Volume 1 — Silvernail Court of Appeals Reports

<p>1. Right of way. Easement.—A non-eontinuous easement, like a right of way, will pass only by words sufficient to create a new easement, and annex it to the newly made dominent tenemant, and the worC “ appurtenances ” is not sufficient.</p> <p>2. Same—An owner of land, if he does not intend to part with an ease. mentin a road situate on such land, must reserve it, when conveying by a full covenant deed. After a conveyance with covenants of warranty, he cannot claim an easement in land, his entire right in which has passed by his deed ; nor can his grantees claim it.</p>

This action was brought upon a policy of fire insurance covering household furniture. Plaintiff was ,a witness in her own behalf to prove the loss, and was allowed, as such witness, to refer to the schedule attached to the proofs of loss, for the purpose of refreshing her memory. Appeal from a judgment of the general term of the Supreme Court, affirming judgment in favor of plaintiff.

<p>1. Contract. Breach.—Under a contract for prompt shipment, the seller is compelled to use reasonable diligence, and proof that he has not availed himself of existing facilities for complying with the contract, establishes a prima facie case authorizing an inference of culpable omission amounting to a breach of the contract.</p> <p>2. Same. Part delivery. Acceptance.—The purchaser, in such case, is not in duty bound to reject part deliveries at the peril of being deemed to have given the vendor an indefinite extension of time for' the performance of his contract.</p> <p>3. Same. Evidence. Explanation.—In an action brought to recover, for the contract price A 56 bales of Leghorn rags, sold and delivered by plaintiff to defendant, where an agreement to sell and deliver 450 bales of rags, and a breach of such contract, are set up as a counter-claim, proof, on the part of the defendant, of a resale of the goods to other parties, and of their refusal to accept after a specified date by reason of the delay, caused by plaintiff’s failure to fulfill, is competent for the sole purpose of explaining facts brought out by the plaintiff to establish a waiver as to time of performance.</p> <p>4. Trial. Charge to jury. When harmless.—In determining whether propositions of a charge, which have been excepted to as erroneous, constitute errors for which the judgment below must be reversed, the appellate court must also consider whether the verdict could have been affected or influenced by such errors; and if the verdict was not influenced by them, the judgment will not be reversed.</p> <p>5. Same. Question for the jury.—Where the evidence as to a waiver of the agreement to ship promptly, on the part of the defendant, is not conclusive, but conflicting, the question is properly submitted to the jury.</p>

<p>Statute of frauds. Memorandum.—Where the letters, which are sent between the parties in regard to a sale of goods exceeding fifty dollars in value, are subscribed with the exception of one postscript which contains the only reference to the price, and are so connected by their contents as together to constitute a note or memorandum of sale, they amount to a sufficient compliance ,with the statute of frauds, and the contract is valid.</p>

<p>Brokers.' Waiver of demand for margin.—Where, in an action to recovery balance of lo.ss on a transaction, the plaintiffs, who were brokers, after a written demand for more margin, and an interview with defendant, claimed that defendant consented that they might purchase and close the contract, but the defendant claim'ed that he refused to assent to this proposition, and that he was given time to think the matter over, and the plaintiffs, on the same day and without further communication with defendant, closed the contract, and charged the loss to the defendant, it was a question for the jury to determine which version was the true one, and, by finding in favor of the defendant, they found his version to be true; it was a fair inference from defendant’s evidence that the plaintiffs waived their peremptory demand for more margin, and they had no right immediately, and without any further notice to, or any further demand upon, defendant, to close the contract.</p>

<p>This was an action to recover damages for the cutting and carrying away of certain timber, and was based on a written contract of which the following is a copy :</p> <p>“ That the- party of the first part, for and in consideration of $2.85 for the wood for 100 bushels of coal, hereby agrees to sell to the party of the second part all the hard wood on three certain pieces described as follows : One lot known as the ‘ Mill Lot,’ purchased of Henry and Ephraim Alderman, and containing 155 acres, be the same more or less; one lot purchased of the same, containing 145 acres ; and one lying north of these lots, but adjoining, containing 200 acres, more or less, and purchased of Rufus L. Mason and Charles Taylor. The party of the second part hereby agreeing to cut sufficient wood for at least 100,000 bushels of coal per year, the year commencing April 1, 1870 ; and it is further understood and agreed by and between the parties to this instrument that the measurement of the coal shall be ascertained by the measurement of the cars, or by a coal-measuring box at the kilns. The terms of- payment to be as follows, viz.: $500 on the signing of this contract; $1,000 September 15th, next; and thereafter the wood to be paid for once in three months, commencing April 1,1870. Semi-annual interest on all advances to be paid by the party of the first part, and all advances to be paid back by the party of the first part, in equal amounts, quarterly from the products of the wood on the last 150 acres of land. The party of the first part having the privilege of reserving from the above-described lands logs sufficient for 100,000 feet' of hardwood lumber, with the express understanding that these logs are to be marked and taken from the land no faster than the coal wood is chopped, and that they are to be cut in a manner not to interfere with the chopping of the coal wood by the parties of the second part. The party of the first part reserving 1,500 cords hard-wood from the above lands, one-half to be cut on the south end of the tract, and the balance on the north end, or where the soft timber is being cut; this clause intending to stipulate that this reservation of wood shall be at a fair average distance from the depot, and in a fair average locality as to ground and feasibility of getting the wood.”</p> <p>On the 3d of January, 1872, the same parties entered into another contract, of which the following is a copy :</p> <p>“ Wheréas, George P. Holcombe, of Lebanon Springs, N. Y., and the Millerton Iron Company, of North' East, N. Y., have a contract for wood or charcoal, and now wish to annul said contract, by sale and purchase outright of said wood described in said contract; now, therefore, I, the said George P. Holcombe, hereby agree to sell to the said Millerton Iron Company all the hard-wood on said tract of land as described in said contract, with the privilege of ten years to remove the wood or coal, for the sum of $5,200, payments to be made as follows, viz: mortgages $3,500 to be assumed by the said Millerton Iron Co., as follows: $1,000 to Henry and Ephraim Alderman, April 1, 1872, and $1,000, April 5, 1873, to the same parties, and the sum of $1,500 to Charles Taylor, April 15,1872, in all $3,500; and the balance of $1,700 as follows: $250, January 4,1872; $500 January 15, 1872; and $950 from March 1 to March 10, 1882; or the said Millerton Iron Company may have the privilege of having the standing timber on said lots estimated, and, upon an understanding and agreement as to the number of cords of hard-wood standing on the tract being reached by the two parties, then the said Holcombe hereby agrees to discount 150 cords of wood for every 1,000 cords of wood on the tract; selling the timber standing, after said deduction is made, to the said Millerton Iron Company, for $1.25 per cord, and giving them the privilege of ten years to remove the wood or coal; in either case the mortgages to be assumed and paid by the Millerton Iron Company, and the balance to be paid the said Holcombe, on the basis of the payments as specified above upon the terms of sale for $5,200. The Millerton Iron Company on their part hereby agree to take the above-described wood on one of the above propositions, which proposition they accept to be made known and declared within thirty days from date, or by February 10, 1872. And it is expressly understood that any money paid the said Holcombe by the said Millerton Iron Company on and after January 4, 1872, on account of said wood shall apply on this purchase as a payment. And, in case the above purchase is completed, then the said Millerton Iron Company, within a period of one year, agree to build one more kiln at Danby, and increase their contract for coal from that point to 120,000 bushels per year, this to be done upon condition that the kilns at Danby are run to advantage.”</p> <p>The defendant elected to accept the first proposition contained in the last contract to wit, to pay the gross sum of $5,200 for all the wood embraced in the contract, and such consideration was accordingly paid by defendant.</p> <p>On the trial plaintiff offered to prove acts, statements and declarations of the parties at the time, and after the making of the contract, showing that the timber in litigation was not understood by the parties to be covered by the contract. The offer was excluded on objection.</p> <p>Appeal from a judgment of the general term of the supreme court, affirming judgment entered on report, of the referee, dismissing the complaint.</p>

This action was brought to recover damages for an alleged breach of a contract of sale of a quantity of wool by plaint-tiff to defendants. On the trial, the principal question was as to the terms of the contract, and this the jury found in favor of plaintiff. Appeal from judgment of the general term, affirming a judgment in favor of the plaintiff entered upon a verdict of a jury, and also affirming an order denying a motion for a new trial.

An application was made to suppress a deposition de bene esse on the ground that it was read over to and subscribed by the witness in the absence of, and without notice to the plaintiff’s attorney. The defendant had the testimony of a dying witness taken by a referee under sections 876, 880 of the Code.

Action brought to recover damages for alleged negligence -of defendant in performing a contract to tow a steamboat from Norfolk to New York. Appeal from a judgment of the general term entered upon an order affirming a judgment in favor of plaintiff, entered, ■upon a verdict.

These actions, afterwards consolidated and tried together, were brought to recover, and charge upon certain deposits ' and real estate of the defendant, John H. Moore, the amount of moneys alleged to have been received by him as agent of the plaintiffs, and converted to his own use by investment in such real estate, or by making such deposits of the same in his own name, or in that of his mother, in certain savings banks, which were also made defendants.

Action brought to compel a specific performance of a contract of sale of cértain real estate. Appeal from a judgment of the general term, entered upon an order affirming a judgment rendered at special term dismissing the complaint.

Action brought to foreclose a mortgage executed by Daniel G. Percival, and Emeline A. his wife, upon real estate owned by the latter. Appeal from a judgment of the general term of the supreme court, reversing judgment for defendant entered on the report of a referee.

Action to recover commissions alleged to have been earned by plaintiff as defendant’s broker, in effecting a sale of a quantity of prunes. Appeal from a judgment of the general term of the supreme court. •

<p>Appeal from a judgment of the general term of the supreme court in favor of plaintiff.</p>

This is an action brought to recover damages for personal injuries. Appeal from a judgment of the general term of the supreme court, affirming a special term order denying a motion for a new trial.

This is an action for divorce; and the only question litigated was as to whether the parties were married, as no ceremonial marriage had taken place between them. Appeal from a judgment of the general term of the supreme court, affirming judgment in favor of defendant.

<p>Appeal from a judgment of' the general term of the supreme court, reversing a judgment of nonsuit in favor of defendant, and granting a new trial.</p>

Action to foreclose a mortgage containing the interest clause, for default in paying a balance of interest. Appeal from a judgment of the general term of the supreme court, affirming a judgment of the special term for foreclosure and sale of the mortgaged premises.

<p>1. Railroads. Commissioners of appraisal under contract.—A contract was made between the petitioner and owner of land for the sale thereof, whereby it was stipulated that the commissioners' appointed under the general railroad law shall, in ascertaining and determining the compensation to be allowed, take into consideration the capability of the premises and property for any use whatever, and that they shall determine such compensation upon their own knowledge and information, as well as upon such evidence as may be produced before them. On a former appeal in this matter to the general term, the court laid down the rule that the owners were entitled to be allowed the fair market value of the property, and that this was. the basis on which the estimate should be made by witnesses and the commissioners. Two of the commissioners, during the hearings, announced that they did not consider themselves bound by the supreme court decision on this point, and the petitioner made an application for their removal ' on the ground of misconduct in declining to be governed by the general term opinion. The court of appeals decided that, under the peculiar circumstances of this case, it could not be held to be misconduct in them to refuse to commit themselves, in advance, to a rule of decision which would exclude from their consideration matters to which it was expressly agreed they might have reference in reaching a result; especially as there is nothing in the ease to show that in declining to do so, they intended to be disrespectful to the court, or arbitrarily to overrule its opinion, or to be contumacious or perverse.</p> <p>2. Same. Review of awards.—Though, under the statute, a railway company can not by appeal obtain a review, on the merits, of a second award, yet it is within the power of a court of equity to set aside any excessive award obtained by fraud or the misconduct of the commissioners, or for any cause which will justify the setting aside of an award of arbitrators; and such relief can be obtained on motion.</p> <p>3. Same. Appeal.—An order of the general term affirming a special term order, vacating an order appointing commissioners in condemnation proceedings, is appealable to the court of appeals, as it is final and affects a substantial right.</p>

Action to compel the specific performance of a covenant in a deed, by which the grantee agreed to construct and maintain a passageway under its railway, and to recover damages for alleged trespass. Appeal from the judgment of the general term of the supreme court, affirming judgment for defendants.

<p>Civil damage act. When case sufficient to go to jury.—Where the defendant testifies that he kept a liquor store during the time in question, knew plaintiff’s husband to be a regular drunkard, and had seen him in his place many times and never sober, and where plaintiff testifies that that she saw her husband drinking liquor repeatedly, that she repeatedly spoke to defendant, requesting him not to sell her "husband liquor, but that he disregarded her requests, and that after these occasions her husband struck and otherwise abused her, and failed to render her support or contribute to it, the evidence is sufficient to require the case to be submitted to the jury, and to render their determination of the question conclusive upon the court of appeals.</p> <p>See note at end of case.</p>

Action brought to recover a balance claimed to be . due upon an account stated. Appeal from an order of the general term of the court of common pleas of New York, receiving the judgment entered upon the report of a referee, and granting a new trial.

Action brought by certain taxpayers of the village of Saratoga Springs, to restrain the water commissioners of said village, from carrying out a contract with the Holley Manufacturing Company. Appeal from a judgment of the general term of the supreme court, affirming judgment dismissing plaintiff’s complaint.

This action was brought to recover damages claimed to have been sustained by plaintiffs by reason of fraudulent representations made to them by defendant by means whereof plaintiffs were induced to purchase from him two-thirds of a mill property in Florida, or of the capital stock of a corporation, to which said property had been conveyed by defendant.

<p>Undertaking on appeal.—Where the appellant, to whom leave was granted to file an undertaking on appeal, nunc pro tunc, filed such undertaking and mailed notice thereof to respondent’s attorney on August 7, 1885, a notice of exception to the sureties mailed on August 27, was properly served within ten days, and appellant failing to cause his sureties to justify, cannot retain his appeal.</p>

<p>Appeal from an order of the supreme court at general term, affirming an order of a surrogate, denying a motion to set aside a decree upon final accounting of executors, and for a new accounting, on the ground of mistake.</p>

<p>Appeal from an order of the general term of the court of common pleas, affirming an order of the special term requiring the referee in foreclosure to deliver to plaintiff a deed of the premises, and denying a motion of defendant for an account of the rents of the said premises, and the surrender of the premises on payment of the balance due, or for the sale of the premises.</p>

<p>Appeal from an order of the supreme court at general term, reversing so much of an order of the special term as denied a motion to amend the decree of foreclosure therein, nunc pro tune, by inserting therein a provision requiring the mortgagors to execute to the purchaser a deed of the mortgaged property.</p>

<p>Action to recover damages alleged to have been caused by defendant’s negligence.</p> <p>Appeal from judgment of the general term of the supreme court, affirming judgment in favor of plaintiff.</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment entered upon the report of a referee in favor of plaintiff in an action for an accounting between partners.</p>

<p>Appeal from an order of the supreme court, at general term, which affirmed an order of the special term, confirming the report of commissioners of appraisement, appointed under, and in pursuance of, chap. 336, Laws of 1883.</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment for the defendants.</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment in favor of the plaintiff.</p>

Action brought by the plaintiff against Hall, Nicoll & Granbery, and the United States Reflector Company, claiming that said firm were copartners with said company, and as such jointly liable for the claim set up in the complaint.

Action brought to foreclose a mortgage. Appeal from the general term of the supreme court, affirming a judgment of the special term in favor of the plaintiff.

Action in which the defendant herein was indicted and convicted of the crime of murder in the first degree. Appeal from a judgment of the general term of the supreme court, affirming a conviction, at the oyer and terminer, of the crime of murder.

<p>Trustee. Title by acquiescence.—The transfer of shares of capital stock of a corporation by a trustee, and claim of ownership by the assignee for a number of years, known to all the beneficiaries at the time of such transfer and since, together with the lapse of time, negligence in asserting the right and acquiescence in the assignee’s claim unexplained, afford conclusive proof of the acquisition of a good title by the assignee, and sufficient to defeat an action to compel a transfer of such stock by the assignee’s administrator to the trustee.</p>

Action to recover damages for negligently causing the death of plaintiff’s intestate, who was an employee in defendant’s rolling mills. Appeal from a judgment of the general term of the supreme court, affirming judgment entered upon a verdict.

Action to recover damages for negligence causing the death of plaintiff’s intestate. Appeal from a ’ judgment of the general term of the supreme court, affirming a judgment entered on a verdict.

This action was brought to recover damages for alleged negligence, causing the death of plaintiff’s testator. Appeal from a judgment of the general term of the supreme court, affirming a judgment entered on a verdict.

<p>Appeal from an order of the general term of the supreme court, reversing a special term order directing a compulsory reference.</p>

<p>1. Evidence. Opinion.—In an action for services rendered, a question asked of a witness who has some knowledge of the fact, as to what proportion of plaintiffs intestate’s time was devoted to defendant’s testator’s business, calls for a fact within the witness’ knowledge, and not for an opinion.</p> <p>2. Same. Value of Services.—The character and ability of a person has much to do with the value of his services, where the duty to be done requires the best of judgment, a skill and ability beyond the average, is largely of a confidential character, and has no common and general market value; and the person chosen to perform it has a right to be paid upon the standard of the capacity which enters into the work and forms the principal and essential value of the services.</p>

<p>Appeal from an order of the general term of the supreme court, affirming an order granting costs and an additional allowance in an action against an executrix.</p>

Action brpught to recover the amount of a loan of trust money.

Reference, under the statute, of a disputed claim against an estate. Appeal from a judgment of the general term of the supreme court, modifying and' affirming, as modified, a judgment of the special term, entered upon the report of a referee.

The facts and opinion of the general term are as follows: ' “ Appeal from a decree of the surrogate of Tompkins-county, refusing letters testamentary to Charles Cady as executor of Elias W. Cady, deceased, and also removing-him from the position of testamentary trustee under the-said last will and testament of said Elias W. Cady.

<p>Appeal. Judgment absolute.—Upon an appeal from an order of the general term reversing a judgment entered upon the report of a referee, and directing a new trial, with stipulation for judgment absolute in case of affirmance, the court of appeals will examine the whole record, for the purpose of discovering whether there are any errors committed by the trial court which will authorize an order of reversal by the general term: and if such are found, this court must affirm the order appealed from and order judgment absolute for the respondent.</p> <p>2. Same. Reversal on law.—Where the decision of the general term, in granting an order of reversal of a judgment entered upon the report of a referee, is placed upon questions of law alone, the court of appeals is precluded from reviewing the case upon the facts, and is confined to the examination and decision of the questions of law presented by the record.</p> <p>3. Evidence. General Objection.—Where an objection cannot be obviated by any means within the power of the party offering the evidence, a general objection thereto is sufficient to raise the question of its admissibility.</p> <p>4. Same. Parol evidence.—A written contract cannot be explained, modified or contradicted, either as to its express or implied terms, by parol evidence, whether the proposed parol modification purports to have been made before, at the time of, or after the date of the execution of the instrument; certainly not, where the contract proposed to be proved is required by the statute of frauds to be in writing. ¡</p> <p>5. Same. Opinion.—The opinion of witnesses, who have no knowledge of the location and dimension of a lot of land, other than the statements of a third person, who pointed out a lot to them, as to the number of acres therein, and the number of cords of wood it would produce per acre, unless supplemented by the testimony of the informant that he knew the lot and pointed it out to the witnesses accurately, is merely hearsay evidence and incompetent, and the denial of a motion to strike out the testimony is error.</p>

It appears that on September 28, 1885, the defendants, who were general partners in a limited partnership, made a general assignment for the benefit of their creditors containing preferences, which was recorded on the day following. The assent of the assignee was not embraced in or indorsed upon the assignment before the same was recorded, as required by the act of 1877, chapter 466, section 1.

<p>Appeal from an order of the general term of the supreme court, affirming a special term order which denied a motion to vacate an order of arrest.</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment entered upon a verdict in favor of plaintiff in an action for libel.</p>

Action brought for an accounting against the executors of a deceased trustee, and to have certain lands conveyed to said trustee declared to be part of the trust estate created by the testator. On the trial one John Cooper, a party defendant, was allowed to testify in behalf of the plaintiffs on objection and exception, to certain conversations with said deceased trustee relative to the lands in question.

<p>Appeal. Waiver—A party, who after bringing an appeal, accepts the benefit of the judgment appealed from, thereby waives his appeal, and an order of the general term, denying a motion to dismiss the appeal, to that court, will in such case be reversed.</p> <p>See note at end of case.</p>

<p>Appeal from a judgment of the general term of the supreme court, modifying, and affirming as modified, a surrogate’s decree on a judicial settlement of the accounts of an executor.</p>

Action to recover damages for alleged negligence, causing the death of plaintiff’s intestate, who was killed while crossing the tracks of defendant’s road. Plaintiff was nonsuited on the trial on the ground of contributory negligence on the part of the deceased. Appeal from a judgment of the general term of the supreme court, affirming a judgment of the circuit granting a nonsuit.

<p>1. Judgment. Interlocutory.—A judgment entered at special term, which makes a reference necessary, is not final, but interlocutory.</p> <p>2. Appeal. Order.—Where an appeal is taken to the general term from an interlocutory judgment, and a motion for a new trial is made at this court as authorized by section 1001 of the Code, and an order is entered affirming the judgment and denying the motion, the portion of the order which denies the new trial is reviewable on appeal to the court of appeals, but no appeal lies from the part of the order which affirms the judgment.</p> <p>3. Same. Motion to dismiss.—Where an appeal in such case is taken from the whole order, a motion to dismiss the whole appeal, and not the erroneous part only, should be denied, and the respondent be required to pay costs.</p>

Motion to compel the appellant to correct the return to the court of appeals by adding thereto copies of certain documents, and to serve copies of the return, as so amended upon the respondent.

<p>Motion for reargument.</p>

<p>Appeal from an order of the general term of the supreme court, reversing a judgment of the court of sessions and granting a new trial on a conviction for grand larceny, upon grounds of error of law and not of fact or as matter of discretion.</p>

<p>1. Appeal. By defendant. Amount in controversy.—On an appeal by the defendant, the matter in controversy in the court of appeals is the amount of the judgment rendered at general term, and from which the appeal is taken. If this judgment, excluding costs, is not less than $500, this court has jurisdiction to review it. Neither the limitation of the amount demanded in the complaint, nor the method by which the referee ascertained and then made up the aggregate of damages, is material.</p> <p>See note at end of case.</p> <p>St. Same. By plaintiff.—Upon an appeal by plaintiff from a judgment in such an action, the sum for which the complaint demands judgment becomes material.</p>

Action to recover damages for personal injuries sustained by plaintiff, alleged to have been cause by defendant’s negligence. Appeal from a judgment of the general term of the supreme court, affirming a judgment in favor of the plaintiff.

<p>Costs.—The words “with costs ” in an order of reversal or affirmance in the court of appeals, in a case where the allowance of costs is discretionary, mean costs in that court only.</p> <p>See note at end of case.</p>

Appeal from a judgment of the general term of the New York Superior Court, affirming a judgment entered on the report of a referee, dismissing the complaint upon the merits

The facts and opinion of the general term are as follows: “In the evening of the 17th of June, 1881, the plaintiff, then at the age of nine years, and his brother aged seventeen years, in a wagon drawn by a horse, driven by the latter, were proceeding southerly in Cemetery street, in the village of Batavia, across the track of the defendant’s railroad, and were struck by the tender of what was known as a pusher locomotive engine, which was somewhat rapidly moving backwards…

<p>Evidence. Hearsay.—A conclusion reached by a judicial officer upon ex parte affidavits, to the effect that they contained sufficient evidence to prove an indebtedness from one party to another and the perpetration of frauds by the debtor in incurring it, is not competent evidence, in an action between third parties, to establish either the fact of such debt or of such frauds. Such proof is mere hearsay.</p>

<p>Appeal from an order and judgment of the general term of the supreme court, affirming a special term order, awarding the custody of infant children to their mother.</p>

Appeal from an order and a judgment of the general term of the supreme court, affirming an order the special term denying a new trial;

Motion to open a default and restore an appeal. The affidavit of appellant’s attorney is as follows: “ Isaac Kugelman, being duly sworn, says that he is the attorney for the defendants and appellants herein ; that this appeal was taken in good faith, but, through the sickness of his child and pressure of professional engagements, he neglected to serve the printed case within the forty days.

Action to compel defendant to close a sluice-way, which was claimed to discharge the surface water on an adjoining lot, and thence on plaintiff’s lot. Appeal from an order and judgment of the general term of the supreme Court, reversing a judgment entered on report of referee dismissing the complaint, and ordering anew trial before another referee.

<p>Appeal from judgment of general term of the supreme court.</p>

<p>1. Appeal. Order denying new trial.—The general terms has the power to set a side a verdict as contrary to the evidence without any exception, but the court of appeals can consider no objection which is not based upon some exception taken at the trial. An appeal to the latter court from an order denying a motion for a new trial brings up only questions of law based upon exceptions taken in the trial court</p> <p>2. Evidence. Expert.—Whether barrels upon the deck of a canal boat were properly covered by the captain so as to protect them from rain, is not properly a subject of expert evidence. From the facts proved, the jury can determine whether the covering was sufficient.</p> <p>3. Charge. Exception.—The reply of the court to a request to charge, “ it is unnecessary, I think, as my charge covers it,” is a clear intimation to the jury that the request is proper; and, in case the charge does substantally cover it, an exception to such response of the court will not lie.</p>

<p>Appeal from a judgment of the general term of the New York superior court, affirming a judgment for plaintiff.</p>

Action brought to obtain a reformation and construction of a written instrument. Appeal from a judgment of the general term of the supreme court, affirming judgment for defendant. The action was brought to obtain a construction and reformation of a written instument, assigning letters patent to plaintiff and providing that he should make and sell 25,000 gross of pins, paying royalty thereon, or the patent should revert to the assignor.

Action for the conversion of certain personal property, brought originally against defendant’s intestate, who as sheriff had levied upon the property. Appeal from the general term of the superior court of Buffalo.

<p>Action to recover from defendant a balance claimed to be due upon a loan made to him.</p> <p>The defendant pleaded the statute of limitations, and it was conceded that the statute was a bar unless its effect was averted by payments.</p> <p>Plaintiffs proved that they, under the direction of defendant, brought suit upon notes given by another party for the loan, obtained judgment, and collected from him, on supplementary proceedings, the sum of $450 ; and also that defendant paid to them $1,800.</p> <p>Thereafter the following agreement was executed:</p> <p>“For and in consideration of the sum of $1,800, this day paid by Patrick Lynch, the receipt of which is hereby acknowledged, we hereby sell and assign one-half of our interest in the above-described bond and mortgage, and hereby agree with the said Patrick Lynch to pay over to him one-half of all the moneys hereafter collected upon said bond and mortgage, and said Patrick Lynch is the owner of a one-half interest in the said bond and mortgage, and hereby agrees to pay one-half of all expenses incurred in the collection of the same.</p> <p>“BLAIR & TRUESDELL.</p> <p>“ Syracuse, November 25, 1873.”</p> <p>The court directed a verdict for the plaintiff and defendant excepted.</p>

<p>Action to recover back the purchase money paid for certain shares of stock, on the ground that said purchase was induced by false representations on the part of defendant.</p> <p>Appeal from a judgment of the general term of the New York Superior Court, affirming judgment entered on report of referee, dismissing complaint.</p>

Action brought to recover damages for personal injuries alleged to have been caused by defendant’s negligence. Appeal from a judgment of the general term of the supreme court, affirming a judgment entered on a verdict for plaintiff.

<p>Pleadings. Usury.—An usurious agreement must be proved as laid, and whoever desirás the aid of the statutes against usury, through the interposition of the court, must make out his right to relief by allegations as well as proof.</p>

<p>Appeal. General otfedion.—A general objection to evidence is sufficient, where the grounds of the objection cannot be misunderstood, and if they had been specified, the objection cannot be obviated.</p>

Action to enforce specific performance against defendants, as executors, upon a contract for the sale of land, made under a power in testator’s will. It is reported in 103 H. T. 414. Application to amend the remittitur in this action.

<p>Motion to amend the remittitur.</p>

Action upon a judgment of the district court of the third judicial district of the territory of Utah. Appeal from a judgment of the general term of the supreme court.

<p>1. Appeal. Findings.—Where there areno exceptions to the findings of fact or conclusions of law contained in the record, and none to the refusals to find requested on behalf of the appellant, the court of appeals has nothing to review but exceptions taken on the trial.</p> <p>2. Jurisdiction. Superior Court.—The provision of section 993 of chap. 410 of Laws of 1882, that when no ownership is named in the report of the commissioners, or the owners named cannot be found, it shall be lawful for the city to pay the award into the said supreme court, to be disposed of by it, it is for the city’s benefit, which it may adopt and plead as a defense, but to which it is not compelled to resort. The city may not adopt such a course, but may bring the money into the court, in which it is sued, and the superior court of the city of New York in such case has jurisdiction.</p> <p>3. Evidence. Exclusion. A question, calling for an inference or opinion of the witness, founded upon facts either undisclosed or insufficient to warrant the conclusion sought, is properly excluded.</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming judgment entered upon report of referee.</p>

<p>1. Patents. Consideration.—A party manufacturing under a license cannot escape the payment of royalties by alleging the invalidity of the patent, so long as it has not been legally annulled.</p> <p>2. Same.—The withdrawal of a notice of forfeiture of the agreement between the parties, under a clause therein at the request and upon the promise of the licensee to pay the royalties due,- is a good and sufficient consideration for the licensee’s promise, and such as will enable the patentee to maintain an action therefor.</p>

<p>Appeal from a judgment of the general term of the supreme court.</p>

<p>Appeal from a judgment of the general of the supreme court, affirming an order of the special term, confirming the report of the referee as to the priority and amount of liens in an action for partition of lands.</p>

<p>Appeal. When aggrieved.—Where none of the appellants will be benefited by the reversal of the judgment appealed from, they are not aggrieved by the judgment, cannot appeal therefrom, and their appeal, if taken, will be dismissed.</p> <p>See note at end of case.</p>

Action brought to recover damages sustained by plaintiff in the purchase of certain shares of stock, induced by certain false and fraudulent representations as to the financial condition of the defendant made by its president on its behalf. Appeal from an order of the general term of the superior court of Buffalo, granting a new trial to plaintiff, reversing an order of the special term of the same court, and also reversing a judgment in favor of the defendant.

Action brought to recover damages alleged to have been sustained by plaintiff when a passenger, upon defendant’s road, in consequence, of the falling upon him of a clothes wringer which had been placed by another passenger in a rack over plaintiff’s seat. Appeal from a judgment of the general term of the supreme-court, affirming a judgment,, and an order denying anew trial.

<p>Costs. Actions against municipal corporations.—Section 3245 of the Code does not apply to actions ex delicto, and the notice, referred to in ■ said section, is not required as the condition of a right to recover costs by the plaintiff in such actions.</p>

<p>Motion to dismiss the appeal herein on the ground that the time for appealing had expired when the notice was served.</p>

Appeals and special motions to dismiss the same were argued and disposed of together. The facts, so far as are necessary to prevent the appeals, sufficiently appear in the opinion.

<p>Appeal from a judgment of the general term of the court of common pleas, in and for the city and county of New York, affirming a judgment in favor of defendants entered upon a verdict.</p>

<p>2. Title. Seasonable doubt.—No fair, reasonable or just doubt is thrown upon the title to premises, where a clear title from the early governors of New York down to the present time with a continuous possession from 1836 to 1866, and no evidence of any possession since that time by any one adverse to this paper title, is shown.</p> <p>2. Same. Recover back purchase money.—To maintain an action to recover the amount paid on account of a contract for the purchase of certain real estate, it is not necessary, it seems, to show an absolutely bad title. A reasonable doubt as to the vendor’s title, such as to affect the value of the property, and to interfere with the sale of the land to a reasonable purchaser, will sustain the action. This rule obtains as well where the vendee sues to recover back the price paid, as when the vendor sues to compel performance.</p>

<p>This action was brought to recover the value of certain goods, delivered to the defendant, to be transported to Rome, which, after their arrival there, and while still in the freight ear, were destroyed by fire communicated to the car from the freight depot near which it was standing.</p> <p>Appeal from a judgment of the general term of the supreme court entered upon a verdict.</p>

Action for limited divorce on the ground of abandonment. Appeal from a judgment of the general term of the supreme court, affirming a judgment in favor of plaintiff, entered at special term.

Action for injuries alleged to have been incurred by-plaintiff through the negligence of defendant. Appeal from a judgment of the general term of the supreme court, affirming a judgment dismissing the complaint at the circuit.

Action to recover damages for personal injuries caused by falling upon a sidewalk of one of defendant’s streets, upon which a quantity of earth had been deposited. It was raining at the time and the sidewalk was slippery and muddy. Appeal from a judgment of the general term of the supreme court, affirming a judgment entered on a verdict.

<p>1. Negligence. Question for jury.—A proposition, depending upon conflicting evidence, is a question of a fact, and, when properly submitted to the jury, the court of appeals is bound by their opinion,</p> <p>2. Same. Submission.—Where two propositions are submitted to the jury, the one properly, the other, improperly, not having any fact for its support, and the court of appeals cannot tell on which alternative of the charge the jury founded their verdict, it cannot be supported.</p> <p>3. Same. Duty of company.—It is the duty of a street railroad company, in the exercise of its franchise, to offer the intending passengers a reasonable opportunity safely to board its ears.</p>

<p>Appeal from a judgment of the general term of the supreme court, affirming a judgment entered at special term.</p>

<p>1. Parties.—A nun, who, on uniting with a society, assents to a regulation that property of the members belongs to the society, does not thereby, it seems, make any transfer effectual even between the parties, and may subsequently bring an action upon an existing claim.</p> <p>2. Evidence. Secondary.—In order to show that the plaintiff was not the owner of the claim sued on, parol evidence that whatever property the members of her order had on joining the society, then belonged, under written regulations, to the society, was secondary, and, under objection, properly excluded.</p>

■ Appeal from a judgment of the general term of the supreme court of the city of New York, affirming a judgment in favor of plaintiff entered upon the report of a referee.