claimed in the land, in detail, but the general form or character of the estate, or interest therein, must be averred. It is not necessary to state all the under sub. 3, applies to appeals allowed facts showing the estate, or the interest by order of the court, and was meant to repel the inference that in such case the order of the court allowing an appeal dispensed with the giving of an undertaking, which was necessary by the Code to obtain the privilege of appeal. An appeal under sub 4 of § 11, opens no door for such a supposition. Motion granted. Whether, therefore, the provisions of the Revised Statutes still apply or not, the rule which now exists in cases like this is the same as the one they declared. Here the complaint is insufficient, and the order appealed from must be reversed. Opinion by Brady, J.; Daniels, J., concurring. APPEAL. N. Y. COURT OF APPEALS. Cowdin et al., respts., v. Teale, appll. Decided Sept. 19, 1876. The fact that an appeal can be argued as a motion does not make it any the less an appeal. An appeal under sub. 4, of § 11, gives rise to no supposition that the order of the court allowing an appeal dispenses with the security required by the Code to secure that privilege. This was a motion to dismiss an appeal from an order for want of an undertaking. The order was made appealable as such under and by sub. 4 of sec. 11 of the Code. J. D. Taylor, for motion. Per curiam opinion. RAILROAD COMPANIES. FARM N. Y. SUPREME COURT. GENERAL TERM. In the matter of the application of the Decided September, 1876. Where the Legislature by special act, before the passage of the General Railroad Law of 1850, gave to a railroad power to acquire a possessory title to lands for the purposes of said road, a title so acquired is not so exclusice as to prevent an owner of lands adjoining on both sides of the road from having a right of crossing. But even if it was, the law of 1850, which gives the right of farm-crossings to adjoining owners and which was made applicable to roads then existing is not, in this respect, unconstitutional, and the railroad is bound to furnish crossings whether it acquires title by deed or by compulsory proceedings. Appeal from order of Special Term confirming report of Commissioners appraising damages to John P. Adams as owner of a right of way proposed to be taken by the R. R. Co. Held, That the fact that the appeal could be argued as a motion, did not make it any the less an appeal; that as an order it was subject to all the provisions in any section of the Code which speak of orders; that it was affected by $333, 334; that the last clause of sec. 3-13, making the provisions as to security on appeals applicable to appeals duces title to said road from the Sara Petitioner is the lessee of the Renss laer and Saratoga R. R. Co., and de toga and Washington Rail Rail Com- duties or burdens on the company, the pany, a corporation organized under a legislature possessed that right. special act of the legislature passed May 2d, 1834. Held also, That the law of 1850, and not the charter of 1834 controls, inasTitle to the main line of said road much as the Saratoga and Washington which ran through respondent's farm, Railroad was sold under foreclosure and was acquired in 1847 by proceedings the purchasers reorganized under the taken under said act of May 2d, 1834. General Railroad Law under the name In 1850 the respondent, John P. of the Saratoga and Whitehall Railroad Adams, conveyed to Annah P. Hyde a Company. This last named company part of said farm on the west side of and its successors, by sale or lease, still the road and adjoining it, subject to a operates the road. Hence Adams may right of way from the railroad to Canal justly claim the right to a farm-crossing street near his residence upon other at the point where the right of way terlands owned by him. Hyde afterwards minates at the railroad. Nor is the conveyed such lands to the company. right to farm-crossings dependent upon This proceeding is taken to exting- the mode in which the title is acquired. uish that right of way. The Commis- Whether the title is by deed or by comsioners assumed that Adams had a right pulsory proceedings, the railroad is of way across the railroad track, and bound to furnish crossings. witnesses estimated upon that assumption. Commissioners made awarding damages in the sum of $1875, which report was confirmed by order of Special Term. report Tanner & Potter, for the R. R. Co. Held, That the title acquired by the Saratoga and Washington Railroad Co. under the act of 1834, was possessory and not a fee, and is subject to all usual legislative powers touching such corporations. The act authorizes the alter ation or modification of the company's charter. The title was not so exclusive as to prevent Adams from having a right of way from one portion of his land to another. But if this view is wrong the act of 1850 gave Adams such right, nor was such act in this respect unconstitutional. Neither is it inconsistent with Held therefore, That the Commissioners did not err in allowing witnesses to estimate the value of Adams' interest upon the assumption of his ownership of such crossings, and that according to the evidence adduced, the damages awarded were not excessive. Order appealed from affirmed, with $10 costs and expenses of printing. Opinion by Boardman, J.; Bockes, J., concurring; Learned, P. J., taking no part. FALSE REPRESENTATIONS. N. Y. COURT OF APPEALS. Duffany, respt., v. Ferguson, applt. Decided Sept. 19, 1876. A legal decision adverse to an opinion expressed, cannot establish fraud for which a party can be held liable in an action: the charter of the Saratoga and Wash-To ington Railroad Company. But if inconsistent in that it imposed greater sustain an action for false representations it must be shown that the party knew them to be false at the time of making them; if he could not have known them to be false at that time sentations, when made, were false, they they are mere expressions of opinion, were mere expressions of opinion, and and not necessarily fraudulent, alwere not necessarily fraudulent, although erroneous. though entirely erroneous. 40 N. Y. 562; 50 Id. 480; 53 Id. 298. Also held, that a legal decision adverse to an opinion expressed cannot establish fraud for which a party could be held liable in an action. Judgment of General Term, affirming judgment on verdict for plaintiff, reversed and new trial granted. Opinion by Miller, J. This action was brought against defendant, who was the assignee of a legacy, which he proposed to assign to plaintiff, in part payment of a farm purchased of him, for fraudulently representing it to be good, as good as a mortgage on any man's farm, and that plaintiff could inquire about it. It was proved that inquiry was made, and the will bequeathing the legacy examined by an attorney and the opinion expressed that it was good. It appeared sub- EXECUTORS AND ADMINISTRAsequently that in an action for the con- TORS. NOTICE TO CREDITORS. struction of the will it was held that N. Y. SUPREME COURT. GENERAL TERM, this legacy was not a charge upon the testator's real estate, and the personal Jonas Prentice, respt. v. Sophia estate being insufficient, plaintiff only Whitney et al., ex'rs., applts. received about one-fifth of the legacy. There was no evidence that defendant represented that the personal estate was chargeable with the legacy, or that it was sufficient to pay it, or that he had knowledge that a decision adverse to its being a charge upon the real estate would be made. The court was requested to charge, by defendant's counsel, that what was said by defendant under the circumstances was but the THIRD DEPARTMENT. Decided September, 1876. A notice to creditors to present claims against an estate need not use the precise language of the statute if it convey the same meaning. Where the word requested" is used instead of the word "required" it is a sufficient compliance with the statute. 66 Appeal from judgment for plaintiff on report of referee. Defendants are executors, &c., of expression of an opinion. This request George Whitney, deceased. Pursuant was refused, and the judge said that to an order of the Surrogate they pubthat was a question for the jury to de-lished a notice to creditors to present termine. Geo. N. Kennedy, for applt. claims, which was duly published for six months. The notice was in the usual form, except that it requested " instead of "required" creditors to exhibit their claims. Held, error; that to sustain this action it was necessary to prove that defendant, at the time he made the representations, had reason to believe that they were false. 45 N. Y. 175; Id 169. That as it appeard that defendant could not have known that the repre- No offer to refer was made by either Within the required time plaintiff presented a claim to claim to defendants which was ultimately rejected by them. party. More than six months after such TITLE. rejection this action was brought. CONDITIONAL DELIV- The answer sets up the short statute N. Y. SUPREme Court. General TERM. of limitation. The referee held that the notice was not such a compliance with the statute as to bar plaintiff's action, although he did not commence it within six months THIRD DEPARTMENT. Decided September, 1876. after the rejection of his claim by de- The possession of a negotiable_bill_or fendants. Richards & Sessions, for applts. note is presumptive evidence of title in the hands of a party who has once parted with it. The effect of the operation of an instru ment not under seal may be limited by the conditions with which delivery is made. In 1864 K. undertook to insure men Held, That although this short statute of limitations is penal in its character and should be strictly construed, yet a strict construction should not lead against being drafted into the army, to a destruction of the object of the and issued policies, through one S., as statute. That object was that persons agent, the insured depositing $150 with having claims against the estate might the defendant, which gave certificates present them so as to facilitate the set-of deposit for the amount, payable to tlement of the affairs of the deceased. the order of the depositor. The deposFor this purpose the notice is published. It need not use the precise fanguage of the statute if it convey the same meaning. There is no reasonable difference in this connection between the words "request" and “require.” The latter is nearer a command than the former, yet neither under this statute is a command or anything more than a notice. Notice is given in either form to present claims. That is sufficient. itors endorsed them over to K. Doubts being expressed as to K.'s responsibility, there was a further agreement that S. was to hold them for a year, and that if K. failed in any one instance to procure a substitute for any insured man, the whole scheme was to be at an end, and each depositor should receive back his certificate. This agreement was shown under objection. S. deposited the certificates, sealed up, with the deAlso held, That the neglect of either fendant, as a special deposit. More party to offer to refer does not affect the than half the insured were drafted. K. subject under consideration. failed to furnish a single substitute. The notice being sufficient, and plain-The drafted men, by order of K., retiff's action being barred by neglect to ceived back their certificates, and also prosecute within six months after the got an assignment from him of the cerrejection of his claim, the judgment tificates of the nondrafted men, and must be reversed, and a new trial grant- these in turn were assigned to plaintiff. ed, with costs to abide the event. S., on the other hand, on application of the nondrafted men, demanded and received from the bank their certificates, endorsed them over to them, as agent of Opinion by Boardman, J.; Learned, P. J. and Bockes, J., concurring. K., and they drew their money on MARRIED WOMEN. NEGOTI them. It is for this money that this E. H. Bean, for applt. Held. That the bank was not liable as depositary of the certificates. It returned them to the depositor, S., when the assignment to the nondrafted men was made. K. had no right to the possession. No demand of the bank was made until after, on demand of the depositor, it had returned them to him. Nor was S. the agent of K. so fully that the assignment by K. took away S.'s right of possession S. held the certificates as security for the insured. Nor was the bank liable as depositary of the money. The original payee in each certificate was in possession of the same. It bears his endorsement to a ABLE PAPER. MERGER. N. Y. SUPREME COURT. GENERAL TERM. Sidney Covert and James Covert, respts., v. Mahala Hughes, applt., and John Hughes. Decided September, 1876. Where a wife purchases goods as agent for her husband, and such goods are used for the support of herself and her children, the case comes within the strict letter of the law of 1860, Chap. 90, § 1, and the debt incurred thereby is properly chargeable against her separate estate. If there is any error in the language of the act it should be left to the legislature for correction. The court doubts the power not less than the propriety of adopting a construction which demands a reversal of the very words used by the legislature Where husband and wife give a joint and several promissory note, a judgment obtained against the husband alone does not merge the claim against the wife by reason of the note, or the indebtedness thereby secured. Appeal by defendant, Mahala Hughes, from a judgment in favor of plaintiffs, rendered upon a decision of a judge at Special Term. third person, who, as agent, endorses it back to the payee. The original payee presents it and demands payment. The bank was justified. 1 Sandf. Sup. Ct. 37. The agreement that if K. failed in any of his agreements to furnish substitutes, the depositors should receive back their money, was proper to be shown. The certificates were not under seal. The effect of the operation of an The defendants, who are husband and instrument not under seal may be limit-wife, gave to the plaintiffs a joint and ed by the conditions with which deliv-several promissory note for $700 and inery is made. Benton v. Martin, 52 terest, being for a balance of account. N. Y. 570. The account was charged on plaintiffs' The referce has found that K. was books to the defendant, Jno. Hughes. responsible, and the endorsements of Afterwards, plaintiffs sued him alone, the certificates to him obtained by and recovered the amount due on the fraud. The evidence sustains this. The note, with a small balance of account, plaintiff stands in no better position which had accrued after the note was than K., who could not have compelled given. Execution was returned unsatthe insured to pay for worthless poli-isfied, and this action was brought in order to reach the separate property of icies. The bank is no more liable than the insured. Opinion by Learned, P. J.; Bockes the defendant Mahala. It was found and Boardman, JJ., concur. at Special Term, that the defendant |