Volume 1 — Thompson & Cook's New York Supreme Court Reports

<p>Appeal from a judgment of the county court of Jefferson county reversing a judgment of a justice of the peace.</p>

<p>The testimony at the trial showed that the mill yard, connected with the mill, would hold, only about a week’s supply of logs. Held, that the provision, in respect to logs remaining over, related to all logs purchased or procured in good faith, before notice of the sale of the mill, to be there sawed.</p>

This action was brought to recover the purchase price of a marble mantle and fixtures. The defendant was building a house at Livonia, and, while in Rochester on the Mth of November, 1869, visited the place of business of the plaintiff with a view to purchase a mantle. While there he examined and selected a mantle which the plaintiff agreed to place in his house with certain fixtures for the sum of 880.

<p>A witness for the people stated in his cross-examination that he had taken an interest in the prosecution. On the re-direct examination he was asked the occasion of taking such interest. Held, a proper question.</p> <p>A witness for the prisoner introduced to show that the property was purchased innocently, was asked, in reference to certain property, “ Did you not put railroad brass under skidding * * * and cover it up, after being pur- ■ chased by you, and say that it was railroad iron, and would not do to be ' seen?” Held, proper to impeach testimony of witness as to the innocent nature of the purchases at plaintiff’s store.</p>

<p>Appeal from the order of the special term of Monroe county denying a motion of the defendant for a new trial.</p>

<p> Guardian and ward—duty of special guardian as to moneys in his hands. </p> <p>Action upon a bond given by a special guardian, who failed to account for moneys received from a sale of his ward’s land.</p> <p>The guardian was directed by the court to sell his ward’s right, title and interest to certain lands. He did so, assuming the dower of the widow of his ward’s father, which the guardian paid. The lands sold were subject to a mortgage. Meld, that the sale was a sale of the infant’s interest in the equity of redemption of the land, and nothing more. The purchasers of such interest had no claim on the infant or the estate of her deceased father for the payment of the mortgage; and the guardian had no right to appropriate the moneys in his hand to such payment.,</p>

<p>Appeal from judgment of county court in favor of plaintiff in an action commenced in the court of a justice of the peace. The facts are stated in the opinion.</p> <p>cited Cornell v. Town of Guilford, 1 Denio, 510; Reed v. Randall, 29 N. Y. 358; Neaffie v. Hart, 4 Lans. 4; Keirnan v. Rocheleau, 6 Bosw. 148; Muller v. Eno, 14 N. Y. 597; Cary v. Gruman, 4 Hill, 625; Sibley v. Howard, 3 Denio, 72; Watson v. Davis, 19 Wend. 371; People ex rel. Phelps v. Delaware Com. Pleas, 18 id. 558.</p> <p>cited Howard v. Hoey, 23 Wend. 350; Rust v. Eckler, 41 N. Y. 488; Masson v. Bovet, 1 Denio, 69; Reed v. Randall, 29 N. Y. 358; Neaffie v. Hart, 4 Lans. 4; Dutchess Co. v. Harding, 7 Alb. L. J. 76; McNeil v. Scofield, 3 Johns. 436; Tifft v. Tifft, 4 Denio, 175; Willard v. Bridge, 4 Barb. 361; Brown v. Katin, 7 Alb. L. J. 204; Thomp. on Highw. 97, 98; Cornell v. Guilford, 1 Denio, 515.</p>

<p>Tax — school tax—excessive levy — error on tax roll.</p> <p>Defendant, a school district collector, to collect a tax of between $5 and $6 levied upon and sold a buggy wagon worth upward of $50. There was other property of less value he could have taken. Held, that the collector was entitled to levy on the property, and was not liable for an excessive levy in doing so.</p> <p>The fact that the total footing up of the separate assessments on the tax roll was $7 more than the amount directed to be levied, did not invalidate the tax. At most, it could only affect it to the extent of the discrepancy.</p>

<p>Negligence — liability of lesser — defective pier.</p> <p>Defendants leased a pier to another party, the lessee agreeing to keep the same in repair. At the time of leasing there was a defect in the pier, in consequence of which plaintiff’s intestate received the injury whereof he died. The accident happened after the lessees had taken possession. Held, that defendants were liable for such injury. Fish v. Dodge, 4 Denio, 311; Moody v. Mayor of Hew York, 43 Barb. 282; Davenport v. Ruckman, 37 N. Y. 568.</p>

This was an action of ejectment brought by the plaintiff to • recover possession of a store and basement in the city of Syracuse. The plaintiff recovered and the defendant appeals. The plaintiff owned the premises and on the 30th of December, 1863, leased the store No. 49 in the Collins Block, in the city of Syracuse, to Leopold Schwartz, Leopold Bronner and Burchard Bronner, for the term of ten years from the 1st of April, 1864, at an annual rent specified in the lease.

<p> Usury—renewed of usu/rious note. </p> <p>A note was given in renewal of a usurious note, but was not signed by the borrower on the original note. Held, that the only consideration for the new note was to extend the time of payment of the usurious note, and it was a mere substitute for and equally usurious with it.</p>

Robert Clark died in September, 1865, leaving surviving him a widow, since deceased, and the defendant his heir at law. Before his death he entered into a contract with William Clark and Dwigh fc Owen to crop certain lands of which he was owner on shares, each party to have half of the products. Before the death of said Clark, a portion of the land was seeded, and immediately after his death the residue.

<p>Waste, action of— treble damages — evidence.</p> <p>The Code does not abrogate the right to recover treble damages in actions of the character of the former action of waste. It- is not necessary for the complaint in an action of waste to contain a reference to the statute or provision for treble damages, to entitle the plaintiff to such damages.</p> <p>A witness for plaintiff was asked " what amount of permanent injury have ■ these premises sustained by neglect?” He answered: “I should think $2,000.” Held (following Van Duesen v. Toung, 29 N. Y. 9) inadmissible..</p> <p>A recovery for waste is limited to the amount of damage to the freehold. The statute in regard to waste will, not excuse a defendant from treble damages, because he had good reason to believe the land to be his own.</p>

<p>Appeal from a judgment for the plaintiff on the report of a referee. The facts appear in the opinion.</p> <p>cited 1 Phill. Ev. 359, ch. 4, § 1; 2 Cow. & Hill’s Notes, 926, et seq., 642-644; Sup. Ct. Rule 41; Cornell v. Todd, 2 Denio, 130, 133; Hathaway v. Payne, 34 N. Y. 92, 100; French v. Carhart, 1 id. 96, 100; Coddington v. Davis, 1 id. 186; Aberdean v. Blackener, 6 Hill, 324; Matter of Isaac Negus, 7 Wend. 499, 504; Chase v. Hinman, 4 id. 452, 456; Trinity Church v. Higgins, 48 N. Y. 532; Gilbert v. Wiman, 1 Conn. 550; Crippen v. Thompson, 6 Barb. 532; Scott v. Tyler, 14 id. 202; Lake v. Tyson, 2 Seld. 461; Keteltas v. Myers, 19 N. Y. 231, 232; Sweet v. Barney, 24 Barb. 533, 538; Bogart v. Morse, 1 Comst. 377.</p> <p>cited Craig v. Wells, 1 Kern. 315; Cornell v. Todd, 2 Denio, 130; Van Horne v. Crain, 1 Paige, 455; Hills v. Miller, 3 id. 254; Rogers v. Kneeland, 10 Wend. 218; Coddington v. Davis, 1 Comst. 186; Mann v. Witbeck, 17 Barb. 388; 2 Abb. Dig. 38; Bruen v. Hone, 2 Barb. 586; Lake v. Tyson, 6 N. Y. 461; 2 E. D. Smith, 193; Clark v. Davenport, 1 Bosw. 95; Wyman v. Farnsworth, 3 Barb. 369; 3 Barb. Ch. 196; 4 Edm. Ch. 294.</p>

<p> Pauper—liability of rdative for support of. </p> <p>The court of sessions of Cayuga county, issued an order (under 1 E. S. 614, § 1, etc.) requiring a son to pay for the support of his father, a poor person. The father remained at the county poor-house, a time, for which the son paid. The son then, with the consent of the superintendent of the poor, took.his father to his own house. The father remained with the son.upward of a year, and then, without the son’s knowledge'or consent, left and went to the town of S. The son was ready at all times to receive his father and support him at home. The father did not return, but was supported by the town of S. until his death.</p> <p>Held, that the son was not liable to the overseers 'of the poor of S. for the support of his father.</p> <p>Where an order is made requiring a relative of a pauper to support him, and fixing a sum to be paid weekly, the relative may provide for the support of the pauper at such place, and in such manner, as he shall deem proper, provided the place and manner are approved by the overseer, and it is not until hé has neglected or refused to do this, that he is liable for the sum directed to be paid. Comerse v. McArthur, 17 Barb. 410, followed.</p>

The premises, to recover the possession of which this action was brought, were owned in fee by Joel Seaton. In ¡November, 1860, Seaton and wife conveyed them to his son Charles E. Seaton, reserving to himself the use of the same for his life and the life of his wife.

<p>Appeal from a judgment for the plaintiff, entered at the Allegany circuit, with a stipulation that the bill of exceptions be argued as a case. The facts appear in the opinion.</p>

This is an action commenced by the- plaintiff as an assignee of Charlotte Brinkerhoff and Louise Troup, to recover damages for a trespass upon their lands in cutting and removing timber.

<p>Appeal from a judgment in favor of defendant, and an order denying a new trial. The facts appear in the opinion.</p> <p>cited Pierce v. Tuttle, 53 Barb. 155; Van Deusen v. Young, 29 N. Y. 9, 30, 31; Suffern v. Townsend, 9 Johns. 35; 7 Conn. 232; McGregor v. Brown, 10 N. Y. 114; 2 Hill. on Torts, 148; 2 Greenl. Ev., §§ 625, 653; id., § 332.</p> <p>cited Walsh v. Kelly, 40 N. Y. 556; Magee v. Badger, 34 id. 247; Ingersoll v. Bostweck, 22 id. 425; A D. Co. v. City of Brooklyn, 3 Keyes, 444; Myers v. Baker, 14 N. Y. 435; Woodruff v. McGrath, 32 id. 255; Hunt v. Fish, 4 Barb. 329; Cook v. Litchfield, 2 Bosw. 137.</p>

<p>Appeal from a judgment of the Ontario county court, and from an order denying a new trial. The facts sufficiently appear in the opinion.</p> <p>cited Richardson v. Mead, 27 Barb. 178; 2 Story’s Eq. Jur., § 1047; Willard’s Eq. Jur. 462; Heath v. Hall, 4 Taunt. 326; Tibbets v. George, 5 Ad. & Ell. 293; Briggs v. Dow, 19 Johns. 95; Saxton v. Fleet, 2 Hilt. 477; Hooker v. Eagle Bank, 30 N. Y. 83; Rupp v. Blanchard, 34 Barb. 627; Dickinson v. Phillips, 1 id. 454; Rose v. Baker, 13 id. 230; Battle v. Coit, 26 N. Y. 404, 407.</p> <p>cited Bottle v. Coit, 26 N. Y. 404; Bedell v. Carll, 33 id. 581; Rupp v. Blanchard, 34 Barb. 627.</p>

This is an action for malicious prosecution and for false imprisonment, tried in the Monroe county court, and brought to this court upon an appeal from an order of that court denying a motion for a new trial. The facts of the case are briefly these, as disclosed in the pleadings and proof. The defendant and a brother owned adjoining farms along the dividing lines of which were situate several butternut and walnut trees upon which nuts were growing.

<p>Surety—release by act of principal — rights of or editors.</p> <p>One Clinton being indebted upon notes to the IT. bank, in the sum of $34,500 for which the bank held mortgages to the amount of $35,000, applied to W. L. and R. L. to indorse for him, notes in renewal of the old ones. This they at first refused to do, but consented upon the agreement of the bank that the mortgages should be held for their security, and indorsed to the amount of $25,000. Their indorsements were continued, the notes being renewed from time to time. Clinton’s indebtedness to the IT. bank having afterward become increased to the sum of $40,531.87, the bank, without the knowledge or consent of W. L. & R. L., canceled the mortgages, and took new ones for the same amount as security for all of Clinton’s then indebtedness. Plaintiff had meanwhile become indorser for Clinton, upon $3,500, of-increased indebtedness. Clinton" failed. W. L. then paid all Clinton’s indebtedness to the N. bank — took an assignment of the mortgages and a transfer of all the notes, sued plaintiff upon his indorsement, and recovered a judgment. Plaintiff then brought this action under the agreement made by the N". bank with Clinton, when the new mortgages were given, to recover his proportional share of the sums secured by the mortgages.</p> <p>Held, Pakker, J., dissenting, that although W. L. & R. L. had been discharged from their liability by the act of the bank, in taking the new mortgages, and whatever their rights as against the bank might yet be, still as regarded the other creditors, W. L. stood precisely in the bank’s position, and plaintiff could recover.</p>

<p> Judgment—time and form of entry in docket of justice of the peace. </p> <p>In a trial before a justice of the peace the jury returned with their verdict “ about midnight.” The justice entered the verdict in his minutes, but did not enter it in his docket " until daylight ” the next morning. Held, that the judgment was valid, being entered within twenty-four hours.</p> <p>The judgment was entered thus: " 5th damages $30.00, $4.60.” The return stated that the $4.60 was entered for costs. Held (overruling Stephens v • Santee, 51 Barb. 532), that the entry was in form sufficient to constitute a judgment.</p>

<p>Appeal from a judgment in favor of defendant, on a trial by the court without a jury.</p>

<p>Case submitted under section 372 of the Code. The facts appear in the opinion.</p>

<p>Appeal from judgment in favor of plaintiff, entered on report of a referee. The facts appear in the opinion.</p>

<p> Official bond—when sv/rety liable. </p> <p>The official bond of a supervisor was conditioned to well and truly keep and pay over and account for all moneys belonging to his town and coming into his hands as supervisor. The board of supervisors of the county levied a tax for the temporary relief of the poor of the town, and also one for the improvement of roads and bridges. The tax warrant directed the collector to pay over the moneys collected to the supervisor, which he did. The supervisor failed to account for such moneys. The act under which the first-named tax was raised directs the moneys to be paid to the overseers of the town (Laws 1845, ch. 334, § 7), and the statute directs the town collector to pay the amount raised for highways and bridges to the commissioners of highways. 1 R. S. 396.</p> <p>Held, that as the warrant directed the moneys to be paid to the supervisor, they came to him as such official, and his surety was liable for their conversion.</p>

Submission, pursuant to section 372 of the Code. The case was this: The plaintiff, a resident of Sharon, Schoharie county, is the executor of the .last will and testament of Jacob Shaul, late of Sharon, Schoharie county, deceased.

<p>Appeal from a judgment in favor of the plaintiff, and an order denying a motion by defendant for a new trial. The facts appeal in the opinion.</p>

<p> Evidence—adulterated milk—tests. </p> <p>In an action for the penalties provided hy chapter 618, Laws of 1864, as amended hy chapter 563, Laws of 1869, for watering and skimming milk supplied to a cheese factory, held, that evidence of tests of defendant’s milk, made a year after the violation of the statute was claimed to have occurred, was inadmissible against defendant.</p>

<p> Fi'over—when party in possession of property not liable for cornersion. </p> <p>Plaintiff drew some logs to the mill 'of defendants to be sawed. One W. claimed to own the logs. One of the defendants seeing W. approach the mill, said to a person present, “ There comes W. after that lumber, you show him where it is." The person addressed put his head out of the window and said to W., “ There is your lumber.” After which W. carried the logs away. Held, that the action of defendant did not rend,er him or his co-defendant liable to plaintiff for the conversion of the logs.</p>

The action was brought in a justices’ court to recover the value of a heifer which the plaintiff alleged was wrongfully taken by the defendant. The plaintiff proved title by means of a purchase from his mother, Irena Brace, who claimed title by purchase from her husband, James B. Brace. The defendant justified the taking by virtue of a mortgage given by said James B. Brace eighteen months after the alleged sales aforesaid.

<p> Practice—waiver of objections—statute of limitations—assignment of chosein action—evidence. </p> <p>In an action for legal services a portion of the claim had been assigned to one of the plaintiffs. The answer denied indebtedness and set up payment. At the trial the performance of the services and the assignment were not disputed, but no direct evidence was given of those facts. The defendant did not object to the want of such proof. Held, that the objection was waived and could not be raised in the first instance at the general term.</p> <p>Defendant wrote to plaintiff a letter containing the following: “ I wish you would send a bill of items of your account (I have none, etc.), and as I expect to leave the city to be absent west about two weeks, I will see you soon after my return and will endeavor to close the matter satisfactorily to you.” Held sufficient to take the debt out of the statute, it being an acknowledgment of its existence in writing, subscribed by defendant.</p> <p>Plaintiffs were copartners, but previous to the commencement of the action had dissolved partnership and had mutually agreed that the accounts of the firm should be turned over to one partner, there being a balance due him from the firm. Defendant had notice of this arrangement.</p> <p>Held, that defendant could not plead a settlement made after such notice with the other partner as an extinguishment of his indebtedness to the firm.</p> <p>That evidence of the arrangement made between the partners was not objectionable on the ground that it was a communication between the plaintiffs not made in defendant’s presence. It was not such a communication, hut an agreement between plaintiffs for the transfer of the accounts of the firm, and as such was admissible in answer to defendant’s claim of settlement.</p> <p>Evidence tending to show that collateral transactions of a party testified to by impeaching witnesses were not discreditable was properly rejected as immaterial.</p>

This action is brought to recover upon a promissory note, alleged to have been made by the defendant and one William Fisk, dated April 4, 1867, payable one year after date, for 8250. The defendant by his answer denies the complaint. The cause was tried at the Tompkins circuit in January, 1869, and resulted in a verdict for the plaintiff for 8281.57. The defendant had loaned to one Bement 8300 to pay his commutation on being drafted into the army.

This is an appeal from a judgment entered in favor of plaintiff on the report of a referee. On the 3d day of March, 1864, Augustus C. and Ira M. Moore recovered a judgment in the supreme court against James T. Hamilton for the possession of certain real property, and two hundred and thirty-eight dollars and thirty-one cents costs.

<p>Appeal from a judgment in favor of plaintiff upon the verdict of a jury'and from ah order denying a new trial. The facts sufficiently appear in the opinion.</p>

<p>Appeal from a judgment in favor of the plaintiff upon the yer-dict of a jury and an order denying a new trial. The facts appear in the opinion.</p>

<p> Evidence—refreshing memory—items of account. Acceptance of goods without examination 5y vendee. </p> <p>In an action upon an account for lumber, etc., at the trial a witness for plaintiffs was shown a bill of particulars. He testified that he was unable from recollection to state the items of plaintiffs’ account, but upon reading the bill he said, "We delivered these articles to the express in C. The prices I have read were the prices agreed upon.” Upon cross-examination he said he was not sure he shipped every item and did not measure all the lumber. He also testified that he sent bills of plaintiffs’ account to defendants ; that defendants had, in his presence, looked over a copy of plaintiffs’ bill and made no objection to the correctness of the items, and that he had no doubt, though he would not swear positively, that the bill looked over by defendants was the identical bill before him. Another witness swore he was present when the account was looked over, and that the bill of particulars in question was the identical one looked over or a faa simile. The testimony of these witnesses was not disputed.</p> <p>Held, that it was not error to permit the first witness to read the bill of particulars to refresh his memory and that the evidence -was sufficient to sustain a finding in favor of the correctness of the items.</p> <p>A portion of the timber delivered was smaller than the agreed size. The difference could be told only by measurement. Held, that defendants could not, after having received the same and sawed it up without measuring, avoid payment on the ground that such timber was notin accordance with the contract.</p>

Appeal by defendant from a judgment rendered on the verdict of a jury, and an order denying a new trial. The facts appear in the opinion.

Appeal by plaintiff from an order of the special term setting aside an execution against the defendant Daniel Knights. The facts appear in the opinions.

<p> Wül—construction of—when residua/ry legatee not liable for annuity given by testator. </p> <p>A testator bequeathed an annuity of $63, to be paid by his executor. He gave the residue of his estate, real and personal, after payment of his debts, to the defendant, whom he appointed his executor. Defendant qualified and . paid the annuity for three years. Held (J. Pottee, J., contra), that defendant was not liable, personally, for the annuity, the gift to him by the will not being conditioned upon his paying, and he not being directed personally, or as legatee or devisee, to pay.</p> <p>The payment of the annuity for three years did not raise a promise to pay the succeeding installments.</p>

<p>Appeal from an order of the special term overruling a demurrer to the complaint. The facts appear in the opinion.</p>

<p>Administrators — authority of, as to debts due estate.</p> <p>One of two administrators of an estate directed a debtor thereof to retain the money due from him, and not to pay it to the other administrator. The debtor complied with such direction. The other administrator thereupon brought action to recover the debt, in which the co-administrator refusing to join as plaintiff, was made defendant. Held, that the debtor could not set up the direction not to pay as a bar to the action. The administrator who gave it did so in violation of his duty, and the administrator suing was entitled to bring the action and join the other as defendant.</p>

. Appeal by defendant from a judgment entered upon an order overruling a demurrer to the complaint. The facts appear in the opinion.

<p>Insurance—fire policy — overstating value in application and proof of loss. When oompany bound by knowledge of agent.</p> <p>In an action upon an insurance policy, it appeared that in the application the total value of the buildings insured and the land on which they were situated was overstated. In such application, the applicant agreed and warranted that the valuation, etc., were correct. The application was made out from the verbal statements of the applicant, by an agent of the insurance company, who was familiar with the property insured. It was shown that the value mentioned was not given by the applicant as that of the real estate alone, and that he signed the application without reading it.</p> <p>Reid, following Bowley v. Umpire Ins. Co., 36 N. T. 550, that the insurance company was liable, notwithstanding the overvaluation contained in the application.</p> <p>In his proof of loss plaintiff overstated the market value of some potatoes and the damage done to a piano. Reid, that such valuation, not being shown to be corrupt or dishonest, did not invalidate the policy.</p> <p>Quere. —Whether a representation of value can be treated as a warranty.</p>

The plaintiff in error was indicted and convicted of a nuisance in defiling the waters of a spring used by the public for drinking and culinary purposes. Upon the trial Orlando Burvee was called and examined as a witness for the plaintiff in error.

The action was brought to recover damages for causing the death of plaintiff’s intestate by reason of defendant’s negligence. Two acts of negligence were alleged by the plaintiff: first, the substitution of a common for a patent switch at the place of the accident, and the failure to keep a switchman at the station where the switch was located. The facts sufficiently appear in the opinion.

PhAiímFES and J. H. Decker, on the 3d day of February, 1869, sold defendants certain real estate consisting of mills, stone house and docks at Napanock, ahd plaintiffs at the same time sold and transferred to defendants all plaintiffs’ contracts for the purchase or sale of lumber for the year 1869. The total consideration to be paid therefor by defendants was 810,500, and defendants agreed to perform all of said plaintiffs’ contracts for purchase or sale of lumber.

<p>Negligence — sta/rting train without signal—common law requirement of caution— when negligence not question of law.</p> <p>Plaintiff, who was in the employ of a grain shipping firm, was engaged in unloading grain from the defendants’ ears into a boat of the firm. Between the car which was being unloaded and the boat a canvas was placed to catch falling grain. This canvas was, after unloading each lot of cars, taken up and emptied. After some cars had been unloaded defendant had emptied the canvas, and was spreading it for the next cars when the unloaded train was started and caught plaintiff’s arm and severely injured it. The evidence given at the trial tended to show that the cars were started without any notice by bell or whistle, and that plaintiff had no time or opportunity to escape.</p> <p>Held, that the question whether defendants were negligent in starting the cars without sounding the bell or whistle was one for the jury.</p> <p>While the statute may not in terms require a signal under the circumstances of this case the common law requires, at all times, the exercise of ordinary prudence and care in the avoidance of injury to others, and as the instrumentalities used are more dangerous a greater degree of caution is imposed and required.</p> <p>The plaintiff being lawfully upon the premises and near the cars, in pursuit of his legitimate duties, he was not guilty of negligence as a legal conclusion. Whether he was actually so was a question for the jury.</p>

This is a submission under section 372, Code of Procedure, to obtain an interpretation of certain portions of a will. Pliny Moore, late of Champlain, Clinton county, died on the 9th day of March, 1873, leaving a will of real and personal estate, dated October 2, 1865, which was duly admitted to probate and letters testamentary issued to the executors therein named.

The general term granted a preliminary injunction at the November term, 187%, and in January, 1873, the special term gave judgment for the plaintiff. The facts are as follows: On the 6th day of August, 1870, the plaintiffs, after due advertising, entered into a contract with Charles P. Skinner, one of the defendants, the lowest bidder, for the performance of certain canal work at Buffalo, viz.: the deepening and improving the narrow canal in Black Rock harbor.

The action-was brought against certain members of a joint-stock association, the indebtedness being upon anote reading as follows: “ $250.

This action is brought to recover damages of defendant under the statute in relation to compensation for causing death by wrongful act, neglect or default.

<p>Costs, exemption of school officers from — certificate of good faith—allowance in order not conckisvoe.</p> <p>The legislature, by the provision of law exempting school officers from costs . in certain actions against them, upon a certificate of the court that they acted in good faith (Laws 1864, chap. 555, title 13, § 6), intended .to exempt them through all stages of the action.</p> <p>Plaintiff brought action in a justice’s court against the trustees of a school district for seizing certain property. A judgment was rendered in favor of plaintiff. The justice certified that defendants’ act were done in bad faith. Defendants appealed to the county court, and upon a retrial judgment was rendered against them. The county judge certified at the trial that the act was done in good faith. After judgment, defendants moved for a new trial, which was denied, whereupon they appealed. The judgment was affirmed, with costs of appeal. After the affirmance the county judge, before whom the action was tried, gave a certificate that the appeal was in good faith.</p> <p>Held, that there was no provision of law for granting the certificate of bad faith. Neither was there any authority for the second certificate of good faith.</p> <p>The certificate of good faith given at the trial, however, exempted defendants from costs, not only at the trial, but upon all subsequent proceedings in the action.</p> <p>Held, also, that the allowance of costs of appeal by the order of affirmance, the right to such costs depending upon the statute and not upon the discretion of the court, did not preclude defendants from objecting to the insertion thereof in the judgment.</p>

<p> Damages, measure of—when price paid, for article is—Presumption as to findings of jmp. </p> <p>In an action for damages for wrongfully taking and using plaintiff’s horse and for injuries done by overdriving such horse, held, that evidence of the price plaintiff paid for another horse which he was compelled to hire to supply the place of the one taken, such price being reasonable and the lowest at which he could obtain a horse, was competent on the question of damages.</p> <p>Evidence was given showing the value of the use of the horse taken for five days, the time he was in defendant’s possession. Also evidence which was controverted in relation to the damage done by injuries to the horse. Seld, that the jury in their verdict must be presumed to have allowed plaintiff for the use of his horse only during the time he had not the hired horse, and that any amount over and above that proved for such time was for injuries done to plaintiff’s horse.</p>

Cebtioeabi to the court of sessions of Columbia county, removing a conviction for an assault upon one Isaac Son with a deadly weapon, with the intent to kill, into this court. Most of the facts appear in the opinion. In addition, the following statement only is necessary.

These actions were brought upon policies of insurance, respectively, and depend substantially upon the same questions, arid the plaintiff and counsel being the same, in both cases, they may be considered together.

This was an action to recover damages for the death of the intestate, alleged to have been caused by the negligence of the defendant. There was a recovery at the circuit by the plaintiff. Exceptions were taken which were directed to be heard in the first instance by the general term. The defendant moved for a new trial on the judge’s minutes; the motion was denied, and an appeal was taken upon the case and upon the order denying new trial, to this court.

This is an appeal from the decision of the surrogate of Delaware county, admitting to probate the last will and testament of William Parker, deceased, which decision or decree was entered on the 31st day of July, 1871. The will bears date December 28, 1869.

This was an action by the plaintiff to recover wages or salary, as the teller of a bank, from September, 1870, at which time he was discharged, until 1st April, 1871, which he claims was the end of the year for which he was employed, at the rate of $70 per month. The plaintiff recovered a verdict at the circuit for the amount of his claim.

<p>School districts— alteration of—school tax — Costs</p> <p>A county school commissioner desiring to make an alteration in school districts Nos. 5 and 7 in town of T., and No. 13 in towns of T. and B., made an order accordingly, with the consent of the trustees of districts 7 and 13, but without the consent of the trustee of district No. 5, to take effect immediately as to districts 7 and 13, but not for four months as to No. 5. Fourteen days afterward another order was made, reciting that, " at request of the trustee of No. 5,” the supervisor and town clerk of town of T. met the school commissioner to consider the propriety of making the proposed alterations, and after hearing both parties ordered that such alterations be made. The supervisor and town clerk of the town of B., and the trustees of Nos. 7 and 13 were not notified, and did not attend. The trustee of No. 5 did not have a week’s notice, but he attended. The alteration, if valid, transferred plaintiffs from No. 5 to No. 13. In an action by them against a trustee of No. 13, elected subsequent to the alteration, to recover a tax assessed against them as residents of No. 13.</p> <p>Held, that the orders, if irregular, could not he impeached in a collateral action like this.</p> <p>Proof of bad faith held to be insufficient to charge a school officer with costs under Laws 1864, ch. 555, tit. 13, § 6.</p> <p>The statute, requiring a school trustee to make an assessment within thirty days after the tax is voted, is directory, and an assessment may be legally made after the expiration of that period.</p>

Action for breach of promise of marriage. At the trial the jury rendered a verdict in favor of the plaintiff for $4,000. The material facts are stated in the opinion.

Appeal by the board of supervisors of Columbia county from an order made by the county court of said county, requiring said board to refund to the petitioner, Bachman, and the other stockholders of the Farmers’ National Bank of Hudson, certain taxes claimed to have been improperly assessed for the years 1870 and 1871.

The complaint alleged that the plaintiff was, on the 16th day of November, 1871, the owner of certain described property, consisting of horses, wagons and harness; that the property was hired of the plaintiff by William M. Simmons by a written lease by which Simmons agreed to pay plaintiff, for the use of the property, 170 per month, the plaintiff “ reserving and having the right to terminate the said lease and take the property into his the said plaintiff’s possession at…

This action was brought for the construction of and adjudication upon the last will and testament of Alexander G. Cadier, who died. J anuary 22,1871, at Ogdensburg, N. Y., leaving the plaintiff and the defendants, named Kiah (Kiah and Uadier are the same name .spelled differently by different persons), his brothers, and Josette Grenier, his sister, surviving.

Justice Barmare, without a jury. About March 25, 1870, the plaintiff made and delivered to the First National Bank of Rhinebeck, his promissory note, dated that day, for $5,000, payable on demand as collateral security for any money that might be advanced by said bank to one Francis F. Bonard, on his notes or otherwise, to the amount of $5,000..

The action was brought against defendant, as a common carrier, to recover the value' of a trunk and its contents alleged to be lost by the negligence of defendant at its depot at James Slip, New York. On the 11th of April, 1868, an expressman took plaintiff’s trunk, at his request, to the depot mentioned. The trunk had a card fastened on it, marked with plaintiff’s name and the place of his destination.

Justice Babhabd without a jury. The action was brought to recover the amount of a policy of ■ insurance issued by the defendant to the plaintiff June 2, 1869, upon plaintiff's mill in the city of Poughkeepsie. ■ A survey referred to in the policy contained a representation by the insured that the motive power of the mill was water.

This action was brought by the plaintiff as assignee in bankruptcy of the Central Bank of Brooklyn, under § 35 of the TJ. S. bankrupt law, to recover $19,300 and interest for moneys paid by the Central Bank, after it had become insolvent, to plaintiff. The action w;as tried before Justice Gilbert and a jury, and a verdict for the plaintiff directed by the court.

Action for the foreclosure and enforcement of a mechanic’s lien filed by plaintiff in pursuance of laws of 1863, chapter 478.

Action to recover damages for breach of contract by defendant to build a school-house. The plaintiffs composed the board of education of school district No. 3 of the town of Fishkill.

<p>Action- to recover the possession of real estate.</p> <p>The plaintiffs alleged that they were owners in fee and entitled to the possession of three lots — Nos. 10, 12 and 34 — in the village of East New "York, and that defendant unlawfully entered into and retained possession thereof.</p> <p>The defendant, answering, denied the allegations of the complaint, and alleged as to lot 34, that in 1866 it was duly sold by the comptroller of the State for .taxes to one Peck, and that said Peck assigned the certificate of sale to defendant for a good consideration;, that in 1869 the said comptroller executed and delivered to defendant a deed of said lot and defendant entered into and took possession of said lot and has since been in possession thereof.</p> <p>As a third answer the defendant alleged as to lots Nos. 10 and 13, that under a decree made in 1839 by the court of chancery in a certain action, the said two lots were sold at public auction on the 7th July, 1841, by a master in chancery, and that defendant was the purchaser and paid the purchase- price therefor; that one Wolters desiring to purchase of defendant said lots and promising to pay therefor a certain sum, defendant, at his request, had the deed from the said master made out to, and in the name of, said Wolters, but delivered into his (defendant’s) possession; that afterward said' Wolters, representing that he desired to take the deed to show to his wife and to raise the money, and promising to return immediately with the deed and the money, obtained possession of said deed; that said Wolters never returned the deed nor paid any part of the agreed sum, but fraudulently converged the deed to his own use; that said Wolters never entered upon or had possession of said lots, .but that defendant, in the month of August, 1841, took and has since held possession thereof, has paid the taxes and made improvements.</p> <p>Defendant further alleged that said Wolters in September, 1841, pretended to convey said two lots to one Oberkircher and that the. latter in 1843 pretended to convey them to one Eck, and that said Eck in 1845 pretended to convey them to one Ritter, under and through whom plaintiffs claim title; that all said persons' and parties well knew that Wolters had never paid for said lots; that neither of said persons was, nor were the plaintiffs, ever in possession of said lota» but that defendant had possession thereof adversely to all said parties, and that all said pretended conveyances were contrary to the statute and void. The defendant further alleged that an action, commenced by said plaintiff and another, to recover possession of said lots was still pending in the supreme court, which action he claimed to be a bar to this.'</p> <p>At the trial plaintiffs introduced in evidence a deed of said lot Eo.'24, dated August 13,1841, from a master in chancery to Philip Oberkircher; also a deed of lots Nos. 10 and 12, dated August 13, 1841, from the same master in chancery to Augustus Wolters; also a deed of said lots 10 and 12, bearing date 25th September, 1841, from said Wolters to said Oberkircher.</p> <p>Defendant objected to the admission in evidence of the last-mpntioned deed on the ground that it was not properly acknowledged, and that the officer taking the acknowledgment did not either certify that he knew, or had satisfactory evidence that the persons making the acknowledgment were the individuals described in, and who executed, the said deeds. The court overruled the objection and admitted said deed. The certificate of acknowledgment of said deed was as follows:</p> <p>“ City and County on New Yobk, ss. :</p> <p>• “ On this 25th day of September, 1841, before me came Augustus Wolters and Minetta Wolters, his wife, who severally acknowledged, Minetta Wolters apart from her husband, that they had executed the within deed, Minetta Wolters declaring it to be done on her part without fear or compulsion of her husband; and at the same time appeared before me John A. Stemmier to me known, who being duly sworn, deposed that he resided in this city, and that he knows Augustus Wolters and Minetta Wolters, the parties before mentioned to be the individuals described in and whom he saw execute the within deed, and that he, deponent, subscribed his name as a witness thereto.”</p> <p>The plaintiffs next offered in evidence a deed of said lots, Nos. 24,10 and 12, bearing date 16th February, 1843, from Philip Oberkircher to Jacob Eck. The certificate of acknowledgment thereto was as follows:</p> <p>"City and County on New Yobk, ss.:</p> <p>' “ On this 16th day of February, 1843, before me personally came Philip Oberkircher and Caroline, his wife, proven to me by the oath of John A. Stemmier, who being by me duly sworn, did depose and say, that he resides in the city of New York; that he knew the said Philip and Caroline to be the same persons described in and who have executed the foregoing indenture, and the said Philip and Caroline thereupon acknowledged that they had executed the same, and the said Caroline,” etc.</p> <p>The defendant objected on the grounds before stated, and on the additional ground that the officer did not certify that the witness Stemmier was known to him. The court overruled the objection, and admitted the deed in evidence.</p> <p>The plaintiffs next offered in evidence a deed of said lots, Nos. 24, 10 and 12, dated September 8,1845, from Jacob Eck to John Ritter. The certificate of acknowledgment thereto was as follows:</p> <p>“City and County of New York, ss.:</p> <p>“ On, etc., before me came Philip Oberkircher, of said city, who being by me duly sworn, did depose and say, that Jacob Eck and Barbara, his wife, then present, were known to him to be the individuals described in and who executed the within conveyance, which is to me satisfactory evidence of the identity of said persons, and the said Jacob Eck,” etc.</p> <p>Defendant objected to the admission of the deed on the ground that the officer taking the acknowledgment did not state that he knew the witness. Objection overruled.</p> <p>Plaintiffs proved the death of John Ritter, and that they were his heirs.</p> <p>Defendant introduced in evidence the deed of lot 24 from the comptroller of the State to himself, and offered the pleadings in an action against him, commenced in 1869 by these plaintiffs and one Jane Ritter, to recover possession of the same lots Nos. 10 and 12, and to prove that said former action was still pending, and was a bar to this action. This evidence was objected to on the ground that the parties to the former action were not the same as in this, and the objection was sustained.</p> <p>Defendant also testified to purchasing lots Nos. 10 and 12, at the ■master’s sale in 1841, as stated in his answer. Defendant offered evidence of the matters alleged in his third answer, which was objected to and excluded.</p> <p>■ The plaintiffs further introduced evidence showing that the tax for which lot 24 was sold by the comptroller to defendant was not assessed in the name of the owner or occupant of the property, and that the amount sold for was in excess of the tax levied, and that the certificate of the comptroller for the year 1860, for which tax the property was sold, did not correspond in description with the county treasurer’s roll in name or amount. On this evidence plaintiff based a motion that the question as to lot 24 be taken from the jury. The court directed the jury to find a verdict for the plaintiffs as to lot 24.</p> <p>The evidence was conflicting as to whether plaintiffs had been in possession of lots 10 and 12 within the period of twenty years.</p> <p>The issues as to lots 10 and 12 having been submitted to the jury, they returned a verdict for the plaintiff. From the judgment entered thereon and from an order denying a new trial, defendant appealed to this court.</p>

Action to recover the value of seven cattle killed by defendant’s trains on its road. The plaintiff was the owner of a farm, which was crossed by defendant’s railroad. The cattle, belonging to plaintiff, were at pasture in a field adjoining defendant’s road, got through the fence on to the track, and were killed. The evidence as to whether or not the fence was sufficient was contradictory.

This action was brought by the plaintiff, as supervisor of the town of Middletown, against the collector of taxes and the sureties on his bond. The bond was given in pursuance of chapter 73, Laws 1872, providing for the extension of time for the collection of the taxes to the 25th of May, 1872.

Action to recover damages for taking oysters from Great South Bay. South Bay is a sheet of water about 50 miles in length, and for a long distance five miles in width, extending along the south side of Long Island. The tide ebbs and flows through its whole extent, and it is navigable for vessels; near where the oysters were taken by defendant it is very wide and deep.

Actios to foreclose a mortgage. The premises covered by the mortgage were conveyed to the defendant, Cogswell, by Rosabella Youngblood, the owner thereof, by a full covenant warranty deed dated and executed Eovember 9, 1871, but not delivered until December 2,1871. Thereupon Cogs-well executed to Mrs. Youngblood the mortgage in question to secure a part of the purchase-money.

This action was brought to recover the price of goods sold and delivered in April, 1871, by the plaintiffs, who were partners, to the firm of A. D. Putnam & Co., and against Henneberger & Hyde, as survivors of Avery D. Putnam, deceased. The defendant, Hyde, answered by a general denial. The only question litigated was, whether Hyde was a partner in the firm of Putnam & Co. The firm of A. D. Putnam was originally composed of Putnam & Henneberger.

On the petition of the Central Railroad Company of Long Island setting forth its incorporation, its intention to construct its road; that it had surveyed and -located its route ,• that it was necessary to cross the Long Island Railroad at a certain point designated; that .it had been unable to agree with the -said Long Island Railroad Company upon the points and manner of crossing, or the compensation to be awarded therefor, and asking the appointment of a commission, the…

<p>Appeal from the decree of the surrogate of Kings county refusing probate to a will alleged to be that of Catherine E. Boyle, deceased. The facts sufficiently appear in the opinion.</p>

Prooeediítg pursuant to chapter 338, Laws of 1858, and act amendatory thereof, to vacate an assessment upon petitioners’ lots for a local improvement known as assessment for repaving St. Felix street, etc., confirmed by the common council of the city of Brooklyn, April 11,1872. The street in question was paved in pursuance of a resolution of the “Permanent Board of Water and Sewerage Commissioners,” adopted July 11, 1870.

Verdict for the plaintiff, subject to the opinion of the court at general term. The action was brought to charge defendant as .a partner with one William Adams, as individual bankers at Sag Harbor, N. Y., under the name of the Suffolk County Bank, upon three certificates of deposit issued by such bank and payable to the order of plaintiff, one for $800, dated February 18, 1863, one for $370, dated June 15, 1866, and one for $200, dated August 24, 1868.

This was an appeal by the city of Brooklyn from an order of the special term, vacating and setting aside an assessment on petitioner’s lot for repaving St. Eelix street in said city.

4=1 damages, and $152.22 costs. The action was brought by plaintiff to recover of defendant, as sheriff of Westchester county, the value of a pair of horses and other articles of inconsiderable value, alleged by the plaintiff to belong to him, which the defendant had levied upon as the property of one Lawrence W. Myers, under executions issued against the property of said Myers. Previous to the 1st day of March, 1871, the property in question had belonged to said Myers.

The action was brought to recover certain moneys of the county of Richmond, alleged to have been unlawfully paid defendant for services, for which the county could not lawfully be charged.

<p>Appeal from a judgment rendered by Mr. Justice Gilbert, sitting at circuit, dismissing the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.</p> <p>The action was brought to recover from the town of Middletown moneys claimed to be due to the plaintiff for .gas furnished to the lamps in the public streets of that town from January 1, 1870, to July 8, 1870. The complaint sets forth the following facts:</p> <p>The gas was furnished under a contract made between plaintiff and the town in 1865, in pursuance of a special act passed by the legislature April 6, 1865 (ch. 300). By this act the boards of town auditors in several towns of Richmond county, of which Middle-town was one, were authorized to contract with the plaintiff for laying down gas pipes, etc., in the streets of such towns, and to light the streets with gas. It was further provided that the supervisor of each town contracting should, at each annual meeting of the hoard of supervisors of the county, lay before said board a statement of the amounts due from his town on account of such contract,' and it was made the duty of the board of supervisors to audit the account, and assess and levy the amount necessary to pay the same, which should be paid to the county treasurer to be drawn by the plaintiff.</p> <p>The contract was entered into July 7, 1865, and was, by its terms, to continue five years. By an act of the legislature passed April 20, 1866 (ch. 730), the act of 1865 was repealed.</p> <p>The plaintiff furnished gas which was paid for by the town up to January 4,1870, when four and a half years of the time had expired, and also furnished gas for six months longer, until the expiration of the term of the contract. The claim for gas furnished for this time was presented to the board of town auditors, and, upon their refusal to pay it, this action was brought.</p> <p>From the order dismissing the complaint the plaintiff appeals.</p>

The action was brought to recover damages for the destruction of a barn and other buildings by fire. The barn in which the fire originated was situated about sixty feet north-east from the track of defendant’s road. It stood parallel with such road, the roof sloping toward, the track and the foundation somewhat lower than the bed of the road. It was a wooden building with shingle roof and pine siding running up and down, and closely battened.

The will itself had been drawn by an attorney under the direction of the testator and executed by him, After the will was executed certain alterations were attempted to be made by testator by writing in the will, erasing and interlining. All these alterations appeared upon the will admitted, in the handwriting of the testator.

The action was brought against Martha Ruck and John Ruck, to recover the amount of a promissory note made by one defendant, a married woman, and indorsed by the other.

The plaintiff, Andrew J. Sammis, ivas the owner of a boat and net. The boat was a small sail-boat 16 feet long, the net was 135 fathoms in length, and two men were required to operate it. A judgment was recovered against plaintiff by one George Pearsall, and execution thereupon issued to the defendant, George W. Smith,' who was, at the time, sheriff of Suffolk county.

The plaintiff, Mary Crocheren, on the 28th of August, 1871, took passage on defendants* ferry-boat, running from New; York city to Staten Island. As the boat was approaching the landing, plaintiff started to leave it, and was descending some stairs for that purpose, when, by reason of some movement of the boat, she slipped and fell, or was thrown to the bottom of the stairway. By the accident her leg was broken and her ankle dislocated.

The action was brought by plaintiffs to recover the amount of a policy of insurance issued by defendant upon the life of George Mulliner, but payable to Florence Mulliner, his wife, and George Mulliner and Ellen M. Mulliner, his children. The policy was issued December 31, 1869. Mulliner died April 20, 1870. The defense was put upon the ground that the insured made untrue representations in his application for the policy. 1. That he never had any serious illness. 2.

Action by an administrator to recover damages for the death of Edward J. Coughtry, caused by the falling of a scaffold which had been erected by defendant upon its premises. The deceased was in the employ of J. W. Osborn & Martin, of Albany, as an apprentice. In 1871, said Osborn & Martin contracted with the defendant to put an iron cornice upon its mill at Etica, the defendant agreeing to erect the scaffolding necessary for that purpose.

The action was brought to obtain the delivery to the plaintiff of a piano which was taken by the defendant who was the sheriff of… Held: an assignee was chosen who was appointed and qualified, and the property of the bankrupt was assigned to him. The assignee duly made and filed his report of property set apart to the bankrupt under section 14 of the bankrupt act, and among the articles so set apart was the piano. No exceptions to the report of the assignee were filed.

The action was brought to recover the amount of a promissory note made by Thomas Y. Maxon and indorsed by the defendant, Nathaniel 0. Bemis.

Appeal by defendant from a judgment for $15,703.81, in favor of plaintiff entered at Monroe circuit, upon a verdict directed by the court. On the 11th of ¡November, 1870, the Craftsmen’s Life Assurance Company of Hew York issued three policies upon the life of Joseph F. Hall, in each of which it agreed to pay to the plaintiffs, Francis W. Glen and Milton E. Holton, as trustees for the heirs of Hall, $5,000 in case he died within four years of the date of the policy.

The action was brought by “ The national Life Insurance Company of the United States of America,” against the executor and legatees of Emma J. Mumford, deceased, to recover back $5,000 paid by said company upon a policy of insurance issued by it upon the life of Ira G. Mumford, deceased, and payable to his wife, Emma J. Mumford.

<p> Common carriers—liability of carrier for damage done to goods beyond lvis line. </p> <p>The White Line was a through freight line composed of a number of connecting railroads of which the N. Y. C. E. E. was one. The cars were marked White Line. They were not owned in common, but each company put in a certain number. The cars run through without transhipment, and the receipts were divided between the different railroads pro rata per mile. When freight was taken at a way station on the N. Y. 0. B. B. for this line, it was not treated as through freight, but as local until it reached the terminus of the road, where it was taken by the line as through freight. The N. Y. 0. E. B. Co. had no interest in the freight beyond the terminus. The line was neither a corporation nor a partnership, but a mere co-operating arrangement. Under an arrangement with an agent of this line plaintiff shipped merchandise at Eochester for Leavenworth, Kansas. The articles shipped were delivered at the N. Y. 0. B. E. station, and a receipt taken in which the N. Y. C. R. R. Co. admitted tire delivery of the cases containing them marked “ T. W. Irwin, Leavenworth, Kansas, care White Line, Buffalo.” * * “ To be transported by the N. Y. C. R. R. Co. to their warehouse at Buffalo, ready to be delivered to the party entitled to the same.” The receipt also contained a provision that the N. Y. C. R. R. Co. should not be liable for loss, etc., by any other carrier or after the cases left the warehouse at Buffalo. The cases were placed in a White line car at Rochester and were damaged in Missouri by the negligence of the Missouri Pacific R. R. Co.</p> <p>Held, that the N. Y. C. R. R. Co. were not liable for the damage.</p>

The action was brought to recover the value of certain goods shipped by the plaintiff in April, 1860, by railroad, at Syracuse, directed to J. Dougherty, Boston, Mass.,… Held: as a conclusion of law, that by the wrongful delivery of the property the defendant became liable to plaintiff for its conversion, and that the subsequent possession of the consignee did not change the rights or liabilities of the parties. The consignee is presumptively the owner of the goods shipped.

<p> Highways—cattle at large in. ’ </p> <p>Under the provisions of the statute to prevent animals running at large in the public highways, the owner of cattle is bound to prevent them from running at large contrary to such provisions, when such prevention is possible Within the ordinary limits of human prudence. And it is no defense to an action for the penalty imposed by section 1 of the act that the cattle have escaped from the owner’s premises by the breaking down of fences by an unruly cow belonging to him, or by reason of defective fences.</p>

The facts appear in the opinion. The assignee took the mortgage subject to the equities it was subject to in the hands of the mortgagee. Hartley v. Tatham, 24 How. 505; S. C. affirmed, 26 id. 158; 1 Keyes, 222; Rice v. Dewey, 54 Barb. 466; Westfall v. Jones, 23 id. 9; Murray v. Lylburn, 2 Johns. Ch. 442; L'Amareaux v. Vandenburg, 7 Paige, 316; Hovey v. Hill, 3 Lans. 172.

Appeal by plaintiff from a judgment for defendants entered upon the report of a referee. The material facts appear in the opinion. cited Peabody v. Fenton, 3 Barb Ch. 451; Roof v. Stafford, 7 Cow. 179; 9 id. 626; 2 Kent’s Com. 234, 236, 635. cited Luddington v. Toft, 10 Barb. 447; Clark v. Brooks, 2 Abb. N. S. 407; Forrest v. Forrest, 25 N. Y. 501; Clapp v. Fullerton, 34 id. 190; Schenck v. Dart, 22 id. 420; Story’s Eq. Jur., § 64, note e, and cases cited.

This is an action for criminal conversation. At the trial at the Onondaga circuit the plaintiff, to prove his marriage, was offered as a witness in his own behalf. This was objected to by the defendant, the objection sustained and the evidence excluded, to which the plaintiff excepted.

This is an action on a check against the drawer; the check was made and dated at Buffalo, March 8,1871, to the order of Edwin A. Holbrook, and deposited with his attorney to be subsequently delivered to him.

This action is one for a divorce on the ground of adultery. The defendant answered denying the adultery charged in the complaint, and setting up the adultery of the plaintiff as a defense. The issue was referred to a referee for trial. The referee finds that the defendant had committed the adultery charged and directed judgment for the plaintiff. Judgment was accordingly ordered by the court in confirmation of said report, from which the defendant appealed to this court.

This is an appeal from a judgment rendered upon the report of a referee. The action was brought to recover for a quantity of sand, earth and gravel alleged to have been taken from plaintiff’s land by the defendant in the construction of its road across the plaintiff’s farm, in the town of Verona, and county of Oneida. The railroad was built at this place by a firm by the name of McNary, Olafifin & Co., under a contract with the defendant.

Appeal by the plaintiff from a judgment of nonsuit rendered at special term, upon the ground that plaintiff not having filed a proper hond was not entitled to sue as receiver. The facts appear sufficiently in the opinion. The appointment of plaintiff as receiver was effectual and authorized him to bring the action. Code, § 298; Rogers v. Corning, 44 Barb. 229; Bostwick v. Menck, 40 N. Y. 383; Broad v. Wickham, cited in 1 Smith’s Ch. Pr. 500; Verplanck v. Mercantile Ins.

Appeal by one of the defendants from a judgment at circuit, entered upon the verdict of the jury. The action was for the conversion of personal property. The question litigated at the trial out of which the exceptions of the appellants arose, was whether the claims of the plaintiff had been settled by the parties. Previous to the commencement of this action, the parties, each having claims against the other, had ■ a personal interview.

Action for contribution, under 2 R. S. 375, §§ 70, 72, and to determine the rights of purchasers under several executions against the same judgment debtor. On the 26th of September, 1854, and prior to that time, Stanley Martin & Russell Martin were copartners in the mercantile business at Olean, Cattaraugus county. The partnership continued until January, 1866, when, in consequence of a fire, they ceased business as a firm.

Actios of ejectment tried at the Steuben circuit, in January, 1873. Verdict directed for the plaintiff, and exceptions ordered to be heard in the first instance at general term. Joseph Fellows, a friend of the defendant, being disposed to aid her in providing for herself a home, in the year 1869 proposed to advance money to her for that purpose. In pursuance of that proposition a place was purchased, said Fellows paying the purchase-money and taking the deed to himself.

This is an appeal from an order at special term granting a new trial on a case and exceptions. This action was brought to recover damages for the death of the plaintiff’s husband, on the ground that the same was occasioned by the negligence of the defendant.

Motion to strike out exceptions from case and introductory statement. The cause was tried by a referee who found for the plaintiff, and a final judgment was duly entered up upon the filing of the referee’s report. The defendant filed exceptions to the report within the ten days required by the Code, and appealed from the judgment in due time.

The proceedings were commenced on 29th day of April, 1873, by Elizabeth Whitney, to obtain possession of premises held by Lewis Decker.

85 damages and costs, entered upon the report of a referee. The action was commenced for damages caused by the destruction of the plaintiff’s toll-bridge over Buffalo creek, on Ohio street, in the city of Buffalo, on the 12th day of March, 1865.

<p>Highway — laying gas-pipe in—license — estoppel — easement of public.</p> <p>A gas-light company empowered by law to acquire title to land for the purposes of the company, and to lay its pipes in streets and highways with the consent of the municipal authorities, dug a trench for some distance along the highway running through plaintiff’s farm, without plaintiff's knowledge or consent. After plaintiff became aware of what the company was doing, several conversations were had between him and the workman of the company, in respect to the trench and the removal of some rails be. longing to plaintiff which were in the way, and on one or two occasions plaintiff consented that the filling up of the open trench might be delayed for a while.</p> <p>Held, that even if the plaintiff by his permission to leave the trench open gave a license to the gas-light company such license could not operate retrospectively and release the damages sustained by the unlawful entry of the company and the digging of the trench.</p> <p>Held, also that the acquiescence of the plaintiff in the acts of the company, such acts being trespasses, and known to be so by the company, did not estop plaintiff from claiming damages or seeking to restrain the completion of the work of laying the pipe through plaintiff’s land.</p> <p>The gas-light company under the authority given it to lay its pipes in highways did not acquire the right to lay such pipes without compensation to the owners of lands through which the highways run.</p> <p>When the land is taken for a highway in the country the public acquire a right of passage merely. The fee of the land on which the way is laid remains in the owner. Laying a gas pipe was a use not contemplated when plaintiff’s land was taken for a highway. Such use was a burden imposed on the land in addition to its use as a highway, and plaintiff was entitled to compensation therefor.</p>

Appeal by the Bloomfield and Rochester Natural Gas-light Company from an order of the Monroe special term confirming the report of commissioners appointed in this proceeding, on petition of said company to appraise compensation to Hiram- M. Calkins for land taken by the company under its charter. The company was organized under the general statute authorizing the formation of gas-light companies.

The facts sufficiently appear in the opinion. The evidence of the witness Somers should have been stricken out by reason of inability of defendant to cross-examine him. Cole v. People, 2 Lans. 370; Sheffield v. R. & S. R. R. Co., 21 Barb. 339; Forrest v. Kissam, 7 Hill, 463. The testimony of the witness Hammond, as to the disease of the horse, was admissible. He was competent to express an opinion.

This action was brought in a justice’s court, upon an undertaking given in a former action of replevin commenced in such court. The undertaking was in the form prescribed by the statute for the prosecution of the action, the return of the property, if return should be adjudged, and the payment of any sum which should be adjudged to the defendant in such action.

Action to establish the will of Nathaniel Sisson, deceased, as a lost or destroyed will. The deceased was a resident of Collins, Erie County, N. Y., and was possessed of an estate worth at the time of his death about $20,000. In January, 1867, he executed a will in due form, and left in the custody of Frank A. Newel, Esq., the attorney who prepared it, and who resided at G-owanda, Cattaraugus County. By such will the plaintiff, Allen Sisson, was appointed sole executor.

Certiorari, under Laws of 1871, chap. 925, § 4, brought on behalf of Joel M. Clark, a tax payer of the town of Italy, Yates county, to review proceedings had before the county judge of Yates county, to bond said town in aid of the Geneva and South Western Railway Company. The decision of the county judge was rendered August 24, 1872, granting the prayer of the petitioners that such town be bonded for $15,000.

Actios upon a promissory note made by defendants, as copartners, for $7,176.30 payable four months after date. The defense was, 1. That the note was given in part payment for 81,763 pounds of broom corn sold by plaintiff and agreed to be delivered to the defendants, in which agreement the plaintiff had made default; 3. That on this agreement $1,000 had been paid down by defendants, and plaintiff having failed to perform, defendants counterclaimed for that amount.

Ceetioeari, under Revised Statutes, part 3, chap. 8, title 10, art. 2, § 47, to remove to this court summary proceedings had under the provisions of the article mentioned before a justice of the peace..

This action was for damages for shooting plaintiff’s sow and killing her. The cause was commenced in a? justice’s court, and judgment for plaintiff recovered. An appeal was taken to the county court, and the cause tried in that court, and a verdict and judgment for the plaintiff again had for the value of the sow.

The clause of testator’s will containing the bequest is as follows: “ I give and bequeath to the town of Palmer, Hampshire county and State of Massachusetts, the sum of one thousand dollars for the benefit of the poor of said town, said sum of one thousand dollars to be kept invested and the interest thereof only to be paid over and used for the benefit of the poor of said town.

This action was brought in the supreme court, after a plea of title in a justice’s court, and was tried before Mr. Justice Daniels and a jury April 16th, 1873. A verdict was given for the plaintiff. The court ordered the motion for a new trial upon exceptions to be heard in the first instance at the general term. The material facts appear in the opinion. The reservation in the deed conferred no right upon the defendant, he not being a party to it.

This is an appeal from an order made at special term refusing to set aside a judgment rendered at the Monroe circuit by reason of irregularity.

<p>Partnership — surviving pa/rtner may be called to account for partnership matters by representatives of deceased pa/rtner.</p> <p>The surviving partner of a firm must account to the representatives of a deceased partner for the property of the firm as it was at the time of the deceased partner’s death.</p> <p>The representatives of the deceased partner are entitled to an accounting absolutely, and need not show that there would be something due to them from the firm on settlement. Their right to an account results from their interest in the effects of the firm, and the liability of the estate to contribute to the payment of the firm debts.</p> <p>For the purpose of accounting, the heirs of the deceased partner are not necessary parties.</p> <p>Defendant was copartner with plaintiff’s intestate. Upon the death of his partner, he and such partner’s son carried on the business of the firm, keeping the firm property, for a number of years, after which the son left. Held, that defendant had no authority to continue the business, even though it was for the interest of the firm to do so ; it was done wholly at his own risk; and that the intestate’s representatives were entitled to an accounting and a closing up of the firm affairs, notwithstanding it appeared that, after such closing up, there would be nothing due the estate.</p>

<p>Appeal from a judgment entered upon the report of a referee. The facts appear in the opinion.</p>

The facts appear sufficiently in the opinion. Upon proof that there was no legal impediment to the marriage of parties; that they lived and cohabited for a time as husband and wife, the woman changing her name, and a child was born to her whom the man owned as his son, and who took the father’s name, the law presumes a marriage contract. Jackson v. Bogart, 5 Cow. 237; Starr v. Peck, 1 Hill, 370; Bernois v. Ferris, 26 Barb. 177.

This is a certiorari brought to review the decision of the county court of Jefferson county, made in a special proceeding upon an appeal from an assessment made by the relators, as commissioners, under an act of the legislature passed in 1864 (ch. 577), providing for the draining of certain lands in Jefferson and St. Lawrence counties.

This case was submitted without action, pursuant to section 373 of the Code of Procedure. The question is as to the validity of the thirteenth clause of the will of one Beed, providing for the establishment of a female seminary at Stephentown, Hew York. The opinion states the case.

This is a writ of error brought on a conviction for rape, had at the New York general sessions at the June term, 1873.

A writ of certiorari was sued out in this case to review the action of the commissioners of taxes in assessing the relators. The relators are a New York corporation, and have their principal place of business in New York city, but were incorporated for the purpose mainly of establishing and running a line of steamships between ports and places on the Pacific Ocean, and such has been and is their principal business.

<p>Appeal from the judgment of the special term declaring void a sheriff’s deed, and setting aside a decree of the surrogate of Kings county.</p> <p>The action was commenced in January, 1869, for the purpose of setting aside, or having declared inoperative and void, a deed, made March 2, 1868, by the sheriff of Kings county, purporting to convey to W. W. H. Davis, one of the defendants, certain lands in the city of Brooklyn, which had been sold by said sheriff in February, 1863, under an execution issued upon a judgment for $7,625.61, recovered by Jasper W. Gilbert against Sylvanus B. Stilwell, the plaintiff’s testator, on the 23d of September, 1857; and also to set aside a decree made by the surrogate of Kings county in September^ 1866, directing the plaintiff to pay to George W. Markham, another defendant, as assignee of said judgment, the balance claimed to be due thereon.</p> <p>The cause was tried by the court without a jury, and the findings of facts were as follows: In January, 1858, the defendant, Jacob Carpenter, owned the judgment in question against the plaintiff’s testator, and said testator at the same time owned certain judgments against said Carpenter. A settlement was effected between them, whereby all claims which Carpenter had against testator were settled by testator assigning to Carpenter judgments against him to a like amount. A few days after that settlement testator died; at the time of the settlement Jasper W. Gilbert had a claim against Carpenter for about $1,000, as security for which he held this judgment in question. This claim of Gilbert against Carpenter was paid by Carpenter prior to 12th October, 1858, and Carpenter, being insolvent, then procured Gilbert to assign the judgment to one Curtis, who paid no consideration for it, but held it in trust for Carpenter. On the 30th of November, 1859, Curtis, as assignee of this judgment, applied to the surrogate of Kings county to compel the plaintiff to pay the same. The plaintiff disputed the claim. Curtis then issued an execution to the sheriff of Kings county, upon this judgment, under which, on the 3d February, 1863, the lands above mentioned were struck off to him for $6,000, but no money was paid, and the amount was credited on the judgment. The execution was issued on behalf of Carpenter, and the property bid in by Curtis in trust for him. Afterward the certificate of sale was assigned to defendant Davis (who was Carpenter’s son-in-law), who held it in trust for Carpenter, and on the 2d March, 1868, the sheriff gave Davis, whom the court held not to be a bona fide purchaser, a deed for the property. Curtis then, at the request of Carpenter, assigned this judgment to Markham, who applied to the surrogate to compel the plaintiff to pay it. On December 8, 1864, Markham assigned the judgment to Carpenter, but this assignment was subsequently canceled. Afterward, upon the accounting before the surrogate, Carpenter claimed that the legal title to the judgment was in Markham, and that he (Carpenter) had no interest therein. And the surrogate made a decree directing the plaintiff to pay to Markham the balance appearing to be due upon said judgment. Since the commencement of this action the decree made by the surrogate in favor of Markham has been modified by a new decree of 4th October, 1872, directing the plaintiff to pay to Carpenter the balance due on the said judgment.</p> <p>The court also found that all proceedings instituted and carried on before the surrogate for the purpose of collecting this judgment were by and on behalf of Carpenter, and in fraud of his settlement with Stilwell, and were a fraud upon the plaintiff.</p> <p>Judgment was thereupon rendered for the plaintiff, declaring that the Gilbert judgment had been paid, and that the sale thereunder was inoperative and void; that the decrees made by the surrogate in favor of Markham and Carpenter had been obtained by fraud and were inequitable, and restraining them from enforcing them; from which judgment the defendants appealed.</p> <p>The defendants set up that the findings of the court were not supported in the following particulars: That Carpenter was the owner of the Gilbert judgment in January, 1858: that on the 20th January, 1858, he executed a general release to the plaintiff’s testator ; that the Gilbert judgment was paid or released thereby; and that the plaintiff was estopped.</p>

Justice Fakchee, striking out a portion of defendant’s answer as irrelevant. The action was brought upon a bond given by one Harriet T. Williams, secured by mortgage upon certain real estate in the city of New York, which real estate was subsequently conveyed to the defendant, subject to said mortgage, in the conveyance whereof the payment of said mortgage was assumed by defendant.

The decree declared that “the said indorsement in writing was not executed and attested in the manner prescribed by law for the execution and attestation of last wills and testaments, and further * * that the said instrument in writing is null and void as and for the last will and testament of the said John Jennings, deceased.” The “ said indorsement ” seems to refer to the direction to Margaret on the last page of the instrument set out in full in the decision hereinafter.

<p> Taxation—foreignbanhs doing business here through permanent agents liable to taxation. </p> <p>Certain Canadian banks did business in New York city through agencies permanently located there. These agencies held funds of the banks which were loaned on call or for specified times to borrowers. Held, that these banks were liable to taxation upon the amounts invested in their business in this State, under Laws of 1855, chap. 37, which subjects to taxation non-resident associations doing banking business here, and could not claim exemption under Laws of 1851, chap. 176, § 2, exempting moneys in the hands of agents of non-resident capitalists sent here for investment.</p>

Cebtiobabi to review the proceedings of the commissioners of taxes and assessments in the city and county of Hew York. The case is stated sufficiently in the opinion.

Actios upon a promissory note ; verdict in favor of plaintiff ordered by the court, and exceptions ordered to be heard at the general term, in the first instance. The note was as follows : “ $5,000. Mew York, April 19, 1865. “ Four months after date we promise to pay to the order of Adam Bentz, five thousand dollars at the Shoe and Leather Bank, value received. “T. G-. Little, “Gr.

On the 23d July, 1866, action was commenced against defendants as factors for the proceeds of a consignment sent them by plaintiff, which it was alleged had been fraudulently misapplied by defendants to their own use, in the course of their employment as agents and factors of the plaintiff.

This is an appeal from an order of Mr. Justice Rancher, bearing date May 19,1873, setting aside an order of Mr. Justice Barrett bearing date Rebruary 1, 1873, supplemental to the execution, for the examination of the defendant upon the ground that the debt had been satisfied.

The plaintiff in error was convicted in the Hew York oyer and terminer, of the offense of burglary in the third degree. The opinion states the question discussed on the appeal.

This is an appeal from order denying defendants’ motion for a new trial on the judge’s minutes. This action was brought by the assignee of Lillienthal & Oo., for fire-works sold and delivered by that firm to the defendants on July 4, 1869, for the agreed price of $22,000.

The case is as follows: On the 9th December, 1871, Charles J. Pusey contracted with the Sodus Point and Southern Railroad Company to furnish it with rails, materials, rolling stock and equipment of the value of about $450,000. On the 9th January, 1873, Patrick- W. Bradley and Peter Nicholson contracted with said company to construct a portion of its roadbed.

This is an appeal from an order made by Mr. Justice Hardin, March, 5, 1873, denying a motion made on behalf of the defendant Meyers, to set aside the service of an order of arrest and the summons and complaint in this action. The original order of arrest, was in a civil action for fraud of the defendant and others, and was made by Mr. Justice Davis, Feb. 11, 1873, and the bail was fixed at 88,000.