Volume 10 — New York Reports

The petition, upon which the proceedings were based, is as follows: “ To the County Judge of the County of Steuben: “ The petition of the undersigned respectfully states, that your petitioners are a majority of the tax-payers of the municipal corporation known as the town of Greenwood, in the county of Steuben and State of Hew York, who are taxed or assessed for property, not including those taxed for dogs or highway tax only, upon the last preceding assessment roll or tax…

Tuttle, a purchaser at a foreclosure sale to complete his purchase. This action was to foreclose a mortgage executed by the defendant, William P. Thomson, to Guevera M. Waite, conditioned for the payment of $1,070,' in one year from date, Helen A. Thomson, the wife of the mortgagor, was made a nominal party defendant! There were, however, no averments in the complaint relating to her.

, 651.) This action was brought by defendant, as receiver of theColumbian Insurance Company, to recover an assessment upon a premium note given by defendant to said company, said assessment being to the entire amount of the note. The following is a copy of the note: “ $400.

This action was against defendant, as indorser of a promissory note for $2,500, dated March 25, 1871, made by the firm of Jay cox & Green. The facts, as found by the referee, are substantially as follows: The promissory note set forth in question was made by the firm of Jay cox & Green, and indorsed by the defendant for their accommodation, for the purpose of taking up a prior note indorsed by him.

The relator was brought before a brigade court-martial, held in Schenectady, on the 10th of February, 1870, and tried upon charges and specifications. He appeared with counsel, and, both before and after pleading to the charge, he demanded that he be permitted to defend with counsel. The court ruled that the counsel could only be permitted to act in the capacity authorized by section 189 of the General Regulations.

This action was brought to restrain defendants from disposing of and to recover possession of a certificate of indebtedness of the State of New York for $10,000, issued by the new capítol commissioners under chapter 830 of the Laws of 1868. Issues were settled and directed to be tried by a jury.

Albertson, comptroller of the city of Troy, to countersign, and the chamberlain of said city to pay, a draft upon said chamberlain, drawn in favor of the relators by the board of commissioners of the Troy city police. Under and by virtue of chapter 521 of the Laws of 1870, entitled “ An act to establish and maintain a police force in the city of Troy,” a board of police commissioners was elected.

This action was brought to recover the balance of an account alleged to be due from defendant to plaintiff. The facts are sufficiently stated in the opinion. The transaction between the parties amounted to an accord and satisfaction. (4 Seld., 405.) An account upon a merchant’s books may be the subject of a gift. (33 N. Y., 581; 36 id., 346.) The delivery of the receipt to defendant was sufficient to consummate the gift and make it valid.

(Reported below, 1 H. Y. S. R. [T. & 0.], 195.) The relator claimed that he was entitled to the salary allowed by law to the superintendent of the insurance department of the State of Hew York, from the 13th day of May, 1872, to the 29th day of November, 1872; and that he was entitled to the warrant of defendant, as comptroller of the State of New York, upon the treasurer of said State, for the amount of such salary unpaid.

Plaintiff in error was indicted for receiving twenty-two bars of pig-iron, the property of Patrick Burke and others, knowing the same to have been stolen. Upon the trial, one Martin Briggs was called as a witness for the prosecution.

This action was brought to recover the purchase-price of a quantity of malt alleged to have been sold by plaintiff’s firm to defendant. An order of arrest was granted upon an affidavit stating that the sale of the malt was induced by fraudulent representations on the part of defendant.

(Reported below, 6 Bans., 176.) This was an action of trespass upon lands.

This was an action for the alleged conversion of certain personal property. Plaintiff claimed to have purchased the property in good faith, and for a valuable consideration, of one Horatio Nichols. The property was left after the sale in the Vendor’s possession, and was levied upon by virtue of an execution against Nichols, in favor of defendant.

This action is brought to recover damages for the death of Avery D. Putnam, plaintiff’s intestate, who was killed by William Foster, the complaint alleging that defendant’s negligence caused such death. On the 26th April, 1871, Putnam took passage on one of defendant’s cars, at Eighth street, in the city of ISTew York, in company with two ladies, Mrs. Duval and her daughter. They seated themselves at the front end of the car, on its westerly side.

This action was brought to compel the set-off of a judgment recovered in June, 1870, for $482.79, in favor of the plaintiff in this suit and one Rufus Fairchild against defendant John R. Blodgett, of which judgment plaintiff is the owner, against and, upon a judgment recovered in November, 1871, in favor of said Blodgett against plaintiff for $527.17.

This action was brought against defendant as executrix, etc., of Lewis K. Cole, to recover an indebtedness of the firm of Draper & Cole, of which firm defendant’s testator was, at the time of his death, a partner. Plaintiffs had recovered a judgment therefor against Draper, the surviving partner, upon which execution was issued and returned unsatisfied.

This action was brought to compel defendant to issue its policy to plaintiffs for $3,688.72 gold, and to recover that amount on the cargo of the ship Flora McDonald. On the 5th. of March, 1867, the said ship was lying at the port of Valparaiso, South America, taking in a cargo for plaintiffs. Mot knowing the value of the cargo, but estimating it at between $150,000 and $160,000, plaintiffs’ agents were directed to effect insurance there.

Smith, county judge of Ontario county, denying the petition of certain tax-payers of the town of Gorham, in said county, to bond said town for the benefit of the Geneva and South-western Railway Company. The petition was filed October 28th, 1871.

notice of lis pendens filed in this action. This action was brought to enforce an alleged equitable lien for unpaid purchase-money upon lands sold by plaintiff to defendant.

The Rensselaer and Saratoga Railroad Company made an application by petition, under the general railroad laws, to take respondents’ lands for the purpose of its incorporation. An order was granted at Special Term against respondents’ opposition, appointing commissioners to appraise the value of the lands so to be taken.

This was an action brought by plaintiff as the assignee of William Cressy, a bankrupt, among other things, to recover certain sums of money alleged to be in the hands of defendants and received from the bankrupt, or derived from his property, and to which plaintiff, as such assignee, had become entitled; to recover the value of a large amount of lumber, logs, merchandise and other personal property which formerly belonged to the bankrupt, and which, as alleged, defendants…

This action was brought upon a policy of insurance upon the life of John J. Van Zandt, plaintiff’s testator, for $4,000. The policy contained this condition, “ in case he (the assured) should die by his own hands the policy should be void, null and of no effect.” The assured committed suicide. Plaintiff claimed and gave proof tending to show that he was insane at the time.

98, moneys collected hy him to pay upon bonds of said town, issued to aid in the construction of the Hew York and Oswego Midland Bailroad. The facts are sufficiently stated in the opinion. The -bonds are void because a majority of the tax-payers of the town, representing a majority of the taxable property therein, did not sign the consent for bonding the town.

<p>Appeal from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of defendant, entered upon the report of a referee.</p> <p>This action was brought against defendant, as president of the Adams Express Company, to recover for an alleged breach of a contract for the transportation of certain goods delivered to and received by said company.</p> <p>On the 25th day of November, 1861, plaintiff’s firm delivered to said express company, at New York, several packages of goods of the value of $375, receiving a receipt therefor, the material portions of which are as follows:</p> <p>“ Eeceived of Phelan & Collender, two boxes merchandise and two cases slate, comprising one billiard table, marked:</p> <p> </p> <p>and is part of the consideration of this contract, that the Adams Express Company are not to be responsible, except as forwarders, for any loss or damage arising from the dangers of railroad, steam, or river navigation, leakage, fire, or from any cause whatever, unless the same be proved to have occurred from the fraud or gross negligence of ourselves, our “ To be forwarded to only. It is further agreed, agents or servants; and we in no event to be liable beyond our route as herein receipted.”</p> <p>The consignors knew of the existence of Turner’s Express Company, and that the defendant’s line terminated at Boston. With the goods a bill therefor against the consignee, amounting to $375, was delivered to the company.</p> <p>Upon the trial defendant called several witnesses and asked them what the words “ A. King, Clifton House, Windsor, U. S., C. O. D. $375, from Turner’s Express, Boston, Mass.,” meant. This was objected to by plaintiff’s counsel, and objection overruled.</p> <p>The witnesses answered, in substance, that it meant that the $375 was to be collected of A. King, by Turner’s Express.</p> <p>The same witnesses were also asked, and allowed to testify under objection, as to the custom and usage existing among express companies when they received packages with a C. O. D. from a connecting express company, destined to a place beyond the terminus of their line. The answer was, in substance, that it was to transfer the goods, with the bill, to the connecting line, and await return of proceeds. Upon cross-examination, it appeared that the letters C. O. D. stand for collect on delivery, and that the words “from Turner’s Express,” are not usual in receipts, the usual form being simply the O. O. D., with sum attached. The goods in question were delivered to Turner’s Express Company, at Boston, and a receipt taken therefor.</p> <p>Plaintiff offered to prove that, before the delivery of the goods to defendant’s company, it was agreed between them that said company would take the goods and collect of Turner’s Express Company, on delivery. Further facts appear in the opinion.</p> <p>Evidence of custom or usage is admissible to explain terms in a contract only where these terms are unusual. (1 Greenl. Ev., § 295; 2 C. & H. Notes, p. 506.) The only testimony admissible on the trial was testimony explaining the initials “ C. O. D.” (Dana v. Fiedler, 12 N. Y., 40 ; Hnrlbut v. Carver, 37 Barb., 62; Ins. Cos. v. Wright, 1 Wal., 456; Robinson v. U. S., 13 id., 363; Collyer v. Collins, 17 Abb. Pr., 467.) INo evidence of custom or usage is admissible to vary or control the legal effect of a written instrument, or to contradict the express or implied terms of one. ( Wrigglesworth v. Dallison, 1 Smith L. Cas., 670; Bradley v. Wheeler, 44 N. Y., 495; Markham v. Jaudon, 41 id., 235; Moore v. Higgins, 35 id., 422; Wheeler v. Newbold, 16 id., 401; Dalton v. Daniels, 2 Hilt., 472; Bargett v. Or. Mut. Ins. Co., 3 Bosw., 383; St. N. Ins. Co. v. Merc. M. Ins. Co., 5 id., 238; Barnard v. Kellogg, 10 Wal., 383; Cooper v. Kane, 19 Wend., 386; Hunter v. Locke, 5 Hill, 439; Furness v. Cone, 8 Wend., 247; Main v. Eagle, 1 E. D. S., 619.) Extrinsic evidence of custom is admissible to annex incidents to contracts, in matters in respect to which they are silent, only when the incident to be annexed is consistent with the terms of the written instrument. (Hatton v. Warren, 1 M. & W., 474; Smith’s L. Cas., 675, 677.) It was error to exclude plaintiff’s offer to prove, when defendant rested, that the latter had agreed with him that, instead of intrusting the goods to Turner’s Express, under the custom, it would collect the amount on delivery from Turner’s Express. (The Schooner Reside, 2 Sumr., 567; Knox v. The Ninette, Crabbe, 534; Wolfe v. Howes, 20 N. Y., 197; Hunt v. H. R. Ins. Co., 2 Duer, 481; Stephen on Pleading, 450.)</p> <p>Defendant did not receive the goods as a common carrier, but under the contract in the express receipt, by which the rights and liabilities of the parties are to be determined. (Belger v. Dinsmore, 51 N. Y., 166; Long v. N. Y. C. R. R. Co., 50 id., 76.) Evidence is always admissible to explain the meaning of words or forms of expression used in any particular business when their meaning is essential in construing a contract. (Dana v. Fiedler, 12 N. Y., 40, 46; 1 Greenl. Ev., § 282.) Evidence of custom or usage is admissible to explain the meaning and intent of the parties to a contract, which could not be explained without the aid of this extrinsic evidence. (Wrigglesworth v. Dallison, Smith’s Ldg. Cas. [L. Lib., N. S., 3], note, p. 223; Collyer v. Collins, 17 Abb. Pr., 467; Spear v. Hart, 3 Rob., 420; Barnard v. Kellogg, 10 Wal., 383; Robinson v. U. S., 13 id., 363 ; Walls v. Bailey, 49 N. Y., 464; Dent v. N. A. S. S. Co., 49 id., 390; The Richmond, 1 Bis., 49; McMasters v. Penn. R. R. Co., 69 Penn., 374.) Defendant’s liability for the goods was discharged at the end of its route, upon delivery of the goo ds to Turner’s Express. (Am. Ex. Co. v. Second Nat. Bk., 69 Penn., 394; Reed v. U. S. Ex. Co., 48 N. Y., 462; Babcock v. L. S. and M. S. R. R. Co., 49 id., 49.) A written agreement merges all previous conversations and negotiations between the parties, and must be held to express the true agreement of the parties upon the matters therein referred to. (Délafiéld v. Degraw, 9 Bosw., 1; Buckley v. Bentley, 48 Barb., 283; Bush v. Tilley, 49 id., 599; Renard v. Sampson, 12 N. Y., 561; Halliday v. Hart, 30 id., 474; Pollen v. Le Roy, id., 549; Thorp v. Ross, 4 Keyes, 546; Riley v. City of Brooklyn, 46 N. Y., 44; Long v. N. Y. C. R. R. Co., 50 id., 76.)</p>

the General Term of the Superior Court of the city of New York, affirming a judgment in favor of plaintiff, entered upon a verdict. On the 15th February, 1870, one Greenleaf obtained from Vermilye & Co. their check, dated that day, on plaintiff ’s bank for $56.75, payable to his order; on the same day it was certified in the usual manner by plaintiff.

The relator held, until the 31st day of December, 1872, the office of assistant clerk of the Sixth District Court, under an appointment by the justice thereof, made in Hay, 1872, under the provisions… Held: until the 31st day of December, 1872, the office of assistant clerk of the Sixth District Court, under an appointment by the justice thereof, made in Hay, 1872, under the provisions of chapter 438 of the Laws of 1872.

This action was brought to restrain defendant from running its trains and maintaining its track over a certain portion of Broadway, in Brooklyn, E. I). Plaintiff owned land on the northerly side of said street; his title extended to the center of the street.

<p>Proofs of loss are no part of a contract of fire insurance, nor do they create the liability to pay a loss; they serve to fix the time when it becomes payable and when an action may be commenced to enforce a liability.</p> <p>For the purpose of upholding a contract of insurance, its provisions will be construed strictly against the underwriter.</p> <p>An estoppel in pais cannot arise where, notwithstanding the acts and declarations which are claimed to have created it, the party claiming it is obliged to inquire for the existence of other facts, and to rely upon them, also, to sustain the course of action adopted by him.</p> <p>A policy of fire insurance contained a clause declaring it to be null and void in case the assured had a prior insurance upon the property, of which the underwriter was not notified, and to which it did not consent It also required the assured to state in the proofs of loss other insurance if any. The property having been destroyed by fire, proofs of loss, verified by the assured, were presented containing a statement that there was other insurance at the time of the issuing of the policy. Held, that this was not equivalent to a statement that the assured had other insurance, and, inasmuch as it was necessary to go outside of the statement to show that fact, the assured was not estopped from showing that the statement was a mistake, and that, in fact, there was no other insurance on the property.</p> <p>It seems that, had the statement been that the assured had other insurance, he would not have been estopped from showing that it was a mistake, and that a valid contract existed.</p> <p>The Trustees v. Williams (9 Wend., 147), Sheppard v. Hamilton (29 Barb., 156) distinguished; and Irving v. Me. Ins. Co. (1 Bosw., 507) and CamipbeU v. Gh. 0. Ins. Co. (10 Allen, 213) limited and distinguished.</p> <p>The rule that parol testimony may not be given to contradict a written contract applies only in suits between the parties to it or their privies. In a contention between a party to an instrument and a stranger, either can give parol testimony differing from the contents of the instrument.</p>

This action was brought upon three promissory notes made by defendant, payable to the order of Van Saun & Co., and indorsed to plaintiff. The nature of the defence and the facts appear sufficiently in the opinion. The stipulation is conclusive on the parties, and determines the decision of the cause. (Howell v. The Knickerbocker Life Ins. Co., 44 N. Y., 277.) Plaintiff was not a holder for value.

This action was brought by the plaintiff, as the assignee of one John Lavens, to reform a policy of insurance, on the ground of mistake, issued by the defendant to said John Lavens, and to recover a loss sustained thereunder. The application was for and the policy insured merchandise “ contained in letter C, Patterson stores, South Front, below Pine street, Philadelphia;” this descriptive clause being written on the face of the policy.

This action was brought upon a promissory note given by defendant for $360, payable on demand to Abi A. Bemis or bearer. The payee was a married woman. The facts sufficiently appear in the opinion. The court directed a verdict for the amount of the note, which was rendered accordingly. Mrs. Bemis was not liable, there being no promise in writing charging her separate estate. (Yale v. Dederer, 18 N. Y., 276; 22 id., 450; Com. Ex. Ins. Co. v. Babcock, 42 id., 613.)

176, Laws-of 1857), to the assessment roll of said town for the year 1871. The facts sufficiently appear in the opinion. The board of supervisors is the proper party relator. (People v. Halsey, 37 N. Y., 344.) It was a part of the official duty of each of the assessors to verify the assessment roll at its completion.

■ This action was brought to recover compensation for medical services rendered by the plaintiff, as a physician, in attending and prescribing for the daughter of the defendant while she was sick at his residence. The value of the services was admitted, and the issue litigated was whether the defendant was liable to pay therefor. The patient was a lady thirty years of age, the wife of John Martine.

This action was brought upon a policy of marine insurance. The vessel insured was described in the policy as follows: “The good bark called the Empress, or by whatever other name or names the said vessel is or shall be named or called.” The complaint alleged that the bark intended to be insured was called the St. Mary, and that defendant, in making out the policy, by mistake named her the Empress. The facts appear sufficiently in the opinion.

This action was upon a joint and several bond executed by .defendants, conditioned for the payment, by defendant Green, of the debts of the firm of Roberts & Green. The firm originally was Roberts & Thompson. Green bought out Thompson. Upon taking an inventory it was, discovered that Roberts had drawn out of the. firm more than he was entitled to. To settle this he gave Green his promissory note for the former’s proportion of such overdraft.

(Reported below, 7 Lans., 55.) This action was brought to restrain defendant from removing certain barriers or embankments built by plaintiff on the land of defendant, and from obstructing or interfering with a water-course on said lands. Silas G. Roberts, prior to the 19th January, 1867, owned a farm situate in the town of Runda, in the county of Livingston, consisting of 104 acres of land.

This action was brought to recover a quarter’s rent of certain premises, in the city of New York, leased by plaintiffs to defendants; also the city taxes which, by the lease, the tenants were to pay. Defendants’ answer alleged that the premises had become untenantable by reason of excavations in the adjoining premises, and that, thereupon, they quit and surrendered the same; also the dispossession of defendants by summary proceedings for non-payment of rent.

This was an action brought by plaintiff, as assignee of Samuel Rodman & Sons, for an accounting. Defendants, as consignees and factors of Samuel Rodman & Sons, among other things accepted fifteen time drafts drawn upon them by said firm to the amount of $28,000 upon the credit of goods consigned to them for sale. The said firm of Samuel Rodman & Sons failed, as did also defendants.

This action was for the specific performance of a contract for the purchase by plaintiff, and sale by defendants, of certain premises situate in the city of New York; plaintiff also asked, in case specific performance could not be decreed, judgment for the purchase-money paid, with expenses and damages. The substance of the contract and the facts pertinent to the questions discussed appear sufficiently in the opinion. An outstanding lease is an incumbrance.

This was an. action against defendant as sheriff, of the county of Kings, for an alleged false return to- an execution against the person. In an action brought by James Gibson against David, Rogers for an assault and battery, Rogers was held to bail, on an order of arrest at the commencement of the action, in §2,000. Plaintiff and Jeremiah Fielding were his sureties.

Appeal by the defendants, Sarah L. Horn individually, and by Benj'amin Horn executor of the will of William S'.

This action was brought, among other things, to recover for services alleged to have been rendered by plaintiff, as real estate broker, in effecting a sale for defendants of certain real estate situate at Woodside, L. I. The facts sufficiently appear in the- opinion. The advertisements by plaintiff of the property, and the signs and maps put up by him, did not constitute him defendants’ broker for the sale of the property.

(Eeported below, 6 Lans., 472.) This action was brought to recover possession of certain bills of exchange. Defendant Pondir only appeared and answered, claiming the bills as a bona fide purchaser.

This- was an action upon a policy of insurance. The first count of the complaint alleged a reinsurance; the second a policy issued to Mary L. Connelly, and by her assigned to plaintiffs. On the .7th of May, 1862, and the 1st of August, 1865, James Connelly, then being the owner thereof, mortgaged to David Dows and others property situated in the city of Rochester, known as the Boston Mills, by two mortgages, each to secure the payment of $10,000.

Motion to dismiss appeal. In January 1851, the respondents made an application to the County Court of Orleans county, to change the location of a toll gate in the appellants’ road, in pursuance of § 37 of the act to provide for the incorporation of plank road companies, passed May 7th, 1847 (Session Laws of 1847, ch. 210, p. 226). At a stated term of the said County Court, held on the 8th day of February 1851, an order was made, changing the location of the toll gate.

These were cross-appeals from judgment of the General Term of the Court of Common Pleas for the city and county of Hew York, affirming a judgment entered upon an order of Special Term overruling demurrer to complaint. This action was brought to restrain defendants from executing a lease of certain premises of plaintiffs, in pursuance of a sale under an assessment for a local improvement, and to have the sale and the assessment declared void and vacated.

(Reported below, 1 N. Y. S. R. [T. & C.], 14.) On November 15th, 1869, the relator entered into a contract with the people of the State, whereby he agreed to construct and finish the work of deepening the Erie canal, at a certain point in the city of Rochester, cutting down Genesee River aqueduct, building vertical wall and improving the entrance to Rochester weigh-lock. This contract was let to the relator as the lowest bidder, upon a public competition.

(Reported below 1 N. Y. S. R. [T. & C.], 309.) This action was brought to restrain the canal board from acting under chapter 740, Laws of 1872, upon the ground of the unconstitutionality of that act, and to restrain the other defendants, Lord and Skinner, from applying to the board under that act. ■ On August 6th, 1870, the defendant, Skinner, entered into a contract for the widening and deepening of the narrow canal, in Black Bock harbor.

<p>Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff, entered upon, a verdict and. affirming an order denying a motion for a1 new trial..</p> <p>The first count of the complaint in this action was for fraud. It alleges that plaintiff was induced by false and- fraudulent representations upon the part of the defendants, trustees and stockholders of the Iron Mountains Company of Lake Champlain, a mining company organized under the- general laws (chap. 40, Laws of 1848, and amendments),, by which representations he was 'induced to lend said company the sum of $45,000.</p> <p>The fifth count of the complaint alleged that defendants made, filed and published a report, as required by said statute, in January, 1870, which was false in a material representation in stating that the capital stock of the company had been paid up in full, when they well knew that no part of the same had been paid * * * except in lands of little or no value. Proof was given upon the trial of false representations upon the part of one Richard Remington, an agent of the corporation ; this was received under objection. A printed prospectus containing alleged false representations, purporting to have been .issued by the company, was also given in evidence. The facts in regard to the negotiations for the loan, and the particular representations upon which plaintiff relied in making the same, are set forth in the opinion. The report set lorth in the fifth count was not signed by defendant, Corning; it was shown to be false, as alleged. At the close of plaintiff’s case, defendants jointly and severally moved for a nonsuit. The court held in effect that there was sufficient evidence to go to the jury under the first and fifth counts; that plaintiff was not entitled to recover under the others.</p> <p>At the close of the evidence, a motion for a nonsuit was made on behalf of the defendant, Corning. The court decided that he was not liable under the fifth count, but that the question as to his liability under the first must go to the jury, as his name was published as a trustee, and a certificate of stock was issued to him.</p> <p>The court charged the jury that it ruled as matter of law that the plaintiff was entitled to a verdict against the defendants George M. Wheeler, John A. Griswold and Chester Griswold, for the amount of his claim, under the fifth count; that if they found the defendants had assented to the making and circulation of representations, known by them to be false and fraudulent, then they would find a verdict against all the defendants for the amount of plaintiff’s claim./ but if they found no fraud on the part of the defendants in these representations, then their verdict should be in favor of Mr. Corning and against the other three defendants, for the amount of his claim. The counsel for the defendants excepted to the submission to the jury of the question as to the liability of Mr. Corning, and also as to each of the other defendants.</p> <p>The jury rendered a verdict against all the defendants for the amount of plaintiff’s claim with interest.</p> <p>The court erred in receiving testimony as to the statements of Bemington, and in permitting the book T. to be read in evidence as against defendants. (Erben v. Lorrillard, 19 N. Y., 299; Moffatt v. Winslow, 7 Paige, 124; Strong v. Wheaton, 38 Barb., 616; Fox v. Clinton, 4 Moore & Payne, 676; Marsh v. Falkin, 40 N. Y., 502: Meyers v. Amidon, 45 id., 169; Wakeman v. Dalley, 51 id., 27, and cases cited.) Penal statutes must be construed strictly. (Stebbins v. Edwards, 12 Gray [78 Mass.], 203; Merchants' Bk. v. Bliss, 21 How. Pr., 365; Dwarris on Statutes, 634, 650; 5 Wheat., 76, 95, 96, 105; Gray v. Coffin, 9 Cush. [Mass.], 192; Garrison v. Howe, 17 N. Y., 466.) The court erred in directing a verdict against defendants, because as directors they had signed a report containing false and material representations. (Stebbins v. Edmands, 12 Gray [78 Mass.], 203; Wakeman v. Dalley, 51 N. Y., 27.)</p> <p>Bemington was the agent of the company and defendants are bound by his acts. (Kane v. People, 8 Wend., 202; Reg. v. Gt. N.of E. R. Co., 9 Q. B., 315, 327; Bishop Cr. L., § 507; Story on Agency, § 452; Hern v. Nichols, 1 Salk., 289; Peck v. Gurney, L. R. [13 Eq.], 113; Davis v. Bemis, 40 N. Y., 453, and cases cited; Bermett v. Judson, 21 id., 238; Lee v. Village of Sandy Hill, 40 id., 442; Griswold v. Havens, 25 id., 595; Durst v. Burton, 47 id., 167; Craig v. Ward, 3 Keyes, 387; S. C., 3 Abb. [N. S.], 235; 36 Barb., 377; Clarke v. Dickson, 6 C. B. [N. S.], 453; Getty v. Devlin, Com. of Apps., Sept., 1873.) Defendants are liable for the frauds. (West. Bk. of Scotland v. Addie, L. R. [1 Scotch Apps.], 145, 160; N. B. & C. R. Co. v. Muggeridge, 1 Dr. & Sm., 363, 381; Cross v. Sackett, 2 Bosw., 617; S. C., 6 Abb., 16 How.; Hubbard v. Briggs, 31 N. Y., 518; Cent. R. R. Co. of V. v. Kisch, L. R. [2 H. Lds.], 99,116,121,232; Atwood v. Small, 6 C. & F. 232, 395; Reese River Silver Mining Co. v. Smith, L. 4 [4 H. Lds.], 64; Henderson v. Lacon, id. [5 Eq.], 249, 263; Colt v. Woollaston, 2 P. Wms., 154; Green v. Barrett, 1 Sim., 45 ; In re Disderi, L. R. [11 Eq. Ca.], 242; Harward's case, 13 id., 30; Leek's case, L. R. [6 Chan. App.], 409; Nat. Exch. Co. v. Drew, 2 McQ., 103; S. C., 32 E. L. & E., 1.) The duty and liability of the trustees are common to all. (Boynton v. Hatch, 47 N. Y., 225 ; Kane v. People, 8 Wend., 203; D. & L. P. R. Co. v. Allen, 16 Barb., 15; Hardymam, v. Whitaker, 2 East, 573, note ; 1 Chit. Pl, 10, 32, 35, 74,75,144; Bacon’s Abr. Pleas., 1; Burnham v. Webster, 5 Mass., 270; 2 East, 569; 3 id., 62; Cro. El., 621; 1 Saund. Pl.&Ev., 337; 2 id., 829; Coffin v. Carter, 1 T. R., 462; 1 D. & P. Pr., 32.) The liability of the trustees under the statute is in the nature of a penalty, and any one of them can be sued. (Creed v. Hartman, 29 N. Y., 591; Broom on Parties, 248; 56 L. Lib., 171.) All that was necessary to make defendants liable was conceded. (Thaler, etc., Co. v. Bliss ,27 N. Y., 297, 300; Boughton v. Otis, 21 id., 261; Simmons v. Tappen, 2 Sweeny, 652; Miller v. White, 57 Barb., 504; S. C., 59 id., 434; Garrison v. Howe, 17 N. Y., 458.) The complaint is not liable to the defence of non-joinder. (Holsey v. Black, 28 N. Y., 438; Merritt v. Walsh, 32 id., 685; Code, §§ 144, 169.) The reports of 1870 and 1871 being false, defendants are liable. (Schenck v. Andrews, 46 N. Y., 589 ; Boynton v. Hatch, 47 id., 225.) The bankruptcy did not discharge the company or any of its officers. (Bank; act, § 37. 2 R. S., 467, § 58, et seq.; N. Y. M. I. Works v. Smith, 4 Duer, 362; 2 N. Y., 263, 264, 266; 27 id., 299.) The objection that plaintiff had not returned or offered to return the seenrities he holds is not tenable. (Nichols v. Michael, 23 N. Y., 264; King v. Fitch, 1 Keyes, 432; Simar v. Canaday, Ct. of Apps., Sept., 1873; Getty v. Devlin, Com. of Apps., Sept., 1873.)</p>

(Reported below, 65 Barb., 304.) This action was brought to recover the last installment alleged to be due upon an agreement made between the parties, dated March 13th, 1866, by which plaintiff agreed to transfer and assign to defendant the lease of certain premises situate in the city of New York, from the 1st May, 1866; the lease expired May 1st, 1867.

Motion to dismiss appeal. The plaintiff commenced a suit in October 1848, against the defendants before a justice of the peace of Columbia county, and complained against them for breaking and destroying his fences, and entering upon and injuring his lands and crops growing thereon.

This was an action to foreclose two mortgages; one executed in March, 1858, the other in March, 1861. The premises were conveyed to defendant Jex subject to the mortgages. He alone defended, setting up and proving a tender in October, 1870, of the amount of the mortgages in legal tender notes, which tender was refused. Further facts appear in the opinion. Judgment was given in currency, to the amount of the mortgages being added the premium on gold.

This was an action against defendants, as gold brokers, for an alleged breach of duty.

<p>^Appeal from judgment of the G-eneral Term of the Supreme Court in the first judicial department', affirming a judgment in favor of plaintiff, entered upon a verdict, and affirming an order denying a motion for a new trial.</p> <p>This action was brought upon a promissory note of $500, made by defendant, payable to the order of F. H. Holmes ; defendant alleged and proved that the note was given as an accommodation note without any consideration, and was fraudulently, and contrary to the agreement of the parties, put in circulation by the payee. The further facts appear in the opinion.</p> <p>Plaintiff, in order to recover, must show that it was a bona fide holder of the note, and took it before maturity and paid value for it. (Ross v. Bedell, 5 Duer, 462; Catlin, v. Hanson, 1 id., 309.) The books of account of a bank are not, of themselves, evidence of the facts indicated by the entries. ( White v. Ambler, 4 Seld., 170 ; Brewster v. Boane, 2 Hill, 587.)</p>

This was an action for partition of certain real estate situate in Westchester county. The defendant Asa Stevens was made a party, as assignee, for the benefit of creditors of defendant Augustus M. Halsted, one of the tenants in common. Stevens put in an answer alleging that he is such assignee, and claiming all the interest of said Augustus in the premises. The usual order of reference, as in case of default, was made as required by Supreme Court Rules 79 and 80.

This was an action of trespass on lands. The defendant, Schaefer, pleaded title to the locus m quo; the other defendants a general denial. Upon the 2d of January, 1860, plaintiff was the owner of a lot known on a map of certain lots in the city of Brooklyn as lot 77; one Charles M. Briggs was the owner of lot 76. There were buildings upon both lots; plaintiff had then occupied his lot and building for seventeen years.

This action was brought to recover back moneys alleged to have been paid by mistake. A contract was entered into between the parties on the 14th October, 1871, by which defendant was to convey to the plaintiff certain real estate in New Jersey, and the plaintiff, in exchange therefor, to convey seven houses and lots, in the city of New York, subject to mortgages of a specified amount. One of the houses was at the time unfinished.

<p>Two things must concur to create an estoppel by which an owner is prevented from asserting title to and is deprived of his property by the act of a third person without his assent. 1st. The owner must have clothed the person, assuming to dispose of the property, with the apparent title to or authority to dispose of it. 2d. The person alleging the estoppel must have acted and parted with value, upon the faith of such apparent ownership or authority, so that he will be the loser if the appearances to which he trusted are not real.</p> <p>On the twenty-first August defendants purchased of one J. and paid for a quantity of linseed. J., at the time, did not have the linseed, or any evidence of ownership or dominion over it. On the twenty-fourth he purchased of plaintiffs, and by fraud induced them to deliver to him, 1,370 bags of seed, which he delivered to defendants in fulfillment of his contract of sale. In an action to recover possession thereof, held, that plaintiffs were not estopped from asserting title, as defendants did not part with the consideration for the seed upon any apparent ownership of J., nor did they do or forbear to do any act in reliance upon any apparent ownership, or induced by any act or declaration of plaintiffs. Knights v. Wiffen (L. R. [5 Q. B.], 660) distinguished.</p>

This action was brought against defendants, as indorsers of a .promissory note of $5,000, dated January 4, 1861, payable to the order of John H. Martin at the counting-house of Brander & Hubbard, in the city of Hew Orleans. Defendant Hubbard alone appeared and answered. Defendants were in partnership doing business in Hew Orleans. In July, 1860, the business was discontinued, save the settling up and liquidation of its affairs.

This action was brought to recover back money alleged to have been overpaid, upon a contract for building a bridge. It was originally commenced before a justice of the peace of the town of Machias, in the county of Cattaraugus.

On the 8th day of April, 1869, the parties entered into a written contract, in substance as follows: Defendant agreed to receive, elevate and store- for the plaintiffs 500,000-bushels of grain for three-quarters of a cent per bnshel, and an additional one-quarter of a cent per bushel for every additional ten days the same should be kept in store. If defendant was unable to elevate- the grain within twenty-four hours after it arrived at Buffalo, it agreed to pay demurrage.

The facts admitted were substantially as follows: Daniel B. Fearing, plaintiffs’ testator, died seized of certain lands adjoining “Bloomingdale road” and “Apthorp’s lane,” in the city of Hew York. These lands were divided into lots and sold at public auction by plaintiffs.

A witness being asked on the part of the plaintiff what the profits of the firm of A. G. Bagley & Co. were during the last six months of its existence, the inquiry was objected to on the part of the defendants, and the objection overruled by the judge who tried the cause, he holding it to be proper to allow the inquiry as to actual damages and as to loss of profits, the latter being admitted not as furnishing the rule of damages, but as evidence, from which the jury might…

(Reported below, 64 Barb., 609.) This action was brought to foreclose a mechanic’s lien claimed under the act for the better security of mechanics) etc., in the county of Onondaga. (Chap. 366, Laws of 1864, amended chap. 788, Laws of 1866.) The defendant, the railroad company, let a contract to one Moore to build an engine or round-house for them at Syracuse.

Appeal, from' judgment of the General Term of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff, entered upon the,report of a referee and granting a new trial. (Reported! he-low, 7 Lans., 264.) This was an action for an alleged breach of contract.

(Reported below, 64 Barb., 589.) This was an action upon a policy of insurance. On the 17th June, 1870, plaintiff, having a mortgage upon certain premises in Onondaga county, of about $7,500, applied to defendant’s agent for an insurance upon the buildings, stating to such agent his interest which he desired to protect. The form of the policy was left to the agent.

<p>Error to thé General Term of the Supreme Court in the first judicial department, to review judgment affirming judgment of the Court of General Sessions of the Peace in and for the city and county of Hew York, convicting the plaintiff in error of the crime of grand larceny after a former conviction for the same offence.</p> <p>The facts appear sufficiently in the opinion.</p> <p>It was necessary to prove the time and manner of plaintiff’s discharge from imprisonment under his former conviction, and the indictment should aver it. (3 R. S., 984, § 8 ; 2 Russ. on Crimes, 129, 130; 2 Leach, 594; People v. Townsend, 3 Hill, 479 ; People v. Stevens, 1 id., 261; Palmer v. People, 6 id., 427; Wood v. People, Ct. Apps.; 3 Greenl. Ev., 10; 1 Arch. Crim. Ev., 118, et seq. [marg. page, 385].) It was error to receive evidence to show the prisoner’s bad character before he had put his character in issue. (People v. White, 14 Wend., 111; 2 Den., 351; 5 Cox’s Cr. Cas., 369, 387.)</p> <p>Proof of the plaintiff’s former conviction was properly, admitted. (Arch. Crim. Pldgs., 960.) The sufficiency of the evidence of plaintiff’s discharge not having been questioned on the trial, this court has no power to review it. ( Wilkie v. People, MSS. of Ct. of Apps.)</p>

On the 23d of March, 1872, the plaintiff in error, with two companions, visited one Catharine Milleay at her rooms, and while there, as Mrs. Milleay testified, committed the crime of rape upon her person.

, 185.) On the 5th March, 1872, a Special Term order was granted herein, on notice, requiring defendants to produce certain books and deposit them with the county clerk of Herkimer, within thirty days, and declaring that “ for a failure thereof the defendants shall be precluded from making any defence herein, and their answer shall be stricken out, unless the defendants shall, immediately upon the expiration of said thirty days, obtain upon affidavits, etc., from a justice…

(Reported below, 7 Lans., 274; 1 K. Y. S. R. [T. & 0.], 158.) This was an action in the nature of a quo warranto, to try the title of defendant to the office of mayor of the city of Albany. At the election in that city, on the second Tuesday of April, 1872, there were three candidates for that office, defendant, relator, and one'Thomas McCarty.

Appeal, by both parties, from judgment of the General Term of the Supreme Court in the second judicial department, modifying, and affirming as modified, a judgment in favor of plaintiff, entered upon the decision of the court at Special Term.

The plaintiffs in error and two others, James Mulhall and James Palmer, were indicted together.

<p>While the duty of a master to his servant requires the exercise of great care in the employment of fellow-servants and the institution of affirmative inquiries to ascertain their characters and qualifications, when suitable and. competent persons have been employed, the same degree of diligence is not thereafter required. Good character and proper qualifications once possessed may be presumed to continue, and the master may rely upon that presumption until notice of a change or knowledge of such facts as would be deemed equivalent to notice, or such at least as would put a reasonable man upon his guard.'</p> <p>Without such knowledge or notice, therefore, the master is not liable to a servant for injuries sustained through the negligent acts of a fellow-servant, competent and of good habits when employed, but who becomes thereafter incompetent or unfit, from bad habits, to discharge his duties.</p> <p>Wright v. N. T. O. It. It. (25 IT. Y., 562) distinguished.</p> <p>In an action against a railroad company to recover damages for the death ‘ of an employe caused by the negligence of A., a coemploye, competent at the time of his employment, but who subsequently became unfitted to discharge his duties in consequence of habits of intoxication, evidence was received, under objection, that the division superintendent of the road, at one time speaking of A., said that he must quit drinking; also the said superintendent was permitted to testify that he at one time told A., he had heard that he had been off on a spree drinking, which A., did not deny, and that the witness reprimanded him for it. Held, no error: that the former evidence was proper as showing notice or knowledge, and the latter as the declarations of an agent within the scope of his agency.</p> <p>To obviate an erroneous instruction to the jury upon a material point, it must be withdrawn in such explicit terms as to preclude the inference that the jury might have been influenced by it.</p> <p>It is not error for the court to refuse to charge that if the jury believe certain specified witnesses, they must find for the party in whose favor they testified. The facts, upon which the instruction is asked, should be hypothetically stated, leaving the jury to decide as to whether they were proved.</p>

The fact's pertinent to the questions discussed appear sufficiently in the opinion. There was not sufficient proof before the assessors of the necessary facts, to give them jurisdiction to act in this case. (Morewood v. Hollister, 2 Seld., 327; Gillett v. Fairchild, 4 Den., 83; Beach v. King, 17 Wend., 197; Conger v. Halsey, 11 Paige, 314; People v. Smith, 3 Lans., 291; People v. Hills, Ct.

This action was brought to recover damages for an alleged breach of a contract, made between plaintiff and Peter Thomas, defendant’s testator, by which the latter, for a valuable consideration, agreed to support the former during her life.

Such proceedings were brought up for review by a common-law certiorari. The facts appear sufficiently in the opinion. Plaintiff in error was entitled to review the proceedings by certiorari when the commissioners had refused to do their duty or to hear proper evidence. (49 N. Y., 150; 16 Barb., 68, 273; 10 Abb. [N. S.], 182; 56 Barb., 456.) Upon the writ of certiorari the court below had power to reverse the decision.

This was an appeal by Matthew H. Smith from an assessment made upon his lands by the relators, as commissioners appointed under the act providing for draining overflowed lands adjoining Black lake, in the counties of Jefferson and St. Lawrence, chapter 577, Laws of 1864. The appeal was brought under the act of 1868, amendatory of the above-mentioned act. (Chapter 180, Laws of 1868.) The facts sufficiently appear in the opinion.

This action was brought to recover damages for the death of John Hofnagle, plaintiff’s intestate, alleged to have been occasioned by defendant’s negligence.

Lawrence, entered upon a verdict convicting the plaintiff in error of the crime of manslaughter in the second degree. Plaintiff in error was indicted on the 24th April, 1872. The indictment charged that, on the 15th March, 1872, he used an instrument in and upon the womb and person of one Maria Shay, she being then pregnant, with the purpose of producing a miscarriage, the same not being necessary to save her. life or that of the child, and thereby causing her death.

This action was brought against defendants, as sureties of one Bernard Gibbs, to recover rent alleged to be due upon a lease of certain premises from plaintiff to said Gibbs. The facts appear sufficiently in the opinion. The contract between Gibbs and plaintiff was a good defence to this action. (Smith v. Felton, 43 N. Y., 419 ; Gillespie v. Torrance, 25 id., 306, 308 ; Vassar v. Livingston, 13 id., 248 ; Sawyer v. Chambers, 43 Barb., 622, 623.)

This action was upon a promissory note, the defence usury. One William Higbee was the owner of a mortgage given by Gaylord Heath and others; the mortgage was past due nearly ten years, and during that time the interest had not been paid.

<p>Tlie question of granting a new trial upon the ground that the applicant was misled by an intimation of the court as to the state of the issue presented, or as to the proper disposition to be made thereof, or whether in consequence-thereof a rehearing upon such issue, or any part of it, will be granted, is in the discretion of the court below, and its determination cannot be reviewed by this court.</p> <p>A gift is not rendered invalid because of the existence of the relation of husband and wife between the donor and donee; but the fact of the gift having been made must be clearly proved.</p> <p>S., being about to leave home to remain a considerable time absent from the country, placed a quantity of U. S. coupon bonds in a tin box, with a card thereon, upon which was written the name of his wife; the hex he deposited in a bank, leaving the key with his wife. During his absence these bonds were, by his direction, exchanged by the wife for five-twenty bonds, registered in the name of both. S. died abroad. Held, that these facts did not so conclusively prove a gift as to authorize this court to decide that a finding to the contrary was error of law. Some time prior to the death of S., his wife sold $4,000 of the bonds and purchased therewith a house, taking the title in her own name. In the settlement of her accounts, as administratrix of his estate, she was charged with the avails of said bonds. Held, error; as the intestate had no such personal property at the time of his death.</p> <p>It seems, also, that the wife could not be charged therewith as a debt in an action against her in her individual capacity. A wife does not become the debtor of her husband by an unauthorized use of property intrusted to her by him. If she therewith purchase other property, his remedy is to rescind her contract and recover the property if it can be reached; if not, to take what was received therefor. He cannot treat this as her separate estate, and charge her with the value of the property misappropriated.</p> <p>An executor or administrator is not chargeable with interest not received by him, unless it appears that he has used the money himself, or that with reasonable diligence interest might have been received.</p>