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plaintiff testified his application was entered, which entry appeared to have been erased. Whether it was the plaintiff's application that was erased was a subject of conflicting evidence. The jury found upon conflicting testimony in the plaintiff's favor, and we can. not say that their verdict was not justified by the evidence.

Whether the plaintiff made the application in April, being a matter of dispute between the parties, at the suggestion of the defend. ant he made another application in October, 1892. If the last application was made under the circumstances as related by the plain. tiff, it did not, we think, estop him from claiming under the previous application made in April. As the plaintiff did not base his claim to recover upon the October application, but under that of April, and it being conceded upon the trial that if the application was in fact made in April the sum claimed was due before the commence ment of the action, it was immaterial whether the amount claimed was due if the claim was in fact made in October, and not in April, as contended by the defendant.

We have examined the defendant's exceptions and find nothing in them calling for a new trial. The judgment and order appealed from should be affirmed. All concur.

(75 Hun, 409.)

WYCKOFF et al. v. VICARY. (Supreme Court, General Term, Fifth Department. January 18, 1894.) SALE-WHEN TITLE PASSES.

Where goods were bought in the name of a corporation which was never organized, by a person who represented himself as manager of the alleged corporation, the seller was not divested of title, and a purchaser of the goods from such manager, though for value and without notice, acquired no title as against the seller.

Appeal from Niagara county court.

Action by William 0. Wyckoff and others against William H. Vicary to recover possession of a typewriter and desk. From a judgment in favor of plaintiffs, and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals. Affirmed.

Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
A. A. Bradley, for appellant.
Devoe P. Hodson, for respondents.

LEWIS, J. The plaintiffs were copartners. Their salesman, in October, 1891, called at an office in the city of Lockport, having upon the door the name of “Lockport Electric Railroad, Light & Power Company," and found in the office Mr. Charles H. Laurence. He entered into negotiations with Laurence for the sale of a typewriter machine and a desk. Laurence told the agent that he was the manager of the Lockport Electric Railroad, Light & Power Company; that the company desired to purchase a typewriter and desk; that he would bring the matter before the di

rectors of the company the following Monday, and have them authorize him to make the purchase; and that if the company consented he would so inform the agent. Upon inquiry being made by the agent, Laurence stated that he should charge the machine and desk to the company, if it consented to buy them. The agent thereupon delivered the machine and the desk at the office, and Laurence thereafter informed him that the directors had had a meeting, and authorized him to make the purchase; and the plaintiffs thereupon charged the company with the price of the machine and desk, amounting to the sum of $105. There had been some preliminary steps taken at this time looking to the formation of a company of the name mentioned, but it had not in fact been or. ganized, and has not since. Laurence had been trying to organize the company, but had failed to do so. He had no express authority to act for the company in making the purchase in question. The plaintiffs, learning the situation, made efforts to collect the $105 of Laurence, but failed. The defendant, in good faith, purchased the machine and desk of Laurence, 'and paid him therefor $75. Plaintiffs, failing to get pay for their property, replevied it from the possession of the defendant.

The jury, under proper instructions from the court, found that it was the intention of plaintiff's agent to sell the property to the company, and not to Laurence. There being no such companv in existence, it could not take title.' Hence, there was no sale. Rodliff v. Dallinger, 141 Mass. 1, 4 N. E. 805; Lumber Co. v. Lesh, 119 Ind. 98, 20 N. E. 291. The defendant contends that Laurence, having assumed the right to purchase the property for a corporation not then formed, but which was expected to be organized, made himself liable to the plaintiffs for the purchase price of the property, and hence had the right to sell it to the defendant. Laurence, having falsely represented that he was authorized to purchase the property, was unquestionably liable to the plaintiffs for its purchase price, but it does not follow that the plaintiffs were obliged to look only to Laurence. It was optional with them to either hold him or reclaim their property. The sale which the plaintiffs intended and supposed they had made having failed, for lack of a purchaser, was not thereby turned into a sale to Laurence, who conducted the transaction. If plaintiffs had parted with possession of the property with the intention of passing title to Laurence, then the defendant, being an innocent purchaser for value from Laurence, would have obtained good title even if Laurence had obtained possession thereof by fraud. Davis v. Bechstein, 69 N. Y. 440. But the evidence tended to show, and the jury found, that the sale was not made to Laurence. He was not, therefore, the owner of the property, and could not give the defendant a good title to it. The plaintiffs had not clothed him with apparent authority to sell it. They delivered the property, as they supposed to a corporation. A bona fide purchaser of personal property other than commercial paper, although from one who has the possession, acquires no better title than that of his vendor. Ballard v. Burgett, 40 N. Y. 314. Laurence was at the

time of the delivery of the property in charge of the office, and ostensibly had charge of the affairs of the proposed corporation, but the evidence shows that he had no authority from the company to make the purchase. It cannot be successfully maintained that Laurence could give the defendant title to the property as agent for the corporation. The corporation, not having been organized, could not have an agent. Neither could it take title to the property. And then the defendant does not claim title from the corporation, but through Laurence. In the cases to which we are referred in the appellant's brief, the vendors intended to confer the real or apparent ownership upon the party under whom the defendants claimed title and right of possession, which distinguishes those cases from the one at bar. The case was submitted to the jury with proper instructions, and we find no reason for disturbing the verdict. The judgment and order appealed from should be affirmed. All concur.

(75 Hun, 366.)

TOWN OF DUNKIRK V. LAKE SHORE & M. S. RY. CO. et al.

(Supreme Court, General Term, Fifth Department. January 18, 1894.) PLEADING-MOTION TO STHIKE Our-DISCRETION OF COURT.

In an action in equity to compel a railroad company to carry a highwas under the tracks, (Laws 1890, c. 568, § 15,) the refusal of the court to strike out an allegation that the attention of the state board of railroad commissioners had been called to the crossing, and that after examination they had reported that the highway should be carried under the tracks, and that notice of such determination had been served on defendant, is not an abuse of discretion, as such allegation may be material on the question of costs. Appeal from special term, Erie county.

Action by the town of Dunkirk against the Lake Shore & Michi gan Southern Railway Company and others. From an order deny. ing a motion to strike out a portion of the complaint as irrelevant, defendants appeal. Affirmed.

Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
Daniel H. McMillan, for appellant Lake Shore & M. S. Ry. Co.
John G. Milburn, for appellant Chicago & St. L. R. Co.
E. D. Warner, for respondent.

LEWIS, J. This is an action brought in equity by the town of Dunkirk, through its highway commissioner, under section 15 of chapter 568 of the laws of 1890, to compel the several defendants to carry a highway under their tracks at a point known as "Fessler's Crossing" within the corporate limits of the plaintiff. The complaint contains appropriate allegations to the effect that the defendants severally own and occupy railroad tracks running through the town of Dunkirk, used for the purpose of railroad business; that in building their roadbeds at the point where they crossed the Fessler road they constructed an embankment some 12 or 15 feet in height, and constructed approaches thereto, leading up to the grade of the railroad bed, so that travelers upon the highway were compelled to pass up the embankments and over the railroad tracks, to the great incon. venience and danger of the teams and travelers; that the defendants neglected and failed to restore the highway to its former state; and judgment was demanded that the defendants be compelled at their expense to construct and carry the said highway through the embankments of said railroad, and underneath all their tracks, of sufficient capacity to allow the free passage through the same of vehicles and conveyances. In addition to the foregoing allegations, the complaint stated that a complaint was duly made and transmitted by the commissioner of highways of the town of Dunkirk to the board of railroad commissioners of the state of New York, calling the said board's attention to the condition of the railroads at said crossing, and to the importance and necessity of an under-crossing; that the said board of commissioners visited and inspected the said crossing, and there. after reported it to be substantially as stated in the plaintiff's complaint, and recommended that the highway should be carried under the tracks of the said railroads by the defendants so as to do away with the grade crossing; and that thereafter each of the abovenamed defendants was served with a copy of said report and recommendation of the said board of railroad commissioners, and that, notwithstanding said report of said board, and notice thereof to the defendants respectively, they had neglected, failed, and refused to follow said recommendation and restore the said highway at the said crossing to its former state. The defend ants moved to strike from said complaint so much thereof as related to the proceedings by and before the board of railroad commissioners. The motion was denied, and from the order denying said motion an appeal was taken to this court. In actions to secure equitable relief greater latitude and liberality are allowed in the preparation of pleadings than in other actions. Motions to strike from pleadings matter claimed to be irrelevant is addressed largely to the sound discretion of the court. It is not an absolute right of a party to have it stricken out in all cases. The power to strike out such matter should be used with reluctance and caution. Town of Essex v. New York & C. R. Co., 8 Hun, 361; Bradstreet v. Bradstreet Co., 14 N. Y. St. Rep. 260; Baer v. Seymour, 12 N. Y. St. Rep. 167; Finger v. City of Kingston, (Sup.) 9 N. Y. Supp. 175. It is true, as claimed by the appellants, that the powers possessed by the board of railroad commissioners are mainly advisory. The statutes organizing said board have not made any provision for enforcing its recommendations. The complaint states a complete cause of action against the defendants without the part concerning the board of railroad commissioners. This, in its nature, is an equitable action. The granting of costs against the defendants if the plaintiff be successful is discretionary with the court. It may well be that that part of the complaint alleged to be irrelevant may have a bearing with the court in determining the question of costs. If so, it cannot be claimed to be entirely irrelevant. Evans v. Burton, 5 N. Y. St. Rep. 218; Howard v. Tiffany, 3 Sandf. 695. It may be important upon the question of costs to show that defendants' officials had notice of the situa

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tion of things complained of for a sufficient length of time be fore the commencement of the action to have constructed the under: way if they had so desired. Had the action been commenced without the facts being called to their attention, they might well have urged upon the question of costs that they should have had notice, and an opportunity to have constructed the under-way, before being subjected to the trouble and expense of the action. If the matter complained of be stricken from the complaint, there would be no allegation left showing that the attention of the defendants was called to the matter before the commencement of the action. We are of the opinion that no error was committed in refusing to grant the defendants' motion, and that the order appealed from should be affirmed, with $10 costs and disbursements of the appeal. All concur.

(15 Hun, 174.)

DWIGHT et al, v. BADGLEY.

(Supreme Court, General Term, First Department. January 12, 1894.) GAMING-PURCHASE OF WHEAT FOR FUTURE DELIVERY.

No recovery can be had for money advanced and services rendered in purchasing wheat for defendant, where defendant, at the time of making the contract, stated to plaintiff's agent that he was merely buying on options, and to adjust the differences. O'Brien, J., dissenting, on the ground that plaintiff was not the seller, but merely a broker, and that there was no proof of the seller's intent. Appeal from circuit court, New York county.

Action by John H. Dwight and another against Howard G. Badg. ley. From a judgment entered on a verdict directed by the court, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Argued before O'BRIEN, FOLLETT, and PARKER, JJ.
Leavitt & Leavitt, (Edwin R. Leavitt, of counsel,) for appellant.
Wolff & Hodge, for respondents.

FOLLETT, J. Hedge, the plaintiffs' principal witness, and with whom the defendant had his transactions, was the New York agent of the plaintiffs. He testified:

"In these transactions I was associated with Dwight and Gillette as broker, and I received my commissions from them; and in each one of these transactions I was paid my commissions by Dwight and Gillette, the plaintiffs.”

The defendant testified: "Q. What was your intention in regard to these transactions, and to the delivery of this wheat, and the purchase and sale of it, at the time you made these transactions? A. My intention was entirely to buy and sell on options, and to adjust the differences. Q. Between the market price of buying and the market price of selling? A. Yes; that was distinctly stated to Mr. Hedge. Q. Did he state that to you? A. That was distinctly understood. Q. Was there anything said in regard to how the profits or losses should be adjusted? A. Most assuredly. Q. What was said? A. I cannot remember the specific conversation, but the substance of it was he would buy and sell on options, and the difference I should have, if any, in my

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