right of access by way of the street is an incident to the ownership of the lot which cannot be taken away or materially impaired, without liability to the owner to the extent of the damages actually incurred. In this respect, and in this only, is the interest of the abutting property-owner different in the street in front of and beyond the line of his lot from that of the public.

The location and operation of a railroad upon a public highway may occasion accidental embarrassment and inconvenience, to an abutting lot-owner, but until it cuts off or materially interrupts his means of access to his property, or imposes some additional burden on the soil, his injury and damage, while different in degree, are the same in kind as are those of the community at large. For such merely incidental damages as result from the careful construction and prudent operation of a railroad, on the land of another, even though it be in a public street, the adjacent proprietor cannot recover. These are injuries common to all those whose lands are in such close proximity to a railroad, which happens to be located on the land of another, as to suffer incidental injury therefrom. For such injuries or inconveniences, in the absence of a statute giving him redress therefor, the propertyowner is not entitled to maintain an action. Grand Rapids, etc., Co. v. Heisel, 38 Mich. 62; Central Branch, etc., Co. v. Andrews, 30 Kans. 590; 2 Pac. Rep. 677; City of Chicago v. Union Bldg. Ass'n, 102 Ill. 379; Rigney v. City of Chicago, id. 64.

The practical question still remains, does the fact that the appellant constructed an embankment eleven feet in width on the opposite side of the street, thereby reducing it in width, and forcing travel to the side next the plaintiff's lot, which he occupies as a residence, and rendering access thereto "more difficult and inconvenient," affect the plaintiff in a manner so substantially different from the common public as to entitle him to maintain an action for damages? No general rule can be stated which shall define the extent of the interference or deprivation in each case in order that an action may be maintained. The purposes for which property is used, and its adaptation to the street, in respect to the improvements made thereon, and the width of the area necessary for access, are so various in different cases that the diminution of the width of the highway might be a serious injury in one case, while in another it might amount to no greater inconvenience than would be suffered by the public in general. Thus much however may be said generally: Where the owner of a lot is entitled to exercise a right which he possesses in common with the public, and the exercise of which is necessary to the enjoyment of his property in the usual manner, in order to warrant a recovery for an invasion of such right, it must appear that the obstruction complained of presents a physical disturbance of the rights so possessed, so as to prevent or impair its use in the manner in which it was theretofore actually used and enjoyed, and the disturbance of the right must have resulted in peculiar damage to, and depreciation in the value of the property to which the right is appendant. Metropolitan Board, etc., v. McCarthy, 10 Eng. Rep. 1; Fritz v. Hobson, 19 Am. Law Reg. 615, and note.

There are no facts found in the case before us from which it can be said that the embankment on the opposite side of the street, in front of the plaintiff's lot, presents any obstruction to the means of ingress and egress to and from the buildings and improvements thereon. It does not appear that he had ever in any manner used any part of the eleven feet on which the appellant's track is constructed as a means of gaining access to his property, nor are there any facts found from which the necessity or propriety of using that side of the street in order to approach his lot is appar

ent. All that is found is that the obstruction forces the travel over the highway nearer his lot, and makes access thereto more difficult and inconvenient. That however does not show that the erecting of the embankment presents any substantial interference with his right of access over the highway as it was previously enjoyed and used, nor does it show any inconvenience of a kind different from that to which the community at large is subjected. The highway may be more difficult and inconvenient of passage at that point by all who use it, precisely as it is inconvenient, as a means of access, to the plaintiff's lot. That the plaintiff, on account of the proximity of his residence, and because he uses the highway more frequently, may suffer inconvenience greater in degree than others, may be conceded. From any thing that appears, the inconvenience suffered by him is not different in kind from that suffered by others. Mere inconvenience or disadvantage, so long as the obstruction complained of does not in some substantial degree impair or deprive the plaintiff of the usual and ordinary means of access to his property, cannot give a right of action. Powell v. Bunger, 91 Ind. 64; Lansing v. Smith, 8 Cow. 146; Cammins v. City of Seymour, supra. Until it is found that the part of the highway obstructed was in some way necessary in order to afford access to, or an outlet from, the plaintiff's property, as he had been accustomed and had the right to enjoy it, the injury to the plaintiff is of the same kind as that suffered by the community in general Venard v. Cross, 8 Kans. 248.

Upon the facts found, the case before us is in strict analogy to that of President, etc., v. Stearns, 15 Gray, 1, and cases of that class. The case cited rested upon a claim for injury to land, occasioned by an obstruction placed in a navigable river or public way, whereby the plaintiff's land was rendered more difficult of access, and less valuable. It was held that no recovery could be had. Blackwell v. Old Colony R. Co., 122 Mass. 1. In so far as the obstruction disrupted and destroyed the means theretofore provided for carrying off the surface water, and for preventing it from flowing upon the plaintiff's land, the damage was of that character for which a recovery may be sustained. Upon the whole case, our conclusion is that justice requires that a new trial should be ordered, to the end that the facts may be inquired of with a view to the principles herein set forth.

[Omitting a minor point.]

For the reasons heretofore given, the judgment is reversed with costs, and a new trial granted.

NEW YORK COURT OF APPEALS ABSTRACT.

AGENCY

UNDISCLOSED PRINCIPAL- ACTION FOR

PRICE-PARTY.-Plaintiff, through his broker, entered into a contract with defendant as follows: "NEW YORK, April 25, 1882. Sold for account of Mr. E Ludwig, Agt., to Mr. L. C. Gillespie, four thousand (4,000) cases Syrian bitumen," specifying the time of delivery and payment. The contract was assented to by both parties, the plaintiff not disclosing his principal, though he was in fact the agent of a French firm. In an action brought by plaintiff to recover the price of the goods delivered, held, that as agent of an undisclosed principal, plaintiff could properly sue in his own name, and that payment of the judgment to plaintiff would bar an action by the principal upon the same contract. April 19, 1887. Ludwig v. Gillespie. Opinion by Danforth, J.

APPEAL-ASSIGNMENT OF ERROR-GENERAL OBJECTION. A general objection to evidence is sufficient on

appeal, where the evidence objected to was in its nature inadmissible, and where it is apparent that the ground of the objection could not have been misunderstood. April 26, 1887. Tozer v. New York Cent. & H. R. R. Co. Opinion per Curiam.

BANKS-DRAFT-CERTIFICATION-LIABILITY-NON

SUIT ON OPENING-PROVINCE OF JURY-APPEAL-DIVIDED COURT-RES ADJUDICATA.-(1) In an action upon a draft drawn upon and certified by defendant, which had been fraudulently altered in amount, plaintiff's counsel, in his opening, stated that plaintiff expected to prove that before taking the draft plaintiff asked defendant's teller if the certification was good, and was told it was, after careful examination of the draft by the teller; that notice had previously been given by the drawer to the defendant of the miscarriage of the draft, and a request to stop payment; that in the ordinary usage of banks, it was the duty of the teller, before answering the question, to compare the draft with his certification book and book of stopped payments; and that said question related, not merely to marks of certification, but to the draft as certified. Upon this statement plaintiff's complaint was dismissed. Held, error, and that aside from the question of usage, plaintiff had a right to go to the jury on the question whether the inquiry made of the teller was understood by the parties as referring to the validity of the certification, at the time it was exhibited to the teller, or only to the marks of certification, and also on the question whether it was culpable negligence for the teller to answer the question without referring to the books. (2) The reversal of judgment upon the former appeal in this case (89 N. Y. 420) was based solely upon the instruction of the trial court to the effect that if the draft was presented to the teller, and he answered the question whether the certification was good in the affirmative, that answer of itself rendered the defendant liable, without giving the jury opportunity to consider the circumstances proved upon the trial, and the import of the question asked the teller, and his answer thereto. (3) Where a complaint was dismissed on the opening of counsel, all the facts referred to in his opening, or offers of proof, should be considered, including facts not stated in the complaint, as well as those stated, unless objection to proof of such additional facts is made upon the specific ground that it is not admissible under the pleadings. (4) When a majority of the appellate court concur simply for reversal, it is not safe to treat any thing as having been adjudicated except the precise point in respect to which error in the judgment of the trial court was made to appear. April 19, 1887. Clews v. Bank of the New York Nat. Banking Ass'n. Opinion by Rapallo, J.

BOND OF INDEMNITY-ATTACHMENT-PLEADINGEVIDENCE-RATIFICATION.-(1) A bond of indemnity to a sheriff under an attachment, conditioned that the obligors should indemnify the sheriff from all liability, suits and judgments against him by reason of the levying, attaching and making sale under or by virtue of such attachment, and for the defense of any action brought against him for such taking, does not indemnify the sheriff for the expense of a suit brought against him for refusing, without the knowledge or consent of the obligors, to return the property after the attachment has been vacated. (2) In an action against the sheriff for a wrongful taking, wherein the latter justifies under an attachment, the plaintiff may show without further pleading that the attachment had been vacated, and that the sheriff had subsequently refused to return the property. (3) In an action on the indemnity bond, where the judgment in the suit against the sheriff is offered in evidence, and it appears by the language of the trial court that the

sole ground of recovery was the sheriff's wrongful refusal, subsequent to the vacating of the attachment, no presumption can be entertained that there was evidence tending to establish the sheriff's liability under the attachment. (4) When it does not appear from the record of a judgment, offered in evidence in another suit, what was the precise ground upon which a case was decided, parol evidence thereof may be given, provided such ground was within the issues in the case. (5) After judgment against the sheriff for such wrongful refusal, it is too late for him to urge, in an action against the obligors in his indemnity bond, that before complying with the demand for return, he was entitled to a certified copy, of the order vacating the attachment. (6) The fact that such obligors defended the action against the sheriff for his refusal to return, does not constitute a ratification of such refusal, in the absence of evidence that they originally sanctioned it. April 19, 1887. Bowe v. Wilkins. Opinion by Peckham, J.; Ruger, C. J., dissenting.

--

FLOWAGE — DAMAGES.

CANAL -IMPROVEMENT Where by reason of the rebuilding of a permanent dam in New York for the purpose of canal navigation, the waters of a creek are set back, and rendered so sluggish that the channel becomes filled up, and adjoining lands are overflowed during the entire year, and rendered valueless for any purpose, a claim for damages cannot be brought under the act of 1870, which relates to temporary injuries resulting from the canals, or their use or management, or the negligence of the officers in charge, but must be brought under the act of 1830, relating to a permanent appropriation of land for the use of the State in the process of construction or improvement of the canals, and must be presented within one year. April 19, 1887. Stewart v. State. Opinion by Finch, J.

44

EXECUTORS AND ADMINISTRATORS-ACTIONS BYREPRESENTATIVE CAPACITY.-Section 1814, Code Civ. Proc. N. Y., requires that an action by an executor or administrator, " upon a cause of action belonging to him in his representative capacity, * * * shall be brought by him in his representative capacity." Held, that an action by an administrator with the will annexed, to recover possessiou of certain notes, bonds and mortgages alleged to belong to the estate, but made payable to a former executrix personally, and delivered by her to defendant for safe-keeping, was not an action "belonging" to the administrator "in his representative capacity," and should not have been brought in such capacity. In such case, where the plaintiff sued in form as administrator," he is personally liable to costs upon defeat. That capacity was created by statute to carry into effect the wish98 of the decedent, and by virtue of it, an executor takes as of the time of the death of the testator, and as it were, from his hand, his personal property, so that there is no interval of time when it is not the subject of ownership by the testator up to the time of his death, and from that moment by the person named, not as an individual, but as a representative. The statute characterizes the property received as assets, requires it to be inventoried, and for those assets so inventoried, and for any increase, the executor is to account. It includes, among other things, debts secured by mortgage, bonds, notes and things in action. He and his sureties are liable for the full value of all such property of the deceased received by the executor, and not duly administered, and if the cause of action accrued in the life-time of the testator, any suit respecting it must be in the name of the executor as such. He then sues in the right of the testator, and can bring such actions only as the testator himself might have maintained. On the other hand, if an in

many items of damage. Camp v. Ingersoll, 86 N. Y. 433. This rule has been applied in actions on policies of insurance where there are many items of loss. It is contended that the counter-claim set up in the answer, of which a bill of particulars was also ordered and furnished, will require the examination of a long account. Even if this should be assumed, it would not make the action referable. "The character of the action is determined by the complaint. The answer

cannot change it. If the action is a referable one, the answer cannot make it nou-referable" (per Church, C. J., in Welsh v. Darragh, 52 N. Y. 590); and on the same principle, if the action is non-referable, a counter claim set up in the answer cannot make it so, as was held by this court in Townsend v. Hendricks, 40 40 How. Pr. 143. The defendant has a constitutional right to trial by jury on the issues presented by the complaint and answer, and he does not waive that right by setting up, in addition to his defenses, a counter-claim. If the plaintiffs prevail in the action it may never become necessary to try the counterclaim. Should the counter-claim ever require examination, a reference can be ordered as to it after trial of the issues. Townsend v, Hendricks, supra, 164. (3) Where the motion for reference made upon affidavit of counsel for one of the parties is in the record on appeal, together with the pleadings and bill of particulars on which it is founded, the appellate court will judge whether the case is properly referable, although there is no opposing affidavit. May 3, 1887. Untermeyer v. Bernhouer. Opinion by Rapallo, J.

REFORMATION OF CONTRACT-CONSTRUCTION—QUESTION OF LAW.-The plaintiff, in an equitable action to reform an alleged mistake in a written contract, raised a question as to the construction of the contract, insisting that the reformation would give the instrument the true meaning as expressed in the original contract upon which the instrument was based. Held, that this was a question of law which could not be passed upon in an equitable action. April 19, 1887. Oakville Co. v. Double-Pointed Tack Co. Opinion by Finch, J.

TAXATION-SALE-CONTIGUOUS LANDS-" OWNER" -CERTIFICATE OF SALE-REDEMPTION-AFFIDAVIT.—

(1) In section 8, article 3, chapter 230, Laws N. Y., 1843, which requires that in advertising houses, lots and land to be sold for non-payment of taxes, the comptroller shall advertise all houses and lots or other lands lying contiguous to each other, and belonging to the same owner, in one parcel, the word "owner" means the person in whose name, as owner or occupant, the lots are assessed. (2) The certificate of sale required by section 1 of article 3, to be given by the comptroller to the purchaser, though actually made out and delivered some time after the tax sale, relates back to the time of the sale, and should prop. erly bear the date of the sale. When it bears a subsequent date, and the owner, wishing to redeem, is compelled to pay interest on the amount of the purchase-money for the interval between the date of the sale and that of the certificate, the delinquent tax payer cannot avoid the statute. (3) The assessment rolls made according to Laws of 1859, ch. 302, § 7, and existing in July, 1868, were based upon the assessment made from September 1, 1867, to May, 1868; and a notice to redeem, delivered in July, 1868, to the person appearing as assessed on the assessment book for 1867, must be taken to be a notice to the last assessed owner of the premises, and such notice is in compliance with the law. (4) When an affidavit has the venue, "City and County of New York," and continues, "I, Phineas C. Kingsland, of the city of New York," etc., the fact of deponent's residence in the city is sufficiently set forth to comply with the statute requiring depo

nent to be a resident of the city. (5) An affidavit stating that the notice to redeem was served at the owner's "place of residence, No. 68 Fifth avenue,” is sufficient. (6) When an affidavit purports by its venue to have been taken in the city and county of New York, and is signed by a commissioner of deeds, the presumption is that the commissioner of deeds is such within the place stated as the venue. April 19, 1887. People v. Cady. Opinion by Peckham, J.

WHARF GRANTEE OF PRIVILEGE-EXTENT OF RIGHT BULKHEAD-EMINENT DOMAIN-CHANGE OF

-NEW

STREETS. (1) Under the New York act of 1857, extending the bulkhead or wharf line of the city of New York, a deed from the city as owner of upland on the North river, covering the open space between the Thirteenth avenue bulkhead and the harbor commissioners' line, and giving that as the western or outer line of the grant, carries to the grantee, who was required by the deed to build the new bulkhead along the river front, the fee in the land covered by the old wharf, and the new, when built, and an easement for the approach of vessels in its front; and this property cannot be taken by the city for public use without compensation. (2) It is uot a valid objectiou to this construction of the act of 1857 that it changes Thirteenth avenue, which had, by Laws of 1837, ch. 182, been laid out as an exterior public street, to an inside street. April 19, 1887. Williams v. Mayor, etc., of New Nork. Opinion by Finch, J.

WITNESS-COMPETENCY-TRANSACTIONS WITH DECEASED PERSON-RELEASE OF DOWER.-In an action to cancel a deed to certain land, so far as it affected the plaintiff's right of dower, the deed was executed to defendant by herself and husband, during the latter's life-time, but she alleged that her signature was obtained by the false and fraudulent representations of her husband, to prove which she offered to testify to a certain conversation between herself and deceased husband. Defendant objected to the testimony as inadmissible, under New York Code of Civil Procedure, § 829, which provides that a person interested in the event of an action shall not be examined in his own behalf or interest, against a person deriving title from, through, or under a deceased person, concerning a personal communication between the witness and decedent. But plaintiff claimed the evidence was competent, because the right of dower, which was the only interest in contest, was not derived by defendant from the husband, but from plaintiff herself. Held, that the evidence was inadmissible, the act of the wife in joining her husband in the execution of a deed of his lands not constituting her a grantor of the premises, or vesting in the grantee any greater or other estate than such as he derived from the husband's deed. The settled theory of the law as to the nature of an inchoate right of dower is that it is not an estate or interest in land at all, but is a contingent claim arising, not out of coutract, but as an institution of law, constituting a mere chose in action, incapable of transfer by grant or conveyance, but susceptible only during its inchoate right of extinguishment By force of the statute, this is effected by the act of the wife in joining with her husband in the execution of the deed of the land. Such deed, so far as the wife is concerned, operates as a release or satisfaction of the interest, and not as a conveyance, and removes an incumbrance, instead of transferring an interest or estate. Her right may also be forfeited by her adultery, and thus extinguished and barred by jointure or pecuniary provision. Lawrence v. Miller, 2 N. Y. 245; Lawrence v. Brown, 5 id. 394; Moore v. City of New York, 8 id. 112; Gooch v. Atkins, 14 Mass. 378; Marvin v. Smith, 46 N. Y. 457; Elwood v. Klock, 13 Barb. 50; Elmendorf v. Lockwood, 57 N. Y. 322; Lampet's

Case, 10 Coke, 46b; Helps v. Hereford, 2 Barn. & Ald. 242; Aikman v. Harsall, 98 N. Y. 191; Andrews, J., in Hinchliffe v. Shea, 103 id. 155. It would seem clear, from the authorities, that the act of the wife in joining her husband in the execution of a deed of his lands does not constitute her a grantor of the premises, or vest in the grantee any greater or other estate than such as he derives from the conveyance of the husband. Its effect is merely to extinguish a contingent claim existing as a possible incumbrance, and ceasing to exist by reason of the execution of the husband's deed, and to be revived only by the subsequent cancellation or annulment of his conveyance. It is also obvious that the grantee in such deed takes title to the whole premises solely by virtue of the title and estate of the husband, and therefore in the fullest sense derives his title "through, from and under" such grantor. April 19, 1887. Witthaus v. Schack. Opinion by Ruger, C. J.

UNITED STATES SUPREME COURT ABSTRACT.

DISTINCT

APPEAL JURISDICTIONAL AMOUNT CLAIMS- CREDITORS' BILL.-J. made a deed of assignment of property to W., in trust to sell it aud apply the proceeds to the payment of his debts, first to G. for more than $20,000, next to other persons named, and lastly to his other creditors generally. S. & Co., filed a bill in equity in the United States Circuit Court against J., W. & G., to set aside the assignment as a fraud on creditors. M. filed a similar bill. Defendants answered severally, denying the allegations of the bill, and praying that it be dismissed with costs. By consent the two bills and petitions of intervening creditors were heard together as one cause, and on pleadings and proofs, a receiver was appointed, the assignment declared void, and the case referred to the master, upon whose report a final decree was entered distributing the fund, paying $6,756.22 to M., $3,943.21 to S. & Co., and a less sum to each of the petitioning creditors. From this decree G. & W. appealed to the United States Supreme Court. Held, that the suit being by the general creditors, only one of whose debts exceeded $5,000, and the sole matter in dispute being between the defendants and each plaintiff as to the amount which the latter should recover, the court had no jurisdiction except as to the appeal of the creditor whose debt exceeds $5,000, and that as to the others the appeal should be dismissed. The true line of distinction, as applied to cases like that now before us, is sharply brought out by the recent decisions of Stewart v. Dunham, 115 U. S. 61, and Estes v. Gunter, 121 id. 183, in each of which a preferred creditor for more than $5,000 was on one side, and general creditors for less than $5,000 each were on the other. In Stewart v. Dunham, the suit being brought by the general creditors against the debtor and the preferred creditor, to whom the debtor had made the conveyance alleged to be fraudulent, and the latter seeking no affirmative relief, the matter in dispute as between the defendants and each of the plaintiffs was the amount of the claim of that plaintiff; but in Estes v. Gunter, the suit being brought by the preferred creditor against the trustee in the deed of assignment by which he was preferred, and the general creditors being summoned in as defendants, and themselves asking no affirmative relief, the matter in dispute was the value of the debt preferred, and of the property assigned to secure the preference. The case at bar is exactly like Stewart v. Dunham. The suit is by the general oreditors, only one of whose debts amounts to $5,000. The trustee and the preferred creditor appear as defendants only, file no cross bill, and ask no affirmative relief; and the

decree sets aside the fraudulent conveyance so far only as it affects the plaintiffs' rights. The sole matter in dispute therefore is between the defendants and each plaintiff as to the amount which the latter shall recover. This result, as we have seen, is in accordance with a long series of decisions of this court, extending over more than half a century. During that period Congress has often legislated on the subject of our appellate jurisdiction without changing the phraseology which had received judicial construction. The court should not now unsettle a rule so long established and recognized. May 23, 1887. Gibson v. Shufeldt. Opinion by Gray, J.

BANKRUPTCY FRAUDULENT CONVEYANCE - SUIT BY ASSIGNEE.- A voluntary conveyance, made to a daughter on her marriage as an advancement, by her father, who was then in prosperous circumstances, but who afterward became a bankrupt by reason of the failure of a firm of which he was a member, where no fraud in fact, or intent to commit a fraud, or to hinder or delay creditors, is alleged in the bill, may not be set aside at suit of the assignee in bankruptcy. under Rev. Stat. U. S., §§ 5046, 5047, as being a deed of "property conveyed by the bankrupt in fraud of his creditors,' even though such conveyance would be void as to creditors named in the bill, because it was a voluntary conveyance, under the statute of the State where it was executed. May 23, 1887. Warren v. Moody. Opinion by Blatchford, J.

RAILROAD MORTGAGE FORECLOSURE DECREE SETTING ASIDE -EFFECT.- -(1) A railroad mortgage by the L. Company was foreclosed, and the railroad bought in by the trustee. Thereafter the bondholders organized themselves into a company for the purpose of operating the railroad, under the name of the M.

Company. In a suit at the instance of the judgment creditors, the mortgage was adjudged to be valid only as a security for the bonds issued under it in the hands of bona fide holders for value, without notice." which it was found did not exceed $200,000; that the foreclosure sale be "set aside, vacated, and annulled," and the M. Company perpetually "enjoined from setting up any right or title under it," because made in pursuance of a notice that $2,000,000 of bonds had been issued, and that there was a default in the payment of $70,000 of interest. Held, that the suit being by and for creditors of the L. Company, to set aside the mortgage, and the foreclosure thereunder, because made to hinder and delay them in the collection of their debts, the decree must be limited to the pleadings, and must be held to mean no more than that the foreclosure was void as to these creditors, whose claims were inferior in right to that of the mortgagee; and that the M. Company was restrained from asserting title only as against them; and also that, if they undertook to sell the property to pay their judgments, the mortgage should stand only as security for such bonds as had been actually negotiated by the L. Company to bona fide holders. (2) It being shown that all the bondholders had become members of the M. Company, or by their silence, or waiver of their claim, assented to the purchase, the first foreclosure was valid, and bring the second suit on behalf of the bondholders, divested the trustee of the title, and of his right to notwithstanding that he had himself purchased at the sale, under the previous foreclosure proceedings, May 23, 1887. Barnes v. Chicago, M. & St. P. Ry. Co. Opinion by Waite, C. J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

ASSIGNMENT FOR CREDITORS-BY CORPORATIONPREFERENCES.-Unless prohibited by statute, a corpo