Volume 10 — Barbour's New York Supreme Court Reports

<p>Where land is devised to several persons in fee, in undivided shares, a subsequent conveyance by the devisor to one of the devisees, of a part of the same land, will not revoke or be deemed a satisfaction of the devise to the grantee ; but he is entitled to the land conveyed by deed, and to a share in the land remaining, under the will. And this, although it appears there was a mutual mistake as to the effect of the deed, both parties supposing the land conveyed would be in lieu of the share given to the grantee, by the will.</p> <p>Where parties make just such instruments as they intend to make, and without fraud, surprise, undue influence, or mistake of their rights, but act under an error as to the mere legal effect of the instrument, that alone will not authorize a correction by a court of equity.</p> <p>A will cannot be corrected because the testator misapprehended its effect. Nor, as a general rule, is parol evidence admissible to supply omissions,, or to control or explain the intention, or vary the legal construction.</p> <p>A conveyance made subsequent to a devise of land, is not a revocation, or satisfaction, of a devise of other lands to the grantee. But if the conveyance be of a portion of the same land, that is a revocation pro tanto.</p>

Action to recover damages alledged by the plaintiff to have been sustained by him in consequence of the construction of a tunnel, by the defendants, through Atlantic-street, in the city of Brooklyn. The facts are stated in the opinion of the court.

This was an action brought against the defendant as survivor of William Bruce, upon a joint and several promissory note for $200, made by them on the 21st of January, 1837, payable to the plaintiff three months after date. On the trial the plaintiff proved the execution of the note, by the makers.

The judgment in that court was rendered in favor of the people for $1000 of debt, against Grildersleeve and Roberts, upon a recognizance executed by the defendants on the 4th of February, 1843, to the people in the sum of $1000, pending an indictment against Grildersleeve for forgery.

The complaint in this suit was filed by the wife to obtain a separation from her husband, on the ground of abandonment. It appeared that the defendant had separated from his wife, allowing her $1500 a year for her support. That after the separation, he had instituted proceedings in Pennsylvania to obtain a divorce from her, on the ground of adultery.

Guión sued The Allaire Works, in the superior court, on a note due November 1,1841, for $1000 ; upon another note due November 1, 1842, for $560; and on an account for work done for the defendants, amounting to $412,02, on the 1st of November, 1843. All these sums, except $400, were due to Guión for work done for the company. The $400 were lent to the company.

This case came up on a bill of exceptions to the decision of the circuit judge, the jury having found a verdict of $446,33 for the plaintiff. On the 16th of Dec. 1844, the plaintiff and defendant subscribed an agreement, whereby it was agreed that Main should deliver to King, on the 15th of January, 1845, and King should receive 100 barrels of fresh eggs, to be looked over and made good, at 9 eggs for one shilling.

The action was brought for malicious prosecution, in causing the plaintiff below, Lacour, to be arrested upon a warrant issued by Sylvanus Rapelje, a commissioner of the United States, under the act of congress passed March 3d, 1845, chap. 64, sec. 22, being the act regulating the post office, and securing from unlawful interference the safe delivery of letters by mail, to those to whom they are addressed.

<p>Motion to strike cause from the calendar. Brown sued Corn-stock in the marine court of the city of New-York, and obtained a judgment against him for $55,50 damages, and $7,18 costs, in December, 1846. The cause was removed to the superior court, by certiorari, and the judgment was reversed, and $64,16 costs were allowed to Comstock. Comstock, shortly afterwards, sued Brown, on that judgment, in the New-York common pleas, and recovered a judgment for $67,16 damages, and $24,71 costs. In August, 1847, Brown removed the cause from the superior court to this court, by writ of error. The cause was afterwards noticed for argument in this court. On the 15th of March, 1850, Brown and Comstock, without the intervention of Comstock’s attorney, made an arrangement of those suits, and Comstock executed and delivered to Brown satisfaction pieces of the judgments in the superior court and common pleas, and signed a consent in this cause, as follows:</p> <p>“ I hereby consent that the above cause be discontinued; I agreeing to pay the costs of the plaintiff in error. New-York, March 15, 1850. A. L. Comstock.”</p> <p>Pursuant to this consent, a rule was entered by Mr. Brown’s attorney, in May, 1850, discontinuing this suit, but no notice of it was served on Comstock’s attorney, until the 27th of September, 1850, after Comstock’s attorney had noticed the cause for argument at this term. But in the mean time, and in July, 1850, Comstock’s attorney received notice from his own client, that the settlement had been made; though it was not then mentioned that satisfaction pieces had been executed. The plaintiff in error moved to strike the cause off the calendar.</p>

In Equity. This was a re-hearing on the part of certain infant defendants, of a portion of a decree made at special term, hy Justice Edmonds. (See 7 Barb. 226, S. C.) L. Salles died in 1883, leaving a widow and two adult and four minor children, having made his will in July, 1831. He appointed seven persons to be executors of his will, and two of them to he the guardians of his minor children.

This was a writ of error on a judgment rendered by the Hew-York common pleas. The action below was brought by Allen & Poillon against Aguirre Wyckoff was a broker employed by the defendants to make the sale, but not by the plaintiffs to purchase. He called on the plaintiffs, and then the terms of sale were made between the parties directly; without his agency.

This was an appeal from an order made at a special term, discharging the defendant from arrest. The charge was that the defendant had fraudulently contracted the debt in question, in this, that he had falsely represented himself as a partner in the house of Churchill & Co. of Kalamazoo, Michigan.

In EauiTY. The bill in this cause was filed to obtain a specific performance of a contract for the sale and purchase of land lying in the town of Canton, county of St. Lawrence On the 17th day of January, 1887, the defendant and George Seaman entered into a contract, under seal, hy which the defendant agreed to convey by a warranty deed, lot No. 6, of a certain tract in Canton, on Seaman paying to him $497, as follows : $97 down, $100 by the first day of November, 1837, and…

This cause originated in a justice’s court. The complaint alledged that in the year 1847 the defendants commenced the construction of a, railroad from Oswego to Syracuse, intersecting the plaintiff’s premises in the town of Lysander; that the road was constructed and put in operation in the years 1847 and 1848, and being the owners and possessors of said road, the company were required by law to erect and maintain a suitable farm crossing, for the use of the plaintiff, which…

This was an appeal by the defendants, Peabody and Hoyt, from a judgment entered upon the report of a referee. The action was brought by Davis against the appellants and one John Haight, to recover the value of a yoke of oxen and a cow, the property of Davis. The property was sold by Hoyt, deputy sheriff, on an execution against Davis and one Bancroft, in favor of Haight, and was bid in by Peabody.

This was an action commenced before a justice of the peace of the county of Onondaga. The plaintiffs complained of the defendant for wrongfully taking and carrying away a quantity of hay from a stack on the premises of the plaintiff Stevens.

This cause, as it was presented when it first came before the court, is reported in 3 Barb. Sup. C. Rep. 556, with the judgment of the court thereon. That judgment having been reversed, and a new trial granted by the court of appeals, (see 2 Comst. 373,) a new trial was had at the Oswego circuit in February, 1850, before Gridley, justice. The facts appearing upon the second trial, will be found stated in the opinion of the court.

This was an action under the code of procedure, for the conversion of two canal boats; which the complaint alledged the defendant Cornelius Hegeman jun. wrongfully caused to he sold at auction, in July, 1849, and which the other defendant, A. Hegeman, bid off, at the sale.

This suit was brought against the defendant to recover for the alledged escape from the jail limits, of one Eli Hubbard, confined on an execution issued by a justice of the peace. Hubbard was committed on the 26th of August, 1847. On the 25th of September he made the affidavit required by the statute, (2 R. S. 252, § 152,) which was afterwards filed in the Greene county cleric’s office.

Scire facias to vacate a patent for land in the county of Montgomery, made to the ancestor of the defendant, prior to the revolution.

This action was brought to foreclose a mortgage, executed by the defendant, Reuben Van Allen, and wife, and Gilbert R. Van Allen, upon premises at Salisbury Mills. There were two water privileges on the premises, with dams; connected with the one of which was a paper mill and saw mill, and with the other a cotton factory. Powell, Ramsdell and Moore were the only defendants who appeared. They were made parties as judgment creditors of the mortgagors.

An order had been previously obtained against the defendant, late sheriff of Otsego county, to show cause at this term, why he should not execute a deed to the relator, of certain premises sold by him on the 15th February, 1849, upon an execution against William Aylesworth, and in favor of I. J. Aylesworth. Elijah Brown bid off the premises, at $200, and obtained the sheriff’s certificate. The twelve months elapsed without any redemption on the part of the judgment debtor.

This was an action of assumpsit, brought against the defendant, as the acceptor of a bill of exchange, drawn by one William G. Sandford. The cause was tried at the New-York circuit in October, 1847. The declaration contained the common money counts, to which was subjoined a copy of the bill of exchange upon which the action was brought. The plea was the general issue.

The declaration in the court below contained merely the common money counts. Plea non-assumpsit. A bill of particulars was served, which specified four items of cash lent and advanced by the plaintiff, to and for the defendant, and at his request, and interest on those sums. The only evidence offered, to show the loan, was the joint check of Thompson &f Carter upon the Chemical Bank, dated Aug. 7,1839, for $594,82.

This was an action of replevin, for detaining 21 cans of oil of peppermint, containing about 1300 lbs. received by the defendants from the firm of H. Gr. <fc L. B. Hotchkiss. On the trial the plaintiffs obtained a verdict for six cents damages and six cents costs ; and the cause came before this court on exceptions taken by the defendants, at the circuit.

<p>Error to the superior court of the city of New-York. Riley & Walker, of Milton, Florida, sent an order to the plaintiffs, who were merchants in the city of New-York, by mail, • for goods. The order did not direct any mode in which the goods were to be sent. The plaintiffs below commenced selecting the goods mentioned in the order, and having selected a part were proceeding to select the residue, about $250 or $300 worth. That part of the goods which had been selected, was packed, filling seven boxes and four bales. These seven boxes and four bales were sent by plaintiffs’ cartman on the 19th of September, to the brig Republic, lying at the dock in East river, and two receipts taken for them in the name of the plaintiffs below. No bill of lading had yet been taken or executed. No invoices had yet been sent to Riley & Walker. The original invoices remained in the plaintiffs’ hands, yet to be completed by adding the remainder of the goods. On the same day, 19th of September, the defendant Jones, sheriff, by virtue of an attachment sued out by the defendant Palmer, took these goods from on board the ship, at Palmer’s direction. On the 20th, the next day, in the morning, the said receipts were presented, and a bill of lading demanded in the name of the shipper, which was refused.</p> <p>The plaintiffs below in this suit replevied the goods. On the trial of the replevin suit, in the superior court, it was proved to be the custom in New-York for the shipper of goods to take, as the loads were delivered to the ship; receipts in his own name, and upon surrendering these receipts to have made out, and to take, a bill of lading, making the goods deliverable to the holder of the receipts, or to whomsoever the holder of the receipt might direct. The judge charged the jury that Riley &. Walker, against whom the attachment issued, did not, by any sufficient delivery, or otherwise, acquire any such a right to, or interest in the goods attached, as to subject the same, as respected the plaintiffs, to attachment as against the plaintiffs, by creditors of said Riley & Walker, for any debt or demand against them, and that the defendant, Palmer, was not enabled or authorized to proceed against the same by attachment, and the sheriff acquired no right or title thereby as against the plaintiffs, Bradner & Co. The jury found a verdict for the plaintiff's for six cents damages and six cents costs, and assessed the value of the goods at $2,072,19. And the defendants brought a writ of error.</p>

<p>Error to the Hew-York common pleas. The declaration contained the common money counts. Plea, the general issue. On the trial it was proved that early in 1844, Chouteau, one of the defendants, came to the counting room of the plaintiffs in Baltimore, and inquired for indigo. The plaintiff Elder took him into a Mr. Wirgman’s store, in the same building, to look at some, and Elder and Chouteau returned together, bringing a sample with them. Chouteau said he did not believe it a pure article, but made an offer for it, which offer was communicated by the plaintiffs to the owner, who accepted it, and the indigo was sold to Chouteau, who bought it on his own judgment; the plaintiffs telling him that if he bought it, he must buy it on his own judgment, as they tvere merely agents. The plaintiffs claimed that they acted as brokers for the owner of the indigo, who was the vendor in the sale. The indigo was delivered by the plaintiffs on board a vessel bound for Ilcw-Orleans, by direction of the plaintiffs. The sale was at ninety cents per pound, on a credit of six months. It was proved that the plaintiffs were brokers and commission merchants, and that the usual commissions are one per cent, paid half by the seller and half by the purchaser. That by the custom of the trade in Baltimore, brokers get a commission of one per cent for shipping, when they do so on orders, and that the usual commission is one per cent, paid by the purchaser. One Gay purchased two other ceroons, (there being four ‘in all,) in compány with the defendant Chouteau; was employed by Chouteau & Valle as their agent, in completing the purchase from the plaintiffs, and in regard to the delivery. Gay was a witness, and testified that the name of the owner of the indigo was not communicated. Tie proved the delivery of the two ceroons bought by the defiendan ts totkerm Wirgman testified that the four ceroons were in his possessiotíf belonged to Oha’s J. Tully, of Philadelphia,; that he was present when Tully, the plaintiff Elder, the defendant Chouteau, and Gay,j the purchaser of the other two ceroons of indigo, were together1 examining and in treaty about the indigo in Wirgman’sVst<^<^ That offers were made and rejected. That the parties len^and went into the plaintiff’s counting room, in the same building, fro which Tully returned with money in his hands, declaring that he was paid for the indigo by the plaintiffs, and ordered Wirgman to deliver it to the plaintiffs, which Wirgman did. In addition to this, the testimony of Gay and Maguire showed that the defendants purchased from the plaintiffs, and ordered the plaintiffs to ship it, which the plaintiffs did; and that it was delivered to the defendants—all being part of the res gestee. The defendants did not pretend that they ever paid any one for the indigo. The death of Tully was also proved. And it appeared that White & Elder rendered the invoice in their own names. The plaintiffs introduced a letter from the defendants to the plaintiffs, which, it was claimed, showed that the whole transaction was with the plaintiffs, and that the defendants did not even know the owner’s name. The court nonsuited the plaintiffs, on the ground that, in order to maintain the action, they must show that they had either paid for the indigo, or acted del credere ; and that they had shown neither: and the writ of error was brought to reverse the judgment of nonsuit.</p>

<p>Error to the superior court of the city of Hew-York. The facts appear in the opinion of the court.</p>

<p>An account of sales made by commission merchants in New-York for persons in Buffalo, sent to the latter, and remaining with them for two months without objection, is prima facie a stated account, acquiesced in by the parties receiving it. And this, although such account began with a.cash balance as due to the merchants in New-York, on an account previously rendered,</p>

Brouwer was president, and Cotheal a stockholder, in the East River Mutual Insurance Company. An election of directors was to be held on the 11th of May, 1846. On the 29th of April Cotheal applied at the office to see the books containing the transfers of stock and the names of stockholders. They were shown to him, and he commenced copying, when Brouwer closed the books, saying that Cotheal had no right to see any but his own name.

• Error to the superior court of the city of New-York. The action was brought to recover the value of lumber furnished by the plaintiff for the building of the Bowery Theatre in the city of New-York, of which the defendant was the proprietor.

In Equity. This was an application by the plaintiffs for an injunction perpetually enjoining the corporation of New-York from granting any lease or leases of the Fulton, South and Hamilton Avenue ferries, between the cities of New-York and Brooklyn, or either of them, to the defendants Pierrepont and Le Boy, or to any other person or persons ; and that restraining Pierrepont and Le Boy from accepting any such lease; and for a temporary injunction pendente lite.

The complaint in this cause alledged that on the 1st of January, 1845, William Rose, the father of the defendants, made and delivered to the plaintiff a promissory note for §71,72, payable on demand, with interest; which note was still due and unpaid. That Rose died intestate, in November, 1847, leaving no personal property, and no real estate except his interest in two tracts of land described in the complaint.

This was an action of ejectment for two parcels of land situated in St. George’s Manor, in the county of Suffolk. On the trial the plaintiffs recovered a verdict, and the defendants, upon a case, moved for a new trial. The facts sufficiently appear in the opinion of the court.

This was an appeal from an order made af a special term, vacating and setting aside an order of revival against the personal representative of a deceased defendant, (Duncan McEwing,) and all subsequent proceedings, for irregularity.

This was an action brought to recover of the defendant certain installments on his stock subscription to the Northern Railroad Company. The pleadings were drawn under the code of 1848, and the action was commenced in November of that year.

This was an action upon a policy of insurance against loss or damage by fire. On the trial, before Justice Willard at the St. Lawrence circuit, in August, 1849, the plaintiffs were nonsuited ; and from the judgment entered at the circuit they appealed. The facts, and the legal questions arising thereon, are stated in the opinion of the court.

This action was commenced before a justice in St. Lawrence county, in May, 1849, and was tried on tbe 28tb of that month. The plaintiff complained against the defendants for the taking and converting one grain cradle and scythe, about the 11th of May, 1849, at Stockholm, St. Lawrence county, the property of the plaintiff, to his damage ten dollars. The defendants severed in their pleading.

This was an appeal, brought by the defendant John L. Armstrong, from a judgment entered against him in the St. Lawrence county court, in February, 1850, in favor of the plaintiff John McDonald, affirming the judgment of Horace Fenton, esquire, a justice of the peace of said county, rendered in June, 1849, in favor of the plaintiff. The material facts in the case appear in the opinion of the court.

This was an appeal from an order made by Mr. Jnstiee Willard at the St. Lawrence special term in August, 1849, granting a new trial in this cause to the defendant Chittenden, on the ground of newly discovered evidence and surprise, with costs to abide the event. (Reported in 4 Howard’s Pract. Rep. 265.) The facts of the case appear in the opinion of the court.

<p>This was an appeal from a decree of the surrogate of the county of Dutchess, pronounced on the 11th day of March, 1850, by which the appellants, executors of Rebecca Thompson, deceased, were ordered and directed to pay to the Baptist Education Society of the state of New-York, the respondents, the sum of $1234, being the amount of a certain instrument in writing, under the hand and seal of the said Rebecca Thompson, dated the 19th day of April, 1843, payable to the trustees of the Baptist Education Society of the state of New-York, to endow a scholarship. From this decree the executors appealed. The facts of the case are sufficiently stated in the opinion of the court.</p>

This was an appeal by Fay and Wilson to the general term of the court, from a judgment entered upon the direction of a single judge, upon a verdict rendered for the defendant.

This was an appeal to the general term of the court, by the plaintiff Joel Davis, from a judgment entered on the 29th day of May, 1850, in favor of the defendant, Isaac IT. Townsend, on a verdict rendered at the circuit.

This was an appeal from the Chenango county court. The action was commenced in a justice’s court, by summons issued against all three of the defendants, and personally served on the defendant Mervin Calkins, and by copy upon the defendants Mortimer Calkins and William Sprague. Mervin Galkins appeared at the joining of issue; the other defendants did not appear.

This was an appeal to the general term of the court, hy the plaintiff, John Irvine Troup, from a judgment entered on a verdict rendered for the defendant, John Hurlbut. The action Was brought to restrain the defendant from flowing, hy means of his mill-dam, the lands of the plaintiff; and to recover da»» ages for the injury which the plaintiff had thereby already sustained.

<p>This was an action on the case to recover damages for injuries sustained by the plaintiff, in consequence of the construction of the defendants’ railroad across Broadway, in the city of Albany, near the plaintiff’s premises. The action was tried at the Albany circuit in July, 1848, before Mr. Justice Hand. It appeared upon the trial, that in 1844 the defendants, in pursuance of authority granted by the legislature, and with the consent of the common council of Albany, constructed their railroad across Broadway, entering that street upon the easterly side, at a point nearly opposite to the premises of the plaintiff, situate on the westerly side, and crossing the street diagonally to a point north of the plaintiff’s premises. The grade of the railroad where it crosses Broadway, is two feet above the former grade of the street. On the 7th of October, 1844, the common council of Albany passed an ordinance, directing that the grade of Broadway, at its intersection with the railroad, be altered, so as to form on the north side of the railroad, a plane from the level of said railroad, regularly descending to Dewitt-street, and on the south side of said road, a plane, descending in like manner, to or near a point in Broadway opposite to premises of S. P. Jermain. _ Under this ordinance, the grade of the street was raised two feet opposite the plaintiff’s north line, and one foot nine inches opposite his south line. On.the 25th of November, 1844, the common council passed a law to apportion the damages caused by the alteration of the level of Broadway, and on the 25th of August, 1845, the apportionment so made was confirmed. The plaintiff gave some evidence tending to show that his property had been somewhat injured by the change in the grade.</p> <p>The judge charged the jury, that the defendants were authorized by the acts of the legislature and the corporation of Albany, to construct their road upon the route adopted by them ; that the plaintiff, prima fade, was to be deemed to be the owner to the center of the street opposite his land, and, as such, could, in a proper action, sue any one for disturbing the soil of the street, except for the purposes of a street or highway; that the defendants could not convert the soil of that part of tifie street belonging to the plaintiff to then- own use, without compensation to him. But whether the soil of the. street belonged to the plaintiff or not, he could recover for any particular damage sustained by him, in consequence of the defendants raising the street or the sidewalks opposite his premises, if that damage was special and peculiar to himself; that the defendants were liable in that case, if they raised the street, &c. themselves, or by their acts had rendered these alterations absolutely necessary, and the alterations were from necessity the direct consequence of the acts of the defendants ; that if the city corporation had been compelled to make the alterations in consequence of the defendants building their road across the street, and the plaintiff had sustained special injury thereby, he could recover of the defendants therefor ; that the city corporation had no right, without compensation, to injure the property of the plaintiff, to benefit the defendants. But if the injury sustained by the plaintiff was occasioned by the act of the city corporation, independently of the defendants, and by acts not attributable to a necessity occasioned -by the acts of the defendants, for that the defendants were not liable. That the defendants had the right, by their charter, to use engines and cars upon their road, and, consequently, running them in a proper manner was not a nuisance, and the plaintiff could not recover for any injury sustained in Consequence of the noise, &c. made by the defendants in the use of their road, unless damages had accrued to the plaintiff by some improper management thereof by the defendants. The jury found a verdict of $700 for the plaintiff.</p>

This was an action brought to recover on a promissory note of which the following is a copy: “ $1600. Held: executed at the same time with the bond and mortgage, was then given up, and the note made and delivered, and the balance, $300, soon after paid in money. No demand was made, of payment, at the house o.f John Dedrick, till after the note was transferred to the plaintiff.

<p>This was an appeal by the defendants from a judgment of the Albany mayor’s court. The suit was commenced in September, 1847, upon a book account. The declaration was in the usual form upon the common counts, and the plea the general issue, with notice of set-off. The cause was referred to D. Wright, Esq. as sole referee. It was admitted, on the hearing before the referee, that on the 17th • day of May, 1840, there was due from the defendant to the plaintiffs the sum of $371,37, on account. The following facts were found hy the referee to have been proved, viz.: that on the said 17th of May, 1840, an agreement was made between the parties, by which the defendant agreed to pay the plaintiffs, and the plaintiffs agreed to accept, the sum of $85,69 in money, and a satisfactory note, payable on the 17th day of November, 1845, for $100, with interest, in full satisfaction and discharge of said indebtedness of $371,37, provided the said note was paid at maturity, and not otherwise. That pursuant to this agreement the defendant paid the plaintiffs the $85,69 in money, and procured and delivered to the plaintiffs the promissory note of F. Holden for the sum of $100, payable to the plaintiffs’ order, on the 17th day of November then next, with interest from the 17th day of May then last past. Said $85,69 in money, and the note against Holden, were received and accepted by the plaintiffs, of the defendant, on said agreement of compromise, and were to be in full satisfaction and discharge of said indebtedness of $371,37, provided said note was paid at maturity, and not otherwise. Holden paid the plaintiffs $63 on said note in February, 1846, and he paid the remainder thereof in full to the plaintiffs, and took up said note in May, 1846. The plaintiffs received payment of said note in full, in the manner and at the times above stated. The consideration of the note given by Holden to the plaintiffs was for leather sold by the defendant to Holden, for the purpose of procuring said note to deliver to the plaintiffs.</p> <p>The following letters from the plaintiffs to the defendant were given in evidence:</p> <p>“Albany, July 8th, 1845.</p> <p>Mr. George B. King:</p> <p>Dr. Sir.—Yours of June 25th was reed., with note for one hundred dollars and interest from the 17th of May last, due the 17th of Nov. next, dated June 13th, 1845, given by F. Holden. In case the said above mentioned note is paid at maturity, it shall be in full of all demands we have against you, and not otherwise. Yours respectfully,</p> <p>D. Conkling & Co.”</p> <p>“Albany, April 8th, 1846.</p> <p>Mr. Ci. B. King:</p> <p>Dear Sir.—-When you sent me the note for my demand against you, I sent you my receipt for the same, which was to be in full of my demand, providing the note was paid at maturity, and not otherwise. The note has not been paid, and I want to call your attention to it.</p> <p>I want you to send me the money for the note without delay.</p> <p>Yours respectfully,</p> <p>Gordon Conkling,</p> <p>Per D. Conkling & Co.”</p> <p>The present action was brought to recover of the defendant the balance of the original indebtedness, over and above the Holden note and the §85,69 paid by the defendant to the plaintiffs, at the time of making the compromise. The -referee reported that there was due to the plaintiffs, from the defendant, the sum of §232,40, being the amount claimed, with interest. And judgment was entered in the mayor’s court, for that sum, with costs.</p>

On the 29th of May, 1848, the plaintiff recovered a judgment in the Albany justices’ court, against J. & J. R. Radway, for $102,91. On the 3d of June, 1848, the defendants appealed, by delivering the requisite bond &>c. to the justice. The bond was executed by the Radways and also by the defendant in this suit, ' as their surety.

Demurrer to declaration, in an action of covenant. The declaration set forth the execution of a lease between the plaintiff and one Martin M. Garner, on the 24th of March, 1845, of a tavern stand and premises in the' town of Canaan, in the county of Columbia, for the term of one year, at a rent of $250, to be paid by Garner quarterly.

In Equity. John D. Dickinson died at the city of Troy on the 28th January, 1841, leaving a large real and personal estate, and leaving a last will and testament which he had duly executed on the 2d of October, 1838. By the first clause of his will the testator directed all his debts to be paid out of his personal estate and the rents and income of his real estate.

This was an action against the defendant as indorser of a promissory note, in these words : “ $350. Three months from date, we promise to pay Robinson, Griswold Schaghticoke, August 16,1848.

This was an action of assumpsit, to recover damages for the non-fulfillment of a contract made between the parties, by which the plaintiffs purchased from the defendant and the defendant agreed to deliver to the plaintiffs, at Troy or Albany, as they might direct, at $4,94 per barrel, two thousand barrels of flour. The cause was tried at the Oswego circuit, in February, 1850.

This was an appeal from a decree of the surrogate of Oneida county, upon the final accounting of administrators. On the 14th of July, 1849, Matthew Beecher, a creditor of the decedent, applied to the surrogate for a citation, calling the administrators to an account.

This was an appeal by the defendants from a judgment of the county court of Lewis county, affirming the judgment of a justice of the peace. The action was brought-by the plaintiff, after attaining full age, to avoid an agreement made during infancy for the compromise of a suit with which he was threatened, and to recover back money paid in pursuance of such agreement. The justice rendered a judgment in favor of the plaintiff for $10 and costs.

<p>This was an action upon a policy of insurance against loss or damage by fire. The defendants, by policy Ho. 19,259, dated September 19, 1838, insured Stryker & Foster “ $800 on their interest (J) in a three story frame grist-milland “ $800 on their interest as aforesaid, on the machinery contained therein.” By the conditions annexed to the policy, “ insurances once made may he continued on payment of the premiums, and a receipt given for the same.” By subsequent change in the ownership, and renewal receipts of policy, the insurance under the same policy became for $2500, viz. $1800 on mill and $700 on machinery, for which amount said “ Policy No. 19,259 was continued in force.” In 1847, the agent was changed, and by the renewal receipts from that time, “ Policy No. 19,259 was continued in force” from year to year, but without repeating the memorandum as to the division of the risk between mill and machinery. In February, 1849, the mill and machinery were burned, and the plaintiff made his proof of loss, in which he valued, and claimed for, the frame of the grist-mill and the foundation, $1200. The complaint alledged a loss of $3800 of insured property. The answer denied such loss, and averred that the insurance, at the time of the loss, was a divided risk of $1800 on the frame gristmill, and $700 on the machinery, and further averred that the value of the frame grist-mill at the time of the loss did not exceed $1200. And the defendants denied that the plaintiff had sustained loss and damage of property insured by the policy, to the amount claimed in the complaint; and that under the insurance upon the mill the plaintiff could not recover any more than $1200.</p> <p>The judge decided that the insurance, at the time of the fire, 'was a general insurance, without division of risk; and that this entitled the plaintiff, at all events, to the full amount of the insurance, and rendered the question of the value of the mill immaterial.</p> <p>The plaintiffs then proved a loss upon the mill buildings and machinery, amounting together to over $3000; about $1950 of which was upon the frame building of the grist-mill, and the foundation thereof.</p> <p>The judge directed and charged the jury, that the plaintiff was entitled to, and directed them to find, a verdict for the plaintiff, for $2500, and the interest, as proved. To which charge and direction the defendants’ counsel excepted, and requested the judge to charge that the plaintiff" was not entitled to recover any more than the amount of the $700 insured on the machinery, and the $1200 the value of the mill building, with the proper interest. The judge refused so to charge, and the defendants’ counsel excepted.</p> <p>The jury found a verdict for the plaintiff for $2703,69 ; and from the judgment entered thereon the defendants appealed.</p>

This was an appeal by the plaintiff from a judgment rendered by the county court of Herkimer county, affirming the judgment of a justice of the peace, in favor of the defendant.

This was an appeal by the defendant from a judgment entered upon the report of a referee.

This was an action to recover the possession of the survey fifty acres in the northeast corner of lot So. 5 in the old township of Lysander, Oswego county.

<p>This was an appeal from the judgment of the St. Lawrence county court, affirming the judgment of a justice, in favor of the plaintiff. The suit was to recover an account for what were claimed to be necessaries furnished to Andrew Loyl, a son of the defendant, sixteen years of age, consisting of about §14 for clothing, §12 for board two months, books and candles while going to school, three shillings for cash, and a knife. The defendant denied the complaint, and added that her son had worked for the plaintiff, for which she claimed judgment. Witnesses testified that in September the son of the defendant went to live with the plaintiff, where he remained until March ; that- he was very destitute of clothing when he went there, and the plaintiff furnished him with clothing to about the amount charged in the declaration, and that he went to school part of the time. There was contradictory testimony as to the value of his labor. One witness testified that the defendant said, in a conversation with him, that “ Andrew was her boy, his father was dead ; she had no one to see to him but herself.” She said he had been to work for the plaintiff about 7 months, and that she had been to see the plaintiff and get her pay for the boy’s work, and she wanted her pay, but the plaintiff refused to pay her; demanded of her $5, and sued her. The defendant moved for a nonsuit, on the ground that the plaintiff was not entitled to recover without proving a request to furnish the articles, or that the defendant had refused or neglected to furnish necessary articles for her minor son. The motion for a nonsuit was denied. One witness for the defendant testified, that Andrew worked for him two years before ; and another, that he worked for him before he went to the plaintiff, and was then at work for him. The son was also sworn for the defendant, and testified respecting his labor, and schooling, &c: He further testified, “ my mother was living in Canada at the time I was with the plaintiff.” Cross-examined. “ Did you go and tell your mother before you went to live with the plaintiff, you had agreed to live with the plaintiff until you was 21? Answer. I did. What did she say ? Answer. She said I should not go to live with the plaintiff But I told her I would. Then she said, if you and Mr. Raymond do not agree, you must have wages.. Did you tell the'plaintiff what your mother said? Answer. No, I told him she did not say much of any thing.” He further testified to the articles being had by him. The justice gave judgment for the plaintiff for a small amount, which the county court affirmed.</p>

Motion by the defendants to set aside the report of a referee. It appeared that the referee allowed the claims of the plaintiff, to the amount of $771,85, and a set-off of $183. Four items allowed were as follows : “ 1845.' Harris’ services at Albany, . . . $200 00 Expenses and fare six times, $4,00, not included in the $200,...... 24 00 1846.

This was an action on the case, tried at the Ulster circuit, in April, 1849, before Mr. Justice Harris.

This was an action of assumpsit, tried at the Columbia circuit, January, 1850, before Mr. Justice Watson. Upon the trial, the plaintiff-gave in evidence a note, of which the following is a copy: “ $600. On demand, for value received, we or either of us, promise to pay John W. Waldorf, or bearer, six hundred dollars with interest from date. January 6, 1845. Peter Robison. Charles Robison. Jacob I. Stall. Zachariah D. Feller.

Motion to set aside report of referee. The plaintiff was the owner of a woolen factory, upon the Kinderhook creek, in the town of Stuyvesant. The defendants were owners of mills upon the same stream, above the plaintiff’s factory. There was an island in the creek opposite the premises of both parties. The defendants’ mills were near the upper end of the island, and the plaintiff’s factory was near the lower end. Both were on the easterly, •branch of the creek.

This cause came on for argument on demurrer to the answer of the defendants to the complaint of the plaintiff. The complaint stated that on and before the 26th of June, 1848, the plaintiff with his wife and children, resided in the city of New-York, and carried on business there, by means whereof he maintained himself and his family who were dependent upon him for support.

<p>[The common law of England, on the subject of light and air, as an easement or incident to real estate, is not the law of this country. It was inapplicable to the condition of this country when this state was settled by the colonists; it was not brought hither by them, and formed no part of the law of the colony on the 19th of April, 1775. Where, therefore, an owner of two adjoining lots in the city of New-York, upon one of which was a building deriving its light and air over and through an open space in the rear of the other lot, into which the windows of the building opened and looked, leased the building and lot upon which it was erected for> a term, of years, with its appurtenances, without reserving to himself a right to build on such other lot, or stop, or darken the windows of the building leased, and afterwards built a house, covering the whole open space of the other lot, darkening the windows, and excluding the light and air from the building occupied by his tenants: Held, that the landlord might lawfully darken or stop the windows by any erection on the other lot, and that such an act was not in derogation of his own grant, and he could not be restrained by injunction from so doing.</p>

This was a motion by Stone, the defendant in error, to set aside an execution against him, issued on a judgment docketed in October, 1850; or for a perpetual stay thereon.

This was a petition for an order 'to sell real estate, held in trust; and partly, for the benefit of infants. The petition ■showed that Duncan Turner retired from mercantile business in 1830, and took possession of a farm in the county of St. Lawrence, which the petitioners desired to sell, and that could be sold for $6000. In 1836 he established his sons, Peter C. Turner and another in mercantile business in Ogdensburgh, with a capital of $10,000.

This was an action of trespass quare clausum fregit, tried before Pratt, justice, at the Oneida circuit. The .defendant, Loomis interposed a plea of title to the locus in quo, and on the trial, the plaintiff proved possession of the premises in himself for a number of years, and the entry by the defendant, Loomis, and the commission by him of the trespasses complained of. The defendant then gave in evidence. 1.

Action upon a joint and several promissory note, against the makers. The defense was the statute of limitations. The plaintiff, to take the case out of the statute, proved partial payments made within six years, by one of the makers. The judge before whom the cause was tried, held that such payments did not revive the debt against the other parties to the note, and the plaintiff excepted to such decision. Judgment was entered for the defendants, and the plaintiff appealed.

This action was commenced in a justice’s court upon a note for $20, payable in oats, to George Ehle or bearer, and transferred to the plaintiffs after due; the payee (Ehle) agreeing to put the note in judgment, or in default thereof to pay the plaintiffs $15. The defendant insisted that the suit should have been brought in the name of Ehle as the party in interest.

This action was brought to recover the excess of money alledged to have been received by the defendant beyond the principal and legal interest upon a loan claimed to have been made to the plaintiff Schroeppel. Soule was united as a party plaintiff as the general assignee of Schroeppel for the benefit of creditors.

This case came before the court on a motion to confirm the report of the referee and for an order to distribute the surplus moneys arising upon the sale of the Empire House and premises in the city of Syracuse, upon the foreclosure of a mortgage, and upon exceptions to that report by Harvey Baldwin and the widow and heirs at law of J. H. Tomlinson.

This was an appeal from a decree made by the surrogate of the county of Monroe, against the validity of the will of Elizabeth B. Wadhams, late of Parma, deceased, who died about the 29th of August, 1848. On the 28th day of August, 1848, she made a last will and testament in due form, devising her estate to various persons, corporations, and voluntary associations. At that time the deceased was the wife of the defendant, Jonathan Wadhams, and living with him at Parma.

This was an -appeal from a decree of the surrogate of the county of Monroe, adjudging null and void, as not executed and attested in the manner prescribed by law, an instrument in writing, offered for probate and record, as the last will and testament of William Patterson, deceased. All the material facts are sufficiently stated in the opinion of the court.

This was an appeal from a judgment entered in favor of the plaintiffs, on the report of a referee. The defendants were engaged as common carriers in transporting goods from New-York to Albany. They were the proprietors of the “ Hudson River Line” of towboats, and goods of the plaintiffs were put on board one of their barges, in the city of New-York, to be transported to Albany, and thence on a line of canal boats called the “ Atlantic Line” to Brockport, Monroe county.

This was an action on the case for negligence, tried at the Cayuga circuit in February, 1850, before Welles, justice. The plaintiff was a passenger on the defendants’ cars, going from Syracuse westward, on the 19th of September, 1848. Shortly after the passenger train left Syracuse on that day, an agent of the Michigan Central Railroad Company started two locomotive engines, to run over the road behind the passenger train, on their way west to Michigan.

This was an appeal by the defendants Oadwell and Baldwin, /rom a decision made by a justice of this court, at special term, respecting the distribution of surplus moneys arising from the sale of mortgaged premises. The case at special term is reported ante, p. 582, where the facts will be found stated.

Demurrer to complaint. On the 13th April, 1836, the defendant, John 0. Schemerhorn, received from Mariah De Bidder $ 100, which he promised to pay out in the purchase of land in Michigan or Illinois, and procure deeds therefor in the name of the said Mariah and John, and to pay 3 J per cent interest, and to act for the mutual interest of both parties. A receipt expressing this contract was given by Schermerhorn, under his hand and seal.

This case became before the court upon a demurrer to the complaint. The action was instituted in June, 1850.

Demurrer to complaint. The complaint alledged that the plaintiff was driving a horse, harnessed into the shafts of a one-horse wagon, along a public highway; that the defendant was a short distance behind the plaintiff, driving two horses hitched to a sled, and traveling in the same direction.

This was an appeal, by Dennis McMahon, jun. and wife, from an order or decree of the surrogate of the county of Hew-York, granting letters of administration cum testamento annexo upon the estate of Ruth S. Rathbone, to the respondent Harrison.

The defendant in error sued the plaintiff in error for services rendered as a broker in negotiating the sale of four houses and lots. A motion made by the defendant for a nonsuit was denied by the judge at the trial, and the cause being submitted to the jury they found a verdict for the plaintiff for $175. The facts occurring on the trial appear in the opinion of the court.