mise under the statutory permission. To hold with the respondent would violate the language of the enactment, and its natural and obvious intent, and pervert it from a purpose of peace and justice to one of litigation and artifice. The further objection that the act of 1878 is unconstitutional, upon the construction thus adopted, because it authorizes municipalities to "incur" an indebtedness for something other than "county, city, town, or village purposes," (article 8, § 11,) is answered by adding that the act did not authorize the incurring of an indebtedness, but the payment of an acknowledged debt. The constitution does not deprive municipalities of the right to compromise a claim which they dispute, but which in the end they deem it wise and prudent to acknowledge in part, and pay as acknowledged; and which might, by judicial decision, but for the compromise, become a charge upon them to its full extent. The judgment should be reversed, and a new trial granted; costs to abide the event. (All concur.) (101 N. Y. 469) MATERNE v. HORWITZ.* Filed March 2, 1886. CONTRACT-COURTS WILL NOT ENFORCE, WHERE INTENT IS TO DEFRAUD THIRD PERSONS. This action was brought to recover damages for failure of defendants to accept and receive 400 cases of domestic sardines, with "fancy labels" similar to imported goods. Held, that the labels were intended to deceive the consumers, and that it was part of the contract of sale that an unlawful object was intended, to which both parties were cognizant, and that the courts will not aid either party in carrying out a fraudulent purpose. Appeal by plaintiffs from judgment of the general term of the superior court of the city of New York, affirming judgment dismissing complaint entered on direction of a judge before a jury. Chas. D. Adams, for appellants. Otto Horwitz, for respondents. PER CURIAM. It must be assumed, we think, that the defendants knew, when the agreement was made, that they intended to purchase sardines of the kind that were tendered to them, and that the plaintiffs understood that the defendants knew it. It is also inferable that the defendants entered into the agreement, to the knowledge of the plaintiffs, for the purpose of selling the goods to others in the condition in which they were when delivered. It is also evident that the labels were used to deceive the consumers, and not the contractors, and to obtain higher prices for the sardines. The plaintiffs procured and furnished the deceptive labels after binding themselves by contract to do so, and this was done for an unlawful purpose, with a view of furnishing goods for the market in a condition calculated to deceive the consumers who might purchase them. It is therefore apparent that it was part of the contract that an unlawful object was intended to which both parties were 1 Affirming 50 N. Y. Super. Ct. 41. cognizant, and that it was designed by them, under the contract, to commit a fraud, and thus promote an illegal purpose by deceiving other parties. In such a case the courts will not aid either party in carrying out a fraudulent purpose. Under the Penal Code, § 438, it is made a misdemeanor to sell or offer for sale any package falsely marked, labeled, etc., as to the place where the goods were manufactured, or the quality or grade, etc. The contract in question would seem to be covered by this provision of the Code; but as the Penal Code did not go into effect till May 1, 1882, and this contract was made June 30, 1881, the section cited has, we think, no bearing on the question presented. To carry out this contract would be contrary to public policy, and in such a case, as we have seen, the court will not aid either party. The case was properly disposed of upon the ground first stated, which is fully considered and elaborated, in the opinion of general term, by SEDGWICK, J., in which we concur. Judgment should be affirmed. (All concur.) (101 N. Y. 664) KELLY v. GEER.' Filed March 2, 1886. VENDOR AND VENDEE-ASSUMPTION OF INCUMBRANCES-NOT BINDING UNLESS DEED ACCEPTED. Defendant's husband, without her knowledge, took a deed of property to her and her minor son, the latter to take full title on majority, with covenant to pay incumbrances. She afterwards, without knowledge as to contents of deed to her, joined in a deed of the property. Held, that defendant took no benefit from the contract, but simply quitclaimed a right which she did not have, and incurred no liability as to the assumption clause of the first deed. Appeal from judgment of general term of the supreme court, Third judicial department, May term, 1884, affirming judgment of court below. Charles E. Patterson, for appellant. Henry A. Merritt, for respondent. FINCH, J. The only asserted basis of defendant's liability upon the assumption clause in the deed is the fact of her joining at a later period in a conveyance of the property to Murphy. It is abundantly proved that her husband, without authority from her, and without her knowledge, took the deed in her name as grantee, with a covenant contained in it to pay the outstanding incumbrance. Her liability could only spring from an acceptance of that deed, evincing her consent to and adoption of the covenant contained in it; but the finding is that she never accepted the deed and had no knowledge of its existence, until at least the date of the deed to Murphy, and at that date had no knowledge of the contents of the conveyance to her. The proof of these facts is made more probable by the further fact that the real grantee was her son, who advanced the purchase money, but, being a minor at the time, assented to the arrangement which joined his mother with him as grantee, but limited her title to his minority. It is easy to see how this might have been done 1Affirming 32 Hun, 641, mem. without the authority or knowledge of the defendant, since the real aim of the transaction was a purchase by the son and for his own use. He reaped the entire benefit of the transaction, as it was undoubtedly intended that he should, collected and received all the rents and profits, and at his majority became sole and absolute owner. Outside of the one act of the defendant in joining with her son in his conveyance to Murphy, she was entirely free from any act or word of assent which could make the unauthorized covenant her own. Her signature to that conveyance is thus the sole fact upon which the liability asserted can be based. That cannot affect her upon the ground of ratification, for the proof shows her entire ignorance of the contents of the deed to her, or the existence of any covenant whatever. It is argued that when asked to join with her son in the deed to Murphy, she must have known that some title or right was supposed to have been vested in her, and so she must have inferred the existence of a deed to her. That may be, but was hardly a necessary inference which we -ought to say she must have drawn; and at all events the inference falls short of any conscious ratification of a covenant of which she had no knowledge, and which, as an element of her action or a subject for her consideration, did not exist. This view of the case is met by the appellant's contention that she was bound to know, and so must be charged with knowledge, upon the principle that one cannot take the benefit of a contract, and at the same time repudiate it, and the agency by which it was effected. But the defendant took no benefit from the contract. She received none of its fruits. She had no title of any sort when she joined in the deed to Murphy; received nothing for her signature, which was needless; and simply quitclaimed a right which she did not have, for the satisfaction of the purchaser. She stood on that day a total stranger to the title. If she had then been informed that she was named as grantee in the deed to her son, and that it contained a covenant to pay the outstanding mortgage, she could have done no more than barely to repudiate the unauthorized covenant. She could not have conveyed back to the vendors, for time had vested the complete and absolute title in her son, and she had nothing to convey. She could return nothing to the vendors, and could take nothing from them by joining in the dead to Murphy. That act neither benefited her nor harmed her vendor, and was purely formal, without practical consequences in either .direction. We think it was properly held that she incurred no liability. The judgment should be affirmed, with costs. (All concur.) (101 N. Y. 667) ALLISON V. VILLAGE OF MIDDLETOWN.' Filed March 2, 1882. NONSUIT-WHEN JURY TO DETERMINE, ALTHOUGH EVIDENCE IS CONTRADICTORY. Plaintiff stated on her re-examination that she fell three or four feet from the steps of the house, but also stated, in the same examination, that it was four or five feet from the curb. Her original testimony was that she fell on the sidewalk, which was only seven feet wide. Held, that her statements, taken together, were not inconsistent, and that it was for the jury to determine whether she was on the walk when she fell, and that a nonsuit was improperly granted, as there was sufficient evidence of defendant's negligence to go to the jury. Appeal from decision of general term of the supreme court in the Second judicial department, affirming judgment for plaintiff and order denying new trial. T. A. Read, for appellant. W. F. O'Neill, for respondent. It ANDREWS, J. We think the case should have gone to the jury is claimed that the proof shows that the plaintiff was not on the sidewalk when she slipped, but was on the open space adjacent in front of the house, over which she was passing to reach the walk. The most that can be said in support of this contention is that on her re-examination the plaintiff stated that the place where she fell was about three or four feet from the steps of the house, and the evidence shows that it was five feet or more from the steps to the inner line of the sidewalk. But on the same re-examination she also testified that the place of the accident was four or five feet from the curb. Both statements could not be true. The walk was seven feet wide, and if the plaintiff fell within five feet of the curb, she must have been upon the sidewalk at the time. Her testimony on her original examination was distinct that she slipped and fell on the sidewalk. Her subsequent evidence, taken together, was not necessarily inconsistent with her former testimony. It was for the jury to determine upon her whole evidence whether she was upon the walk, or outside of it, at the time of the accident. There was also sufficient evidence to go to the jury upon the question of the defendant's negligence. The jury would have been justified in finding that the village had negligently allowed the ice, formed from the wastage of the pump and the discharge from the leader on the house, to accumulate and remain, rendering the walk unsafe. The jury was the appropriate tribunal to determine the case, and the nonsuit was, we think, improperly granted. The judgment should therefore be reversed, and a new trial granted. (All concur.) 1 Reversing 31 Hun, 173, mem. (101 N. Y. 663) NEWMAN V. GREEF and others. Filed March 2, 1886. 1. PRINCIPAL AND AGENT-WHEN EVIDENCE ADMISSIBLE TO PROVE STATUS OF PARTIES. Plaintiff gave a verbal order to defendants for a quantity of buttons, to be manufactured. In letters acknowledging the orders, defendants said, “We have the pleasure to report your order for," etc., and, "We have the pleasure of ordering for your account," etc.; signing the firm name. Defendants claimed that they were mere agents, and that they were so known by plaintiff. Held, that the language of the letters was at most ambiguous, and evidence was admissible to explain it; and, as the jury found that they acted as principals, their finding is conclusive. 2. TRIAL-REQUESTS TO CHARGE, WHEN TO BE MADE. The judge refused to charge "that if the jury found an oral agreement, it was void under the statute of frauds. The request was not made until the close of the charge, and the point had not been before raised. Held, that the court could not at that time be called upon to present a new theory or charge as to the effect of a merely supposed or possible state of facts, to which neither its attention nor that of the plaintiff had been called. Appeal from judgment of general term of the superior court. Stern & Myers, for respondent. DANFORTH, J. The plaintiff stated a contract for the sale and delivery of buttons to him at a future time, its breach by defendants, and damages. Upon the trial it appeared that the plaintiff was a dealer in tailors' trimmings and general merchandise, and that at the solicitation of one Chapman, an agent of the defendants, the plaintiff's salesman, after some preliminary negotiation and agreement as to prices, amounts and other detail, gave a verbal order to him for the articles in question, to be thereafter manufactured, and shortly afterwards the plaintiff received from the defendants a letter in these words: "NEW YORK, May 27, 1881. "Mr. Henry Newman: We have the pleasure to report your order for composition buttons, as follows: Shape, plain flat, 4 holes, with double nitch, to be made in a line of colors as submitted by you, and mottled. 22 lines, 1,600 gross, 23 cents 24 66 3,800 900 2,600 500 "Goods to be put up in bulk; delivery as soon as possible. "Truly yours, 43 53 46 63 66 81 GREEF & Co." The abreviations were explained, and it is proven that colors were selected and in due time submitted to the defendants, who were then to deliver the buttons at the rate of 1,000 gross per week. A similar negotiation followed in regard to a further order, which was given, and the plaintiff received from the defendants another letter in these words: "NEW YORK, June 25, 1881. Mr. Henry Newman-DEAR SIR: We have the pleasure of ordering for your account the following composition buttons,-pattern shape of samples submitted; colors and mottling to be decided later: |