statutory requirements unless the name of

the memorandum. 26 Wen., 341.

the end of or below such memorandum; and it cannot be held that if the name of

such party be found on the memorandum, e. g., in the centre thereof, he subscribed all that part which precedes his said signa

ture.

Appeal by defendant from judgment and from order denying motion for new trial.

The claim of the plaintiff was based upon an order alleged to have been given by defendant for foliage plants, etc., and claimed to have been signed by the wife of defendant, as agent. The amount of the order was about $300. The signing of the order and all the material facts were denied by defendant's witnesses. Plaintiff was his own sole witness. The jury ren dered a verdict for plaintiff for the full amount claimed with interest. From the judgment entered thereon defendant appealed to the General Term of the City Court, and as the alleged signature was in or near the centre of the alleged memorandum of order, the General Term affirmed the judgment as to that portion of the alleged order which appeared above the alleged signature, and reduced it by the extent of the items contained below the alleged signature.

W. R. Leggatt, for applt.
T. S. Moore, for respt.

Held, Error. There is no decision that warrants such a construction of the statute. It has always been understood that a note or memorandum of a contract for the sale of chattels is not valid unless the name of the party to be charged is signed below or at the end of

or at the end of the memorandum. 6 N. Y., 9. The memorandum is but one instrument, and must be either entirely valid or totally invalid. If the memorandum be not signed at the end, it is not such a note of the contract as the statute requires, and the contract is utterly invalid. The courts have no right to circumvent the statute by holding that if the name of the party to be charged can be found on the paper, he has subscribed all that part of the agreement that precedes his signature.

Judgment and order reversed and new trial ordered, costs to abide the event.

Opinion by Van Hoesen, J.; Van Brunt and J. F. Daly, JJ., con

cur.

RIPARIAN OWNERS. DEED. N. Y. COURT OF APPEALS. Groat et al., respts., v. Moak, applt.

Decided Nov. 20, 1883.

The owner of mills on a non-navigable stream sold a portion of its land and one of the mills by deed which reserved "the right at all times to use so much of the water in the river and dam which now is or may hereafter be therein, or in any dam erected hereafter, as shall be necessary to operate the present or any additional machinery which may be hereafter put in the building now used by them, or in any building to be erected on the site thereof, of the like or less dimensions." A statute of the State authorized a dam of only eight feet. Held, That this reference to the machinery was simply to measure and limit the quantity of water to be used; that quantity could be used for any purpose and anywhere, and

the grantor had the right to store it until he could take it and produce the power to which he was entitled; that there being no

limitation in the deed as to the height of the dam, the water could be taken from the one then existing, or from any thereafter erected, without regard to the statutory limitation.

entitled to use any water which would have passed over the dam if it had been maintained at the legal height-eight feet.

N. C. Moak, for applt.

E. M. Harris, for respts.
Held, That it cannot be presum-

In August, 1841, the P. Cotton Manufactory conveyed to defendant's grantor a parcel of land with a grist mill thereon. The deed contained the following recital and reservation, to wit: "Provided, nevertheless, and everything herein contained, is upon the express condition that it shall be lawful for the said party of the first part, i. e., the Phoenix Cotton Manufactory, and they do hereby expressly reserve to themselves the right at all times to use so much of the water in the river and dam which now is or may hereafter be therein, or in any dam erected hereafter, as shall be necessary to operate the present or any additional machinery which may be hereafter put in the building now used by them for the manufacture of cotton cloth, or in any building to be erected on the site thereof, of the like or less dimensions." Defendant claimed to be

1841 intended to cripple its factory by depriving it of any water power it might need to propel its machinery. The grantor was entitled to have the use of the water reserved at all times, not only the use of the water in the dam, but in the river as it then was or might thereafter be; not only the water in the dam as it then was, but in any dam that might thereafter be erected, and it was to have not only all the water necessary to operate the machinery then in the factory, but also all the water necessary to operate any additional machinery which might be put in the factory or in any building to be erected on the same site of like or less dimensions. The reference to the machinery was not to limit or define the purpose for which the water could be used, but to measure and limit its quantity. 3 N. Y., 253; 9 id., 423; 26 id., 387; 46 id., 615. That quantity of water could be used for any purpose and anywhere. The grantor could use a portion of this water to operate the machinery in the factory and the rest to operate machinery in some other building, or it could use the whole of it in a building located upon some other site. 46 N. Y., 615. The reservation being of a definite quantity of water "at all times,”

plaintiff could have that water, and it had the right to hold and store it until they could take it, and thus produce the power to which they were entitled. There being no limitation as to the height of the dam, plaintiff could take the water from the dam existing when the deed to defendant's grantor was executed, or any dam which might thereafter be erected. Defendant claimed that the reservation must be construed in reference to the statute, which authorized a dam of only eight feet.

Held, That defendant could only make this claim as a navigator. If injured in any other capacity it is damnum absque injuria. 30 N.

Y., 44.

་

There was no finding that any one navigates or desires to navigate, or can in any proper sense navigate this part of the Susquehanna river.

Held, That under the circumstances the dam is not in a moral or legal sense such a nuisance as calls upon a court of equity to deny plaintiffs relief as against defendant.

On the death of a man intestate and leaving him surviving a mother, a sister, and a widow, the mother takes a life estate in all his lands with remainder to the sister, and an unassigned right of dower which the mother previously had in such lands becomes merged in said life estate.

In such a case the maxim dos de dote peti non debet does not apply, and the widow is, therefore, entitled to dower in the whole estate, and not in two-thirds of it only. There are no statutory provisions regulating costs in an action for the admeasurement of dower under § 1596, et seq. of the Code of Civ. Pro, and, consequently, costs in such an action are in the discretion of the Court.

Appeal from a judgment rendered at Special Term.

In 1859 one B. died intestate, leaving him surviving a mother, a sister and a widow. At the time of his death he was seized in fee of certain real estate in the City of New York, subject to the unassigned right of dower of his mother. Subsequently his widow brought this action to procure an admeasurement of her dower, claiming dower in B.'s whole estate, while it was claimed on the part of defendants that, in accordance with the maxim dos de dote peti non debet she was entitled to dower in two-thirds of such estate only. The court at Special Term awarded her dower in the

cur.

DOWER. COSTS.

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

Sarah B. Aikman, respt., V. B. L. Harsell et al., applts.

Decided Jan. 25, 1884.

Sidney S. Harris, for applts.
George C. Blanke, for respt.

Held, That, on the death of B., his mother took a life estate in all his lands with remainder to his sister. 2 R. S., 1133, § 6.

That thereupon the unassigned right of dower which she previ

ously had in such land became merged in said life estate.

That under such circumstances the maxim dos de dote peti non debet was not applicable. 13 Barb., 50.

That, therefore, plaintiff was entitled to dower in all the lands of

B.

The judgment in plaintiff's favor awarded her costs and an extra allowance. Defendants claimed that one-half of the costs should be paid by plaintiff and one-half by defendants under 2 R. S., 492, SS 13 and 15.

Held, That this being an action under the provisions of the Code, § 1596, et seq., the Revised Statutes, 2 R. S., 488 et seq., relating to admeasurement of dower and regulating a very different proceeding did not apply, and that there were no statutory provisions in reference to costs in such an action, and that therefore the costs. are in the discretion of the court, and are governed by the conduct of the parties, 2 Scribner on Dower, 173, 2 Ed., and cases cited; Beames on Costs; 22 Law Library, 35, original paging, and that since defendants had stoutly resisted plaintiff's right to dower, the imposition of the costs and the granting of the allowance was not an erroneous exercise of such discretion.

Judgment affirmed.

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

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

Edward A. Frazer et al., respts., v. William R. Hunt et al., applts. Decided Jan. 25, 1884.

A referee to try the issues in an action has power at the trial to allow defendants to set up by an amendment to their answer that one of the defendants sued as a partner was not a partner, and that the claim sued on has been paid in part, the answer being substantially a general denial.

Where judgment is awarded in favor of plaintiff against one defendant and in favor of another defendant dismissing the complaint as to him, costs to the successful defendant under 3229, are, in the discretion of the court where such successful defendant did not unite in the answer and was not united in interest. When the successful defendant unites with his co-defendant in the answer, though he was not united in interests, he is not entitled to costs.

Appeal from judgment entered on the report of a referee appointed to try the issues.

Action by plaintiffs as partners to recover for goods sold and delivered. The answer admitted that plaintiffs were co-partners, but denied that defendants were, and denied the other material facts of the complaint. The defendants answered together.

At the close of plaintiffs' case defendants' counsel asked leave to amend by setting up that a person not a party was a partner with defendant Hunt, and that defendant Dunlap was not a partner, and further that $350 had been paid and was applicable toward the extinguishment of the claim sued on. The referee denied the application for leave to amend the

answer on the ground of want of power, and defendants' counsel excepted.

The referee awarded judgment against defendant Hunt, and dismissed the complaint as to the other defendant G. W. Dunlap.

Lewis P. Levy, for applts.

A. Edward Woodruff, for respts. Held, That the referee erred in denying the application to amend the answer for want of power. Code Civ. Pro., § 1073; 26 Hun, 200; 27 id., 452.

Under 3229 of the Code the costs as to the successful defendant are made discretionary with the court when such successful defendant does not unite in the answer and is not united in interest. Here the successful defendant, though not united in interest, united in his answer with the codefendant, and is therefore not entitled to costs although he probably would have been entitled to costs if he had answered separately.

Judgment reversed and new trial granted to defendant Hunt for error of referee as to allowing amendment. No costs are allowed to Dunlap, and costs allowed to Hunt to abide event.

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

ATTACHMENT.

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

J. B. Brewster et al., respts., v. John P. Terry, applt.

Decided Jan. 25, 1884.

Upon conflicting affidavits for and against a

motion to vacate an attachment, based on defendant's being a non-resident, it appeared beyond a reasonable doubt that defendant was a non-resident. Held, That the court was bound to maintain the attachment, the only point raised being as to residency of defendant.

Appeal from order denying motion to vacate attachment.

By the moving affidavits to vacate an attachment based upon defendant's non residence, the defendant's wife and one Post swore that defendant lived in New York. In reply, one Baker, a former employee of defendant, swore that defendant stated in his presence to the canvasser for a New York directory, a short time previously to granting the attachment, that he lived in Cuba and had no business in New York, and that defendant's wife within a few months had stated to him, Baker, that defendant lived in Cuba, and had no business here. It was conceded that defendant spent a good deal of his time in Cuba, where his father had large estates. Defendant made no affidavit in his own behalf, nor was the affidavit of Baker denied.

Jacob Fromme, for applt.

J. Woolsey Shepard, for respts.

Held, That the proof required that the attachment should be maintained, as it appeared beyond a reasonable doubt that defendant was a non-resident.

Order affirmed.

Opinion by Brady, J.; Daniels, J., concurring.