the courts that a common carrier can by contract restrict this liability. The argument is, that the condition for repeating is such a restriction, and, being in writing, and signed by the sender, is, to all intents and purposes, binding upon him as a contract. The question at once arises, where is the consideration for this contract? It does not move from the company; on the contrary, they demand of the sender of the message fifty per centum in addition for repeating-for assuring the faithfulness of their own conduct. We fail to perceive any consideration whatever on which to base this so-called contract. It is not a contract of any legal or binding force. This court said, in Illinois Central Railroad Co. v. Morrison et al., 19 Ill. 136, that a common carrier might restrict his common-law liability by a contract fairly made with the shipper. In that case the contract was special and under seal, and for which the railroad company paid a valuable consideration by reduction of the freight charges. That was a binding contract, for value. The one in question is not so, and does not possess one of the essential elements of a valid and binding contract, namely, a consideration. It is a sham and a delusion, and an imposition upon the public, who are compelled to resort to this agency in the transaction of their business. If it be a contract, the sender entering into it was under a species of moral duress; his necessities compelled him to resort to the telegraph as the only means through which he could speedily transact the business in hand, and was compelled to submit to such conditions as the company, in their corporate greed, might impose, and sign such a paper as the company might present. "Prudential rules and regulations," such as the company is authorized by statute to establish, cannot be understood to embrace such regulations as shall deprive a party of the use of their instrumentality, save by coming under most onerous and unjust conditions.

But it is said, a special agreement might have been made for insurance, in writing. To do this, the amount of risk must be specified in the contract, and paid at the time of sending the message, and as there is but one person in the world-a superintendent - authorized to make a contract of insurance, he must be hunted up, and the terms negotiated, all which require time, and a favorable opportunity to the sender be irretrievably lost. At Chicago, or other large cities, where a superintendent is supposed to be, there might not be much loss, but we are declaring the law for the whole State, and it is well known that at subordinate, though important, stations on telegraph lines, superintendents are not to be found. This provision is to such perfectly valueless. As a party repeating a message and paying fifty per cent additional therefor cannot recover of the company to the extent of his loss, we are free to say such a contract, forced, as we have shown it is, upon the sender, is, in our opinion, unjust, unconscionable, without consideration and utterly void.

The remaining question is as to the damages. As this case must be tried again, it is necessary some rule should be prescribed by which the damages are to be estimated. As a general principle, every person and corporation ought to make good all damages occasioned by his or their default. But it is not always easy in cases of this kind to state a general rule. It has been said, and very properly, that the great difficulty in such cases is, to distinguish between the right to recover, and the amount to be recovered, the line divid

ing these two branches of the law sometimes vanishing entirely. The best reflection we have been able to bestow on this branch of the case prompts us to say the rule adopted in the United States Telegraph Company v. Wenger, supra, in a similar case, is a reasonable rule. The message in that case ordered a purchase of stock which advanced in price between the time the message should have arrived and the time it was purchased under another order. The advance in price was held to be the measure of damages. That message, as this, disclosed to the agent of the telegraph company the nature of the business to which it related — in this case, to sell a certain number of shares of stock.

If appellants were compelled to, and did, purchase nine hundred shares of this stock to replace the stock so sold by reason of the carelessness of this company, and that, in the interval, between the selling one thousand shares and the re-purchase by Wrenn of the nine hundred shares, to replace the extra number of shares sold, and that stock had advanced in price, this advance should be the measure of damages. It is reasonable to suppose this is what both parties had in view, when the message was committed to the care of the appellees.

In looking at these conditions prescribed by telegraph companies, this one in particular (but they do not differ essentially from those of other like companies), we are forcibly impressed with the belief that they are designed to relieve themselves from all responsibility. Content to receive the money of the sender, they design to escape all responsibility. Such conditions are unreasonable, and ought not to receive the sanction of any court. We have said, and we repeat, that there is no reason, apart from atmospheric causes, why a message should not be transmitted precisely as received. The art is reduced to a certainty. The courts should not be swift to exempt these companies from liability, is a dictate of public policy. To such perfection has the art reached, that in the last thirty years in which electric telegraphs have been operated, we have been unable to find among the reported cases in this country and in England, more than fifty instituted against these companies for losses occasioned by their negligence. The messages sent by them in this time have amounted to millions. Under these circumstances, their bold claim to exemption should meet with no favor from the courts. The doctrine, to benefit the public, must be, as we have endeavored to establish, that a mistake in transmission is prima facie evidence of negligence, and the burden is on the company to show the contrary. If these companies rely upon contract, as restricting their liability, it is incumbent on them to show a valid contract, freely entered into by the sender of the message, and for a valuable consideration paid by the company or acknowledged by the sender. But even such contract will not relieve the company from gross negligence. On the most mature reflection, aided by all the light shed upon this subject, we are at a loss to understand upon what principle telegraph companies should be accorded immunity for their torts, or be relieved from the liabilities voluntarily assumed by them. If they desire to restrict their liability, it must be done by a contract fairly and knowingly entered into, and for a valuable consideration.

Holding these views, the judgment of the court below must be reversed, and the cause remanded for further proceedings consistent with this opinion.

COURT OF APPEALS.

List of the first one hundred causes on the third calendar of the court of appeals for the year 1873.

The court of appeals will re-convene in this city on Tuesday, the 23d inst., for the hearing of arguments, the first eight cases will be the day calendar for that day.

Preferred Calendar Class 1.

1. Haggerty v. The People of the State of New York. 2. Haggerty v. The People of the State of New York. 3. Wood v. The People of the State of New York. 4. Ormsby v. The People of the State of New York. 5. Coleman v. The People of the State of New York. 6. Wilkie v. The People of the State of New York.

Preferred Calendar - Class 3.

7. Turner and others v. Crichton, executrix, etc. 8. Carter v. Kain, executrix, etc.

9. Luddington and another, administratrix, etc., v. Miller and others.

10. Odell v. De Witt, executor, etc.

11. Pendergast, executrix, etc., v. Borst.

12. Hendrickson and another, executor, etc., v. Whit

son.

13. Van Zandt, executrix, etc., v. The Mutual Benefit Life Insurance Company.

14. Fearing and others, executors, etc., v. Irwin and another.

15. Hall, appellant, v. Hibbard and others, executors,

etc.

16. Ritter, executor, etc., v. Phillips and others.
17. Dusenberry, executor, etc., v. Hoyt.
18. Pope and others v. Cole, executrix, etc.

19. Costello, administrator, etc., v. The Syracuse, Binghamton and New York Railroad Company. 20. Turner, administratrix, etc., v. Treadwell and another.

21. Dugan, administratrix, etc., v. The Champlain

Transportation Company.

22. Fincke and others, executors, etc., v. Fincke and others, impleaded, etc.

23. Philip, committee, etc., v. McCombs, executrix, etc. 24. Putnam, administratix, etc., v. The Broadway and Seventh Avenue Railroad Co.

25. Hackford, administrator, etc., v. The New York Central & Hudson River Railroad Company.

26. Pierpont and another, administrators, etc., v. Patrick and others, executors, etc.

27. Duvall, executor, etc., v. St. James Evangelical Church in the city of New York.

28. Salisbury, administratrix, etc., v. Brandon. 29. Siebert, administratrix, etc., v. The Grand Street and Newtown Railroad Company.

30. McClure, executrix, etc., v. The Mutual Life Insurance Company.

31. Bosworth, executrix, etc., v. Vanderwalker. 32. Lennon and another v. The Mayor, Aldermen and Commonalty of the city of New York.

Preferred Calendar — Class 4.

-

33. The People ex rel. John G. Ostrom and others v. Herrick Thorn and others.

34. In the matter of The Rensselaer and Saratoga R. R. Co. v. Davis and another.

35. The People of the State of New York ex rel. Samuel Lord and others v. Crooks, impleaded, etc.

36. The People of the State of New York v. Ingersoll, impleaded.

37. The People ex rel. Rogers and others v. Spencer, county judge of Steuben Co.

38. The People ex rel. Jacob Garling v. Charles H. Van Allen and others.

39. The People ex rel. Church, appellant, v. Hopkins, comptroller.

40. Coulter v. The American Merchants' Union Express Co.

41. Sullivan ". The Mayor, Aldermen and Commonalty of the city of New York.

42. Leverich v. The Mayor, Aldermen and Commonalty of the city of New York.

43. The People ex rel. Davis v. Hill. 44. The People ex rel. Martin v. Brown, collector. 45. The People ex rel. Akin v. Hughitt, County Judge of Cayuga county, and others.

46. The People of the State of New York ex rel. Edmund L. Judson v. Thacher.

Preferred Calendar Class 5.

47. Terrett and another v. Crombie and another. 48. In the matter of the Petition of Leopold Bohn and others to vacate an assessment, etc.

49. In the matter of the Application of the New York and Harlem Railroad Company, for confirmation of the report, etc., for the appraisal of certain lands.

50. Corey v. Long.

51. In the matter of the Petition of John H. Wasson and others to vacate assessments, etc.

52. Bennett v. Stevenson.

53. The German Bank v. Edwards and another.

54. In the matter of the Petition of the Boston and Albany Railroad Company.

55. Brown v. Windmuller and another.

56. The Dry Dock, East Broadway and Battery Railroad Company v. Cunningham.

57. Strong v. Sprout and others.
58. Merchants' Bank v. Thompson.

59. In the matter of the Petition of John J. Van Epps for leave to sue the official bond of Ira Harris, late Master in Chancery.

60. The American Life Insurance Company v. Van Epps.

General Calendar.

61. Wells v. Miller.

62. Sands, receiver, etc., v. Hill.

63. Arnold and others v. The Hudson River Railroad Company.

64. Long and another v. The Western Railroad Corporation.

65. Root, respondent, v. The Great Western Railway Company.

66. Patterson v. Bloomer.

67. The Sun Mutual Insurance Company v. McCall. 68. Moore v. The Metropolitan National Bank.

69. Hall v. Minturn.

70. Hall v. Minturn.

71. Queen v. The Second Avenue R. R. Co.

72. Norton and others v. Norton and others. 73. Voorhees v. Burchard.

74. Voorhees v. Hendrehan.

75. Mitchell v. West.

76. Gordon v. Boppe and others.

77. Roberts v. Roberts.

78. Zogbaum v. Parker.

79. The National Bank of Commerce of New York v. The National Mechanics' Banking Association.

80. Hughes v. The Mercantile Mutual Insurance Company.

81. Hewlett v. Wood and others.

82. Magnin and others v. Dinsmore, President, etc. 83. Falkenan and another v. Fargo, President, etc. 84. Stitt and others v. Little and another. 85. Cowdon and others v. Gottgetrean.

86. Collendor, Survivor, etc., v. Dinsmore, President, etc.

87. Hall v. Minturn.

88. Marvin v. The Brewster Iron Mining Co.

89. Crane v. Bandonine.

90. The People ex rel. Nathaniel H. Green and another v. Smith, County Judge, and another.

91. Rogers v. King.

92. Roberts, survivor, etc., v. Fisher.

93. Blanke v. Bryant.

94. Chapman v. Rose.

95. The Atlantic National Bank of New York v. Franklin.

1 Curt. 705, that "where a party dies possessed of property, the right to that property passes to his next of kin, unless it be shown to have passed to another by survivorship. The property remains where it

is found to be vested, unless there be evidence to show that it has been divested." This exactly agrees with what had been laid down by Sir W. Grant in Mason v. Mason, and its application in Satterthwaite v. Powell was that, where husband and wife perished in a shipwreck, administration to the wife's property was denied to the next of kin of the husband, on the ground that there was no proof of his survivorship. Or the same principle in Wainwright's case and Ewart's case, 1 Sw. & Tr. 257, 258, where the husband and wife perished in a massacre, administration of the husband's goods was granted to his next of kin, the form of the administration oath being that there was no reason to believe that the wife survived the husband. And, again, in Underwood v. Wing, 3 W. R. 228, 4 D. M. & G. 633, and Wing v. Angrave, 8 H. L. C. 188, where the

97. Fabbri v. The Phenix Insurance Company.

98. Cameron v. Derkheim.

99. Lapham v. Rice.

100. Emmons v. Barnes.

PRESUMPTION OF DEATH.

Emerging from the flux of opinion which prevailed when General Stanwix's case was compromised, because the court of appeal could not make up its mind, the law has reached a tolerably settled conclusion on the question as to presumption of life. The conclusion is that, except the presumption (however it first arose) that a person who has not been heard of for seven years is dead, the law makes no presumption at all; but notwithstanding that Sir William Grant, in one of the earliest reported cases on the subject, struck the true keynote, it is only comparatively lately that the rule indicated by him has been fully and clearly developed. In Mason v. Mason, 1 Mer. 308, where the testator, who had bequeathed a legacy to each of his children who should be living at his death, was drowned in a shipwreck with one of his children, and the legacy to that child was claimed on behalf of the child's representatives on the ground that he must be presumed to have survived his father, that learned judge pointed out that the presumption as to survivorship, on which the representatives of the child relied, had no authority in English law, and expressed his opinion that in an issue at law "they must fail for want of proof." Passing by the case of Wright v. Netherwood, before Sir W. Wynne (2 Phill. note at p. 266), which turned on some nice considerations with reference to the law then prevailing as to the implied revocation of wills, in Taylor v. Diplock, 2 Phill. 261, Sir John Nicholl trusted himself, but happily without mischief, to the treacherous ground of presumption. There husband and wife had perished in a shipwreck; the husband had made his wife executrix and residuary legatee, and the learned judge granted administration of the husband's estate to his next of kin, saying (after a review of much inconclusive evidence) that there was "nothing to take away the ordinary presumption that a man was likely to survive a woman in a struggle of this description." The true rule, however, and one the application of which would have led to the same result, was that laid down by Sir Herbert Jenner in Satterthwaite v. Powell,

husband's will contained a limitation to the wife in the event of her surviving him, the limitation was held to fail for want of proof of that fact.

So far, then, the rule seemed very clearly ascertained - namely, in cases where both the persons as between whom the question of survivorship arose, perished in one calamity, without any evidence as to which survived. But for some time a misconception prevailed as to the effect of the rule which raises a presumption of death where a person has not been heard of for seven years. If both the persons as between whom the question of survivorship arose had disappeared at the same time, then, at the expiration of the seven years, there would be no doubt as to the effect of the presumption; it must necessarily be the same as if both had perished in a common calamity. The difficulty arose where there was actual evidence as to the existence of one after the time when the other had disappeared. In Nepean v. Doe, 2 Mees. & Wels. 894, the rule laid down in Rex v. Harborne, 2 Ad. & Ell. 540, was established, that "where a person goes abroad and is not heard of for seven years, the law presumes the fact that such person is dead, but not that he died at the beginning or the end of any particular period during those seven years; that if it be important to any one to establish the precise time of such person's death, he must do so by evidence of some sort to be laid before the jury for that purpose, beyond the mere lapse of seven years since such person was last heard of." What was done in Dowley v. Winfield, 14 Sim. 277, can scarcely be said to have decided any thing, but it was consistent with the rule so laid down; and in Re Green's Settlement, L. R., 1 Eq. 288, that rule was distinctly acted on. This rule evidently flows from the same principle on which the rule is founded which prevails where two persons perish in a common calamity; whoever has to make out his title must prove the fact on which it rests. Nevertheless, in Lambe v. Orton, 8 W. R. 111, Dunn v. Snowdon, 11 W. R. 160, 2 Dr. & Sm. 201, Thomas v. Thomas, 3 W. R. 225, 2 D. R. & Sm. 298, and Benham's Trusts, 15 W. R. 741, L. R., 4 Eq. 416, it was held that there was a presumption in favor of life, and the representatives of a legatee (or of a next of kin) who had disappeared before the testator's (or intestate's) death, and was not afterward heard of, was held entitled to claim his legacy (or share), on the ground that seven years had not elapsed when the testator died, and that the legatee must therefore be presumed to have been

then alive. The same error seems to have prevailed for a moment, but was speedily corrected, in Reg. v. Lumley, L. R., 1 C. C. 196. There a woman was prosecuted for bigamy, and the only proof as to her first husband's continued existence was that he was living within seven years of the second marriage. It was held (in conformity with Nepean v. Doe) that there was no presumption of the continuance of the husband's life during the seven years, at the expiration of which he might be pronounced dead; the fact of his existence at the time of the second marriage was a fact which must be proved by the prosecution. The rule thus laid down was followed in Phene's Trusts, 18 W. R. 303, L. R., 5 Ch. 139, where James, V. C., having followed, but expressly dissented from, the cases of Thomas v. Thomas, and Re Benham's Trusts, his decree was, in conformity with his own opinion, reversed by Giffard, L. J., and it was held that the representatives of a residuary legatee last heard of in 1860 could not make out their claim under the will of the testator who died in the following year. In Lewe's Trusts, 19 W. R. 195, L. R., 11 Eq. 236, this decision was followed by Malins, V. C., who, however, accompanied his decision with a protest on behalf of the view he had acted upon in Benham's Trusts, and this decision was affirmed by the Lords Justices (19 W. R. 617, L. R., 6 Ch. 356). The effect of the decision was, that the representatives of a pecuniary legatee who was last heard of in 1859 failed to establish their claims under the will of a testator who died in 1860. And the rule of law was very clearly expressed by the lords justices as follows: "Death," said James, L. J., "is presumed from the person not being heard of for seven years, and whoever has to make out the case of death at any particular time must prove it by affirmative evidence, and those who claim under a person who is said to have survived a particular period must prove the fact." "The person," said Mellish, L. J., "upon whom it rests to prove the affirmative, either that the legatee was alive or that he was dead at a particular period, must establish the proposition by distinct evidence, and not by showing merely that he was alive at the beginning of the period." Similarly, in ReWalker, 20 W. R. 171, L. R., 7 Ch. 120, a legacy to the children of W. P. who "should be living at his (the testator's) death," failed in respect of a child who had not been heard of since 1845, the testator having died in 1847: "it lies upon those claiming under him to show that he was entitled." Of the case of Re Beasney, 17 W. R. Ch. Dig. 140, L. R., 7 Eq. 498, and some other cases, it need only be said that there was evidence on which the court found the fact of death before a particular period. Such cases are not reports of points of law, but of the opinions of judges acting as jurymen.

It is difficult to reconcile with the rule so laid down the recent decision of Lord Penzance In the goods of Jane Nichols, 21 W. R. 161. There the husband of the intestate was, in 1845, convicted of felony, transported, and not heard of after 1853; the wife died in 1856, entitled to a reversionary interest in two sums of money upon the death of her mother; the mother died in 1864. The next of kin of the wife now applied for administration to her estate, but were refused, Lord Penzance saying: "The present applicant claims the benefit of the presumption of law which arises in these cases, that at the end of seven years after he was last heard of he was no longer living. That would make his death in 1860. Therefore, if that presumption is to operate, the husband survived his wife." The statement that the presumption would "make his death in 1860" is di

rectly opposed to the rule as laid down in Nepean v. Doe, Reg. v. Lumley, and the late cases in chancery; but that assumed fact seems the basis, and the necessary basis, of the decision. The husband would only take the wife's chose in action as administrator. If, therefore, he never was entitled to administration, how could he, or his representatives through him, ever become entitled to the property? If, then, the husband's representatives come hereafter for administration to the wife, on the principle of In the goods of Harding, 20 W. R. 614, L. R., 2 Pr. 396 (commented on, 16 S. J. 656), how will they be able to make out their title? On the other hand, it is true the wife's representatives cannot prove that she survived her husband, but then the principle of Satterthwaite v. Powell seems to apply, that "the property remains where it is found to be vested, unless there be evidence to show that it has been divested." The property was certainly in the wife, and could only come to the husband through her; it cannot be proved that the husband ever became entitled to it, because it cannot be shown that he survived her, and acquired a title to it as her administrator. He is now presumed to be dead; why then does not the property remain where it is found vested, that is, in the wife, or she being dead, in her representatives? The technical difficulty raised, as to the necessity of next of kin of a married woman swearing that she died a widow, might surely have been met as easily as a similar difficulty was by Sir Cresswell Cresswell in Wainwright's and Ewart's cases.-Solicitors' Journal.

GENERAL TERM ABSTRACT.

NEW YORK COMMON PLEAS, 1873.

AMENDMENTS. See Pleadings, and Mechanics' Lien. ASSIGNMENTS. See Contracts.

BILLS, NOTES, ETC. See Husband and Wife.

BROKERS.

When compensation is earned. — Appeal from a judgment in favor of defendant. This action is brought for plaintiff's commission as a broker for defendant. Plaintiff found a purchaser on defendant's terms and a contract was executed.

Held, that the broker fully performed his duty and earned his commission. The failure of the purchaser to complete, either from the lack of title to the property to be given in exchange or from any other cause, was no fault of the plaintiff, as there seems no ground for imputing fraud to him. Judgment reversed. Barnard v. Monnot, 33 How. Pr. 440, cited; De Figaniere v. Smith. Opinion by Robinson, J.

Cases criticised: Brackett v. Blake, 8 Metc. 335; State Bank v. Hastings, 15 Wis. 75.

See Contracts.

CAUSES OF ACTION. See Mechanics' Lien.

CONTRACTS.

1. Against public policy: assignment of pay of public officers: cases reviewed: construction of statutes. – Plaintiff's business was that of purchasing pay and claims against the government. Defendant was an inspector in the New York custom-house, whose pay was $4 a day, payable monthly. Plaintiff testified that on the 2d day of September $55.74 being due him for an existing debt, he bought of defendant his pay for the month of September, payable on the first of October, for the sum of $61.31. Defendant, in October, collected

the whole of his September's pay and only paid plaintiff $3 on account, so that plaintiff claims and has recovered $58.31 as and for the balance of his interest in these moneys. The action was brought in third district court for the sum named as converted by the defendant to his own use while agent for the plaintiff, and the defense interposed was that the transaction was void as against public policy.

Held, that the alleged transfer was not in writing, and no part of the purchase-money seems to have been paid, as required by the statute of frauds (2 R. S. 136, § 3). Error occurred on the trial: First. In denying defendant the right to elicit what transpired in the conversation when the transfer was made; and, Secondly. In refusing to dismiss the case on the ground that plaintiff did not make out a conversion of defendant's money, as alleged in the complaint. Thirdly. The alleged sale, by the defendant, of his salary as a public officer, previous to its having been earned, was void as against public policy, on the ground of such an act tending to diminish the responsibility and integrity of the officer, and impair the singleness of purpose which his duty exacted. The doctrine of the English courts on this subject, as founded on considerations of upholding the dignity of the government or the respectability of office, are inapplicable to our condition of society, nevertheless the considerations that influence the English courts in condemning the sale of the salary of public officers, while accruing, or before it becomes due, embrace the important one that it tended to diminish the interest of the officer in the performance of his duty, and rendered him, to a great extent, the mere servant or slave of his creditor or assignee in working out a past obligation. A pension or salary accrued for past services may be assigned, but one made or allowed to secure to the State the performance of future services or duties is inalienable. 3 Phil. R. 681; 1 Swart. 79; 2 Sim. 590; 2 Brod. & B. 673; 8 Cl. & Fin. 307; Story's Eq. Jur., § 294, cited. This principle is not innovated upon by any decisions of our courts, except that in Brackett v. Blake, 8 Metc. 355, and in State Bank v. Hastings, 15 Wis. 75, which are erratic and unsatisfactory, and furnish no grounds for rejecting the authority of the long line of decisions referred to. Fourthly. The alleged transfer was within the prohibition of the act of congress of February 26, 1853 (10 Stat. 170; Dunlap's Laws (U. S.) 1367; 1 Bright. 132), which declared any transfer of any claim upon the United States, or any part or share therein, "absolutely null and void, unless the same shall be freely made and executed in the presence of at least two attesting witnesses after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof." The judgment below in favor of plaintiff should be reversed. Billings v. O'Brien. Opinion by Robinson, J.

2. Appeal from judgment in favor of defendant. The facts of the case are similar to those in Billings v. O'Brien, supra.

Held, that for the reasons thirdly and fourthly assigned for the reversal of that judgment these should be affirmed. Even if the claim has been assignable the assignments did not conform to the act of congress. Bliss v. Lawrence; Bliss v. Gardner. Opinion by Robinson, J.

Also see Brokers; Counter-claim; Privity of Contract; Creditor's Bill; Redemption of Lands; Defenses; Mechanics' Lien; Evidence; Husband and Wife; Negligence; Reference.

HUSBAND AND WIFE.

1. What is payment to principal: bill, notes, etc., separate property of married women, and charges thereon: agency. - Defendant, a married woman, applied to plaintiff for a loan of $250 to aid her in finishing a building upon a lot of which she was owner. Defendant sent her husband for the money and plaintiff gave him a check on the bank payable to his order. The husband deposited it to his own credit and testifies that he applied the proceeds to his own use. Plaintiff testified that on asking the defendant for the money she said "she had not got it till she sold her property." Held, that this was as direct a payment of money to the husband, as agent, as if the money had actually been paid by the bank and lost by the agent. The objection that the defendant, being a married woman, could not charge her separate estate for a debt so created, except by an instrument in writing, was untenable. A debt created for the immediate and direct benefit of her separate property became a charge thereon without any written instrument. Owen v. Cawley, 36 N. Y. 60; Ballin v. Dillays, 37 id. 37; Com. Exch. Bank v. Babcock, 42 id. 626, cited. In thus dealing with her separate property she assumes the same liability as would attach to any other person for the dishonest acts of her agent, after it had been received by him on her authority, and the fact that her agent was her husband in no way affects the rule. 36 N. Y. 60; 47 id. 577, cited; Cohen v. O'Conner. Opinion by Robinson, J.

2. Evidence: admissions of married woman. - It was objected that testimony was admitted to show her (defendant) subsequent admission, that the money had come to her use, and her promise to repay it when she sold her property.

Held, this objection was not well taken. When dealing in matters concerning her separate estate, as to which she is liable as a feme sole, any testimony was admissible, even her acts and admissions, to establish the original transaction as claimed by the plaintiff. Ib. Also see Mechanics' Lien.

JUSTICES AND DISTRICT COURTS. See Practice. LANDLORD AND TENANT. See Privity of Contract.

NEGLIGENCE.

1. Contributory evidence: admission of evidence. Plaintiff started from south-west corner of Ninth avenue and Twenty-second street to cross the avenue on the crosswalk leading to the south-east corner of said street and avenue. Before she reached the pavement she waited for a truck, going up the avenue, to pass. While waiting she saw a wagon coming down the avenue. She beckoned to the driver, who did not stop, but drove over her. There was nothing to prevent the wagon from going on the west side of the avenue.

Held, that the question of negligence in plaintiff's waiting on the crosswalk for the truck to pass, there being room on the west side of the avenue for the wagon to pass, was a proper question for the jury and the motion for a nonsuit was properly denied. Sheehan v. Edgar. Opinion by Larremore, J.

2. Evidence: damages, measure of. It was competent to show the effects of the injury continuing down to the trial. Curtis v. Rochester & Syracuse R. R. Co., 18 N. Y. 534, cited. The evidence as to loss of service and expenses of illness, the direct result of the injury, was properly admitted. Ransom v. N. Y. & Erie R. R. Co., cited. Ib.