Volume 1 — Lansing's New York Reports

The referee found that the defendants, early in October, 1865, by their agent, or agents, agreed with the plaintiff to purchase of him 1,000 barrels of apples, at the price of $5.70 a barrel. The apples were, from time to time, delivered and accepted, amounting in all to 1,047 barrels, and the referee decided that the defendants were liable to pay the contract price for all the apples delivered. He credited the amount paid and found a balance of $833.76, including interest.

Plaintiff brought suit in a Justices’ Court on a special contract for work, labor and services in digging a field of potatoes. The answer was a general denial, and an allegation that the potatoes were dug in an unworkmanlike manner. The justice rendered judgment for plaintiff; and the defendant appealed to the County Court. The jury in the County Court found a verdict for plaintiff; and the defendant further appealed to this court.

The plaintiffs were manufacturers of scythes, under the firm name of E. France &• Son. On the 16th April, 1853, they made with defendant a written contract, by which they appointed him their agent for one year, to procure orders for the sale of, and to sell their scythes. By the terms of this contract, the defendant was to collect the moneys arising from such orders or sales.

<p>It is, it seems, a sound principle of law, that in an actipn for money paid by mistake in facts, the plaintiff should recover irrespective of any negligence with which he may be chargeable, unless it has caused injury to the defendant.</p> <p>Thus, where defendant discounted a note for G. and sent it to plaintiff for collection, and plaintiff sent it to an agent for the same purpose, and remitted to defendant before any return from the agent; and it then transpired that the agent, having presented the note for payment, it had been dishonored by the maker and protested, and notice of protest mailed to the parties entitled, which had been received by defendant and G., though it had not reached the plaintiff; and that G., upon notice of the protest, had repaid defendant for the note; and that defendant, after notice of the protest, and the repayment by G., receiving plaintiff’s remittance, had refunded to G., and the note was usurious and uncollectable. In an action brought by plaintiff to recover the amount remitted to defendant, as for money paid by mistake, it failing to appear that defendant had no remedy over against G. — Held, the action would lie, although plaintiff might be- chargeable with negligence in not ascertaining that the note, had been .dishonored before maldng.-the remittance to defendant. ></p> <p>An action could not be sustained by the plaintiff, against G-., for the money paid him on receipt of 'plaintiff’s remittance, but G. would be liable tc refund to defendant. — Semble. ; -•</p> <p>A referee’s finding of the non-receipt by a bank, of notice of protest sent tc its cashier, is sufficiently supported by uncontradicted .testimony thereto, given by one of the bank clerks, whose duties would not necessarily bring to him information of the receipt, although the groufid of the clerk’s knowledge does not appear.</p>

. The defendant issued to the plaintiff a policy, August 31, 1866, whereby it insured the plaintiff against loss or damage by fire to the amount of $5,000 ; $3,500 on his frame house, and $1,500 on his three barns, being $500 on each barn, for the period of three years. Hovember 4, 1867, the house and one of the barns were destroyed' by fire, and one of the barns damaged to the amount of $100. This action was brought to recover these losses.

The action was for trespass by defendant’s cattle upon the plaintiff’s premises. Issue was joined, by answer denying complaint and averring the vote of the town that cattle may run in the highway, etc., and on the day of trial a venire was issued at the instance of the defendant.

<p>Appeal from judgment, upon verdict, in an action of ejectment.</p>

Bell, auditor of the canal department of the State of New. York. Four several warrants, two of them dated in May, one in June, and the other in July, 1868, were issued by the said James A. Bell, auditor of the canal department, directing the treasurer to pay by check, drawn on the Mechanics’ and Farmers’ Bank of the city of Albany, to Henry 0.

Actioh by plaintiff for services and disbursements, rendered and pai'd at the request of the defendants, upon an accounting had before the surrogate of Chenango county, and upon appeal from the decree rendered by said surrogate. The defendants were administrator and administratrix of the estate. The employment of plaintiff was in 1852. In 1855, a decree was made in which $601 Ty¥ were allowed defendants as their costs and disbursements upon such settlement.

The essential controversy grew out of a sum of $115, belonging two-thirds to plaintiff and one-third to defendant, which the plaintiff claimed had been paid to defendant in 1854, and the defendant claimed the same money had been paid to the plaintiff. The plaintiff therefore set up, as a substantive cause of action, that defendant was indebted to him for two-thirds of said $115, and interest.

This action was for damages caused by the defendants in tearing down and removing some six and a half feet of a building belonging to the plaintiffs, and which had encroached, to that extent, upon a street in the village of Watkins sixty-six feet in width.

<p>When an action is brought directly upon a contract, express or implied, to recover the moneys due thereby, the summons should be framed in accordance with sub. 1, of § 129 of the Code.</p> <p>The People v. Bennett (6 Abb., 343) upon this point, approved and followed. When the action seeks to recover damages arising from a breach of contract, the summons should be in the form required by sub. 2 of said section. Semble.</p> <p>The complaint claimed a larger amount than that demanded by the summons. — Held, the variance was immaterial.</p>

Plaintiff sued for his personal labor, and also for the services of his servant and team, while engaged upon the construction of a portion of the defendants’ road, under the employment of a sub-contractor for such construction, ard had recovered judgment on both claims before a justice of the peace.

<p>-A new trial, on the ground of newly discovered evidence, should not be granted, when such evidence does not go to the merits, and plainly appear to be relevant to some material issue raised by the pleadings; nor when such evidence is cumulative, or only tends to contradict, on a purely circumstantial point, a witness examined on the trial; nor when circumstances show that by greater diligence on the part of the moving party, or his agent or attorney, the evidence is ordinarily discoverable previous to the trial.</p> <p>Surprise of counsel at the testimony of a witness is not of itself any ground for a new trial.</p> <p>Case on motion for a new trial on the grounds of surprise and newly discovered evidence criticised, per Balcom, J.</p> <p>In an action for a loss under a fire insurance policy, defendant proved at the trial, the unusual position and flaming of a lamp, fifteen days before the fire, as tending to show an attempt, by plaintiff, at that time, to set fire to the premises ; a witness then explained that the position and flaming of the lamp were accidental, testifying that he was present at the time, on account of a sick child of plaintiff's, which died a day or two afterward; and defendant, the verdict being for plaintiff, moved for a new trial, on newly discovered evidence that the child, in fact, died some days before the unusual burning or flaming of the lamp referred to.— Held, that the order granting a new trial on this ground should be reversed.</p>

Action for assault and battery, and false imprisonment. One Lydia A. West was delivered of a bastard child, in Otsego coxmty. She was a resident of the town of McDonough, in Chenango county, to which she returned after the birth of the child, and was supported by that town at the county poor house, in the adjoining town of Preston.

<p>PJ nintiff and defendant owned and occupied contiguous premises, facing a highway; defendant drove a post, partly on the plaintiff’s land, at the point where then' front fences came together, claiming the right to maintain it there, as part of his front fence. In an action by plaintiff, to recover damages for trespass, on account thereof — Held, the jury were rightly instructed that the post was not part of a division fence.</p> <p>The rule as to division fences permits them to be placed equally on the land of each adjoining owner.</p> <p>It has its foundation wholly in the statute, and does not apply to fences meeting on the front of adjoining premises. Such fences are required to terminate at the division line.</p>

These proceedings came before this court by certiora/ri to the comptroller, to review his decision upon an appeal made to him by the supervisors of the town of Watertown, in Jefferson county, from the decisions of the board of supervisors of said county, in the equalization of the assessment rolls for 1866.

<p>A sale of infant’s real property having heen made and completed, under proceedings before a County Court, a subsequent order of the same court, directing the special guardian to invest the proceeds, in land outside the county over which its jurisdiction extends, the infant and special guardian being at the time resident in the county where such land is located, is a nullity.</p> <p>Whether proceeds of a judicial sale of infant’s real property, remaining in the hands of the special guardian, can be regarded as land, under 3 R. S. 195, § 180, in such sense as to give a County Court power to direct the disposition thereof. Quere.</p> <p>The power of County Courts, under § 30, sub. 6, of the Code, for sale, etc., of an infant’s real estate, includes all incidental powers and the use of means necessary to complete the sale, by transferring the infant’s title, and securing to him the avails of his interest in his estate. Per Johnson, J.</p> <p>But, whatever is done in this respect, must be done when the parties and subject matter are before the court; and as part of the proceedings to sell, etc. The security then deemed necessary, if given, or investment ordered, if made, is the judgment of the court; its powers are exhausted thereby, and its jurisdiction over the parties and subject matter is at an end. Id.</p> <p>Rule 69 of this court refers to proceedings at the time of sale. Id.</p> <p>At least, it can control County Courts, only as so applicable; it cannot enlarge their statutory powers. Id.</p> <p>The powers conferred by 2 B. S., 195, § 179, upon the Court of Chancery, through which tire infant is made a ward of that court, from the time of the application, for the purposes ennumerated in the statute, have not been expressly given to the County Courts, and cannot be implied from mere power to sell infants’ lands.</p> <p>A special guardian, appointed on the judicial sale of a minor’s real property, being bable for money received therefrom, conveyed to one of the sureties upon his bond, a farm, subject to a mortgage, upon trust, that the surety reimburse himself from the rents and profits, or proceeds thereof, for such sums as he might be required to pay by reason of liabilities of the latter, on the grantor’s account. The farm was then conveyed by the surety to the minor, under agreement between them and the special guardian (who was insolvent), that it should satisfy the bond, and discharge the special guardian and his sureties from bability thereon. ' The mortgage being afterward foreclosed, the surety purchased at the foreclosure sale, and went into occupation; the minor, attaining his majority, elected to ratify the agreement and deed pursuant thereto. — Held, The purchase by the surety was voidable by the minor, when he came of age. The ratification by the minor, at his majority, did not, by relation to the time of the conveyance, cut off his equitable right, to claim the purchase by the surety as made for his benefit.</p>

Complaint, on a promissory note made by the defendant, during coverture, for the price of merchandise purchased by her, with an allegation that the defendant had, after hei husband’s death, “ in consideration of the moral obligation resting upon her,” promised to pay said debt and note.

Owen sued the railroad company, claiming damages for injuries received while in its employ as brakeman. It appeared that Owen, who had, two years previously, been in the service of the company for several months, as brakeman on freight trains between Rochester and Syracuse, was, in August, 1864, re-employed to act in that capacity between the same points.

This was an action upon the award of a sole arbitrate)'.', under a submission executed between two parties. Plaintiff was an assignee of the prevailing party.

This was a submission to the General Term for adjudication without action under § 372, of the Code. J. H. Robinson executed and delivered to the defendant, Sarah D. Robinson, as payee of certain notes signed and delivered in the name of the firm of J. H. R. & Son, whereof he was a member, a mortgage upon real estate belonging to him, conditioned for their payment by the mortgagor.

This action was brought to set aside a bond and mortgage .for $1,800, dated'June 1st, 1858, and recorded in Monroe county Noy. 20, -1858, made’by one Samuel Shadbolt to the defendant, Eliza M. Bassett,.as. fraudulent and void against, the plaintiff, who claimed to be a creditor of the mortgagor, and a subsequent purchaser of the-mortgaged premises.from him. -. Shadbolt was deceased, and his administrators-had-declined’to bring the action. .

The plaintiffs, residing at Ogdensburgh, E. Y., were in the month of November, 186d, the joint owners of certain interests in oil property near Rouseville, Venango county. Pa., which they desired to sell. A portion of this property was an incomplete oil well, which was about to.be tested, but the exact.eondition and value of which were unknown to the plaintiffs.

This was an appeal from a judgment for the plaintiff, for $137.50, upon a trial by the court, at the Erie circuit in November, 1868. The plaintiff brought the action as assignee, and upon ar implied warranty of title, on the sale of a horse. One Rich ter while owner of the horse, had mortgaged it to one Lode-wick, and afterward sold it to the defendant; the defendant iold to one Douglass, who sold to plaintiff, and plaintiff sold to one Smith.

The defendant was a constable of the town of Randolph, and an execution was issued to him against the property of Thomas Hare, founded upon a valid judgment against Hare, by virtue of which the defendant levied upon a cow, as the property of Hare. The defendant employed the plaintiff to drive the cow to the village of Randolph, agreeing to pay him for such service, fifty cents. The plaintiff drove the cow, and Hare sued‘him for converting the cow, and recovered her value.

Ah instrument purporting to be the last will and testament of Mason Hicks, deceased, was presented by the appellants, the devisees, and legatees, therein named, to the acting surrogate of Niagara county for probate. The same was contested by the respondents, the heirs-at-law and next of kin of the deceased.

<p>Defendant was president of an incorporated company, known as the T. O. and M. Company, and intending and being empowered to bind the company thereby, made a note, running as follows: “ I promise to pay, as president of the T. O. and M. Co., &c.,” signed his name, adding “ President of the T. O. and M. Co.,” and for value received delivered it to plaintiff; the plaintiff knew of the defendant’s agency, and, that in making the note, he intended to charge only the company. — Held, an action, seeking to charge defendant personally on the note, could not be sustained.</p> <p>Where an agent of a corporation contracts on its behalf, making no representation as to the power of the corporation, he is not personally bound by the contract, if it turns out it was ultra vires as to the corporation.</p>

<p>A party purchasing a title to real estate believed by himself and by his grantor to be doubtful, cannot recover back the consideration therefor, by showing that such title was in fact void.</p> <p>His right to recover would be limited to a case, where the parties believing the title purchased to be good, were laboring under a mistake of the fact.</p>

<p>The facts sufficiently appear in the following opinion:</p>

Tuts was a motion by the plaintiff for a new trial upon exceptions, ordered to be heard in the first instance at General Term. The plaintiff claimed title to certain chattels in defendant’s possession, and . demanded judgment for possession with damages for wrongful detention. The defendant averred his possession rightfully as owner. Plaintiff had given .bonds and re-obtained the property.

<p>The complaint demanded a.: recovery for dnrniture sold to one ‘Richards, by the plaintiff, Hayden (who had assigned to Bush an, interest in the claim), on the. credit of the, defendant’s guaranty of payment,- The action was referred, and the plain tiff gave, in evidence, on the trial,.a bill of the articles, as follows:</p> <p>CURTIS H. RICHARDS, OF PHELPS, N. Y., Crane & Norton, Surety.. In'account with C. J. Hayden, Sr. 1866.</p> <p>Dec. 27, To 1 im. oak bedstead $10 00</p> <p>1 <( bureau........ 10 00</p> <p>1. “. <( glass.......... 4 00</p> <p>1 “ (1 sink.......... 8 00</p> <p>1 “ U round stand ... 3 00</p> <p>1 “ « towel rack.... 1 00</p> <p>3 “ tt chairs......... 4 00</p> <p>1 “ U sink washstand 7 00</p> <p>3 plain top oak Grecian chairs, 4 50</p> <p>, . 1 oak round stand.......... 4 00</p> <p>1 “ towel rack............ 1 00.</p> <p>1 “ 3-dr. bureau............ 9 00</p> <p>1 “ 14 x 24 glass........ 7 50</p> <p>1 wait, sink................. 7 00</p> <p>,1 .5 dr. proj. bureau ...... 16 00 .</p> <p>I. “. best dk. “ ...... 16 00</p> <p>1 “ . 3 dr. proj.. “ ...... 9 50</p> <p>1 proj.dk. “ ...... 11 00</p> <p>12 sett bed castors............. 2 25</p> <p>• 1 round cor. bedstead......... 7 00</p> <p>,1 cane bk. Victoria ropker..... 6 00</p> <p>1867. --$147 75</p> <p>Ian. 7,.. 1 wait.bedstead............... $16 00</p> <p>^ « « 16 00</p> <p>1866. - 32 00</p> <p>Dec. ,29,, ; 1 cane bk. wait nurse........... .......... $3 75</p> <p>1 “ ; “ “ . “ pi............................. 3 00 .</p> <p>6 75</p> <p>: Carried forward, $186 50</p> <p>Brought forward......................................... $186 50</p> <p>1867.</p> <p>Jan. 17, 1 wait. com. dk. bureau.................... $9 50</p> <p>1 mhg. “ “ “ ..................... 9 50</p> <p>T wait. proj. “ “ ...............:..... 1100</p> <p>30 00</p> <p>ü'eb. 8, 114 x 24 wait, glass....................... $7 50</p> <p>22, -1 mhg. proj. bureau........................ 11 00</p> <p>18 50</p> <p>1867.</p> <p>March 9, 2 round cor. bedsteads.....................$14 00</p> <p>2 com. cottage “ 9 00</p> <p>2 high head “ 10 00</p> <p>2 Congress “ 11 00</p> <p>2 com. washstands........................ 3 00</p> <p>2 large “ 3 50</p> <p>1 carved top wait, nurse...................■ 3 75</p> <p>1 “ “ mgh. “ .................... 3 25</p> <p>1 wait. 3 dr:'bureau....................... 7 00</p> <p>1 mgh. “ “ “ ....................... 7 00</p> <p>12 sett bed castors.......................... 2 25</p> <p>73 75</p> <p>23, 1 wait. com. dk. bureau.................... $9 50</p> <p>1 mhg. “ “ “ .................... 9 50</p> <p>19 00</p> <p>April 4, 2 large washstands........................ $4 00</p> <p>2 small “ ....................... 3 00</p> <p>1 cane bk. wait, nurse................... 3 75</p> <p>1 brace arm “ “ ..................... 4 50</p> <p>15 25</p> <p>20, 4 com. washstands dk...................... $6 00</p> <p>2 “ “ It...................... 3 00</p> <p>• 1 wait, bureau washstand................... 7 50</p> <p>1 mhg. “ “ ................... 7 50</p> <p>2 wait, braced arm rocker............ 9 00</p> <p>2 high hd. cottage bedsteads................ 10 00</p> <p>2 Congress “ “ 11 00</p> <p>1 round cor. “ “ 16 00</p> <p>1 wait. “ carved........... 1600</p> <p>2 Tucker spring beds...................... 11 00</p> <p>87 50</p> <p>June 22, 1 wait. 12 x 20 glass 5 00</p> <p>$435 50</p> <p>The first seven articles on this bill were charged on a bill of particulars rendered to the defendants in the suit, as “ 1 im. oak chamber suit, $40.”</p> <p>The facts, as they appeared on the trial, and were found by the referee, are stated in the opinion of the court.</p>

<p>A judgment entered by a county cleric, on the transcript of a judgment.of a Justices’ Court, must be docketed in the same manner as the judgments óf a court of record. Per J. C. Smith', J. -</p> <p>Section 63 of the Qode, refers to and' adopts; in this respect, the existing provisions of the Revised Statutes: Id.</p> <p>Plaintiff obtained judgment in an action on contract, before a justice of the peace, against H. and C., and filed a transcript with the county clerk, who docketed it tinder the letter H only. — Held, the judgment was a lien upon G.’s real estate, as against'him, and as against subsequent-purchasers with notice.</p> <p>C., after such entry of the judgment, sold his real estate, the only property from which the debt could have been made, to M.; and in an action by plaintiff against the county clerk, for neglect to make a proper docket, it failing to' appear that M. did not' have notice of the judgment when he purchased, — Held, the -action was not sustained.'</p> <p>Otherwise, it seems, if plaintiff had- shown an absolute loss of his judgment through defendant’s neglect</p>

Appeal by defendant, on a case and exceptions from a judgment, on a referee’s report. The action was brought to obtain the delivery, from the defendant Curtiss, to plaintiff, of a mortgage for $3,380.20, upon certain premises, and judgment declaring the same a prior lien to a mortgage upon the same premises, executed by said defendant, to the defendant Westcott. All the defendants answered separately, and on the trial the following facts appeared.

<p>Section 64 of the Code, permits a counter-claim in a Justices’ Court, of the same nature, as the counter-claim allowed, in actions in this court.</p> <p>And a defendant may recover upon a counter-claim in that court, to an amount not exceeding $200, over and beyond extinguishing the plaintiff’s claim.</p>

<p>An action in tlie nature of a quo warranta (Code § 433) does not lie against the secretary and treasurer of a railroad company, holding his office as a mere servant thereof, and at the will of its directors.</p> <p>What constitutes an office, within the meaning of the statute (3 R. S., 581 Code, § 432), extending this remedy, must still be determined by the general rules of the common law.</p> <p>The directors of a railroad company are authorized, but not imperatively required, by the general railroad act (Laws 1850, chap. 140, § 6), to appoint a secretary and treasurer.</p> <p>The right of de facto directors of a corporation, to act as directors, cannot be questioned collaterally in an action, to try the title of their appointee, to his office. Per J. C. Smith, J.</p> <p>The statute (Laws 1850, chap. 389, § 290, amended 1867, p. 92) giving power to the city of Rochester, as the owner of stock of the Rochester and Genesee Valley Railroad Company, to appoint, through its common council, a portion of the board of directors of said company, does not authorize the election of any person to such board who is not a stockholder in his own right, and qualified under § 6 of the general railroad act. Id.</p>

The action was brought to recover for damage to sugaro, which the defendant had undertaken to transport and deliyi-r to the consignee.

Plaintiff sold defendant a farm, and left on it certain lumber and stone; and having subsequently demanded these articles from defendant, who refused to surrender them, he brought this action to recover their value. Defendant answered that he had bought and paid for them as part of the farm. The action was referred; and the facts, as proved on the trial, and found by the referee, are fully stated in the opinion.

Memoir for a new trial upon a case and exceptions by-defendant after verdict for the relator, finding the defendant guilty of forcible detainer, but not guilty of forcible entry. Motion by the relator for an order of restitution. Appeal from the order of the court at Special Term, denying a motion made by the defendant to quash the proceedings on account of the insufficiency of the complaint. All these motions were heard together.

This case was submitted to the court under the provisions of §372 of the Code of Procedure, upon the following facts: The legislature, at the session of 1869, passed, by a majority vote, the question being taken by ayes and nays, and duly entered on the journals, three-fifths of all the members elected to either house being present, an act, of which the following is a copy: An Act for the improvement of the navigation of the Boquet river.

A firm of Brintnall & Richmond contracted^ with the defendant, to perform labor and furnish materials therefor, in the construction of a section of its road, at prices named in the contract which was in writing, and with other provisions contained the following: “ Should the contractors at any time, after sixty days from the beginning of the contract, not be found to proceed with a'.l or any section of his work in such a manner as to secure, in the opinion of the engineer,…

John Park, James Higgins and John Riley were jointly indicted, with one Charles Corbin, for the offense of burglary in the third degree. The defendants, except Corbin, pleaded not guilty to the indictment, and were put upon their trial at a Court of Sessions, held in January, 1869, in and for the county of Rensselaer. Upon the trial a nolle prosequi was entered in favor of Corbin, and the district attorney offered to have him sworn as a witness for the people.

The court, in affirming the order below, adopted the following opinion there given by Lamont, J. The facts are therein stated.

This was an appeal from a judgment - entered on a verdict rendered at the Greene county circuit, in favor of the plain- ■ tiff and against the defendant, on the third day of June, 1868. The action was-brought to recover the amount of a promissory note made by defendant for twenty-three dollars and. interest, and also a balance due the plaintiff upon a chattel mortgage given by the defendant to him for $175.

The action was brought to compel the specific performance of a written contract under seal, dated October 28th, 1867, by which Samuel Dorris, defendants’ husband, agreed to convey to the plaintiff a farm owned by the defendant. The case was referred. The referee found, among other things, that the defendant had previously given Samuel Dorris paroi authority to sell said premises.

- This action was commenced before a justice of the peace; on appeal, a retrial was had in the County Court of Yates county, without a jury, where a judgment was rendered for the defendant/ from which ihe plaintiff appealed to this court.

<p>The facts appear in the opinion of the court.</p>

<p>Executors and administrators suing in tlieir representative character, unnecessarily, in cases where the cause of action (if any) accrues to them in their individual right, and, failing to recover, are personally liable to the defendant for costs.</p> <p>Where the record shows that the cause of action (if any) arose after the death of the testator or intestate, such right of action vests in the executor or administrator in his private right, and he cannot in such case escape the penalty of costs by suing in form,' in his representative capacity, unnecessarily, if he fails to obtain judgment."</p> <p>Where the record shows the action to be maintainable (if at all) in the individual right, no motion is necessary to charge such plaintiff with costs; judgment therefor may be entered, of course, as in ordinary cases, upon the clerk’s taxation.</p> <p>Section 317 of the Code has not changed the former law of personal liability of executors’ and administrators plaintiffs, for costs, in actions unnecessarily brought by them in their representative capacity where they might have sued in their individual right, and judgment passes against them.</p> <p>The case of Woodruff, administrator, v. Cook (14 How., 481), considered to be an erroneous construction of the Code upon this subject.</p>

These cases came before the General Term, on appeals from a judgment entered at a Special Term. The judgment declared the construction of a will made by De Forest Manice, deceased. It annulled a part thereof as s oid; but established its principal trusts and dispositions, and gave directions for carrying them into execution.

Plaintiff brought the action as a stockholder of “ The Mexican Ocean Mail and Inland Company,” on his own behalf, and that of all other stockholders of such company, who might come in and contribute to the expense of the action, which was for a dissolution of the company, &c., and-to compel contribution by the'defendants, as the stockholders who were liable originally with him, toward the payment of certain judgments recovered against him by judgment creditors of the company.

The facts are stated in the opinion of the court. cited upon the question of negligence by the plaintiff, Bendetson v. French (44 Barb., 31); Fowler v. Dorlon, et. al. (24 Barb., 384). He also cited Hyatt v. Taylor (51 Barb., 632) ; Bendetson v. French, upon the question of notice that defendant kept a safe as provided by chap. 90, Laws, 1855. Also Redfleld on Carriers, 271.

■ O® ;tlié 5th October, l835,'the premises in question in this suit were owned bj Daniel Kellogg. On that day he conveyed them to, Richard S. Corning, taking from the latter a mortgage on said premises to secure $7,656.08 of the purchase money, payable in six equal annual installments, with interest. On the 2d December, 1837, Corning conveyed said premises to Theodore and Junius Wood, subject to said mort- gage.

This action was tried at the Ulster County Circuit in April, 1868, before Mr. Justice Hogeboom and a jury. The action was brought on a contract; and it appeared upon the trial that the plaintiff and her husband lived together upon certain premises situate in the town of Marlborough, Ulster county, which were owned by the husband, and upon which the defendant held a mortgage, the whole amount of which was due and unpaid.

This action was brought by the plaintiff to recover damages for forcibly entering into a school-house, in the town and county of Onondaga, in May, 1867, of which she was in the possession, and… Held: and it was concluded to take possession of the school-house forcibly, if necessary, and remove the plaintiff therefrom.

This was an appeal from an qrder made at Special Term, held in Onondaga county, striking out the answer of the defendant as sham and false. The facts were these : . The plaintiff sued upon a promissory note, made by defendant for the sum of $296, payable to the United States Lightning-rod Company, or bearer, three months from date, with interest.

<p>Aun executor or administrator who, after a claim against the estate of the testator or intestate, has been presented to him, delays unreasonably to make objection to it, is not precluded from asserting the statute of limitations as a bar to such claim.</p> <p>And he may surcharge and falsify, any part of an account, that has become stated in the lifetime of the testator, or intestate, or since his own appointment.</p> <p>A debtor who allows an account against him to become stated, by omission to dispute the same when presented, does not thereby waive the defence of the statute of limitations. Per Mullin, J.</p> <p>An administratrix caused a notice to be published, under an order obtained from the surrogate for the purpose, requiring creditors to present their claims against her intestate’s estate, to her attorney. Plaintiff presented his account accordingly, and left it with the attorney, and no objection was made thereto until more than three years after such presentation, when it was rejected by the administratrix; afterward, and when ten years from the time the last item of the account accrued, had elapsed, an order was entered by the surrogate on consent of parties, under the statute, referring the claim to referees for adjudication, and on the hearing before such referees, the administratrix insisted upon the statute of limitations as a bar to a recovery; the referees found for the plaintiff,— Held, on appeal, their decision should be reversed.</p> <p>A reference under the statute (2 R. S., 88, § 36), stands in place of an action, and the entry- of an order to refer must be deemed its commencement, for the purpose of determining whether it has been brought within the time limited by the statute.</p> <p>Service performed for, or property sold to, an executor or administrator, as such, cannot be deemed or treated as tne continuation of a running account with the testator or intestate, in his lifetime.</p>

The cause was tried in September, 1865, at the Columbia Circuit. It appeared that the defendants, David Miller and Harold C. Gale, were, from the first of October, 1860, until February 22,1861, copartners in the freighting business, at Livingston station, on the Hudson River railroad, under the firm name of Miller & Gale. The defendant, Harold C. Gale, was, during the game period, engaged at the same place, in trade on his own individual account.

This action was brought to recover one undivided sixth part of a certain lot of land, situated in the town of Kortright, in the county of Delaware. It was tried at the Delaware Circuit, in February, 1869, when, by direction of the judge, the jury rendered a verdict in favor of the plaintiff. The defendant moved for a new trial, on exceptions which the judge directed should be heard, in the first instance, at the General Term.

Appeal by plaintiffs from a judgment entered upon a report of a referee, in the office of the clerk of Schuyler county, on the 17th day of August, 1867, in favor of the defendant, for $96.39 damages, besides costs.

<p>The power of this court to grant new trials under § 37, 2 E. S., 309, is confined to actions of the same character as the former action of ejectment.</p>

This action was brought to recover an amount assessed by the board of supervisors of Livingston county, to the plantiff, in the year 1867. The complaint alleged that in the year 1866, one James Forbes was the owner and occupant of certain premises, in the village of Lima, in the county of Livingston, and was in that year assessed a tax thereon of $141.31.

This action was brought, to recover costs and damages, collected on a judgment against the plaintiff’, recovered in an action for obstructing the right of way, of one Reeves, over plaintiff’s premises. The action was referred, and judgment rendered on the referee’s report in favor of plaintiff, from which defendant appealed.

The plaintiff proved upon the trial the facts, as stated in the opinion, and the court directed a verdict for the plaintiff, to which the defendant duly excepted, &c., &c.

Motion by defendant for a new trial on a case with exceptions. The complaint was upon a promissory note for $1,000, made by the defendant and payable to the plaintiff or order. • The answer averred, that the plaintiff, and one Yanclief, were partners in the distillery business, under the firm name of Mynderse & Co.; that the note belonged to the firm, and that Yanclief should have been joined as party plaintiff in .the action.

This appeal originally came before the General Term on appeal from a Special Term order, which granted a motion made by the defendant, The State National Bank of Boston, to remove the action into the Circuit Court of the United States for the southern district of New York.

The plaintiff, was a crockery merchant in New York, and had his brothers Charles and - Henry, the defendants, in his employ. The defendant, Andrew. Mackay, another .brother* who lived, in England,-was in the habit of executing orders for him there.

Frances M.0Winne, an infant, applied to the court by her next friend for leave to sell certain real estate, descended to her as heir of her mother, now deceased. The title of the mother accrued after the acts of 1848 and 1849, for the more effectual protection of the property of married women.