of the protection against the landlord's negligence, and is entitled to the application of the same rules, if damnified by his negli gence, which the tenant could invoke in his own behalf.

The jury were charged by the judge presiding at the trial as follows: "Having undertaken to take care of the stairs by an oil cloth, it was the landlord's duty, of course, to keep it in a careful and safe manner. Now, was he negligent in that respect, and was the oil cloth in that condition which it is claimed by the plaintiff to have been in that led to her fall and damage to her person?" exception was taken to this part of the charge.

An

Held, Error; that the rule laid down was too rigid, and brought the liability of the landlord substantially to that of a warranty by contract, and subjected him to damages for any actual derangement which might cause an injury

when actual negligence could not be found or imputed.

That the liability of the landlord rested upon actual negligence, to constitute which there must not only be a duty or obligation on his part, but it must also appear that, with notice of the condition of things, or under some circumstances equivalent to notice, he had failed to make the necessary repairs or changes called for by the conditions or exigency.

It was shown upon the trial, against appellant's objection and exception, that, some months after the accident to plaintiff, defendant had put new oil cloth upon the stair case.

Held, Error: that such evi dence is not admissible to show knowledge of dangerous condition at the time of the injury. 56 N. Y., 1, 8; 68 N. Y., 547; 3 Hun, 338; 24 Hun, 37.

character, such evidence is not cumulative and a new trial may be ordered, notwithstanding the fact that defendant had witnesses on that point in court, at his trial, who were not called by his counsel, when it appears that if such evidence had been given upon the trial, it would probably have changed the verdict.

Such applications will not ordinarily be re

ceived with favor, and each case must depend upon its own peculiar circumstances. Appeal from judgment of conviction and from order denying motion for new trial.

The appellant, who was only twenty-one years of age, was convicted of robbery in the first degree. On the trial he was examin ed in his own behalf, and denied positively the commission of the offence or any participation in it. Evidence was also given in his behalf tending strongly to prove an alibi. In rebuttal, evidence was given by the People to prove the bad character of the appellant. No evidence of good character was given

Opinion by Davis, P. J.; Brady and Daniels, JJ., concur.

NEW TRIAL.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT.

motion was made under $465, Code of Crim. Pro., upon affidavits, among others, showing the good character of appellant. It appeared that one of the affiants was in court during the trial as a witness to the good character of the appellant, but was not called. The motion for a new trial was de

When the defendant in a criminal action testifies in his own behalf, and the people thereupon attack his character, but no evidence of good character is given on his part, on a motion for a new trial, under 465 of the Code of Criminal Procedure, on affidavits showing the defendant's good

George M. Curtis, for applt.
John McKeon, for respt.

Held, That the evidence of good character, as to which no evidence was given on behalf of the appellant on the trial, was not cumulative. 7 Daly, 111. That, assuming the counsel to have known of

the presence of witnesses for that purpose and that he omitted to call them, such omission should. not act to the prejudice of the appellant. 12 Hun, 504. That, considering the youth of the prisoner, his positive denial of the accusation against him and the evidence relating to the alibi, if evidence of his good character had been given by persons of respectability, such proof would probably have changed the verdict.

Motions of this character are addressed to the discretion of the Court, and each application must therefore depend upon its distinct characteristics, and cannot be said. to furnish a precedent.

Judgment and order reversed and new trial ordered.

Opinion by Brady, J.; Daniels, J., concurred on the ground that, on the whole case as presented, there was serious ground for doubt as to the appellant's guilt, and that a new trial should be ordered as the only method of removing that doubt; Davis, P. J., dissented on the ground that the character of the appellant was a collateral issue not within the intent and meaning of $465 of the Code of Criminal Procedure; that the new testimony was cumulative because it related to a question on which an issue was presented and tried and on which witnesses were examined, and that the appellant was not surprised, for he had wit. nesses in court on the issue who were not called.

FRAUDULENT CONVEY

ANCE.

N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Violetta A. Calkin, respt., v. Wm. C. Conner et al., ex'rs, applts.

Decided Oct 26, 1883.

A transfer to one of the partners of an insolvent firm by the other partners of all their right, title and interest in the firm property which is made for the purpose of allowing such partner to transfer all the firm's property to an individual debtor is fraudulent as against the creditors of the firm; and such partner's individual creditor to whom he transfers the firm property is not a bona fide purchaser thereof if he knew of the insolvency of the firm at the time of its transfer to his individual debtor.

Appeal from judgment entered on verdict and from order denying motion for a new trial.

On or about the 13th of February, 1875, two members of the firm of A. F. Calkins & Bros. transferred all their right, title and interest in the firm and its property to the third partner, Harvey C. Calkins. The firm was insolvent at that time, as was also the said H. C. Calkins. H. C. Calkins individually was indebted to his wife for money loaned him in the sum of about $10,000. On the 15th of Feb., 1875, he executed to a clerk in his employ a bill of sale, transferring all his right, title and interest in the late firm's property to such clerk, who, on the same day, executed a like bill of sale to the plaintiff, the wife of H. C. Calkins, who took possession of the said property. Subsequently the defendant's testator, who was the

notes matured H. was in embarrassed circumstances and was unable to pay them, but on June 17, 1879, he gave to defendant Minturn a mortgage upon his sugar refinery and the land on which it stood, and also upon "all the machinery and effects in the said sugar refinery," and for further security he also gave to defendant Minturn a chattel mortgage upon the machinery in his sugar refinery, describing it particularly in a schedule attached to the mortgage, but making no mention of the sugars and syrups in his refinery.

Defendant Minturn did not enter into possession of the sugar refinery and the business under these mortgages, and it appeared that the intention of the parties was that H. was to continue his business as before.

On June 18, 1879, the defendant bank procured an attachment against H., under which the sheriff, on the same day, levied upon all the sugars and syrups of H. in his refinery.

On June 21, 1879, H. made a general assignment for the benefit of his creditors to plaintiff, and subsequently the parties to this action entered into an agreement

Held, That where the language of an instrument is susceptible of more than one construction, that construction will be be adopted which, in the light of surrounding circumstances and upon a view of the whole instrument, is in accordance with the apparent intent of the parties. 45' N. Y., 601; 66 N. Y., 611; 32 N. Y., 703; 47 N. Y., 606.

That since neither of the mortgages to defendant Minturn expressly included the sugars and syrups, and since it was the intention of the parties that H. should continue his business, which he could not have done if his sugars etc., had been transferred to defendant Minturn, the word "effects" used in the mortgage in connection with the word "machinery" related to things ejusdem generis with those specified and to them only. 8 Wend., 494; 23 Beav., 413; 34 id, 215; 13 Vesey, 39.

Judgment reversed.

Opinion by Brady, J.; Davis, P. J., and Daniels, J., concur in reversing judgment without a new trial.

TITLE. EASEMENT.

refining of the sugars and syrups, and sold them, and deposited the proceeds in their joint names, and brought this action to determine the priority of the claims of the various parties to such proceeds.

Daniel T. Walden, for applt. Joseph H. Choate, for respt. Minturn.

TERM.

Mary C. Wheeler, applt., v. Thomas F. Tracy, respt.

Decided May 7, 1883.

Where the vendor in an executory contract for the sale of lands, agrees to convey certain real estate, viz: “ A tanyard property ** subject to a mortgage of $3,500," the vendee is justified in refusing to take said