CONTRACTS-PUBLIC POLICY-RESTRAINT

OF TRADE-INJUNCTION-BREACH

OF CONTRACT.

NEW YORK COURT OF APPEALS, OCT. 4, 1887.

DIAMOND MATCH Co. v. ROEBER.

A contract made by a seller with the purchaser, that he will not, at any time within ninety-nine years, directly or indirectly, engage in the manufacture or sale of friction matches, excepting in the capacity of agent or employee of said purchaser, within any of the several States of the United States of America, or the Territories thereof, or within the District of Columbia, excepting and reserving however the right to manufacture and sell friction matches in the State of Nevada and the Territory of Montana, is not void as a covenant in restraint of trade. Where a bond was given providing liquidated damages in the sum of $15,000 for a breach of this covenant, the obligee is not confined to his remedy by way of damages for the breach of contract, but upon defendant's violation thereof is entitled to an injunction restraining him from continuing to disregard his covenant. Robert Sewell, for appellant. Noah Davis, for respondent.

ANDREWS, J. Two questions are presented: First, whether the covenant of the defendant contained in the bill of sale executed by him to the Swift & Courtney & Beecher Company on the 27th day of August, 1880, that he shall and will not at any time or times within ninety-nine years, directly or indirectly engage in the manufacture or sale of friction matches (excepting in the capacity of agent or employee of the said Swift & Courtney & Beecher Company) within any of the several States of the United States of America, or in the Territories thereof, or within the District of Columbia, excepting and reserving however the right to manufacture and sell friction matches in the State of Nevada and in the Territory of Mon. tana, is void as being a covenant in restraint of trade; and second, as to the right of the plaintiff, under the special circumstances, to the equitable remedy by injunction to enforce the performance of the covenant.

There is no real controversy as to the essential facts. The consideration of the covenant was the purchase by the Swift & Courtney & Beecher Company, a Connecticut corporation, of the manufactory No. 528 West Fiftieth street, in the city of New York, belonging to the defendant, in which he had, for several years prior to entering into the covenant, carried on the business of manufacturing friction matches, and of the stock and materials on hand, together with the trade, trade-marks and good-will of the business, for the aggregate sum (excluding a mortgage of $5,000 on the property assumed by the company) of $46,724.05, of which $13,000 was the price of the real estate. By the preliminary agreement of July 27, 1880, $28,000 of the purchase-price was to be paid in the stock of the Swift & Courtney & Beecher Company. This was modified when the property was transferred, August 27, 1880, by giving to the defendant the option to receive the $28,000 in the notes of the company or in its stock, the option to be exercised on or before January 1, 1881. The remainder of the purchase-price, $18,724.05, was paid down in cash, and subsequently, March 1, 1881, the defendant accepted from the plaintiff, the Diamond Match Company, in full payment of the $28,000, the sum of $8,000 in cash and notes, and $20,000 in the stock of the plaintiff; the plaintiff company having prior to said payment purchased the property of the Swift & Courtney & Beecher Company, and become the assignee of the defendant's Covenant.

It is admitted by the pleadings that in August, 1880 (when the covenant in question was made), the Swift & Courtney & Beecher Company carried on the business of manufacturing friction matches in the States of Connecticut, Delaware and Illinois, and of selling the matches which it manufactured "in the several States and Territories of the United States, and in the District of Columbia; " and the complaint alleges and the defendant in his answer admits that he was at the same time also engaged in the manufacture of friction matches in the city of New York, and in selling them in the same territory. The proof tends to support the admission in the pleadings. It was shown that the defendant employed travelling salesmen. aud that his matches were found in the hands of dealers in ten States. The Swift & Courtney & Beecher Company also sent their matches throughout the country wherever they could find a market. When the bargain was consummated, on the 27th of August, 1880, the defendant entered into the employment of the Swift & Courtney & Beecher Company, and remained in its employment until January, 1881, at a salary of $1.500 a year. He then entered into the employment of the plaintiff, and remained with it during the year 1881, at a salary of $2,500 a year, and from January 1, 1882, at a salary of $3,600 a year, when, a disagreement arising as to the salary he should thereafter receive, the plaintiff declining to pay a salary of more than $2,500 a year, the defendant voluntarily left its service. Subsequently he became superintendent of a rival match manufacturing company in New Jersey, at a salary of $5,000, and he also opened a store in New York for the sale of matches other than those manufactured by the plaintiff.

The contention by the defendant that the plaintiff has no equitable remedy to enforce the covenant rests mainly on the fact, that contemporaneously with the execution of the covenant of August 27, 1880, the defendant also executed to the Swift & Courtney & Beecher Company a bond in the penalty of $15,000, conditioned to pay that sum to the company as liquidated damages in case of a breach of his covenant.

The defendant for his main defense relies upon the ancient doctrine of the common law, first definitely declared, so far as I can discover, by Chief Justice Parker (Lord Macclesfield) in the leading case of Mitchel v. Reynolds, 1 P. Wms. 181, and which has been repeated many times by judges in England and America, that a boud in general restraint of trade is void. There are several decisions in the English courts of an earlier date, in which the question of the validity of contracts restraining the obligor from pursuing his occupation within a particular locality was considered. The cases are chronologically arranged and stated by Mr. Parsons in his work on Contracts, vol. 2, p. 748, note. The earliest reported case, decided in the time of Henry V, was a suit on a bond given by the defendant, a dyer, not to use his craft within a certain city for the space of half a year. The judge before whom the case came indignantly denounced the plaintiff for procuring such a contract, and turned him out of court. This was followed by cases arising on contracts of a similar character, restraining the obligors from pursuing their trade within a certain place for a certain time, which apparently presented the same question which had been decided in the dyer's case, but the courts sustained the contracts, and gave judgment for the plaintiffs; and before the case of Mitchel v. Reynolds it had become settled that an obligation of this character, limited as to time and space, if reasonable under the circumstance, and supported by a good consideration, was valid. The case in the Year Books went against all contracts in restraint of trade, whether limited or general. The other cases prior to Mitchel v. Reynolds sustained

contracts for a particular restraint, upon special grounds, and by inference decided against the validity of general restraints. The case of Mitchel v. Reynolds was a case of partial restraint, and the contract was sustained. It is worthy of notice that most, if not all, the English cases which assert the doctrine that contracts in general restraint of trade are void, were cases where the contract before the court was limited or partial. The same is generally true of the American cases. The principal cases in this State are of that character, and in all of them the particular contract before the court was sustained. Nobles v. Bates, 7 Cow. 307; Chappel v. Brockway, 21 Wend. 157; Dunlap v. Gregory, 10 N. Y. 241.

In Alger v. Thacher, 19 Pick. 51, the case was one of general restraint, and the court, construing the rule as inflexible that all contracts in general restraint of trade are void, gave judgment for the defendant. In Mitchel v. Reynolds the court, in assigning the reason for the distinction between a contract for the general restraint of trade and one limited to a particular place, says: "For the former of these must be void, being of no benefit to either party, and only oppressive; and later on, "because in a great many instances they can be of no use to the obligee, which holds in all cases of general restraint throughout England; for what does it signify to a tradesman in London what another does in Newcastle, and surely it would be unreasonable to fix a certain loss on one side without any benefit to the other." He refers to other reasons, viz., the mischief which may arise (1) to the party by the loss by the obligor of his livelihood and the substance of his family, and (2) to the public by depriving it of a useful member, and by enabling corporations to gain control of the trade of the kingdom. It is quite obvious that some of these reasons are much less forcible now than when Mitchel v. Reynolds was decided. Steam and electricity have for the purposes of trade and commerce almost annihilated distance, and the whole world is now a mart for the distribution of the products of industry. The great diffusion of wealth, and the restless activity of mankind striving to better their condition, have greatly enlarged the field of human enterprise, and created a vast number of new industries, which give scope to ingenuity and employ ment for capital and labor. The laws no longer favor the granting of exclusive privileges, and to a great extent business corporations are practically partnerships, and may be organized by any persons who desire to unite their capital or skill in business, leaving a free field to all others who desire for the same or similar purposes to clothe themselves with a corporate character.

The tendency of recent adjudications is marked in the direction of relaxing the rigor of the doctrine that all contracts in general restraint of trade are void, irrespective of special circumstances. Indeed it has of late been denied that a hard and fast rule of that kind has ever been the law of England. Rousillon v. Rousillon, 14 Ch. Div. 351. The law has for centuries permitted contracts in partial restraint of trade, when reasonable; and in Horner v. Graves, 7 Bing. 735, Chief Justice Tindal considered a true test to be, whether the restraint is such only as to afford a fair protection to the interests of the party in favor of whom it was given, and not so large as to interfere with the interests of the public." When the restraint is general, but at the same time is co-extensive only with the interest to be protected, and with the benefit meant to be conferred, there seems to be no good reason why, as between the parties, the contract is not as reasonable as when the interest is partial, and there is a corresponding partial restraint. And is there any real public interest which necessarily condemns the one and not the other? It is an encour

agement to industry and to enterprise in building up a trade, that a man shall be allowed to sell the goodwill of the business and the fruits of his industry upon the best terms he can obtain. If his business extends over a continent, does public policy forbid his accompanying the sale with a stipulation for restraint coextensive with the business which he sells? If such a contract is permitted, is the seller any more likely to become a burden on the public than a man who, having built up a local trade only, sells it, binding himself not to carry it on in the locality? Are the opportunities for employment, and for the exercise of useful talents so shut up and hemmed in that the public is likely to lose a useful member of society in the one case and not in the other? Indeed what public policy requires is often a vague and difficult inquiry. It is clear that public policy and the interests of society favor the utmost freedom of contract, within the law, and require that business transactions should not be trammelled by unnecessary restrictions. "If," said Sir George Jessell, in Printing Co. v. Sampson, L. R., 19 Eq. 462, there is one thing more than any other which public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that contracts, when entered into freely and voluntarily, shall be held good, and shall be enforced by courts of justice."

It has sometimes been suggested that the doctrine that contracts in general restraint of trade are void, is founded in part upon the policy of preventing monopolies, which are opposed to the liberty of the subject, and the granting of which by the king under claim of royal prerogative led to conflicts memorable in English history. But covenants of the character of the one now in question operate simply to prevent the covenantor from engaging in the business which he sells, so as to protect the purchaser in the enjoy ment of what he has purchased. To the extent that the contract prevents the vendor from carrying on the particular trade, it deprives the community of any benefit it might derive from his entering into competition. But the business is open to all others, and there is little danger that the public will suffer harm from lack of persons to engage in a profitable industry. Such contracts do not create monopolies. They confer no special or exclusive privilege. If contracts in general restraint of trade, where the trade is general, are void as tending to monopolies, contracts in partial restraint, where the trade is local, are subject to the same objection, because they deprive the local community of the services of the covenantor in the particular trade or calling, and prevent his becoming a competitor with the covenantee. We are not aware of any rule of law which makes the motive of covenantee the test of the validity of such a contract. On the contrary, we suppose a party may legally purchase the trade and business of another for the very purpose of preventing competition, and the validity of the contract, if supported by a consideration, will depend upon its reasonableness as between the parties. Combinations between producers to limit production, and to enhance prices, are or may be unlawful, but they stand on a different footing.

We cite some of the cases showing the tendency of recent judicial opinion on the general subject: Whittaker v. Howe, 3 Beav. 383; Jones v. Lees, 1 Hurl. & N. 189; Rousillon v. Rousillon, supra; Leather Co. v. Lorsont, L. R., 9 Eq. 345; Collins v. Locke, 4 App. Cas. 674; Steam Co. v. Winsor, 20 Wall. 64; Morse, etc., Co. v. Morse, 103 Mass. 73.

In Whittaker v. Howe a contract made by a solicitor not to practice as a solicitor "in any part of Great Britain" was held valid. In Rousillon v. Rousillon a general contract not to engage in the sale of champagne, without limit as to space, was enforced as being

under the circumstances of a reasonable contract. In Jones v. Lees a covenant by the defendant, a licensee under a patent, that he would not during the license make or sell any slubbing machines without the invention of the plaintiff applied to them, was held valid. Bramwell, J., said: "It is objected that the restraint extends to all England, but so does the privilege." In Steam Co. v. Winsor the court enforced a covenant by defendant made on the purchase of a steamship, that it should not be run or employed in the freight or passenger business upon any waters in the State of California for the period of ten years.

In the present state of the authorities, we think it cannot be said that the early doctrine that contracts in general restraint of trade are void, without regard to circumstances, has been abrogated. But it is manifest that it has been much weakened, and that the foundation upon which it was originally placed has, to a considerable extent at least, by the change of circumstances, been removed. The covenant in the present case is partial, and not general. It is practically unlimited as to time, but this under the authorities is not an objection, if the contract is otherwise good. Ward v. Byrne, 5 Mees. & W. 548; Mumford v. Gething, 7 C. B. (N. S.) 317.

It is limited as to space since it excepts the State of Nevada and the Territory of Montana from its operation, and therefore is a partial, and not a general, restraint, unless, as claimed by the defendant, the fact that the covenant applies to the whole of the State of New York constitutes a general restraint within the authorities.

In Chappel v. Brockway, supra, Bronson, J., in stating the general doctrine as to contracts in restraint of trade remarked that "contracts which go to the total restraint of trade, as that a man will not pursue his occupation anywhere in the State, are void." The contract under consideration in that case was one by which the defendant agreed not to run or be interested in a line of packet-boats on the canal between Rochester and Buffalo. The attention of the court was not called to the point whether a contract was partial which related to a business extending over the whole country, and which restrained the carrying on of business in the State of New York, but excepted other States from its operation. The remark relied upon was obiter, and in reason cannot be considered a decision upon the point suggested. We are of the opinion that the contention of the defendant is not sound in principle, and should not be sustained. The boundaries of the State are not those of trade and commerce, and business is restrained within no such limit. The country as a whole is that of which we are citizens, and our duty and allegiance are due both to the State and Nation. Nor is it true, as a general rule, that a business established here cannot extend beyond the State, or that it may not be successfully established outside of the State. There are trades and employments which from their nature are localized, but this is not true of manufacturing industries in general. We are unwilling to say that the doctrine as to what is a general restraint of trade depends upon State lines, and we cannot say that the exception of Nevada and Montana was colorable merely. The rule itself is arbitrary, and we are not disposed to put such a construction upon this contract as will make it a contract in general restraint of trade, when upon its face it is only partial. The case of Steam Co. v. Winsor, supra, supports the view that a restraint is not necessarily general which embraces an entire State. In this case the defendant entered into the covenant as a consideration in part of the purchase of his property by the Swift & Courtney & Beecher Company, presumably because he considered it for his advantage to make the sale. He realized a large sum in money, and on the completion

of the transaction became interested as a stockholder in the very business which he had sold. We are of opinion that the covenant, being supported by a good consideration, and constituting a partial, and not a general, restraint, and being in view of the circumstances disclosed, reasonable, is valid, and not void.

In respect to the second general question raised, we are of opinion that the equitable jurisdiction of the court to enforce the covenant by injunction was not excluded by the fact that defendant, in connection with the covenant, executed a bond for its performauce, with a stipulation for liquidated damages. It is of course competent for parties to a covenant to agree that a fixed sum sum shall be paid in case of a breach by the party in default, and that this should be the ex clusive remedy. The intention in that case would be manifest that the payment of the penalty should be the price of non-performance, and to be accepted by the covenantee in lieu of performance. Insurance Co. v. Insurance Co., 87 N. Y. 405. But the taking of a bond in connection with a covenant does not exclude the jurisdiction of equity in a case otherwise cognizable therein, and the fact that the damages in the bond are liquidated does not change the rule. It is a question of intention, to be deduced from the whole instrument and the circumstances; and if it appear that the performance of the covenant was intended, and not merely the payment of damages in case of a breach, the covenant will be enforced. It was said in Long v. Bowring, 33 Beav. 585, which was an action in equity for the specific performance of a covenant, with a claim for liquidated damages: "All that is settled by this claim is that if they bring an action for damages, the amount to be recovered is £1,000 neither more nor less." There can be no doubt upon the circumstances in this case that the parties intended that the covenant should be performed, and not that the defendant might at his option repurchase his right to manufacture and sell matches on payment of $15,000, the liquidated damages. The right to relief by injunction in similar contracts is established by numerous cases. Insurance Co. v. Insurance Co., supra; Long v. Bowring, supra; Howard v. Woodward, 10 Jur. (N. S.) 1123; Coles v. Sims, 5 De Gex, M. & G. 1; Avery v. Langford, Kay, 663; Whittaker v. Howe, supra; Hubbard v. Miller, 27 Mich. 15.

There are some subordinate questions, which will be briefly noticed:

First. The plaintiff, as successor of the Swift & Courtney & Beecher Company, and as assignee of the covenant, can maintain the action. The obligation runs to the Swift & Courtney & Beecher Company, 'its successors and assigns." The covenant was in the nature of a property right, and was assignable; at least it was assignable in connection with a sale of the property and business of the assignees. Hedge v. Lowe, 47 Iowa, 137, and cases cited.

Second. The defendant is not in a position which entitles him to raise the question that the contract with the Swift & Courtney & Beecher Company was ultra vires of that corporation. He has retained the benefit of the contract, and must abide by its terms. Arms Co. v. Barlow, 68 N. Y. 34.

Third. The fact that the plaintiff is a foreign corporation is no objection to its maintaining an action. It would be repugnant to the policy of our legislation, and a violation of the rules of comity, to grant or withhold relief in our courts upon such a discrimination. Merrick v. Van Santvoord, 34 N. Y. 208; Bank v. Lacombe, 84 id. 367; Code Civ. Proc., § 1779.

Fourth. The consent of the Swift & Courtney & Beecher Company to the purchase by the defendant of the business of Brueggemann did not relieve the defendant from his covenant. The transaction was in no way inconsistent therewith. Brueggemaun was

selling matches manufactured by the company, under an agreement to deal in them exclusively.

There are some questions on exceptions to the admission and exclusion of evidence. None of them, we think, present any question requiring a reversal of the judgment.

We think there is no error disclosed by the record, and the judgment should therefore be affirmed. All concur, except Peckham, J., dissenting.

NEW YORK COURT OF APPEALS ABSTRACT.

BANKRUPTCY-DISCHARGE OF PARTNER-EFFECT— CANCELLATION OF JUDGMENT.-(1) A discharge in bankruptcy of a single member of a copartnership operates as a discharge of the copartnership debt where it appears, that before the filing of the petition in bankruptcy the firm had been dissolved, a general assignment for the benefit of creditors made by it, and the debt was one provable against the bankrupt's estate. (2) A judgment debtor who has been discharged in bankruptcy is not deprived of his rights under Code Civ. Proc. N. Y., § 1268, to have a judgment cancelled and discharged of record, if it appears that he has been discharged from the payment of it, by the fact that the judgment was obtained intermediate the filing of the petition and the granting of the discharge in bankruptcy, and no application was made to stay the proceedings in the action in which the judgment was rendered. (3) Under Code Civ. Proc. N. Y., § 1268, providing that at any time after two years from a discharge in bankruptcy, the bankrupt has a right to apply to the court in which a judgment had been rendered against him for an order to cancel the judgment of record, if it appears that he has been discharged from the payment of it, a discharged bankrupt has the right to apply for the discharge of a judgment not in fact included in his schedule, where it appears that the debt which constituted the cause of action, and the amount and date of the note upon which judgment was recovered, and the name and address of the plaintiff herein, as a creditor, were set forth in the schedule. Oct. 4, 1887. West Philadelphia Bank v. Gerry. Opinion by Danforth, J.

CARRIERS- PASSENGERS- LIABILITY FOR NEGLIGENCE-Plaintiff, while a passenger on one of defendant's railroad trains, was injured by a wringer falling upon him from a rack over the seat. The wringer appeared in the rack simply as a parcel, wrapped in brown paper, and there was nothing extraordinary about the parcel or its position, and nothing to attract particular attention to it. In an action to recover damages for the injury, held, that the denial of a movion for nonsuit was error. Oct. 4, 1887. Morris v. New York Cent. & H. R. R. Co. Opinion by Peckham, J. Danforth, J., dissenting.

COUNTIES

UNAUTHORIZED LOAN ACTION FOR MONEY HAD AND RECEIVED.-The treasurer of Saratoga county, New York, being indebted to the State treasurer on account of the State tax levied upon the county, procured an advance of money from the appellant, a national bank. The treasurer gave the bank two notes which recited that they were given in pursuance of a resolution of the board of supervisors of the county, and were signed by him as treasurer. The money thus obtained was placed to the treasurer's individual credit, but was paid to the State treasurer on account of above indebtedness. The resolution referred to in the notes did not authorize their issuance. In an action upon these notes it was held, that the county was neither liable upon these notes, not having authorized their issuance in accordance with 1

Rev. Stat., p. 364, § 4, nor as for so much money had and received by the county for its benefit and use. Here the plaintiff, in the most favorable view which can be taken of its case-and so it is presented by the appellant's counsel-seeks to make itself a creditor of the defendant by voluntarily enabling Mann to discharge a debt due from the defendant. The defendant made no request for the money, no promise to repay, and the record contains no finding or evidence from which either can be implied. Indeed the proposition submitted by the appellant, and its only claim, is put in these words: "The receipt of the money by the treasurer, and payment of it upon the indebtedness of the county, created a liability of the county to pay the debt thus incurred for its penefit." It is a short answer to the case as presented by the appellant, that no person can make himself a creditor of another by voluntarily discharging a duty which belongs to that other, and that no debt can be implied in law from a voluntary payment of the debt of another; that is, a payment made without his request, and by one who is under no legal liability or compulsion to make it. Indeed the plaintiff is somewhat further removed from a cause of action in that the supposed payer, the plaintiff, merely enabled Mann to make the payment. It placed the money loaned by it to his individual credit, and thus added to the sum of his deposits, and consequently increased by so much the debt due from the bank to him. The bank, at his request, paid him from that fund, as it was in duty bound, and it so happens that he did pay the same money to the State treasurer. He might have paid it to any other person; and it is impossible to find any equitable consideration in the plaintiff's favor, and against the defendant, from the fact that he applied it in the discharge of an obligation, if one existed, against the defendant and in favor of the State. It is true that the notes discounted by the bank ran in the name of the county treasurer, and were signed in that character. But it is now pretended even that he had authority to make the notes in that capacity; nor does it appear, if that would alter the case, that the bank had the slightest reason to suppose he had such authority. Indeed the only authority, if any, he professed to have, was recited upon the face of such note a resolution of the board of supervisors, an inspection of which would have shown the extent of his authority, and that it could not by any construction cover the notes on which the bank acted. Moreover the bank did not credit the treasurer, but did credit the individual. Whether or not the county owed the debt which was dischared by the treasurer with money procured from the plaintiff we have not thought it necessary thus far to discuss. We have, for the sake of the argument, adopted the assumption of the appellant in that respect, but cannot agree with it. On the contrary, we are of opinion that the moneys due the State were payable by the treasurer of the county, not as its officer or agent, but as an individual designated by his official name for the performance of specific duties; and that the county is not responsible for his omissions or defaults in respect thereto, nor at all concerned with them any further, nor in any other manner, than the law has declared. The money was paid to apply upon taxes which had become due to the State during the treasurer's official term. He had neglected to pay them over, or to render an account thereof, to the comptroller, as required by law. Laws 1855, ch. 427; Laws 1863, ch. 393. Upon that ground he was sued, and because of that his bail also were liable to prosecution at the suit of the State (Laws 1855, supra, §§ 12, 13, 14), and not until the remedy against both had been exhausted could the county be required to act. It was only upon his default in these respects that any duty could attach to the

Oct. 4,

DEED-DESCRIPTION-WHAT PASSES UNDER.-In an action of trespass the defendant claimed title to all of lot 3, containing 600 acres, in the town of Granby, under a deed in which the premises conveyed were described as "all that certain piece or parcel of land situate, lying and being in the town of Granby, in the county of Oswego, known as being lot 3 in the original township of Lysander, lying southerly or southeasterly of Fish lake, in Granby aforesaid, and commonly called the Fish Lake Lot,' supposed to contain sixty-seven acres of land." Lot 3 comprised

seven acres of land on the north side of Fish lake, and sixty-seven acres on the south, the balance being covered by the lake. Held, that the deed conveyed only the sixty-seven acres lying south of the lake. In construing the language of a written instrument, the whole is to be considered, in order to ascertain its true meaning and intention. This is as true in respect to the descriptive words in a deed as of any other part of the instrument. Where there is obscurity or uncertainty, all of the particulars in the description are to be taken into account in arriving at the intention, and in the deed in question the particulars describing the location of the land, the quantity, and its commonly known designation, are as much a part of the description of the subject of the conveyance as is the desiguation of the lot number. It is a familiar rule in the construction of a deed that where the description is ambiguous, or there is inconsistency in the several particulars, "words, if necessary, may be supplied by intendment, and particular clauses and provisions qualified, transposed or rejected, in order to ascertain and give effect to the intention." Beardsley, J., in Hathaway v. Power, 6 Hill, 455. What words or clauses shall be rejected or qualified, in case of uncertainty, is frequently determined by giving effect to those parts or clauses of the description which are most certain, and to particulars in respect of which the parties would be least likely to have made a mistake. For this reason, by the general rule of construction, monuments control courses and distances, and estimates of quantity are usually subordinated to

both. Baldwin v. Brown, 16 N. Y. 359. The rule that fixed monuments, whether natural or artificial, should usually be given preponderating weight, is obviously reasonable. Variance between actual and estimated quantity of land is not usually a material circumstance, but it may in some cases be an important element in determining the intention of the parties to the grant. In the present case there are very significant circumstances showing that it could not have been the intention of the parties to the Norton deed to convey lot 3 as an entirety. The lines of the lot, if originally indicated by monuments or marked lines, may have been lost or obliterated. The description of the land conveyed as lying "southerly or south-easterly of Fish lake" refers to a natural monument or physical situation which was ascertainable by view. The estimated or "supposed quantity, sixty-seven acres, is so disproportionate to the quantity contained in the whole of lot 3, that it would have at once arrested the attention of the parties if the conveyance of the whole lot had been intended. We have no hesitation in reaching the Conclusion that the part of the deto the land intended to be conscription referring mistaken or false. It is much veyed as "lot 3" is se that the words "on" or more consistent to suppo by inadvertence, than that part of," were omitted parts of the description the parties inserted the other any doubt upon the by mistake. And if there was of the parties, the proof as it stands of the intention what was known court erred in rejecting evidence of ke Lot." This is by common reputation as "Fish La erest or estate, not the case of cutting down an int finite or ambigonce clearly given, by subsequent inde 'eed to which uous language. All the language in the à we have referred is a part of a single desced therein? the sole question is, what land is embrace In the view taken, the question whether th has acquired title by adverse possession, if title otherwise, is unimportant. Oct. 4, 1887 Dexter. Opinion by Andrews, J.

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ELECTION-VOTERS-DOMICILE· TIONS.-Under Const. N. Y., art. 2, § 3, providi "for the purpose of voting, no person shall be de to have gained or lost a residence by reason presence or absence * ** while kept at an house or other asylum at the public expense," mate of the Soldiers and Sailors' Home at Bat. institution supported by the State out of annu propriations by the Legislature), cannot by his dence therein, conditional on the judgment d trustees that he is unable to support himself, ac a residence for voting purposes in the town of I Oct. 4, 1887. Silvey v. Lindsay. Opinion by forth, J.

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ESTOPPEL-TO DENY TITLE-PLEADING.-In an tion for the specific performance of a contract for purchase of lands acquired by the city of Brook) under Laws N. Y. 1861, ch. 340, and sold by it un the provisions of Laws N. Y. 1873, ch. 795, the co plaint alleged, that under the provisions of the act 1861, the city became and still was the owner in fee the land. The answer admitted every allegation the complaint, but denied that the act was compete. to vest the fee in the city. Held, that by the admi. sion in the answer it was admitted that the city ha acquired and paid for the land according to the provisions, and inasmuch as the property-owners who had accepted such payments would thereby be estopped from denying the validity of the title, the purchaser could not question it. Oct. 4, 1887. City of Brooklyn v. Copeland. Opinion by Peckham, J.

NEGLIGENCE CONTRIBUTORY -RAILROAD CROSSING.- Deceased, while walking on a street crossed by

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