Volume 1 — Abbott's Court of Appeals Decisions

<p>In a confession of judgment, under section 383 of the Code of Procedure, the facts essential to be stated are the general facts out of which the debt arose, enough to identify the transaction and enable inquiries to be made.*</p> <p>Where a promissory note is stated, it is sufficient to state the consideration by giving the nature of the dealings out of which it arose, without giving all the particulars, such as the amount and time of loans or payments to the debtor’s use, and the person to whom such payments were made.</p>

After trial by a referee, plaintiff moved for a new trial on ground of newly discovered evidence, upon his own affidavit of what his new witnesses would swear to. The motion was denied on the ground that the evidence was merely cumulative; and the denial was affirmed at general term (33 How. Pr. 262); and plaintiff now appealed.

<p>Benjamin Armstrong sued Jacob Dubois in the New York common pleas for damages in the sum of one thousand dollars, for taking, on execution, property of plaintiff which he claimed was exempt by law from execution, as the necessary bedding and clothing of plaintiff and his family, and for injury thereto.</p> <p>Defendant’s answer admitted that he recovered judgment against plaintiff, and that he caused^ execution thereon to be issued against plaintiff’s property, to the sheriff, who levied upon all the goods of plaintiff. It also alleged that after the commencement of the present action, plaintiff demanded and accepted a return of the necessary household goods exempted by the statute, to the value" of two hundred and fifty dollars — the remainder being sold to satisfy the execution.</p> <p>On the trial the evidence showed that the defendant, having his execution in the hands of a deputy of the sheriff, went in company with such deputy and with his attorney in the suit and execution, Yan Pelt, to the house of the plaintiff. Some one of them pushed open the door, and the three entered the house. The deputy showed the plaintiff the execution, and told him he had come to take possession of the property. The execution was in favor of Dubois and against the plaintiff. The sheriff told this in the presence of Dubois. Armstrong, the plaintiff, asked the deputy to release his exempt property, and the deputy referred him to Dubois as the principal. Arm-i strong then made a request of Dubois, and Dubois referred him to his attorney, Van Pelt, and Armstrong then asked Van Pelt to release his exempt furniture and clothing; and Van Pelt replied that he should release nothing, but would sell him out neck and heels, and ordered the sheriff to keep possession of the property. The sheriff obeyed the instructions. The defendant, Dubois, heard all this, but did not personally interfere further by word or deed.</p> <p>After the direct examination of the plaintiff (who was examined as witness in his own behalf), was closed, defendant read a stipulation as follows:</p> <p> \Title of this, and another similar, causei\ </p> <p>“Motions having been made to transfer the above causes to the supreme court, and to change the place of trial to Westchester county, on the ground of convenience of witnesses, &c., now, to obviate said motions, it is hereby, stipulated and agreed that, upon the trial of these causes the plaintiffs will admit, and hereby do admit, the following facts.”</p> <p>1. [After admitting the recovery of judgments and issue of execution.] That the sheriff received no directions, instructions or communications, from this defendant personally, in reference to the levy or sale under said executions, or either of them (not hereby implying that this defendant did give any such directions or instructions to the said sheriff through his attorney, agent, or other person).</p> <p>2. “ That William P. Little, as such special deputy, levied upon and sold the goods under said two executions of this defendant, and Ackerman & Deyo ” [other judgment creditors], ‘‘ without having received any directions or instructions so to do from this defendant personally (not hereby implying that this defendant did communicate such directions or instructions to said deputy through any other person).”</p> <p>3. “ That this defendant took no part in the said levy and sale, and had no portion of said goods under his control, and had received no portion of the proceeds of the sale personally (not meaning to imply that this defendant has done, received or suffered, the same to be done, by any person on his behalf”).</p> <p>[Signature of plaintiff’s attorney, &c.]</p> <p>The court, thereupon, on motion of defendant, dismissed the complaint, to which plaintiff excepted, and the court at general term affirmed the judgment of dismissal with costs, Avithout, however, rendering any opinion, and the plaintiff appealed.</p> <p>As to dismissing complaint before plaintiff had rested his case, cited Pike v. Evans, 15 Johns. 210; Shall v. Lathrop, 3 Hill, 237; Lawrence v. Barker, 5 Wend. 301. As to defendant’s liability for ratifying his attorney’s acts, cited, beside eases cited in opinion, Coates v. Darby, 2 N. Y. (2 Comst.) 517; Morgan v. Varick, 8 Wend. 587; Stewart v. Wells,* 6 Barb. 79; Fonda v. Van Horne, 15 Wend. 631; Davis v. Newkirk, 5 Den. 92. As to plaintiff’s right to be relieved from the stipulation, and from a summary judgment where he had not opportunity to be heard, Becker v. Lamont, 13 How. Pr. 23; Fitch v. Hall, 18 Id. 314; People v. Medical Soc. of Erie, 32 N. Y. 196.</p> <p>The facts admitted by the stipulation were a perfect defense (Allen v. Crary, 10 Wend. 359; Fonda v. Van Horne, 15 Id. 631); and it was the duty of the court to nonsuit. Bostwick v. Abbott, 16 Abb. Pr. 417; S. C., less fully, 40 Barb. 331.</p>

<p>The indebtedness of contractors to laborers, for which a railroad company may be held liable, by notice under § 12 of the general railroad law,— (L. 1850, p. 211, c. 140), which gives laborers a remedy against the company for demands on contractors, — is that only which accrues from the personal labor of the claimant (perhaps including that to which by law he is entitled, such as that of a minor child), with implements used by him, for which no extra charge is ordinarily made.*</p> <p>A laborer employing his own teams and an assistant, under an agreement therefor with the contractors, cannot recover against the company for the services of the teams or the assistant; nor can he recover even for his own personal services, unless, perhaps, where his agreement for his own services was separate.*</p> <p>If the laborer has so dealt with the contractor that any portion of an entire demand is not within the, statute, then his remedy is against his employers upon the contract alone.</p>

<p>The actual line of low water mark on the Brooklyn side forms the boundary of territorial jurisdiction of the city of Brooklyn in that direction.</p> <p>A pier within the Atlantic basin, in the city of Brooklyn, is within the city of Brooklyn, although it be built on piles through which the tide ebbs and flows, and at a place not within the original low water mark.* The court will not reverse a judgment on appeal on an objection to an item of the recovery, on a ground which was not taken below.</p>

Henry H. Babcock and others brought this action against Francis A. Utter and others in the supreme court, to establish and declare the rights of the plaintiffs to a water-power, arising in and flowing from the Unadilla river in the county of Otsego; to restrain the defendants from diverting the water; and to recover damages for a diversion already made.

<p>William Baldwin (for whom, on his death pending the action, Charles L. Baldwin and Willard Johnson, administrators, were substituted as plaintiffs), sued the city of Oswego in the supreme court upon a contract made between him and the' city, May 22, 1854, by which Baldwin agreed to excavate and deepen the Oswego river, on the west side, within certain limits, in the city of Oswego, for the considerations expressed in the written agreement, to be paid by the defendants. The principal ground of defense was, that the defendants had no power or authority to make the contract, and that they were not bound by it. The complaint stated two causes of action. The first set forth the contract, and alleged that the plaintiff did a large amount of work under it, and defendants neglected and refused to pay therefor, and declared the contract to he void. The contract was silent as to the mode in which the funds to pay the plaintiff were to be raised. For a second cause of action, the complaint alleged that defendants were owners of upward of one-fourth of the lands that would be benefited by the improvement in question, and that two-thirds of the owners of lands which would be benefited petitioned for the improvement, whereupon defendants duly ordered the improvement to be made, and entered into the contract aforesaid with plaintiff; that thereupon it became defendants’ duty to raise the expense by assessment, but they neglected and refused to do so, to plaintiff’s damage, &c.</p> <p>On the trial it appeared that the work alleged had been done under the contract, and that several payments had been made to plaintiff pursuant to the terms of the contract; after which defendants made default in further payments, and the plaintiff discontinued the work, and brought this action to recover for what he had done.</p> <p>The referee before whom the cause was tried found, that the corporation was authorized to order the improvement to he made; that the proceedings, petition for the work, &c., were sufficient; that the defendants neglected to make the necessary assessment, or to take measures to raise the necessary funds; and found that plaintiff was entitled to recover $12,588.93. In his opinion, he placed the right to recover upon the contract, but suggested that the action was also sustainable on the ground of negligence.</p> <p>The Supreme Court, on appeal, were of opinion that plaintiff was chargeable with knowledge of the provisions of the charter, and that the assessment could not be legally restricted to those who petitioned for it, but must he laid, if at all, on all the lands benefited; but that the persistent neglect of the corporation to levy a tax and create a fund rendered them liable in this action. They accordingly affirmed the judgment, and defendant appealed.</p> <p>Cited, besides authorities in the opinions, Mayor, &c. of N. Y., v. Furze, 3 Hill, 612; Peck v. Village of Batavia, 32 Barb. 634; Weston v. City of Syracuse, 17 N. Y. 110; Kent Com. 298; Hodges v. City of Buffalo, 2 Den. 111; Mayor, &c. of Albany v. Cunliff, 2 N. Y. (2 Comst.) 430; Cuyler v. Trustees of Rochester, 12 Wend. 165; Exp. Mayor of Albany, 23 Id. 277 ; Halsted v. Mayor, &c. of N. Y., 3 N. Y. (3 Comst.) 430 ; Thompson v. Schermerhorn, 6 N. Y. (2 Seld.) 92.</p> <p>Cited and commented on the foregoing cases, and 11 Paige, 596 ; Moss v. McCullough, 5 Den. 567.</p>

William Baldwin and John M. Jaycox sued the Mayor, &c. of New York, on an award made by arbitrators, appointed under L. 1860, p. 773.

Bernhard Baltes sued Adolph Ripp and Joseph Ochsler in the city court of Brooklyn, for the conversion of plaintiff’s property. Plaintiff claimed title to the property by a mortgage given by one Reitenbach, on October 8, 1859. On October 25, defendant Ripp recovered judgment against Reitenbach ; and on November 2, 1859, the property was sold on execution under the judgment to defendant Ochsler.

The Bank of Auburn brought this action in the supreme court against Aaron Quimby and Isaac Bell, the president of the Farmers’ and Mechanics’ Protection Company of Weeds-port, to recover on a promissory note for one thousand dollars, made by Quimby to the order of said company, and indorsed by one Bliss, their agent. At the trial Lewis Putnam, the successor of Bell, was substituted in the title of the cause.

The Bank of the State of Indiana, an Indiana corporation, sued Oliver Bugbee in the Buffalo superior court for money lent and advanced by the plaintiff to the defendant at his request. The facts were stated by the superior court substantially as follows: The transaction took place in 1858. The defendant, in 1858, resided in the city of Buffalo, and was owner of the schooner Waurecan. Van Inwagen & Co. were grain brokers, residing and doing business at the city of Chicago.

<p>In an action of an equitable nature, — e. g., by one member of a partnership to enforce, against the other members, or the estate of a deceased member, claims growing out of the partnership business, — a referee’s finding of -the facts is held conclusive, if there is any evidence to sustain it. The appellate court will not inquire into the weight of the evidence.</p> <p>In such a case the award of costs is in the discretion of the referee, and the appellate court will not control that discretion, except perhaps, in case of its palpable abuse.</p> <p>Where the plaintiff in such an action made two claims, and recovered the smaller one only, and the referee allowed him his costs and one-third of his disbursements, and charged him with the costs of a successful defendant, — Held, that the court of appeals would not interfere with this adjustment.</p>

Jacob Barmon sued Jacob and Leopold Lithauer, in the supreme court, to recover from them a sum which he alleged he had been compelled to pay to one Mack in satisfaction of a note, which note had been previously held by defendants, and had been paid by him to defendants on their promise to surrender it to him.

Ckauncey Barnard sued John B. Monnot in the supreme court, to recover his compensation as a real estate broker, amounting to two thousand five hundred dollars, in effecting the sale of the “ Hippodrome ” property in the city of New York. On the trial, the plaintiff was nonsuited. The judgment was affirmed at the general term of the first district.

Henry M. Barnes sued Thomas N. Allen, in the supreme court, to recover damages against defendant, for maliciously enticing and carrying away his wife. On the trial, plaintiff proved that one morning in March, 1857, defendant came with ahorse and wagon and stopped in front of plaintiff’s house, when plaintiff’s wife came out, got into the wagon, Avith one of her children, and was taken by the defendant to the residence of her father.

Delos Bartlett sued Levi B. Tarbox, in the supreme court, to recover the. amount of four promissory notes made by defendant, all of which had been transferred to plaintiff by one Elijah Brown, on November 25, 1851, after they were overdue! Two defenses were interposed. First. That the plaintiff was not then owner, but that they were the property of Brown; and, Second. A set-off against Brown.

Eli Benedict sued William H. De Groot, Theodore B. De Groot and Daniel S. Darling, in the New York common pleas, upon a promissory note dated August 9, 1855, for one thousand and thirty-five dollars, made by the defendants De Groot, in their firm name of William H. De Groot & Son, payable in four months to the order of defendant Darling.

Thomas H. Bentley brought this action in the supreme court against Norman Smith, to reform a written instrument for the sale of land, and for a specific performance of the contract as reformed. The plaintiff was the assignee- of the vendee, and he sought to reform the contract upon the ground of fraud in the vendor, by which a portion of the premises actually bargained for was omitted from the description.

Betsy Bernhard and Ferdinand Wiel, administratrix and administrator of Gnstavns Bernhard, deceased, sued the defendants, in the supreme court, to recover damages for negligently causing the intestate’s death, by running an engine against him, in Schenectady, in 1854. The only facts in issue were whether defendant’s servants were guilty of negligence, and whether the negligence of the deceased contributed to cause the injury.

John La Farge (for whom, on his death pending the suit, John Binsse and Louisa La Farge, executors, were substituted as plaintiffs), brought this suit against Alonzo 0. Paige, the Schenectady Bank and Eliza Peek, tobe discharged from liability to pay the deficiency of mortgages he had given to one Morris; or to have an account taken of rents and profits which-he claimed should be applied in reduction thereof.

Writ of error. The facts are stated in the opinion. There was no evidence of the corpus delicti. There must be shown not only a talcing but a felonious taking. The -corpus delicti cannot be presumed. Best on Presumptions, 268; Best on Ev. 320; 1 Whart. Cr. L. § 745, 5th ed.; Case of Plunkett, 3 City Hall Rec. 137. No 'robbery could be committed on Denny, because he was unconscious of the robbery, from liquor procured by himself.

The Corning & Blossburg Railroad Company, of which the plaintiffs were the assignees, owned a railroad of about fifteen miles’ length in this State, and the defendants were owners of a railroad of about twenty-six miles’ length in Pennsylvania, which connected at the State line. The two companies made an agreement for the continuous operation of both roads by the defendants, the material parts of which are stated in the opinion.

William J. Blydenburgh, executor of Richard F. Blydenburgh, brought this action in the supreme court against Horace Thayer and William Peet. The object of the action was to obtain a cancellation of a certain judgment against the plaintiff’s testator which had been recovered by one Foster, and was now held and owned by the defendant Thayer.

<p>A sale of all the timber of a specified description growing or being upon the seller’s land, with the right to enter and occupy for a term of years, for the purpose of cutting and carrying away such timber and for the purpose of carrying on the business of lumbering and manufacturing timber on the land, is a sale only of such timber as the purchaser actually removes within the period fixed.*</p> <p>After the expiration of the period, it is a trespass for the seller to enter and remove timber previously cut; and if insolvent, he may be enjoined from so doing.</p>

<p>Wynter S. Bond brought this action in the supreme court against James 0. Willet (for whom, on his death pending the appeal, James S., his administrator, was substituted), to recover certain goods taken by) and in the possession of, the defendant, as sheriff of the city and county of New York, who claimed to hold them by virtue of a levy made August 27, 1856, under an Execution issued out of the supreme court, in favor of Fredrick A. Conkling and others, against Eemsen & Dingee. The defendants in the execution were copartners, under that name, merchants, doing business and having their store at Hos. 204 and 206 Sixth-avenue, in that city. It was proved by the deputy sheriff, the only witness examined on the trial, as to the levy, that immediately upon the receipt of the execution, he proceeded to Eemsen & Dingee’s store, and announced Iris business to the debtor Dingee, told him he had an execution against the firm, showed him the execution and told him, notwithstanding Dingee’s objection that the judgment had been prematurely perfected, that he “ must act under this writ, and must levy on the property.” Dingee wished to see his lawyer, the witness told him he must make his levy, and he took up one of the bill-heads of the firm and on it made a memorandum of levy. He testified, “ I also made an indorsement on the execution in these words: 27th August, 1856, levied on stock of dry-goods in store 204 and 206 Sixth-avenue.”</p> <p>. By an arrangement' made between the officer and Dingee, the officer agreed to leave the goods levied on in the store, and the next day an order staying proceedings on the execution was served on the sheriff, which was not discharged until the 19th or 20th of September following, when the officer went to the store and took possession of the goods. The goods were then claimed by the plaintiff as having been purchased by him from the firm of Bliss, Briggs & Douglass, who, it was alleged, purchased the same from Remsen & Dingee, the defendants in the execution, on or about September 12, 1856, and the goods claimed by the deputy sheriff to be levied on, were sold by Bliss, Briggs & Douglass, to ' the plaintiff Bond, September 19, 1856.</p> <p>On September 20, 1856, after the order staying proceedings had been vacated, the deputy sheriff called at the store and found Bond, the plaintiff, there, who claimed the silks, and was then informed of the levy and the claim of the sheriff thereunder. The latter then took possession of the silks, and the plaintiff brought this action. On the trial, the defendant’s counsel claimed that, there being an actual levy proved, the plaintiff, before he could recover, must show that he had no notice of the execution. The plaintiff claimed that there had been no actual levy, and that even if there had been, it had been abandoned. The court decided, as matter of law, that there had been an actual levy. The plaintiff then claimed to go to the jury on the question of abandonment, and also on the question of notice of execution issued. Both of these claims were refused by the court, and the plaintiff’s counsel excepted to each of said refusals, and the judge thereupon instructed the jury that there was nothing in the case for them to pass upon except the value of the property, and that under the evidence they must find a verdict for the defendant, assessing the value of the property. To which instructions of the judge and every part thereof, the plaintiff’s counsel then and there excepted, and the jury found a verdict for the defendant, assessing the value of the goods, and damages for their detention, at eighteen hundred and sixty-eight dollars and forty-eight cents, and six cents damages. And thereupon the judge ■ directed that the hearing upon the said exceptions should be had in the first instance at the general term.</p> <p>And the general term, on the hearing of said exceptions, overruled the same and rendered judgment upon said verdict for the defendant for the sum of two thousand four hundred and twenty-nine dollars and ninety-four cents, and the plaintiff thereupon appealed to this court.</p> <p>Oited, beside the authorities noticed in the opinions, Dresser v. Ainsworth, 9 Barb. 619; and as to estoppel, Welland Canal Co. v. Hathaway, 8 Wend. 483; Dezell v. Odell, 3 Hill, 215.</p> <p>Cited, beside authorities in opinions, Wood v. Van Arsdale, 3 Rawle, 401; Mills v. Thursby, 11. How. Pr. 121; Watts v. Cleaveland, 3 E. D. Smith, 553; Artisan’s Bank v. Treadwell, 34 Barb. 553-559; Pugh v. Calloway, 10 Ohio N. S. 488; Very v. Watkins, 23 How. U. S. 469; Moss v. Moore, 3 Hill (S. C.) 276; Bullitt v. Winston, 1 Munf. 270; Woodland v. Fuller, 11 Ad. & E. 859; Ray v. Birdseye, 5 Den. 619; affirming 4 Hill, 158; Pine v. Rikert, 21 Barb. 471; Warner v. Paine, 3 Barb. Ch. 630; Slade v. Van Vechten, 11 Paige, 21; Dresser v. Ainsworth, 9 Barb. 619; Herkimer Co. Bank v. Brown, 6 Hill, 232. That there was no question for the jury; Nichols v. Luce, 7 Wend. 160; De Meyer v. Souzer, 6 Id. 436; People v. Cook, 8 N. Y. (4 Seld.) 67.</p>

<p>In an action in a justice’s court for injuries to real property, if the title of neither party is disputed, evidence given concerning title does not oust the justice of jurisdiction.*</p> <p>The question where a stream ought to run does not necessarily involve title.†</p> <p>A judgment in a justice’s court, in an action for trespass in entering plaintiff’s land to abate an alleged nuisance, consisting in turning a stream of water on to defendant’s land, is admissible, and, it seems, conclusive, in an action by defendant to recover damages for the nuisance, if both actions involve the same issues.*</p>

<p>Under the provision of the statute of frauds, — declaring that a sale of personal property for fifty dollars, or more, without writing or part payment, is void, unless the buyer shall accept and receive part of the goods, — there must be a delivery by the seller, with intent to vest the right of possession in the buyer, as well as an actual acceptance by the latter, with the intent of taking possession as owner.</p> <p>If the buyer obtains a bill of lading from the seller, without any in-' tention on the part of the seller to deliver it, and insists on retaining possession, against the remonstrance of the seller, he cannot avail.himself of it to make out his title.</p>

<p>Although under a general employment to sell real estate, a broker is entitled to be protected against unfairness or fraud, and the owner cannot avail himself of the broker’s services in finding a purchaser, and then, by taking the negotiation into his own hands, and reducing the price, effect a sale to the same purchaser and refuse to pay commissions ;— yet, if the broker accept an employment that makes his right to commissions depend on procuring a purchaser on specified terms, he cannot recover if he does not perform that service, unless the employer interfered and prevented performance.*</p> <p>The mere fact that a broker intervened between the parties to a negotiation which was originally commenced, and finally consummated, without his agency, and, by his conversation with third persons, contributed to its consummation, does not entitle him to commissions when a sale at the price fixed as the condition of his employment was not effected, and he was not prevented by his employer from effecting a sale at that price.</p>

<p>A foreign, corporation is liable to taxation on money invested by them in securities (other than United States stocks), which are deposited with the comptroller of the State, as a condition of their being allowed to do business as an insurance company here, as prescribed by the act of 1853, L. 1853, 893, c. 468, § 15; for it is money invested in their business, within the meaning of the act of 1855, L. 1855, 44, c. 87, q 1.</p> <p>Foreign corporations are to be deemed “ persons,” within the meaning of a statute relating to taxation, unless a different intent is indicated by the statutes.</p> <p>Securities deposited by an insurance company with the comptroller of this State, at the capital, in Albany, aré taxable in the county where the company have their principal office or place of business within this State.</p>

<p>Amos Bronson, as receiver of the Western Insurance Company, sued Daniel M. Tuthill and another, in the supreme court, on a premium note made by-defendants; on insuring in the Western (Mutual) Ins. Co. One of the defenses set up was fraud on the part of the insurance company, in inducing defendants to make the note; to rebut which, plaintiff on the trial attempted to show that the authority of Gordon (the agent, who took the note), was limited, and was in writing.</p> <p>The facts sufficiently appear in the opinion. Plaintiff had judgment, which was affirmed by the court at general term, which held that there was no evidence of fraud shown, and although the secondary evidence of Gordon’s authority had been, the court held, improperly admitted, yet as that evidence was wholly immaterial, there was no cause for reversal. Defendants appealed to this court.</p> <p>As to the deficiency of proof of assessment, &c.,.cited Thomas v. Whallon, 31 Barb. 172; Jackson v. Roberts, 31 N. Y. 304. As to the fraud of plaintiff’s agent, Defiendorf v. Beardsley, 23 Barb. 656; Dana v. Munro, 38 Id. 528; Griswold v. Haven, 25 N. Y. 595.</p>

Job Brookfield sued George Remsen, sheriff of Kings county, for not returning, within sixty days after its receipt by him, an execution issued upon a judgment against King Burns, for two hundred and thirty-four dollars and ninety-nine cents, in an action in the supreme court, in which William A. Martin and Henry P. Martin were plaintiffs; by whom this cause of action was assigned to' the plaintiff herein, before the commencement of the action.

Robert Brooks brought this action in the recorder’s court (now superior court) of the city of Buffalo, against the Buffalo & Niagara Falls E. R. Co., to recover damages for negligently running their cars against plaintiff’s wagon while driving in the public highway, in the village of Black Rock; whereby plaintiff’s wagon was broken, and plaintiff and his horses greatly injured.

James Brower, general guardian of Valentine, Maria Elizabeth, and John, Kettleman, infant children of Valentine Kettle-man, deceased; and Lewis Carpenter, and Mary, his wife; and Nicholas Cromer; and Jacob Ferris, general guardian of Mary Elizabeth Ferris, petitioned the surrogate of Queens county to compel Conrad Bowers, surviving executor of Peter Marks, deceased, to pay certain legacies claimed under the will of said Marks, with interest from the time they should have…

John A. Brown brought this action in the supreme court in equity, against Frederick, William A. F., and John Pentz, for the value óf a certain party wall, erected by one Sandford, upon a lot then owned by him, and known as No. 73 Greenwich-street, in the city of New York, and adjoining and extending seven inches upon the adjoining premises, known as No. 75 Greenwick-street, then possessed by one John S. Roulet, and now through various conveyances vested in defendants.

<p>John M. Bruce, William A. Odell, and David M. Farnum, sued James S, Davenport, Samuel W. Davenport, and Thomas Davenport, in the supreme court, as indorsers of a promissory note. The defense was that the indorsement of the defendants was procured by fraud.</p> <p>The referee found the following facts. The defendants were merchants under the firm of Davenport Brother!. One of their number, Thomas, delivered the note in question (which was made by “Beale, Mellick & De Witt,” and was dorsed by the makers in blank) to the plaintiffs, who were note brokers, with directions to sell it without the indorsement of defendants, and at a discount not exceeding twelve per cent. The defendants had previously, through Thomas Davenport, who attended exclusively to this business, employed plaintiffs to sell similar notes without recourse.</p> <p>' A few days after the note in suit was delivered to plaintiffs, Odell, one of the plaintiffs, called at the defendants’ place of business. Thomas Davenport was then absent. Odell found the defendant James S. Davenport there, and requested him to indorse this note in the name of the defendants’ firm. J. S. Davenport at first declined doing so, saying that Thomas Davenport attended to this part of the business, and that he knew nothing about it. Odell then stated to him thaé Thomas Davenport was in .the habit of indorsing the name of his firm on the paper of those makers; that he invariably did so; that he would indorse this note if he were at home, and that if J. S. Davenport indorsed it, he would find it all right when Thomas Davenport returned; that the plaintiffs could sell the note if the defendants indorsed it, but not otherwise. The defendant, James S., induced by these statements of Odell, then indorsed the note in the name of the firm. After thus "obtaining the defendants’ indorsement, plaintiffs indorsed the-note, and sold it at seven per cent, discount. They reported the sale to defendants as a sale at twelve per cent, discount, and reserved that rate of percentage from the proceeds. The note not being paid by the makers at maturity, plaintiffs paid it, and brought this action against defendants as indorsers.</p> <p>A day or two after James S. indorsed the note in Thomas’ absence, Thomas returned, and on being informed by James S. of the representations and of the indorsement, expressed his dissatisfaction, and said he would not have indorsed it for five hundred dollars; and James S. expressed indignation at having been induced to indorse the notes by said statements.</p> <p>The defendants did not express dissatisfaction to the plaintiffs as to the means by which the indorsement was obtained, till it was ascertained that the makers were insolvent.</p> <p>The referee was of opinion that Odell’s statements were not such false representations as would invalidate the indorsement obtained by them; because, 1, so far as they related to what Thomas would do if at home, they were promissory, asserting no existing fact, and, 2, the statement that he had indorsed such notes, was not “ material,” since it averred'nothing as to the credit, &c., of the makers, nor was it a statement that a prudent member of a mercantile firm, having their own books, would rely on, nor, 3, did the representations cause loss, for it did not appear that the note would have been negotiated at all, without indorsement. He therefore gave judgment for plaintiffs on the note, less the excess of discount.</p> <p>The supreme court held that plaintiffs had violated their instructions, in selling with an indorsement; and that an in* dorsement obtained by such means could not be deemed a modification of the instructions. They accordingly reversed the judgment awarded by the referee. They directed that on a new trial “ the proof taken on the former trial of this action before said referee stand as the proof herein, with liberty to either party to introduce new and further proof.”</p> <p>The plaintiffs appealed to the court of appeals, stipulating that, if the order appealed from should be affirmed, judgment absolute might be entered against them.</p> <p>Cited 1 Story Eq. §§ 146, 147, 193 and 185; 2 Kent Com. 637, 639; 1 Pars. on Cont. 267; Camp v. Pulver, 5 Barb. 91.</p> <p>Cited Johnson v. New York Central R. R. Co., 33 N. Y. 610; Bennett v. Judson; 21 Id. 238; Hill v. Gray, 1 Stark. 352; Waldron v. Stevens, 12 Wend. 100; Elwell v. Chamberlain, 2 Bosw. 230; Cary v. Hotailing, 1 Hill, 311; People v. Williams, 4 Id. 9; Mead v. Bunn, 32 N. Y. 275 ; 3 Phill. on Ev. 393 ; Whitney v. Allaire, 1 N. Y. (1 Comst.) 309; Mead v. Bunn, 32 N. Y. 275; Haight v. Hayt, 19 N. Y. 564; Elwell v. Chamberlain, 2 Bosw. 230.</p>

The plaintiff, Stephen Brush, as executor of one Robert Hyslop, deceased, commenced a suit against the defendant William Lee, and one George W. Niles and others, to remove a cloud upon the title to certain real estate in Brooklyn, which had been sold under an execution against said Hyslop ; and recovered a judgment for costs, which was affirmed on appeal.

Olive E. Bucklin. brought this action in the supreme court against William and George R. Bucklin, to foreclose a mortgage made by their ancestor William Bucklin, Sr. William Bucklin, Sr., and his wife Esther, previous to his executing this mortgage, had separated, and she had filed a bill in chancery for a judicial separation (a mensa et thoro) on the ground of his cruel treatment of her.

Margaret P. Bunn, executrix, &c., brought this action against William Vaughan, to foreclose a mortgage given by the defendant to one Oakley Bunn, the plaintiff’s testator, to secure the payment of two thousand dollars, with annual interest, during the natural life of one Lavinia Vaughan, the wife of the defendant, for her separate maintenance.

James Bunten sued> the Orient Mutual Ins. Held: as conclusions of law, that the plaintiff was entitled to a policy, Avith a warranty of sailing on or before November 10, 1855, and at the premium of three and a half per cent., and that the plaintiff was entitled to a judgment for the sum above named.

Lawrence Burke brought this action against Theodore P. Nichols, in the supreme court, to foreclose a mortgage given by defendant to… Held: that conceding that such a claim could be set up as- an offset in this action, of which the court expressed a doubt, yet it constituted no breach of covenant and gave no cause of action, since the deed to defendant did not purport to convey any building by description, but whatever right defendant had to the buildings on the land…

Michael- Burkhardfc brought this action in the supreme court, against Giles Sanford (for whom, on his death pending the action, Robert H. McClellan, administrator, was substituted as defendant), to recover back a sum of money he had paid to redeem land from a sheriff’s sale. The land was uninclosed and unoccupied woodland, which belonged, in 1850, to one Bradley, a resident of Connecticut.

<p>Joseph Burnett and William Otis bronght this action in the New York superior court, against Edward and Henry A. L. Phalon, to restrain the defendants from manufacturing, using, selling, or in any manner disposing of a compound or joreparation with the name “ Cocoine,” or “ Cocoaine” printed or stamped upon the bottles, labels, wrappers, covers, or packages thereof; also from using the word “Cocoaine” or “Co-come” upon any wrappers, labels, or trademarks, and also from manufacturing, selling, or offering for sale, any preparation or compound under the name of “ Cocoine” or “ Cocoaine;” and also from imitating, in any manner, the trademark “Cocoaine;” and that defendants may account to the plaintiffs, and pay over to them the profits of all the said material sold under the stimulated name and trademark above set forth.</p> <p>Upon the trial by the court, without a-jury, the following facts were found:</p> <p>1. That in or about- the month of Hovember, 185.6, the plaintiffs, druggists, and apothecaries, compounded from cocoanut oil, and other ingredients, a mixture used as ahair-wash, for which they devised as their trademark a name, word, device, or title never before used, by which to mark their said compound, to wit, the name or word “ Cocoaine,” and that they published the same very extensively, with notice that they had adopted said name or title, as their “ trademark,” tp secure the public and the proprietors against imposition, and that all unauthorized use of this trademark would be promptly prosecuted; that the plaintiffs then and thereupon introduced their said compound into the market, and expended a sum exceeding ten thousand dollars in advertising, publishing, and introducing the same.</p> <p>3. That in or about the month of Hovember, 1858, the defendants, Edward Phalon and Henry A. L. Phalon, composing the firm of Phalon & Son, of the city of New York, hair-dressers and perfumers, commenced the preparation and sale of a similar compound, in bottles not unlike those containing the plaintiffs’ compound, and with labels under the name and title of “ Cocoine,” and that they have since manufactured and sold large quantities thereof.</p> <p>3. That the defendants, well knowing that the name, word, or title, of “ Cocoaine” was, and for a considerable time had been the trademark of the plaintiffs, with the wrongful intention of inducing the public to believe that the compound sold by themselvés under the name, word, or title of “ Cocoine” was that of the plaintiffs; and with the wrongful intention of securing to themselves the benefit of the skill, labor, and expense of the plaintiff, had so closely imitated and used the aforesaid trademark of the plaintiffs as to’deceive the public and injure and endamage the plaintiffs. That the word, name, title, or device “ Cocoine” is a spurious and unlawful imitation by the defendants, of the word, name, title, or device “Cocoaine.” the aforesaid trademark of the plaintiff's.</p> <p>4. There was no evidence to support the defendants’ allegations that the plaintiffs have in any manner committed any fraud, or imposed upon the public.</p> <p>' 5. That the plaintiffs are entitled to the relief demanded in the complaint, that the defendants be perpetually enjoined and restrained from the further imitation and use of the aforesaid trademark of the plaintiffs, and that the damages which the plaintiffs had sustained they were entitled to recover.</p> <p>Such damageshaving been ascertained, judgment was rendered accordingly for the plaintiffs; and on an appeal to the general term, the same was affirmed.</p> <p>(Reported in 9 Bosw. 192.)</p> <p>Cited Upton on Trademarks, 171, 179, 187; Amoskeag Manufacturing Co. v. Spear, 2 Sandf. 599; Fetridge v. Wells, 4 Abb. Pr. 144; S. C., 13 How. Pr. 385; Stokes v. Landgraff, 17 Barb. 608; Williams v. Johnson, 2 Bosw. 1; Wolfe v. Goulard, 18 How. Pr. 64; Corwin v. Daly, 7 Bosw. 222; Howard v. Henriques, 3 Sandf 725; Knott v. Morgan, 2 Keen, 113; Stone v. Carlan, 3 Code Rep. 67; Marsh v. Billings, 7 Cushing, 311; Genin v. Chadsey 12 Abb. Pr. 69.</p> <p>Cited Taylor v. Carpenter, 2 Sandf. Ch. 603; Williams v. Johnson, 2 Bosw. 1; Gout v. Aleploghu, 6 Beav. 69; Stokes v. Landgraff, 17 Barb. 608; Wolfe v. Goulard, 18 How. Pr. 64; Croft v. Day, 7 Beav. 84; Howard v. Henriques, 3 Sandf. 725; Sykes v. Sykes, 3 B. & C. 541; Rogers v. Nowhill, 5 Man., Gr. & Scott, 109; Morrison v. Salmon, 2 Man. & Gr. 385; Day v. Binnings, 1 Coop. Ch. 489; Ransome v. Bentall, 3 Law J. R. N. S. 161; see also cases in Upton on Trademarks, 122; Farina v. Silverlock, 39 Eng. Law & Eq. 517; Judge Duer, in Amoskeag Mfg. Co. v. Spear, 2 Sandf. 599; see also Clark v. Clark, 25 Barb. 76; Brooklyn White Lead Co. v. Masury, 25 Barb. 416; Williams v. Johnson, 2 Bosw. 1; Coffeen v. Brunton, 4 McLean, 576; Hine v. Lart, 10 Lond. Jur. R. 106; McAndrew v. Burnett, 10 Jur, N. S. 492; Barrows v. Knight, 6 R. I. 434.</p>

Elizabeth Burton sued Cecilia Burton and J. J. Crane, executors of the will of William E. Burton, deceased, to recover dower. William E. Burton, the decedent, and the plaintiff, were both British subjects, born in England, and there also married, while residents there, in April, 1823. Burton became thereafter a resident of Pennsylvania, and became a citizen of the United States, by naturalization, October 8, 1840.

Thomas Butter (for whom, on. his death pending the action, Harriet E. Butler, administratrix, was substituted), brought this action in the New York superior court against William Lee… Held: on the authority of N. Y. Ice Co. v. Northwestern Ins. Co., 23 N. Y. 357, that the order was within the power of the court, and a proper exercise of its discretion, and accordingly affirmed the order. Reported in 3 Robt. 644; S. C., 28 How. . Pr. 181. Defendants appealed to this court.

Alceste Button, brought this action in the supreme court against Emanuel McCauley, to recover damages for an alleged breach of a promise of marriage. The defendant’s answer was a general denial.

George Byrd and another sued Harvey Hall in the supreme court, in replevin. The plaintiffs were merchants in the city of New York, and, on October 9, 1858, sold to one James Brown a bill of goods amounting to five hundred and seven dollars and ninety cents, which were shipped on the 15th of the same month.

William B. Calkins sued Abram Falk in the supreme court, to recover for the breach of an executory agreement alleged to have been made by defendant, with plaintiff’s assignor, James E. Sutphen, for the sale by defendant to Sutphen of a crop of hops. The only question was whether there was sufficientproof of an agreement under the statute of frauds.

Daniel D. Campbell brought this action against Edwin Vedder and others, in the supreme court, to foreclose two mortgages made by Edwin Vedder, and claimed by plaintiff as assignee, under a recorded… Held: that Campbell, by virtue of the recorded assignment of the second and third mortgages as collateral security, was entitled to payment of the amount due him on the note, in priority to the other parties.

John A. Canter, the plaintiff in error, was indicted in the New York general sessions in June, 1865, for that, willfully and feloniously on the 1st of February in that year, he had in his possession a certain forged and counterfeit note commonly called a bank note, issued by the Mechanics’ Bank of Few Haven, in the State of Connecticut, of the denomination of ten dollars, with intent then and feloniously to utter and pass the same.

Phoebe Ann, executrix of Otis, the son of Daniel Carmichael, brought .this action in the supreme court, against Eliza, executrix of said Daniel Carmichael, the father, to compel an account and payment of a share of the estate claimed under the will of Daniel. Daniel Carmichael died September 3, 1849, leaving the defendant, his widow, and six children, him surviving. The eldest of them (Otis) was the child of a first marriage.

James S. Carpentier sued James C. Willet, sheriff, &c., in the New York superior court, for escape of one Doughty from imprisonment on an execution, by which he was arrested, and committed to the custody of defendant, as sheriff of New York. On September 15, 1857, plaintiff, as assignee of one Thomas France, brought a suit against Doughty in the third district court of the city of New York, for the conversion of certain promissory notes or their proceeds.

William Carroll sued defendants in the supreme court, on a fire insurance policy. On the trial plaintiff proved the issuing of a policy of insurance for one thousand dollars, upon a stock of goods, by the defendants, to Burns & Hughes, November 6, 1858, and by them assigned to Burns & Yance, with defendants’ consent, on November 39, 1858; also, a renewal receipt, dated November 6, 1859, signed by the president and secretary of the company.

James H. Case sued Hiram G. Hotchkiss, in the supreme court, to recover on a bill for attorney’s services.

Jeremiah Castle and Mary Ann Castle, his wife, sued Abraham Duryee in the supreme court, in an action in the nature of trespass, for an assault of the plaintiff, Mary Ann Castle. The defendant was the colonel of the Seventh Begiment, New York State Militia, and, in July, 1855, was encamped with his regiment at Kingston, Ulster county, pursuant to the orders of his superior officers.

Hark Causidiere sued George W. Beers in the New York common pleas, to recover money of the plaintiff’s, alleged to have been lost by one Eugene Delonne, a clerk in his employment, at a gambling table, of which the defendant was the proprietor.

William B. Chamberlin sued Henry Prior (for whom, on his death, Horace Prior and Henry Prior, his executors, were substituted), in the supreme court, to recover damages arising from alleged fraudulent representations made by Henry Prior to plaintiff.

Andries Schoonmaker (for whom, on his death pending the action, George Chambers, executor, was substituted), sued Charles H. Clearwater and Silas Wood, for damages, for conversion of a wagon, horses, &c. One Roosa formerly owned the articles, and mortgaged them to Schoonmaker, in December, 1851, to secure one hundred and seventy-five dollars, payable September 1, 1853, with interest.

The City Building and Loan Company of Buffalo sued George L. Fatty and others, to foreclose a mortgage given by defendant Fatty, and wife, to the plaintiff.

Chester M. Clark, as receiver of the effects of Wm. Sherman, brought this action in the supreme court, against Wm. H. Brock-way. On September 1, 1856, Wm. Sherman made a general assignment, for the benefit of creditors, to John Sherman, James A. Sherman and Erasmus Bowen.

Stephen T. Clarke brought this action in the New York common pleas against James and Erastus Brooks, for the purpose of settling a partnership alleged to have existed between the parties, who were publishers of the New York Express. In 1863, upon application of one of the parties, the court made an order settling certain issues in the action, to be tried by a jury.

Nathan Ford died in 1829, leaving a will of real and personsonal estate, which was duly proved before the surrogate of St. Lawrence county, and letters. testamentary were granted to the executors therein named, all of whom died on or before April 2, 1842, and letters of administration with the will annexed, were issued to Ohilion Ford, the respondent. He was superseded as such administrator on July 13, 1850, and Edwin Clark and David B. 0.

Everett Clapp, individually and as administrator with the will annexed of Simon Richardson, deceased, filed a petition in the supreme court, against Grace C. Meserole and others, to have a review of a decree made by the surrogate, on the final accounting of Clapp, the petitioner, as such administrator.

Daniel Gerow confessed three judgments, in the supreme court, to William Clements, to Jacob Ryder, and to Cornelius Carpenter and others, respectively.

Francis S. Coghlan sued William B. Dinsmore, president oí the Adams Express Company, for damages, in the amount oí a promissory note, which the company had taken to collect, and had not caused to be protested, so as to charge the indorsers. The note was made by one Nichols, and indorsed by Saltus & Co., and by one Anna Saltus.

Charles B. Colburn brought this action in the supreme court against Jfianson P. Morton and Horace Gaylord, to set aside an assignment for fraud. The respondents, together with William W. Mann, were the assignees of one Jesse Frye.

Robert Coleman sued Aaron H. Bean and Joseph B. Whee-lock, in the New York common pleas, on an undertaking or statutory obligation, given by defendants, on behalf of the Galveston, Houston & Henderson Railroad Company, in a former action brought by Coleman in the supreme court against the railroad company. The undertaking was in the usual form of an undertaking given to procure the discharge of an attachment issued as a provisional remedy under the Code of Procedure.

<p>Where a former judgment was pleaded as an estoppel to proving certain facts in a subsequent case, and it appeared that in a former suit between the same parties, the existence of such facts had been set up at the trial, but it did not appear that any proof had been offered in support of such allegation of fact, nor on what ground the defense rested, nor on what the verdict proceeded, — Held, that the former judgment was no bar to an inquiry into the same facts again.</p> <p>In an action against a sheriff for a false return, it is no defense that the judgment debtor against whom the execution was' issued, held the property, which had been levied on, by an assignment fraudulent as to one of the assignors, if another of them had the right to convey.</p>

The Commercial Bank of Clyde, New York, sued the Marine Bank of Milwaukee, Wisconsin, in the supreme court, for money received. The plaintiffs were owners of a draft payable in Milwaukee, which they indorsed, and sent through Lee & Co., bankers, of Buffalo, for collection. Lee & Co. indorsed it, and sent it to the defendants, a Milwaukee bank, who were their correspondents, and between whom and them commercial paper was constantly remitted and received for collection.

Allen Comstock sued Abaz Hayes, in the supreme court, for damages for false and fraudulent representations in inducing plaintiff to purchase three tracts of land from him, to which he had no title. Held: that as the referee did not find that the plaintiff was injured by the falsity of the recitals, and as .defendant had the legal title, defendant’s fraud upon the Ricketsons could not avail in this action, at least unless the Ricketsons were made parties.

Charles M. Conkey and Walter Harrington were indicted in the Otsego oyer and terminer, for rape, &c. The indictment recited that it was found hy the oaths of twenty-four good and lawful men, &c. There were three counts — one against both defendants, for rape; a second against Conkey for rape, and against Harrington for abetting him therein; and a third, against both, for assault with intent to commit rape.

Jonas and Theodore Conkling sued James E. Gandall, as indorser, and George L. Burdick and Charles Finn, as makers of a note. The action was in the supreme court.

Gustaras A. and John J. Conover brought this action in the New York superior court against Ann C. Hoffman, to have a contract for the purchase of land in New York specifically performed by defendant. Defendant refused to accept a conveyance on the ground that the executors of James R. Smith (who conveyed to one Dyson, under whom plaintiff claimed title) had not power to convey. The testator’s will gave a power of sale, but defendant objected that it was revoked by a codicil.

Anna M. Cook, as administratrix, &c., of her deceased husband, John F. Cook, sued defendants in the supreme court, under the statute, to… Held: that whatever may have been the former rule, it must be deemed now well established, that the judge, upon the close of the evidence, may and ought to nonsuit the plaintiff, or direct a verdict against him, whenever satisfied that a verdict in his favor would be so clearly against the evidence that it could not be permitted to stand;…

G-eorge F. Cookingham sued Abraham Lasher, in the supreme court, to recover damages for a breach of a contract of warranty, upon .an .exchange of horses.

Matthias P. Coons brought this action in the supreme court against Matthew Chambers, to recover damages for an alleged breach of a contract, to pay for services and advances, &c.,, in building, and for the sale of certain patent rights and machines. Upon the trial before a referee, plaintiff produced in evidence, a written contract between the parties, dated Eovember 30, 1849, to which was appended a supplemental provision without date.

Charles Cornwell sued Mathilda D. Wooley, surviving executrix of Isaac M. Wooley, in the supreme court, to recover a legacy given by the will to Joel Parker, and by Parker assigned to plaintiff. The defense was that the will was drawn and witnessed by Parker, and proved by his testimony; and that the legacy was therefore void under the statute.

Nathaniel A. Cowdrey sued Jacob Carpenter, in the New York superior court, on a written agreement, given by Carpenter to Cowdrey, on selling him a mortgage, by which agreement Carpenter covenanted tliar in case of the foreclosure of a certain prior mortgage, which included other lots besides those included in the mortgage assigned, the order of sale should require such other lots to be first sold, for payment of the prior mortgage.

Frederick S. Cozzens sued Alvin Higgins, in the supreme court, for damages for an alleged trespass.

John Craig sued William H. Ward and Charles L. Clarke in the supreme court for damages for deceit in the sale of a mortgage given by one… Held: that the variance was immaterial. As to the admissibility of the record in the former action, they held that plaintiff, having purchased pending the action, became bound by the judgment in the same manner as if he had been actually a defendant; citing Harrington v. Slade, 22 Bari. 161; Sedgwick v. Cleveland, 7 Paige, 287; Cook v.…

Ambrose Cram sued the Union Bank of Rochester, in the supreme court, for the balance of a deposit, which he claimed as assignee of the firm of Whaples & Roach. The title of Whaples & Roach to this balance depended on the copartnership agreement between Whaples & Roach, and a previous purchase by Whaples of an interest in the assets of a former firm.

George Crichton, the plaintiff in error, was indicted under the statute, L. 1845, p. 285, c. 260, 2; same stat. 3 B. S. § 975, 5 ed., for advising a pregnant woman to procure a miscarriage.

William. H. Crommelin sued defendants in the New York superior court, to recover possession of certain blocks of marble of his, which he alleged they wrongfully detained from him. Held: for substantially the same reasons as those assigned in the following opinion, that there was no lien; citing, besides other cases, Lambert v. Robinson, 1 Esp. 119, and Whittaker on Liens, 2. (Reported in 10 Bosw. 77.) Defendants appealed.

Conrad A. Crounse and William. Crounse brought this action against Ebenezer A. Fitch and A. Crounse, in the supreme court, upon a promissory note. The defenses were, 1. Thát Fitch was the surety of P. A. Crounse, and that while the latter was responsible, Fitch requested the holder, after the note became due, to proceed and collect it of the principal, but the holder neglected so to do until P. A. Crounse became insolvent. 2. That the note had been paid by the principal.

James S. L. Cummins, as trustee of. Annie Halderman, sued ■ William Y. Barkalow, in the N. Y. superior court, upon an agreement made by defendant, to compensate John Halderman for obtaining an order or contract from the government for the supply of rifles.

Smith and Oliver Davis brought this action in the superior court, against Cornelius R. Duffie and others, to redeem certain lands, situated in said city, from the effect and lien of a mortgage covering the same, made by the plaintiff, Smith Davis, to the defendant, Cornelius E. Duffie, dated March 8, 1888, which mortgage was given to secure the payment of one hundred dollars, and interest, within two years from its elate.

<p>Jeremiah Davy sued Seth H. Field in the supreme court, on a cause of action stated in the opinion. Plaintiff had judgment, which was affirmed by the court at general term. Defendant appealed to this court.</p>

Calvin Day and others sned Thomas P. Saunders, as indorser of a promissory note. Plaintiffs had held four notes, made hy one Whipple, and after two of them were overdue, and while the other two were not yet due, they discontinued a suit brought by them against Whipple, on the two overdue, and delivered up all the four notes, giving him a receipt acknowledging payment, in consideration of Whipple’s giving them a new note, made by himself, and indorsed by Saunders.

Solomon Deck brought this action in the supreme court, against Kelson Johnson and Laura Ette Johnson his wife, to charge her separate estate with the amount of nine promissory notes, of one hundred dollars each, dated December 6, 1856, signed by her, and upon which her husband had borrowed nine hundred dollars of the plaintiff.

Rufus K. Delafield and George Baxter sued Aaron A. De Grauw, in the New York superior court, for a balance due for the price of cement, which plaintiffs had sold to defendant, agreeing that it should pass inspection of a government officer at Pensacola, where it was to be used in the navy yard. The defense was that the cement delivered was not such as called for by the contract, and did not all pass inspection.

Lorenzo D. Dickens, as administrator of Sally Dickens, sued, the defendan ts in the supreme court, under the statute, for the benefit of the .next of kin, to recover damages for negligence on the part of the defendants, resulting in the death of the intestate, who was his wife. He also joined in his complaint a claim for loss of services to himself.

<p>Gabriel Disosway sued Joseph C. Winant, in the supreme court, for fees due referees in certain highway proceedings, the right to which had been, by the referees, assigned to plaintiff.</p> <p>In October, 1853, the highway commissioners of Westfield, on the application of the present plaintiff, made and filed an order laying out a highway. The present defendant, and three other inhabitants of the town, appealed, separately, from the order, to the. county judge, who thereupon appointed three referees to hear and determine the appeals. All the appeals were heard together, all the testimony taken was taken on all the appeals, all the appellants appeared by the same counsel, and all the appeals were determined together. But four several decisions of the several appeals were made, affirming the order. The referees claimed separate bills of fees at the rate of two dollars per day each referee, for each appeal, and declined to deliver their order of affirmance till their fees were paid. Whereupon plaintiff paid their fees, at the rate of ninety-six dollars for each appeal, and took an assignment of their claim against the parties who had appealed; and now brought this action against one of them to recover ninety-six dollars, the sum claimed by the referees for his appeal.</p> <p>Defendant’s answer was, 1. That the referees were entitled to but two dollars each, per day, without reference to the number of appeals. 2. That there was a defect of parties defendant in not joining the other three appellants, who were jointly liable with defendant.</p> <p>Before the commencement of this action, a writ of certiorari was issued by the supreme court to review the proceedings, and was still pending and undetermined.</p> <p>The judge before whom the cause was tried, held that there was no defect of parties, and that plaintiff could recover the sum claimed from defendant.</p> <p>The supreme court, at general term, on appeal, held that the statutes show a clear purpose, that, whatever be the number of appeals, there shall be but one set of referees, one hearing and one order; and, moreover, the statute compensation being a per diem allowance, the referees could only charge one rate for the days employed, without reference to the number of appeals. And they declared the separation of the appeal into several parts, for the purpose of enhancing the compensation of the referees, to be illegal.</p> <p>They held, however, that the obligation of the several appellants, was joint and several, and that therefore, plaintiff having taken an assignment, from all the referees, of all that they could legally claim, could recover the whole from one of the appellants, alone, and that payment by him would be a satisfaction of the entire claim.</p> <p>The defendant appealed to this court.</p> <p>That in the absence of express stipulation, every obligation (except as to torts) is joint and and not several; — cited Broom on Com. L. 140; Pars. on Contr. 11; Foster v. Taylor, 3 Campb. 49; Broom on Parties, 119; Chitt. on Pl. 48. That the certiorari postpones the action; People v. Flake, 14 How. Pr. 527; People v. Commissioners of Schodack, 27 Id. 158; Conover v. Devlin, 26 Barb. 429; Patchin v. Mayor, &c., 13 Wend. 664; Payfer v. Bissell, 3 Hill, 239.</p>

<p>John Dodge, executor of John McBurney, deceased, continued in the court of appeals, a suit in ejectment commenced hy his testator in the supreme court.</p> <p>The land in question, on about January 9, 1860, was owned by John Hunting, and was occupied by the defendant under an agreement to purchase, which had then about a year to run. At that time defendant entered into an oral agreement with plaintiff by which plaintiff agreed to advance and pay to Hunting the amount due on defendant’s contract, to take a deed of the premises to himself, and then to give defendant a written contract for the conveyance of the land to him in five years thereafter, upon payment of the money advanced, with interest thereon.</p> <p>Plaintiff accordingly paid the purchase money due on defendant’s contract with Hunting, and took a deed to himself, defendant surrendering his agreement to purchase to Hunting.</p> <p>He then refused to give a contract to defendant, and brought this action of ejectment. The defendant, before the oral agreement with plaintiff, had been in possession of the land under his contract with Hunting six or seven years, and had cultivated it as a farm, and had made betterments and improvements thereon.</p> <p>The judge at the trial having found these facts, decided that the oral agreement between plaintiff and defendant was void, by the statute of frauds, and gave judgment for plaintiff.</p> <p>The supreme court, at general term, reversed the judgment, and ordered a new trial, on the ground that defendant’s deed was,, in equity, merely a mortgage, and the money paid by plaintiff to Hunting was not purchase money, but merely a loan to defendant, and that under the Code this equitable defense might be set up as a defense in an actionof ejectment. (Reported in 42 Barb. 390.) From the order for a new trial plaintiff appealed ta the court of appeals, stipulating that if the order were affirmed judgment absolute should be rendered against him.</p> <p>As to the point that defendant was the owner in equity; — cited Moyer v. Hinman, 13 N. Y. (3 Kern.) 180; Story Eq. § 790; Rood v. N. Y. & Erie R. R. Co., 18 Barb. 80, 83; Murray v. Walker, 31 N. Y. 399. And that his interest would descend to his heirs as real estate, and that his widow would be entitled to dower on it. Moore v. Burrows, 34 Barb. 173; Adams v. Green, Id. 176; Griffith v. Beecher, 10 Id. 432, 434. That the transaction was not a sale of land, but a loan by plaintiff to defendant. Morris v. Nixon, 1 How. (U. S.) 118; 1 Powell on Mort. 284; Conway v. Alexander, 7 Cranch, 241; Vernon v. Bitter, 2 Edm. 110; Oldham v. Halley, 2 J. J. Marsh, 114; 2 Amer. Leading Cases, part 2, 435; Coat, on Mort. 15, note a, and cases cited. That the conveyance by Hunting to plaintiff was in equity a mortgage. 3 Leading Cases in Equity, part 2, 432; Robinson v. Cropsey, 6 Paige, 480; 2 Amer. Leading Cases, part 2, 435; Webb v. Rice, 1 Hill, 606; Swart v. Service, 21 Wend. 35; Huster v. Medina, 3 Watts & S. 384; Rice v. Rice, 4 Pick. 349; Hodges v. Tennessee Mar. & Fire Insurance Co. 8 N. Y. (4 Seld.) 416; Despard v. Walbridge, 15 N. Y. 374; Goder v. Staniford, T. Monroe, 480; Story Eq. Jur. § 1018; Marks v. Pell, 1 Johns. Ch. 594; Cook v. Mancius, 4 Id. 166; James v. Johnson, 6 Id. 417, 432; Clark v. Henry, 2 Cow. 324; 1 Hill. on Mort. 529; Walton v. Cronly, 14 Wend. 64; 4 Kent Com. 142-3; Taylor v. Luther, 2 Sumn. 232; Ryan v. Dox, 34 N. Y. 307, overruling S. C., 25 Barb. 440.</p> <p>That there was mo loan of money by the plaintiff to McBurney; — cited Glover v. Payn, 19 Wend. 518, 20-21; Saxton v. Hitchcock, 47 Barb. 220. That the conveyance to plaintiff was a deed, and not a mortgage. Baker v. Thrasher, 4 Den. 493; Cooper v. Whitney, 3 Hill, 95; Ryan v. Dox, 25 Barb. 440; Brown v. Dewey, 2 Id. 28; Holmes v. Grant, 8 Paige, 243; Quirk v. Rodman, 5 Duer, 285; The case of Palmer v. Gurnsey, 7 Wend. 248, disapproved in Baker v. Thrasher, 4 Den. 493, and in Cooper v. Whitney, 3 Hill, 95. That if there had been a loan by plaintiff to defendant the title to the land would still be in plaintiff by the statute against resulting trusts. R. S. part 2, c. 1, title 2, § 51; Garfield v. Hatmaker, 15 N. Y. 475; McCartney v. Bostwick, 32 N. Y. 53-59; Moore v. Spellman, 5 Den. 225; Jackson v. Van Slyck, 8 Johns. 487. That defendant was not entitled to the possession, and could not set up his equitable defense in this action. Kellogg v. Kellogg, 6 Barb. 116, 127; Spencer v. Toby, 22 Id. 260, 268; Suffern v. Townsend, 9 Johns. 35; Eggleston v. N. Y. & H. R. R. Co., 35 Barb. 162.</p>

<p>Where a compromise was made between A., B. and 0., parties to an action, by which A. agreed to release his right to certain securities, as against B., but reserved his claims against all other persons; — Held, . that in a subsequent action by A. against C. to enforce a lien on such securities, it was competent to prove that at the time of the compromise, it had been verbally agreed between A. and C. that A. should retain his legal claim to the securities, or the proceeds thereof, so far as they should come into the hands of C., as showing that C. had notice of the terms of the compromise.</p> <p>It seems, that the assignment of the principal debt carries with it the necessary collaterals, and, if part of the principal debt is assigned, the assignee is entitled to a pro rata interest in the collaterals as incident, whether mentioned in the assignment or not.</p>

William Doughty, Egbert Noxon and Alexander Bryant, commissioners of highways of the town of Beekman, Duchess county, sued Rowland Brill, in the supreme court, to recover penalties imposed by statute for an alleged encroachment upon the public highway.

John W. Downing and others, executors of the will of Benjamin Marshall, deceased, brought this action against James E. Marshall and others interested in the estate, alleging that the next of kin and heirs -at-law claimed that certain trusts created by the will were void, and raised questions in respect to its construction and effect in other respects, and that plaintiffs were advised by counsel that they could not safely execute the provisions of the will without a judicial…

Samuel Downs sued Edgar Sprague, Gilbert R. Van Allen and Frederick A. Ayres, in the New York superior court, for the amount of a bill for gas meters.'' The question litigated was whether the meters were sold to defendants, who were contractors for the erection of gas works for a company in Vera Cruz, or to that company. .

Motion to dismiss appeal. The facts in this case are stated in 2 N. Y. 559. The irregularity complained of on this motion appears in the' opinion.

Henry Drew, by his guardian, sued defendants in the New York common pleas for damages, on the following facts. Plaintiff was a boy of eight years of age on his way to school, He beckoned the driver of defendants’ car to stop. A brakeman .was on the front platform with the driver, and the driver and the boy testified that the brakeman beckoned to the boy. When the car reached him it did not stop, but the brakeman took hold of him to lift him on the platform.

Duel sued Spence iu the New York superior court, as an indorser of two promissory notes, made by the firm of Sweet & Tibbs, payable at a bank in Newburgh, and which Spence, the defendant, had indorsed for accommodation of Sweet & Tibbs, the makers. ' The makers, failing to procure a discount at the bank, transferred the notes to the firm of Buckley & Duel (of which plaintiff was a member) to pay a check drawn by Sweet & Tibbs which Buckley & Duel held.

Charles C. Duncan, Theodore and WílHam D Crooker, Theodore Ripley, and twelve others, sued defendants in the New York superior court, to recover upon a marine policy, issued by the defendants on the ship Adrianna, of Bath, for eight thousand dollars for one year from April 1, 1856.

Samuel Dauchy and Harvey C. Dunham, sued defendants in the supreme court. Dauchy died pending the action, and it was continued by Dunham as survivor. The complaint alleged that t*lie defendant became possessed of and wrongfully detained from the plaintiffs two thousand one hundred and forty-six railroad ties, the property of the plaintiffs of the value of eight hundred and thirty-six dollars and niuety-four cents.