nicated to plaintiffs. Before plaintiffs acted on the misrepresentation the agency again called on the purchasers of the goods for another report of the condition of their business; but they declined to furnish it. But it does not appear that the agency so called at the instance or in the interest of plaintiffs, or that the fact of the refusal of another report was communicated to plaintiffs. The fact, therefore, does not affect plaintiffs; and since the representation of their solvency which the purchasers lodged with the agency was, in its nature and purpose, a continuing one, a recall of it was necessary to relieve them of liability to persons who extended credit in reliance on the representation. Had the purchasers, instead of merely refusing another report, expressly withdrawn the one formerly made, a question different from that before us would have been presented.

We have examined the exceptions in the record; but we find none to be well taken, or of sufficient plausibility to require discussion.

The argument of appellant that the misrepresentation of the purchasers was too remote in time from the credit by plaintiffs, is not supported by the facts; for it appears that plaintiffs received the report from the agency "in the spring or early summer of 1889," and they commenced the credit with the purchasers in June of the same year.

We may add, in conclusion, that, assuming all the evidence to be before us, we think the verdict in accordance with the clear preponderance of proof.

Judgment and order affirmed, with costs.

ALLEN and BISCHOFF, JJ., concur.

JOHN FORDE, Resp't, v. JAMES E. NICHOLS et al., App'lts.

(New York Common Pleas, General Term, Filed February 2, 1891.)

1. NEGLIGENCE-NUISANCE-CHARGE.

In an action for injuries alleged to have been caused by the maintenance of an obstruction in a street, a charge that plaintiff, to recover, must prove defendants' negligence, and the absence of contributory negligence on his part, is more favorable to defendants than they have a right to ask.

In such an action it is proper to ask a medical witness what results will follow with reasonable certainty from the injuries.

3. SAME-CONDITION OF PREMISES.

Evidence is also admissible as to the nature, appearance and use of the structure claimed to be an obstruction within a few hours after the accident.

APPEAL from judgment entered upon a verdict in favor of plaintiff, and from order denying a new trial in an action to recover special damage resulting to plaintiff from the maintenance of a nuisance by defendants.

Defendants had erected a platform in front of their premises extending six inches beyond the stoop line, which had movable steps, and also a platform along the curb of the sidewalk, for the N. Y. STATE REP., VOL. XXXVI.

92

purpose of loading goods upon their wagons. Plaintiff, finding the sidewalk obstructed by these and the skids connecting them, endeavored to pass by, using the steps and platform, and when upon the third step slipped and fell, sustaining the injuries complained of.

John Proctor Clarke, for resp't; Henry D. Hotchkiss, for app'lts.

PER CURIAM.-This case presents no error of sufficient importance to call for a reversal of the judgment and order appealed from. The evidence was abundant to warrant the verdict and the facts proved established defendants' liability beyond all question. So also the charge, proceeding partly upon the theory that to entitle plaintiff to a recovery he must establish defendants' negligence and absence of contributory negligence on his part, was more favorable to defendants than they had a right ask. Wood on Nuisances, §§ 295, etc., and cases cited: Irvine v. Wood, 51 N. Y., 224; Creed v. Hartmnan, 29 id., 591; Congreve v. Smith, 18 id., 79; Congreve v. Morgan, id., 54.

The question addressed to and answered by plaintiff's medical witness, Dr. Palmer, "What results will follow with reasonable certainty from the injuries which you observed," was competent and proper and was in strict accord with the ruling in Strohm v. N. Y., L. E. & W. R. R. Co., 96 N. Y., 305.

So also the testimony of John K. Forde, a witness for the plantiff, as to the nature, appearance and use of the structure, claimed to be an encroachment upon the public highway, within a few hours after the injuries to the plaintiff, was relevant and, therefore, competent and properly allowed.

The judgment and order appealed from should be affirmed, with costs.

ALLEN, BISCHOFF and PRYOR, JJ., concur.

BENJAMIN WINCHELL, App'lt, v. THE KNICKERBOCKER ICE Co., Resp❜t.

(New York Common Pleas, General Term, Filed February 2, 1891.) RELEASE-MISREPRESENTATIONS.

In an action to set aside a release and to recover upon a contract as originally made, on the ground that such release was procured by false representations, there was no evidence as to what occurred between the parties to it at the time the release was signed, but evidence was given showing that other dealers under similar contracts had been induced by similar representations to accept similar reductions. Held, that the fact that false representations were made to one person does not establish that they were made to another; that there was an entire failure of proof, and that a nonsuit was properly granted.

THIS is an appeal from a judgment dismissing a complaint at the equity term of this court.

Rollin Tracy, for app'lt; Michael M. Forrest, for resp't.

PER CURIAM. The action was properly disposed of by the court below. The gravamen of the action was that the defendant by false or mistaken representations, induced one Hewitt to execute a release in writing, by which he agreed to accept a certain

number of tons of ice as his pro rata of a previous contract, and that the quantity of ice he thus agreed to accept was less than the quantity to which he was entitled. It is alleged that by divers mesne assignments the cause of action of Hewitt has been vested in the plaintiff in this action. The judgment demanded in the complaint is that the said release given by Hewitt to defendant be vacated and set aside, and that the plaintiff recover damages.

No evidence offered on the part of the plaintiff was excluded to his injury. He had the burden of proof to establish by a fair preponderance of evidence that the agreement or release was obtained from Hewitt by misrepresentation. There does not appear to be in the case a particle of proof that any misrepresentations were made to Hewitt, or that Hewitt relied or acted upon any representations whatever in executing the release or agreement above referred to. Hewitt died in 1871. Bramore, the president of the defendant company, who had charge of the transactions with ice dealers, died before the trial of the cause. There was absolutely no evidence in the case as to what occurred between Hewitt and the defendant's officers at the time of making the agreement. Dishonest and unfair dealings are not presumed in law. Evidence to invalidate the release should be direct and not doubtful or equivocal.

The appellant was allowed on the trial of this case to introduce proof that other dealers under contracts similar to Hewitt's were induced by defendant's misrepresentations or mistake to accept the same quantity of ice as their pro rata under their contracts in the year 1870. This would not establish that there was any fraud or mistake on the part of the company in dealing with Hewitt. The fact that false representations are made to one person does not establish that they are made to another. For anything that appears in this case, it may well be that the release was executed by Hewitt upon grounds entirely satisfactory to

him.

Plaintiff appears to have failed entirely in his proof, and the nonsuit was, therefore, properly granted.

The judgment appealed from should be affirmed, with costs. ALLEN, BISCHOFF and PRYOR, JJ., concur.

ELI M. GOODMAN, Resp't, v. AUGUST GOETZ et al., App'lts.

(New York Common Pleas, General Term, Filed February 2, 1891.)

1. PARTNERSHIP-POWER OF PARTNER TO GIVE BILL OF SALE.

One partner is the authorized agent of the others for settlement of the partnership liabilities even by transfer of the partnership property, and, therefore, may give a bill of sale in payment of a firm debt without the consent of his copartners.

2. CONVERSION EVIDENCE.

In an action for conversion against the sheriff, where his indemnitors have been substituted, it is not error to admit the bond of indemity in evidence, although a cause of action has not been alleged against the indemnitors by a supplemental complaint, where one of the indemnitors was an original defendant in the action, and the objection is general in behalf of all the defendants.

3. JURY-IRREGULARITY IN DRAWING.

An objection on the ground of irregularity in the drawing of a jury to be available must be made before the jury is drawn. The presumption is always in favor of its regularity.

APPEAL from order denying motion for a new trial.
Leopold Leo, for app'lts; Henry L. Landon, for resp't.

PER CURIAM.-Appeal from an order denying defendant's motion for a new trial. Action for conversion of certain merchandise, claimed by plaintiff under a bill of sale from the firm of Pohlman & Figge and levied upon by the sheriff under an execution on a judgment confessed in favor of defendant Helena Figge. The record discloses various allegations of error; but, for the most part, they are so manifestly frivolous as not to warrant serious consideration. Perhaps, however, three of the alleged errors may justify a word of comment.

(1.) Plaintiff's title to the goods was challenged upon the grounds: First, that the one partner who executed the bill of sale had no power to do so without the consent of his co-partner; and secondly, that the transfer was made with intent to defraud creditors. As to the first ground, it suffices to say that the transfer of the goods to plaintiff was in payment of a firm debt, and that one partner is the authorized agent of the others for settlement of the partnership liabilities, even by transfer of the partnership property. Van Brunt v. Applegate, 44 N. Y., 544; Mabbett v. White, 12 id., 443; Chester v. Dickerson, 54 id., 1; Graser v. Stellwagen, 25 id., 315.

As to the second ground, the only pretense of fraud is founded on an alleged want of possession by the vendee; but the evidence is ample to show an immediate delivery and a continuous possession.

It

(2.) The second imputation of error is equally untenable. was not necessary by an amended or supplemental complaint to bring in the indemnitors, or to show a cause of action against them. Pool v. Ellison, 30 N. Y. State Rep., 135.

Indeed, the point was not sufficiently presented by appellant's exception to the admission of the bond in evidence; for Helena Figge, one of the indemnitors, was an original defendant with the sheriff; and as to her the bond was competent evidence. the objection was general, in behalf of all the defendants.

But,

3. Another matter urged by the appellant as a ground for reversal of the order has reference to an alleged irregularity in the drawing of the jury. It is sufficient to say in answer to this, that the presumption is always in favor of regularity; and to make the objection available, it must affirmatively appear that it was made before the jury was drawn. The record before us fails to show that the objection was thus made and hence the irregularity, if any, must be deemed to have been waived.

The order appealed from should be affirmed, with costs.
ALLEN, BISCHOEF and PRYOR, JJ., concur.

JOHN F. SAUNDERS et al., Resp'ts, v. WILLIAM H. PAYNE, Impl'd, App'lt.

(New York Common Pleas, General Term, Filed February 2, 1891.) 1. SALES-WHERE GOODS ARE DELIVERED FOR INSPECTION, NO TITLE PASSES.

The plaintiffs, importers of diamonds, delivered diamonds to defendant with a memorandum as follows: "The following goods are for your inspection and remain the property of Saunders, Ives & Co., until a correct invoice of those selected is sent to you." Held, that such a contract gave defendant no title to the goods, and no right to sell them.

2. TRIAL-ERROR IN CHARGE TO JURY.

Although the charge may be improper, if it is not hurtful to appellant, he cannot complain.

APPEAL from a judgment of the general term of the city court of New York, affirming a judgment of a trial term, and from an order denying a motion for a new trial.

Jardine Lyng, for app'lt; Franklin Bien, for resp'ts.

ALLEN, J.-The action was brought to recover damages for diamonds delivered by plaintiff to defendant. Plaintiffs are importers of diamonds in the city of New York. In the month of December, 1887, defendant Payne called upon plaintiffs, and said he had a customer for some diamonds, and wished plaintiff to give him some to show to his customer. Plaintiff at that time declined. to give him any, but some days afterwards delivered to defendant certain diamonds of the value of $1,148.85 on memorandum as follows: "The following goods are for your inspection and remain the property of Saunders, Ives & Co. until a correct invoice of those selected is sent to you. On return of goods, please insist on having this memorandum checked by the person who received it." (Here follows a description of the goods.) The complaint alleges the delivery, the demand and the refusal to return. answer denies all the material allegations of the complaint, and sets up that the defendant purchased the goods from the plaintiffs. Upon the trial, the delivery of the goods and their value were admitted.

The

There are three points urged by the appellant as ground for reversal of the judgment which require notice. It is claimed by the appellant that the memorandum, above referred to, gave defendant authority to sell the goods. And the appellant refers to the case of Smith v. Clews, 114 N. Y., 190; 23 N. Y. State Rep., 166, in support of his claim.

That was an action under the Code of claim and delivery of personal property alleged to belong to the plaintiffs and wrongfully withheld by the defendant. One Miers had obtained some diamonds from the plaintiffs on memorandum, which said they were delivered to him on approval to show to his customers, and sold them to the defendant Clews. The question in that case was whether the defendant Clews obtained the title to the diamonds, and that depended upon Miers' authority to sell. The court construed the contract, in the light of the evidence before it, to confer on Miers the power of sale, and placed emphasis on these facts: