Volume 101 — New York Reports

<p>Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made April 21, 1885, which reversed an order of Special Term, denying an application for the appointment of commissioners in proceedings under the act of 1875 (Chap. 181, Laws of 1875) to appraise the damages by reason of the taking of water from Miller creek to supply the village of Clinton. The General Term order authorized application to be made to the Special Term for the appointment of commissioners.</p> <p>The material facts are stated in the opinion.</p> <p>Chapter 17 of the Laws of 1885 is unconstitutional as violating article 3, section 16 of the State Constitution, which provides that no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title. (Rochester v. Briggs, 50 N. Y. 553; Matter of Blodgett, 89 id. 392.) The act under consideration is a “local” bill. (People v. Supervisors, 43 N. Y. 10; Kerrigan v. Force, 68 id. 383.) The General Term erred in resorting to chapter 17 of the Laws of 1885, passed since the argument before that court, as a ground for reversing the judgment at Special Term. A court cannot take “judicial notice” of a private statute. (1 Greenl. on Ev. [14th ed.] 8; Broad S. H. Co. v. Weaver, 57 Ala. 26; Perdecaris v. Trenton, 5 Dutch. [N. J.] 367; Alleghany v. Nelson, 25 Penn. St. 332; Code of Civ. Pro., § 530.) Documentary evidence can be put in evidence at the General Term, or even in the Court of Appeals, only to uphold a judgment, not to reverse it. (Stillwell v. Carpenter, 62 N. Y. 639; Porter v. Waring, 69 id. 250.) An appellate court can reverse a judgment only when it is shown that the court below erred in deciding the case on the evidence before it. (Stillwell v. Carpenter, 62 N. Y. 639; Porter v. Waring, 69 id. 250; Bourel v. Bigler, 19 Ohio, 362; The Grace Werdler, 7 Wall. 196.)</p> <p>The proceedings on the part of the village or water commissioners, under the Laws of 1875, were legal and regular. (Fleming v. Village of Suspension Bridge, 92 N. Y. 368.) Chapter 17, Laws of 1885, was sufficient to cure any supposed irregularities or_defects in such proceedings. (63 N. Y. 239, 244; 66 id. 129-137; 82 id. 204-210; Cooley on Const. Lim. 371, 379.)</p>

<p>Indictment.—Excise.—L. 1857, c. 628; L. 1869, o. 856.</p> <p>The indictment against defendant set forth, in the language of L. 1857, c. 628, § 14, that defendant sold divers strong and spirituous liquors and wines (naming them) to be drunk in his house, etc., without having obtained a license therefor as an inn, tavern or hotel-keeper. The indictment did not state that defendant was not within the exceptions provided for by the amendatory act of 1869 (L. 1869, c. 856). Held. that it was unnecessary for the indictment to show that defendant was not within such exceptions.</p> <p>If there is an exception to the offense declared by a statute, contained in a subsequent clause to that defining the offense, or in a subsequent statute, that is a matter of defense, which need not be negatived by the prosecution, but must be shown by defendant.</p>

The complaint in this action alleges and it was proved that the parties intermarried in this State on the 30th day of August, 1866, and from that time until shortly before the commencement of the action in 1880, lived and cohabited together as man and wife.

<p>Appeal from order of the General Term of the Supreme Court, in the first judicial department, made October 27,1882, which reversed a judgment in favor of plaintiff, entered upon a verdict directed by the court. (Reported below, 28 Hun, 77.)</p> <p>This action was brought upon defendant’s acceptance of a bill of exchange drawn upon him at ninety days by Ran Runnels of Rivas, in the State of Nicaragua, payable to the order of Hourquet & Poylo and by them indorsed before acceptance to plaintiffs.</p> <p>Defendant offered to show that the acceptance was made without consideration and was induced by fraudulent representations on the part of the drawer; this was objected to and excluded.</p> <p>The material facts are stated in the opinion.</p> <p>An acceptance estops the acceptor from denying consideration or alleging fraud of drawer as against a bona fide holder. (Harger v. Worrall, 69 N. Y. 371; Comstock v. Hier, 73 id. 273; Nickerson v. Ruger, 76 id. 276; First Nat. Bk. v. Green, 43 id. 301.) Want of consideration between the drawer and acceptor is no defense against one who has given consideration for the bill, if that fact be not known to the holder before he gives value for it. (U. S. v. Bk. of Metropolis, 15 Pet. [U. S.] 377; Corbett v. Clark, 45 Wis. 403; Wells v. Brigham, 6 Cush. 6.) As against a bona fide holder, the acceptor must pay although the bill prove to be forged. (Goddard v. Merchants' Bk., 4 Comst. 147; Lather v. Simpson, L. R., 11 Eq. 398; Smith v. Braine, 16 Ad. & Ell. [N. S.] 498; Fitch v. Jones, 5 Ell. & Bl. 238; Anderson v. Warne, 71 Ill. 20; Roberts v. Lane, 64 Mo. 108.) The acceptance is equally binding and subject to the same application of the rule of estoppel, whether given prior or subsequent to parting with value. (Commercial Bk. v. Norton, 1 Hill, 501; Philbrick v. Dallett, 2 J. & S. 370; Nat'l Bk. v. Schuyler, 7 id. 440; Theidermann v. Goldschmidt, 1 De Gex, F. & J. 4; Robinson v. Reynolds, 2 Q. B. 211; Hoffman v. Bk. of Milwaukee, 12 Wall. 181; Voorhis v. Olmstead, 66 N. Y. 113; Nat'l Bk. v. Nat'l Bk. Comm., 50 id. 585.)</p> <p>Where a bill is void in its creation, or has been unduly obtained, or wrongfully diverted from its purpose and fraudulently negotiated, the party suing on it is bound to show himself a bona fide possessor. The affirmative is with the plaintiff, in an action upon such a bill, to prove a clear legal title, valid as against the parties to the instrument. (Comstock v. Hier, 73 N. Y. 273; Nickerson v. Ruger, 76 id. 279.) One who receives a bill or note before due, and without notice and knowledge of any fraud in its inception or transfer, but for a precedent debt, and without parting with value or any valuable consideration, does not acquire a valid title to the note or bill, but takes it subject to all its infirmities, precisely as if he had taken it after dishonor, or with knowledge of all the circumstances affecting its validity. (Moore v. Ryder, 65 N. Y. 441; Lawrence v. Clark, 36 id. 128) The extinction of a legal demand, in its original form, is to be proved affirmatively ; and the question whether a party is a holder for value of the new security, so as to displace, in his favor, any right or equity against the party to whom it was given, depends upon the fact being established of an intended and actual ex-tinguishment. (N. Y. Exchange Co. v. De Wolf, 3 Bosw. 86.) Plaintiffs were bound to prove an express agreement between them and Ban Bunnels or Hourquet & Poylo, that the taking of the bill was an absolute payment and discharge of plaintiff’s claim against them for the money they had collected. (Farrington v. Frankfort Bk., 31 Barb. 183.) The receipt, alleged to have been given by plaintiffs to Ban Bunnels, does not answer this requirement. (Olcott v. Rathbone, 5 Wend. 493; Bradford v. Fox, 38 N. Y. 289; Phoenix Ins. Co. v. Church, 81 id. 221; Molden v. Whitlock, 1 Cow. 290; Lawrence v. Clark, 36 N. Y. 131.) Defendant is not estopped by an acceptance, upon which plaintiffs did not rely when they took the bill, from showing as against them that the acceptance is void for fraud. (Farmers & Mechanics’ Bk. v. Empire Stone Dressing Co., 5 Bosw. 290.) The delivery of a check does not operate as payment of a debt, and a receipt given upon delivery of the check, acknowledging the receipt of money, adds nothing to the effect of such delivery. (Bradford v. Fox, 38 N. Y. 290; Olcott v. Rathbone, 5 Wend. 493; Molden v. Whitlock, 1 Cow. 290; Lawrence v. Clark, 36 N. Y. 101; Moore v. Ryder, 65 id. 441.) As plaintiffs knew that Hourquet & Poylo could not collect the claim any more directly than they could themselves, but would be compelled to employ a,n agent, they thus authorized the employment of an agent by Hourquet & Poylo. (Dorchester Bk. v. New England Bk., 1 Cush. 177; Story’s Agency, § 14, note 3.) Wherever any express ' or implied authority to appoint a sub-agent is allowed or given by the principal, a privity is created between them. (Story’s Agency, §§ 201, 387.)</p>

The nature of the action and the material facts are set forth in the opinion. A filing of the report, if not within twenty days, is not a sine qua non. No action is given for mere non-filing of report. (Cameron v. Seaman, 69 N. Y. 402.) The provision as to filing is directory ; while, in a proper case, gross negligence or wanton willfulness in not filing, would be visited with condign punishment.

(Reported below, 30 Hun, 138.) This was an action of ejectment for non-payment of rent, under leases executed by Stephen Yan Rensselaer. Plaintiff claimed as grantee of the lessor. The interests of the original lessees were shown to have been transferred by successive conveyances to Martinus Lansing, who was father of defendant’s wife. Non-payment of rent falling due in 1859, was shown. The action was commenced in 1860.

The proceedings were instituted December 6, 1881, the Special Term order directed the issuance of a writ of mandamus commanding the common council of the city of Kingston to levy and collect upon the taxable property of the city the sum of $18,308.07, audited by the board of supervisors December 3, 1883, for costs and expenses incurred by the board on an appeal to the State assessors, taken by the supervisors of the city of Kingston, November 28, 1882, from the equalization…

This action was brought to recover damages alleged to have been caused to certain premises owned by plaintiff in the city of Albany, by the acts of defendant in raising Colonie street in front thereof. The material facts are stated in the opinion. Plaintiff can only recover the damages sustained previous to the bringing of the action, and it is error to allow a recovery for a diminution in value based upon the assumption that the nuisance is to continue forever.

Appeal by William T. Murphy, defendant, from a judgment of the General Term of the Supreme Court in the Fifth Department, of July 23, 1886, affirming a judgment of the Court of Sessions of Monroe county, convicting defendant of abortion. The facts appear in the report of the case at General Term.. 3 MY. Orim. Rep. 338. I. The evidence of Mrs. Pitcher and Dr. Herriman, showing the condition of the woman after the operation was performed upon her, was properly received.

This action was brought to recover damages alleged to have been caused to plaintiff’s premises by defendant’s negligence in the construction of a sewer. The facts are sufficiently stated in the opinion. The perfecting and consummation of the sewage plan thus committed to a special commission was a matter of public concern, called for by the health' and safety of the people at large, in which the commissioners acted quad-]udicially and as public agents.

<p>Plaintiffs commenced an action against defendant, McC., by service of summons by publication. An attachment was issued therein, which was levied upon certain lands, and plaintiffs obtained judgment. In an action brought to set aside as fraudulent against creditors, a conveyance of land by McC. to defendant McG., and to have the judgment declared a lien thereon, the latter attacked the attachment proceedings and the judgment. McG. was found guilty of co-operating with McC. to defraud his creditors. Held, that the proceedings should be upheld unless absolutely void for jurisdictional defects; and that they should be liberally construed to uphold the judgment, although they might have been held insufficient in a direct proceeding by the judgment debtor to set them aside.</p> <p>Proceedings taken during the twenty days that the Code of Remedial Justice was in force were valid if taken under that Code, or under the Code of Procedure, so far as any action was based upon them prior to September 1, 1877, when the Code of Civil Procedure went into effect.</p>

.This action was upon two drafts drawn upon and accepted by defendants’ firm and discounted by plaintiff. The summons was served upon defendant Otis, who moved to set aside the service of the summons upon the ground that an action had previously been commenced on the same causes of action by service of summons oh defendant Arthur S. Herenden, upon whose motion it was removed into the United States Circuit Court, where it is still pending.

The appellant appeared before the referee, but refused to be examined. The order is appealable. (Brinkley v. Brinkley, 47 N. Y. 40; Ludlow v. Knox, 4 Abb. Ct. App. Dec. 326; People v. Dwyer, 90 N. Y. 402.) In order to render a party liable for contempt in disobeying an order of the court or of a judge, it must appear that it was á lawful mandate. (Code of Civ. Pro., § 14; People v. Riley, 25 Hun, 587; O'Gara v. Kearney, 77 N. Y. 423; People v. Edson, 52 Sup.

set aside a judgment herein in favor of plaintiff and the order upon which it was entered as irregular and unauthorized. The nature of the action and the material facts are stated in the opinion. An action at law is still triable by a jury while one in equity is triable by the court. Damages are given in the former, specific relief in the latter.

<p>Appeal by the defendant, the New York Catholic Protectory,., from an order of the General Term of the Supreme Court in the. * first department, of May, 1885, reversing an order of the Special Term which discharged John Yan Heck, the child of the relator,.. from the custody of defendant</p> <p>The facts sufficiently appear in the opinion of the court</p>

This was an action for trespass; the defense was that the locus in quo is a private road duly laid out and opened. The material facts are stated in the opinion. If either the commissioners, or the referees, or the Supreme Court acquired jurisdiction of the subject-matter of the road proceedings, their adjudications cannot be collaterally impeached for any errors that may have occurred.

upon a verdict, and affirmed an order denying a motion for a new trial. The nature of the action and the material facts are stated in the opinion. The trial judge erred in excluding, from the jurors drawn for said trial, jurors who at the time resided in Troy. (Laws 1816, chap. 1, § 16; Laws 1870, chap. 598; Laws 1873, chap. 427; Code of Civ.

(Reported below, 31 Hun, 550.) The substance of the complaint is set forth in the opinion. The payment by plaintiff in 1875, being a voluntary payment of an assessment void on its face, the action to recover the amount paid cannot be maintained.

<p>Criminal and Civil Contempts</p> <p>Contempts are divided into two classes: First, civil or private contempts, whose occasion is an injury or wrong done to a party or suitor before court, and which, and the action of the court in regard thereto, results in a money indemnity to the injured litigant, or a compulsory act or omission enforced for his benefit. Second, public or criminal contempts are those which are violations of the rights of the public as represented by their constituted legal tribunals, and where a punishment of the wrong is inflicted by the courts in the interest of the public. These latter contempts, in their nature, partake of the nature of crimes which are violations of the public law.</p> <p>The people can cause punishment for a private or civil contempt, only when they seek to enforce a civil right or remedy which the misconduct tends to defeat or impede.</p> <p>For a criminal contempt we may look only to the statute, but for a civil contempt we may resort, if need be, to the common law.</p> <p>An act which is not a private or civil contempt, and which is not enumerated in the statute as a criminal contempt, is not a contempt at all, although it may be punishable as a misdemeanor.</p> <p>During the trial of one S., the relator, who was a juryman, went to the scene of the alleged offense, for the purpose of acquainting himself with the locality. No order of the court was disobeyed. Held, that such act was not a criminal contempt.</p>

This action was brought to recover damages for personal injuries alleged to have been caused by defendant’s negligence. Defendant owed plaintiff a duty to see that the door-step was safe. She did not go there as his licensee, or by any privilege which was subject to his control or liable to revocation by him, but in the exercise of that right which every traveler has, to turn aside and go extra viam to avoid an obstruction in the highway.

The nature of the action and the material facts are stated in the opinion. The measure of damages in every case of breach of contract is the value of the contract. The party should be made good, but speculative and contingent profits cannot be recovered or proved by opinion.

This was an action upon a policy of insurance against loss by fire upon plaintiff’s “undivided one-half interest” in certain buildings used as a saw and file factory.

This action was upon an undertaking given on appeal. The defense was that no written notice of the entry of the order, or judgment affirming the judgment appealed from, was served upon the appellants’ attorney ten days before the commencement of this action as required by section 1309 of the Code of Civil Procedure.

The nature of the action and the material facts are set forth in the opinion. Neither the charter of the village nor the law of highways requires the line or route of the road to be particularly defined by course and distance in the application. (Hallock v. Woolsey, 23 Wend. 328.) Whether the petitioners were owners cannot be inquired into collaterally.

(Reported below, 37 Hun, 473.) This action was brought against plaintiff as receiver of the Middletown National Bank to recover possession of certain securities, which the complaint alleged were pledged to it as security for a draft, which draft was forwarded for collection to said bank, accompanied by the securities with instructions to hold them until payment of the draft.

The nature of the action and the material facts are stated in the opinion. The plaintiff, claiming under the will, must take it as he finds it. He cannot in the same breath affirm it and deny it. (Decker v. Waterman, 67 Barb. 460, 465.) Whether the gift or bequest in question should be deemed a specific legacy depends upon the intention of the testator. (1 Roper on Legacies, 192.) The test is, would it be liable to ademption.

) The facts so far as material are set forth in the opinion.

<p>While judgment creditors, holding distinct and several judgments, may-unite in an action to set aside a conveyance of land by the common debtor, made in fraud of their rights as creditors, they are not all necessary parties to such an action, and where one of them has commenced such an action, the Code of Civil Procedure (§ 452) does not require the court to compel the plaintiffs to bring in the other judgment creditors.</p> <p>An order, therefore, denying a motion of other judgment creditors to be allowed to intervene in such an action is discretionary and is not reviewable here.</p> <p>People v. A. & V. S. S. Go. (77 N. T. 232), Osterhoudt v. Supervisors (98 id. 239),. distinguished.</p> <p>It seems that the judgments are liens upon the land in the order of their docketing, and if the plaintiff in the action to set aside the conveyance succeeds in establishing the fraud, he is entitled to a judgment setting aside the conveyance ¿imply, or the court may compel the fraudulent grantee to convey the lands to a receiver, to be sold to satisfy plaintiff’s judgment. If it simply sets aside the conveyance, the land will remain charged with the-liens of the several judgments in their order; if it appoints a receiver and directs a conveyance to him, and the plaintiff in the action is a junior judgment creditor, a purchaser under the receiver’s sale will take as of the time of the debtor’s conveyance to 'the receiver, subject, however, to the liens of the prior judgments.</p> <p>The result, therefore, in either case will not affect the liens of said judgments.</p> <p>In such an action plaintiff also sought to charge certain other lands with the lien of its j udgment, on the ground that the defendant was entitled to it as devisee of Gb, who had caused it tobe conveyed to K. as security for a debt which had since been paid. Held, that this did not entitle the senior judgment creditors to intervene, as a judgment in accordance with the relief demanded would not prejudice any right which they might have to enforce their judgments against the lands.</p>

The nature of the action and the material facts are stated in the opinion. Plaintiff having merely proved the bare fact of defendant’s possession, defendant should have been allowed to prove its ownership of the cars although not set up in its answer.

The nature of the action and the material facts are stated in the opinion. Upon a warrant in a bill of sale of personal property there must be an actual eviction before the vendor can be held. (Bordwell v. Collie, 1 Lans. 141, 144, 146; 45 N. Y. 494, 495; Greenvault v. Davis, 4 Hill, 643; St. John v. Palmer, 5 id. 599, 602, 603; Atkins v. Hosley, 3 T. & C. 322, 324.) Eviction is an actual expulsion.

Appeal, from order of the General Term of the Supreme Court, in the second judicial department, made at the September term, 1883, which reversed a judgment in favor of plaintiffs, entered upon the report of a referee. This action was brought to recover damages for an alleged breach of a contract. The contract and the material facts are set forth in the opinion.

<p>Under an arbitration clause in a policy of fire insurance, it is the duty of the parties to the contract to act in good faith to accomplish the appraisement in the way provided ; and if either acts in bad faith so as to defeat the real object of the clause, the other is absolved from compliance therewith; and so, when one arbitration fails from default of one of the parties, the other is not bound to enter into a new arbitration agreement.</p> <p>Defendant issued a policy upon household furniture which contained a clause providing that in case of failure of the parties to agree as to the amount of a loss each should appoint one arbitrator, who should select an umpire to act with them in case of disagreement. A loss having oc-' curved and the parties disagreeing, each selected an arbitrator in pursuance of the policy, who failed to agree. Plaintiffs testimony tended to show that he asked the arbitrator selected by defendant to agree with his in appointing an umpire, and asked defendant to select a new arbitrator ; but they did not accede to his requests. Defendant’s evidence tended to show that subsequently it made an offer to appoint a new arbitrator, and that the one selected by it offered to unite in selecting an umpire, which, offer plaintiff refused. Before these offers were made the fragments of the broken and damaged articles insured had been removed under order of the city authorities, so that an appraisal had, to a large extent, become impracticable. There was also some evidence tending to show that defendant was not acting in good faith to procure a speedy appraisal, but was using the clause in the policy to force a compromise. Held, that it was a question for the j ury to determine whether there was any breach of the policy on the part of plaintiff; and that a refusal to submit the question to the jury was error.</p>

(Reported below, 11 Daly, 350.) This action was brought to recover damages for an alleged ■unlawful and forcible eviction by defendant’s employes of plaintiff from a train on defendant’s road. The material facts are stated in the opinion. Plaintiff being a non-resident, and defendant a foreign corporation, and the cause of action an alleged assault and battery-on plaintiff, committed in New Jersey, the Court of Common Pleas had no jurisdiction.

The action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence.

This action was upon a contract, the nature of which, .and the material facts are stated in the opinion. Whether defendants were satisfied that the boilers as repaired were a success or not was, under tbe contract, for defendants alone to decide, and it was incumbent upon plaintiff to show they were so satisfied. (McCarren v. McNulty, 7 Gray, 139; Brown v. Foster, 113 Mass. 136; Taylor v. Ames, 6 Lans. 280; Gray v. Cent.

This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence. The material facts are stated in the opinion. Defendant owed plaintiff no duty; he was, when injured, a trespasser or mere licensee upon defeudant’s premises. (Severy v. Nickerson, 120 Mass. 306; 21 Am. Rep. 514; Sullivan v. Waters, 14 Ir. C. L. 466; E. & T. H. R. R. Co. v. Griffin, 100 Ind. 221; 50 Am. Rep. 783; Wright v. Rawson, 3 N. W. Rep’r, 726; Dogget v. Ill.

<p>Appeal from order of the General Term of the Supreme Court, in the fifth judicial department, made April 20, 1883) which reversed a judgment in favor of defendant, entered upon the report of a referee, and granted a new trial.</p> <p>The nature of the action and the material facts are stated in the opinion.</p> <p>The defendant was an entire stranger to the transaction between her husband and his creditor, and her promise embodied in the note was an entirely distinct and independent transaction and was entirely without consideration. (Cary v. White, 52 N. Y. 138; Farnsworth v. Clark, 44 Barb. 601; Chitty on Cont. 52; 1 Pars, on Cont. 391-2, 496-7; Ward v. Adams, 24 Me. 177.) This obligation is not governed by the law-merchant, and therefore the plaintiff, notwithstanding his alleged bona Repurchase, stands in the position of the creditor, Lovell, with no superior equities, and the defense of want of consideration, if established, must prevail, as though no transfer had been attempted. (Loomis v. Rusk, 56 N. Y. 462.)</p> <p>The affirmative allegations in the answer that there was no consideration for the note will not put in issue the contrary allegation in the complaint. (Fleishman v. Stern, 15 Weekly Dig. 274.) There was an actual and sufficient consideration of the execution of the note by the defendant. (Hienman v. Moulton, 14 Johns. 468.) Looking at the obligation in suit as a collateral security for the payment of the principal debt there is sufficient consideration to support it. (Grocers' Bk. v. Penfield, 7 Hun, 281; Place v. McIlwain, 38 N. Y. 96; Thompson v. Grey, 63 Me. 228; Mut. L. Ins. Co. v. Smith, 23 Hun, 535; Stewart v. McGann, 1 Cow. 99; Eling v. Vanderlyn, 4 Johns. 237; Todd v. Ames, 60 Barb. 454; Manhattan B. & M. Co. v. Thompson, 58 N. Y. 82; Penn. Coal Co. v. Blake, 85 id. 226; Thompson v. Gray, 63 Me. 228; Wheeler v. Slocumb, 16 Pick. 52; Boyd v. Freize, 5 Gray, 554.) The conclusion of the referee that the note in suit was non-negotiable and not governed by the rules of the law-merchant was erroneous. (Third Nat. Bk. v. Blake, 73 N. Y. 260; Woolsey v. Brown, 11 Hun, 55; Manhattan B. & M. Co. v. Thompson, 58 N. Y. 82.) A married woman is liable upon- her accommodation indorsement in which her separate estate is charged. (Corn Exch. Ins. Co. v. Babcock, 42 N. Y. 613; Third Nat. Bk. v. Blake, 73 id. 260; Bodine v. Killeen, 53 id. 96; Ackley v. Westervelt, 86 id. 448; Tiemyer v. Turnquist, 85 id. 516; Hall v. Wilson, 16 Barb. 549.) If it should be held that a note in suit is not governed by the law-merchant, the principle of estoppel should apply to it in the hands of the plaintiff. (Bodine v. Killeen, 53 N. Y. 96; Smyth v. Munroe, 84 id. 354; Anderson v. Mather, 44 id. 249.)</p>

(Mem. of decision below, 28 Hun, 629.) This action was brought by plaintiffs as surviving trustees under the- will of Stephen Whitney, deceased, for settlement of their accounts. The appeal was from that portion of the judgment fixing the compensation of plaintiff. The material facts are stated in the opinion. Plaintiffs were not entitled to receive a second commission upon the capital of the estate. (Drake v. Brice, 5 N. Y. 430; Valentine v. Valentine., 2 Barb.

This was an action to foreclose a mortgage executed by the railroad company, defendant, upon its property and franchises. Horace Russell and Theodore Houston were appointed receivers of the mortgaged property. The order appealed from fixed and settled their compensation at $40,000 each. The provisions of chapter 378, Laws of 1873, extend to all receivers of all corporations. (Guardian L. Ins.

The nature of the action and the material facts are stated in the opinion. The instrument sued upon is a bill of éxchange. (Pothier, Blackstone, Kent, Edwards and Story; Luff v. Pope, 5 Hill, 416; 1 Pars, on Notes and Bills, 323; Convren v. Luddy, 31 Penn. St. 509; 6 B. Monr. 179; 4 Den. 358; 2 Wheat. 385; 3 Shepl. 131; 9 Watts, 359; Byles on Bills, 245; Mich. Bk. v. Stratton, 3 Abb. Ct. App..

(Reported below, 31'Hun, 484.) This action was brought to recovera balance alleged to be due plaintiff on his deposit account with the defendant. The material facts are stated in the opinion. The bank, upon receiving the deposit, became debtor ostensibly to the depositor, but equitably to the real owner, and upon proper demand was liable to him. (Van Allen v. Am. Nat.

This action was upon an alleged agreement to renew a policy of fire insurance. The material facts are stated in the opinion. Jackson was not authorized by the defendant to make the alleged contract of renewal. (Mersereau v. Phoenix M. L. Ins.

The order appealed from also denied the prayer of the petitioners, the lessors. (Reported below, 38 Hun, 597.) On September 17, 1881, said Strasburger was adjudged a lunatic, and a committee of his estate appointed; he was, prior to that, engaged in business in ISTew York city, occupying for that purpose premises leased to him by the petitioners for a term of years, for an annual rent payable in quarterly installments.

This action was brought to recover balances alleged to be due upon two statements of gold transactions, the nature of which, as Avell as the material facts are set forth in the opinion. The effect of an account stated is the same as a promissory note. There is an existing legal obligation to pay the amount so ascertained to be due. (Lockwood v. Thorne, 11 N. Y. 170, 173; Willes v. Jernegan, 2 Atk. 257; Phillips v. Belden, 2 Edw.

This was an action to recover damages for the cutting and carrying away of certain timber. The parties' had made a contract for the sale of standing timber on lands described in the contract. On the trial plaintiff offered to prove acts, statements and declarations of .the parties at the time, and after the making of the contract, showing that the timber in question was not understood by the- parties to be covered by the contract. This was objected to and excluded.

This was an action in the nature of a creditor’s bill brought by plaintiff as a judgment creditor of the defendant Lewis, to reach property alleged to belong to him individually and also the proceeds of certain real estate which belonged to a firm of which he was a member, and which the complaint alleged was conveyed by the firm to defendant Thompson by conveyance absolute on its face, but which was intended simply as a mortgage to secure an indebtedness of the firm.

This was an appeal from an order of General Term affirming an order of Special Term, which awarded a writ of peremptory mandamus, requiring the State comptroller to draw his warrant upon the State treasurer for the amount of moneys paid into the treasury by the administrator of the estate of Patrick Fox, deceased.