Volume 11 — New York Miscellaneous Reports

<p>Appeal by plaintiff from judgment rendered in favor of defendants at Equity Term.</p>

<p>Appeal by defendant from judgment entered on verdict of jury in favor of plaintiff and from order denying motion for a new trial.</p>

<p>The surrender of notes to the indorser thereof before they become due is a sufficient consideration for notes to the same amount made and delivered by such indorser i* exchange therefor.</p>

<p>The right of the builder of a party wall to receive payment under the agreement upon use of the wall by the other party thereto is personal to him, and does not pass to his grantee.</p> <p>The obligation to pay for a party wall when used is personal to the party agreeing to make such payment, and is not discharged by a conveyance of the property, nor by the fact that it was his grantee, and not such party in person, who used the wall.</p> <p>Plaintiff and defendant’s testator entered into a party-wall agreement by which the former was to build a party wall and the latter was to pay half the expense thereof when he should use it. The testator died without having exercised his right to use the wall, and defendant thereafter conveyed his premises to a third person, to whom plaintiff had previously conveyed her house and lot. The grantee thereafter, in making an extension, used the party wall. JHeld, that such use by the grantee was a use by defendant’s authority and, within the contemplation of the agreement, a use by the defendant, and that plaintiff was entitled to recover from the estate of the testator the amount agreed to be paid for such use.</p>

The action is for slander, and the complaint in these words : “ That on or about the 30th day of November, 1893, at the premises No. 228 West Fifty-ninth street, in the city of New York, the defendant, in the presence and hearing of a number of persons, maliciously spoke concerning the plaintiff the false and defamatory words following, to wit: “ That he called the plaintiff a God-damned Irish bitch, whereby the plaintiff was injured in her reputation to. her damage the sum…

<p>In an action against an elevated railroad evidence as to noise caused by passing trains is competent as to past damages to plaintiff’s premises.</p> <p>A provision in the judgment in such a case that the sum to be paid to obviate the injunction is to be paid upon the delivery of a conveyance or release from all parties having an interest in or lien upon the premises contemplates a conveyance or 'release effectually discharging the easement from all claims of every kind, character or description.</p>

<p>Appeal from judgment entered on a verdict in favor of the defendant, and from order denying plaintiffs motion, for a new trial.</p>

<p>Appeal by defendant from judgment rendered in favor of plaintiff at Equity Term.</p>

<p>Appeal from a judgment of the Equity Term.</p>

Appeal by defendant from a judgment in favor of the plaintiff, entered upon - a verdict of a jury, and from prder denying defendant’s motion for a new trial.

<p>A mother who was in ill-health, and believed that her illness might result in death, surrendered a certificate of railroad stock owned by her, and had a new certificate therefor issued in the name of her minor daughter, but retained the certificate and collected the dividends thereon in the name of her daughter. Held, that such transfer was a gift causa mortis and that she had an incontestable right to revoke the same, and having done so was entitled to unqualified possession of the certificate.</p>

<p>Appeal from judgment in favor of the plaintiffs, entered on the verdict of a-jury, and from an order denying defendants’ motion for a new trial.</p>

Appeal by defendant from judgment rendered on verdict in favor of plaintiff, and from order denying motion for a new trial.

<p>The action was upon an accident insurance policy issued to plaintiffs’ testator, Henry Wehle, whereby the defendant insured him in the sum of $10,000 against bodily injury through violent and accidental means from which death should ensue.</p> <p>The plaintiffs proved, without contradiction, that the insured met his death by accidental drowning near Far Bockaway, September 4,1893, and that the coroner’s jury which held the inquest upon the body returned a verdict to that effect.</p> <p>The result of the trial was, by the decision of the presiding judge, made to depend upon the seventh defense, which alleges that the plaintiffs violated a certain provision of the policy by refusing to give the defendant “ the opportunity to examine the body of said Henry Wehle in respect to the alleged cause of death.” On this ground the court held with the defendant, directed a verdict in its favor, ordered that the plaintiffs’ exceptions be heard in' the first instance at General Term, and that entry of judgment be suspended in the meantime.</p> <p>The plaintiffs now apply for a new trial on the exceptions taken, and the defendant moves for judgment on the verdict. Code, § 1234.</p>

<p>To amount to a denial the traverse must be neither too large nor too narrow. Where the complaint alleges several facts conjunctively, a conjunctive denial only denies the conjunction, and is not a denial of the separate existence of either fact.</p> <p>The complaint in an action upon two policies of fire insurance alleged that plaintiff “duly performed all the conditions of said policies of insurance on his- part,” and that plaintiff, “ more than sixty days before the commencement of this action, to wit, on the 10th day of June, 1893, at the city of New York, presented to the attorney of the defendant, pursuant to the terms of said policies, notices and proofs of the fire and loss aforesaid.” The answer denied'that “the plaintiff duly performed all the conditions of each of the said policies of insurance on his part. He denies upon information and belief that more than sixty days before the commencement of this action, or at any time, the plaintiff presented to the attorney of the defendant, pursuant to the terms of said policies, due notices and proofs of the fire and loss aforesaid.” Held, that the only issue tendered by these allegations of the answer was that ope of the'conditions of one of the policies was not performed, without specifying the condition or policy, and that such tender was ineffectual to create an -issue.</p>

<p>Appeal by defendant from judgment entered on report of referee in favor of plaintiff.</p>

<p>A consignee of goods carried under a subcharter who is compelled, in order to obtain Ms goods, to pay moneys due under the original charter to the owners of the vessel, may recover from the original charterer the amo-unt so paid and the expenses of defending the action against him.</p> <p>The liability of one who stands in the position of indemnitor to others who are also immediately liable to a third party may be fixed and determined in an action brought against the indemnitee, by notice pf the pendency of such action and an opportunity afforded to him to defend it.</p> <p>In an action by a consignee to recover a debt of the original charterer which he has been compelled to pay in order to obtain his goods, it will be presumed that the freight has been paid to the subcharterer..</p>

<p>Appeal by the defendant from judgment entered in favor of plaintiff on report of referee.</p>

<p>Appeal from a judgment entered on tbe verdict of a jury.-</p>

<p>WMle attempting to couple an engine to a train of cars in the evening, plaintiff was caught between them and injured because of the absence from the engine of a bustle or bumper. Plaintiff’s lantern had just gone out, and he had no time to relight it, and did not discover the absence of the bustle until it was too late to escape. Held, that the questions of plaintiff’s contributory negligence, and as to defendant’s negligence arising from the absence of the bustle, were for the jury to determine.</p>

<p>Appeal by defendant from judgment 'in favor of the plaintiff, entered upon the verdict of a jury, and from order denying defendant’s motion for a new trial.</p>

<p>Appeal by the plaintiff from judgment entered' on dismissal . of the complaint.. .</p>

<p>Appeal from a judgment in favor of the plaintiffs, entered upon the decision of a judge after a trial of the issues at an Equity Term.</p>

Action to recover from the defendants the proceeds of certain wool alleged to have been fraudulently purchased from the plaintiffs by the Rittenhouse Manufacturing Company, of which the defendant Ammidown was the president. The following is the opinion at Special Term:

<p>A notary public is a public officer within the meaning of section 5 of article XIII of the Constitution, which prohibits public officers from asking, accepting or receiving, for their own use or benefit, or for the use or benefit of another, and from using themselves or in conjunction with another, any free pass, free transportation, franking privilege or discrimination in passenger, telegraph or telephone rates from any person or corporation, and making a violation of the section a misdemeanor and ground for forfeiture of office.</p>

For the purpose of determining the question as to whether or not, under the amended Constitution, railroad companies could be required to transport the officers .and agents of the railroad commission, when on official business, upon passes signed by the secretary of state, in accordance with section 169 of the Railroad Law, a test case was brought upon stipulated facts in an application for a mandamus to require the secretary of state to issue such transportation as…

<p>An objection that the contract sued upon is invalid under the Statute of Frauds is waived unless taken by answer, where such invalidity does not appear upon the face of the complaint.</p>

<p>An answer in an action brought by resident plaintiffs for goods sold to nonresidents which alleges that defendants are nonresidents; that they have no property in this state and were not served with process ip this state, is frivolous.</p>

<p>Appeal from judgment in favor of the plaintiffs, entered upon the verdict of a j'ury.</p>

<p>An error in entitling an action as brought by the guardian ad litem,, instead of by the infant by guardian, is merely formal and is amendable under section 728 of the Code.</p> <p>An infant who is competent to testify on the trial is competent to make an affidavit to procure an order of arrest.</p>

<p>Appeal from judgment entered upon verdict directed in favor of plaintiff.</p>

<p>Appeal from judgment .entered on the verdict of a jury, and from an order denying a motion for a new trial..</p>

<p>Appeal from judgment in favor of the plaintiff, entered upon a verdict directed by the court, and from order denying motion for a new trial.</p>

<p>Appeal from judgment in favor of the defendant.</p>

<p>Motion to vacate a judgment of a Justice’s Court, a transcript of which had been docketed in the office of the county clerk, and the execution issued thereon.</p> <p>This action was instituted before a justice of the peace in Clinton county. Summons was issued returnable the' 26th day of May, 1894. On the return day, personal service having been made on the defendant, the plaintiff appeared by II. E. Barnard, Esq., who swore to his authority to appear for the plaintiff, and the defendant appeared by A. W. Boynton, Esq., who swore to his authority to appear for the defendant. The cause was thereupon adjourned to the' second day of J une following, at which time both parties appeared in person and also by their respective attorneys, and the trial was proceeded with. At the close of the trial the cause was adjourned by consent to the second day of July following for argument. On the second day of July neither of the parties appeared in person, but the respective attorneys appeared, and the cause was argued and finally submitted to the justice. At the close of the argument the following stipulation was made:</p> <p>* “ 30 days additional time is hereby given the justice to decide this case in and to fender judgment herein.</p> <p>“ Plattsbubgh, E. Y., July 2, 1891.</p> <p>“ H. E. Baknabp, Att. for Plff.</p> <p>“ A. W. Boyntoet, Att. for Deft?</p> <p>On the fourth of August following the justice rendered judgment in favor of the plaintiff for twenty-five dollars and twelve cents, damages and- costs. The defendant personally had no notice of the entry of this judgment until after his time to appeal therefrom had expired.. A transcript of the judgment was filed and judgment docketed in the Clinton' county clerk’s office, and thereafter a transcript was filed and docketed in Essex county .clerk’s office. On the judgment thus docketed in Essex county execution was thereafter issued, and this motion is made for the purpose of vacating and setting aside the judgment docketed and the execution issued thereon.</p>

<p>Motions by plaintiff for treble damages, and by defendant to set aside the verdict.</p>

<p>Plaintiff’s agent, who was at the time indebted to it for moneys previously embezzled by him, individually purchased from defendant certain Shares of its stock, in payment for which he gave the plaintiff’s check. Immediately thereupon he pledged said stock as security upon the discount of his individual note and deposited the proceeds of the discount to plaintiff’s credit, for the purpose and with the intention of making the account good for the check which he had given to defendant. In an action to recover the amount of the check from the defendant, held, that, as between the plaintiff and the defendant, the transaction was governed ■ by the intent and purpose of the agent, and he having made the deposit of funds raised upon his own stock for the sole purpose of paying for the stock to defendant, plaintiff was not entitled to recover so far as the amount of such deposit entered into the payment of the check, but could only recover the difference between the amount of such deposit and the amount of the check.</p>

<p>A complaint in an action for the death of plaintiff’s intestate, which was caused by the burning of the building in which he was at work for the defendant, alleged that the fire originated in the dynamo room by reason of defects in the appliances and machinery, and that by reason of defective insulation the wires set fire to the woodwork, arid further alleged that the fire and the burning of the building was due wholly to the carelessness of the defendant. Held, that such allegations made out a cause of action for negligence against the defendant, and that the same was not weakened by the further allegation of .negligence of its employees in failing to attempt to put out the fire. ‘</p> <p>In such an action it is proper to allege and prove that the windows of the room in which the decedent was at work were screwed down.</p> <p>White, J., dissents.</p>

<p>Appeal by defendant from a judgment entered upon the decision of the court at Special Term.</p>

<p>Demurrer to complaint, upon the ground that it does not state facts constituting a cause of action.</p>

<p>Application for a stay pending an appeal.</p>

<p>The trustees of the village of Fairport have full p'ower, under the charter ' of the village, not only to compel the construction of sidewalks in such ■ manner and of such material as they may deem proper, but also to cause any obstruction to the sidewalks or highways of the village to .be removed.</p> <p>"Where an abutting owner in such village, with full knowledge of the line designated by the trustees, constructs the sidewalk in front of his -premises on a different line and nearer the center of .the street, the. trustees .have power to compel him to remove the same to the line designated by them.</p> <p>In such case a notice directing such owner to remove the sidewalk to the line so established within three' days is sufficient.</p>

<p>A demurrer does, not run to the summons or to the caption of the complaint, but is confined to the allegations of the complaint.</p> <p>"Where the allegations of the complaint clearly charge a defendant in a representative capacity, the fact that he is named individually in the summons and the caption of the complaint does not render the complaint demurrable.</p>

<p>Insurance taken out by a mortgagor upon the mortgaged premises inures to the benefit of the mortgagee under a covenant in the mortgage to keep the premises insured for his benefit, although there is no recognition of the covenant in the policy nor any assignment of the policy to the mortgagee.</p> <p>A husband and wife executed a mortgage • which contained the usual covenant to keep the premises insured for the mortgagee’s benefit, and the husband thereafter died. After the husband’s death policies which he had taken out were canceled, and the wife, as administratrix, procured other policies payable to the estate of the husband, the premiums on which were paid from her individual funds and from those of the estate. Hone of these policies recognized the covenant in the mortgage nor were they assigned to the mortgagee. In an action of foreclosure after a loss by fire, held, that the mortgagee’s equity to the insurance moneys was superior to that of the general creditors of the husband, and constituted a specific lien on the fund in the hands of the administratrix.</p> <p>Where there is also a junior mortgage, which contains no covenant for insurance, the insurance moneys should be applied to the senior mortgage before resort is had to the land.</p>

<p>Appeal from judgment of a Justice’s Court in favor of the defendant.</p>

<p>Appeal from judgment in favor of the plaintiff, entered on verdict, and from order denying a motion for a new trial.</p>

<p>Upon tearing down defendants’ building for the purpose of erecting a new building it was discovered that there was a party wallhetween it and plaintiff’s building which had existed since 1858. Plaintiff thereupon procured an injunction restraining defendants from removing any part of such party wall, and thereafter obtained an order to show cause why they should not be punished for contempt of such order, with a further in june, tion restraining them from trespassing upon or building upon such wall. On the trial of the action it was determined that plaintiff had an easement in the party wall and that defendants should be restrained from interfering with it, hut that they could build in front and rear of it and upon it, and that plaintiff could not use the new portion. After judgment was entered in the action an order was made, based upon the findings therein, vacating the second injunction order. Held, that such order was a determination that the plaintiff was not entitled to the second injunction, and that a reference to compute the damages sustained by defendants by reason of such injunction was properly ordered.</p> <p>An order confirming the report of a referee appointed to compute the damages sustained by reason of an injunction should only fix the amount of such damages ; a direction therein that the sureties pay the amount and that judgment be entered against them is erroneous.</p>

<p>An- agent of an insurance company wlio solicited the policy, delivered the same and received the premiums thereon, and who holds himself out as manager of the company in a city other than that of its principal office, has authority, as to one who has no notice of a limitation thereof, to receive notice of intention to surrender, or a surrender of a policy.</p> <p>Where a policyholder notifies such au agent of his intention to surrender his policy and take a paid-up policy, he is entitled to be informed as to the mode of procedure required by the company in such cases; and where no such information was given, but the agent simply demanded the surrender of the old policy, a court of equity will relieve against a forfeiture of the right to a paid-up policy created by lapse of time.</p>

<p>Chapter 388, Laws of 1879, which gives to the owners and occupants of ice houses and premises on the banks of the Hudson river proprietary rights to the ice to the center of the channel of the river, upon complying with certain conditions, aSords an exclusive remedy by the provision ' that any person trespassing upon or taking the same for commercial purposes shall be liable to the owner or occupant for the value of the ice so taken or for any injury done to the same;, and an injunction will not lie to restrain the cutting or removal of ice by others in the absence of proof that such persons are irresponsible or that the damages are irreparable.</p>

<p>Actiox to restrain the collection of an assessment for a •sewer. '</p>

<p>Dbmubbeb to complaint.</p>

<p>A mere extension of the time of payment of a mortgage is not a waiver of the mortgagee’s right to exercise the option given by the mortgage to consider the entire principal sum due on account of a default in the payment of taxes which occurred before, the extension was given, unless-' such extension was associated with acts indicating an intelligent purpose to renounce such privilege, or which make it inequitable or unconscionable for him to enforce it,</p> <p>An allegation that taxes and assessments have been levied upon the property, “and have remained unpaid for the period of five years, or thereabouts, and - that more than six months have elapsed since the greater portion of the same became due,” does not necessarily mean that such taxes were due and. payable five years before, but may more properly bear the construction that taxes were imposed from time to time during that period.</p>

<p>Pbobate of will.</p>

<p>Motion by plaintiff for a new trial upon the minutes.</p>

Motion to compel the sheriff to apply the proceeds of sale of property levied upon by him under attachments in favor of other creditors to the payment of plaintiff’s execution.

Mahdamus under alternative writ tried at Kings County Special Term. The relator made application, under section 26 of the Excise-Law, as amended, for permission to transfer a license to himself. On August 29, 1894, the respondent board,-overlooking certain protests, passed a resolution granting the -application.

<p>Appeal from order granting a writ of mandamus.</p>

Aotioh to procure a determination as to the rights and interests of the plaintiffs and' their mother in certain property conveyed to the mother, it being claimed that there was an implied trust in favor of the plaintiffs.

<p>An assessment for taxation of a fund of personal property, held by trustees and subject to assessment against them as trustees, is not vitiated by the fact that in the assessment rolls, as originally prepared, the trustees were described “as executors and trustees.”</p> <p>Tax commissioners have power to corrtct inaccuracies in the assessment rolls both as to names and words of description of persons assessed in a representative capacity.</p> <p>Section 818 of the Consolidation Act, requiring the assessed valuation of all personal property to be entered in alphabetical order of the names of persons and corporations subject to taxation, is sufficiently complied with, where property is held by two trustees, by entry of the assessment in alphabetical arrangement under the first letter of the name of one of the trustees;</p>

of Rew York, which affirmed an interlocutory order- and judgment made at Special Term overruling the plaintiffs . demurrer to certain defenses and counterclaims alleged in the. defendants’ answer. '

<p>Appeal from ■ judgment entered upon a dismissal of the complaint.</p>

<p>Appeal by defendant Oollier from order-denying motion to vacate order of arrest.</p>

<p>Appeal from order declining to correct case on appeal in respect to the sixth and eighth specifications enumerated in the affidavit of plaintiff’s attorney.</p>

<p>Appeal from judgment in favor- of the plaintiff, entered on verdict directed by the court.</p>

<p>Appeal from order .substituting the obligors- in an under* . taking of indemnity as defendants.</p>

<p>Appeal from an order vacating an injunction.</p>

<p>Appeal from a judgment in favor of the .plaintiff.</p>

<p>Appeal from order opening a judgment entered on a default and allowing the administratrix of the defendant to-defend.</p>

<p>A loan association whose articles provide that the shares of members who-file applications for withdrawal shall be refunded as soon as the necessary funds are in the treasury has no legal .right to disregard it by appropriating any of the money in the treasury -to the making of loans .while withdrawal notices are on file which have not.been honored.</p> <p>A director of the association who assented- to one of such unauthorized loans, and knew or ought to have known of the others, is estopped from thereafter complaining thereof in his own behalf, and cannot maintain an action for the amount of his shares in pursuance of a withdrawal notice because of such improper use of the funds.</p>

<p>Where the city accepts the services of a surveyor in street opening proceedings after due employment, it cannot avoid liability therefor by appeal to section 6 of title 19 of the charter, where it has, by affirmative action, rescinded and discontinued such proceedings, and thus prevented the possibility of levying and collecting an assessment therefor on the property benefited by the proposed improvement.</p>

<p>The complaint in an action to recover the possession of personal property or its value cannot be dismissed on the ground of the failure of proof of value at the date of trial, as the plaintiff, if successful, is entitled at least to nominal damages.</p>

<p>The making and delivery by mortgagors to the mortgagee of an affidavit that the bond and mortgage were executed for a valuable and full, consideration, and that there are no defenses thereto in law or equity, and a purchase of the securities by a third person in reliance on such affidavit, constitute an estoppel which will prevent the mortgagors from availing themselves of the defense of usury.</p>

<p>•The will of testatrix gave a certain house and lot “unto my brother Thomas F. Mullins, in trust, nevertheless, to have and hold the same during the minority of six children of my brother John Mullins,, for the benefit of said children, being named respectively * * " . On said children attaining majority I give, devise and bequéath the house and lot devised in this paragraph,to the said six children and the issue of any deceased child, and the survivors and survivor of them, share and share .alike, issue to take per papita aiid. not per stirpes, to have and to hold,” etc. Meld, that the devise to the children did not contravene the statute against perpetuities and was valid, and that the estate vested in them ns tenants in common at the death of the testatrix, subject to the control thereof by the trustee during their minority, and" that such trust was a -valid express trust, authorized by subdivision 3 of section 55 of the ¿Statute of Uses and Trusts.</p>

<p>An action may bo maintained .by resident stockholders of a foreign cor- ' pórationj although they hold only a small portion of the stock, to prevent waste and recover for the corporation stock or property improperly . given away, where the management of the company is in the hands of the persons by whom the acts complained of were committed,</p> <p>Where the acts complained of have been fully executed,, the charges of misconduct are denied, and full relief can be granted by á money judgment, and it does not appear that the defendants are insolvent, *an in j unction pendente lite, in such a case, is not necessary and should not be granted.</p>

<p>A temporary receiver appointed in an action for partition occupies a position which prohibits him from buying the property for himself from those who do not know that he is the purchaser.</p> <p>Where such a receiver purchases the land from the heirs through a third person for much less than its actual value, the vendors are at liberty to avoid the sale on repaying the amounts received.</p>

<p>Where a contract for a municipal improvement provides for its payment by the issue of bonds, and the city treasurer refuses to issue them, a mandamus to compel him to do so will lie in behalf of the contractor.</p> <p>The limitation in the new Constitution upon the indebtedness of a city does not apply to a contract existing at the time of its adoption which provided for payment in bonds.</p>

Action to recover from defendant the amount of an indebtedness of a corporation of which he was a stockholder, on the ground that the capital stock had not been paid in full and a certificate filed.

Action to recover damages for trespass to lands, cutting and taking timber therefrom, really an action to try title to the lot in question, No. 86, except northwest quarter, in the town of Belmont, Franklin county. It was conceded that plaintiff had title unless it had been divested by the tax sales of 1877, 1881 and 1885.

<p>Appeal by plaintiff from judgment dismissing complaint, entered u-pon findings at Special Term.</p>

<p>Where one of two trustees, having possession of funds of the trust estate, procures the approval of his co-trustee to the investment thereof in specific, nonnegotiable choses in action, to wit, certain bonds and mortgages, and such investment is thereafter made, as between the trustee actually malting the investment, or his general assignee, and the trust estate, the securities are the property of the trust estate, although they were taken in the name of such trustee individually, and although the money so invested cannot be traced directly to any specific funds that he had received as trustee.</p> <p>Where a trustee has negligently permitted his co-trustee to take and continue bonds and mortgages given for estate funds in the latter’s sole name individually, the trust estate is estopped from disputing the validity of an assignment of said bonds and mortgages made by the trustee so having apparent absolute title as collateral security for moneys advanced on account .and for the benefit of a corporation of which he was an officer.</p> <p>In an action in equity to which all the interested persons are parties, the corporation receiving the benefit of such fraudulent diversion of trust securities may he compelled to pay the amount for which they had been pledged, and so release the pledgee’s lien.</p> <p>Ho estoppel can arise in favor of one estate against another because of a representation which the legal representatives of both estates knew to be false at the time it was made.</p>

<p>In an action for a discharge under the Two-thirds Act, the court is not precluded by the testimony of the petitioner as to residence from finding otherwise.</p> <p>' The petitioner was a member of a fishing club which had a club house in-the county of Ulster, where the petitioner and his. family spent the sum- . mers and sometimes a part of the spring and fall, a room being assigned to them in the club .house, and at all other times they lived in Elizabeth, H. J., in a house owned by petitioner’s wife, his wife and children being connected with a. church and Sunday school and social organizations in that city. It also appeared that petitioner was engaged in business in Hew York city, and had described himself in deeds and on hotel registers as of Elizabeth, and never as-of the place where the club house was located. Held, that petitioner had no residence in Ulster county within the meaning of the Two-thirds Act.</p>

<p>Where landlords direct their manager to take the receipts for the sale of goods to a tenant and pay the hill therefor, this makes them original debtors for the goods and renders them liable to the vendor.</p>

<p>Where the complaint in an action for services declares upon a special contract at an agreed price, and plaintiff’s, direct testimony is to the effect that such- sum was expressly agreed to he paid, testimony on his part 1 as to the value of the services is inadmissible.</p>

<p>Appeal from order permitting the plaintiff to continue the action in forma pa/uperis.</p>

<p>Appeal by defendant from order overruling her answer as frivolous.</p>

<p>In an action against several defendants as copartners upon a contract made by one of them in the name of the firm, where it appears that the present copartnership was formed after the making of the contract, and that at that time the copartnership consisted of the defendant who made it and another person not a party to the action, a separate judgment may be rendered against the defendant who signed the contract, and it is error to dismiss the action as against all the defendants.</p> <p>Mhklich, Oh. J., dissents.</p>

<p>Appeal by plaintiff from judgment of nonsuit.</p>

<p>' Appeal by defendant from judgment on verdict for plaintiff, and from order denying new trial.</p>

<p>Appeal by defendant from judgment on verdict.</p>

<p>Appeal from order granting leave to the defendant to serve a supplemental answer.</p>

Appeal by the defendant from an order directing taxation of costs against him. The following is the opinion of the court at Special Term:

Appeal by plaintiff from interlocutory judgment in favor of the defendant, overruling the demurrer to defendant’s counterclaim.

<p>Appeal from order made at Special Term setting aside a nrior order anpointing a receiver.</p>

<p>In an action for conversion, where both parties claim title through the same vendor, the defendant is entitled to show by the testimony of such vendor that, prior to the bill of sale to plaintiff, the property had come into the polsession of the defendant by transfer and delivery under an agreement by which the latter was to complete it and charge the expense thereof on the contract price.</p>

Appeal by the defendant from a judgment entered on verdict of a jury in favor of the plaintiff and from an order denying a motion for a new trial.

<p>Appeal by defendant from judgment for plaintifi on verdict and from order denying new trial.</p>

<p>Demtjbbeb to complaint.</p>

<p>Motion to-compel the attorney for the plaintiff. to produce evidence of his authority to commence the action.</p>

<p>.Application by plaintiff for injunction order.</p>

<p>Action to recover the proceeds of certain policies of insurance upon the life of the plaintiff’s testator.</p>

<p>A false statement as to ^he health of the insured, made while the policy is regularly in force, does not avoid such policy.</p> <p>•The amount of a premium due on December first was mailed on November twenty-seventh, and was received by the insurer. On December ¡second notice was sent to the insured that the premium had not been •.received in time, and requesting a statement as to his health. The "insured forwarded the statement, as required, which contained statements which were false in. fact. Seld, that as the insured had until the first of December to mail the payment of premium there was no default in payment at the time such statement was made; that it was made under a mistake, and was gratuitous and of no legal or binding force, and could not affect the policy.</p>

<p>Appeal from judgment in favor of the plaintiff, entered on a verdict, and from order denying a motion for a new trial.</p>

<p>Appeal from, judgment in favor of the plaintiffs, entered. upon the. report of a referee.</p>

<p>Appeal from judgment in' favor of the plaintiff, entered upon a verdict, and from an order denying a motion for a new trial on the minutes.</p>

Motion to vacate the award of commissioners appointed to determine the necessity of a proposed alteration of a highway in the town of Marlborough, and to ascertain and .assess the ■damages resulting therefrom.

<p>■Certain lands which had been hid in by the state at tax sales in default of bidders were afterwards sold and conveyed by the state to the petitioner, in pursuance of the laws" in- relation to the forest preserve, for much less than the aggregate of the taxes for which- the lands were sold to the state. Thereafter, on tiie application of the petitioner, the tax sales were canceled by the comptroller. On an application for a mandamus to compel the payment to the petitioner of the amount paid by the state on the tax sales, held, that the cancellation of the tax sales was illegal ■and without jurisdiction; that the petitioner had no interest in the land at the time of the sale and was not authorized to make application for cancellation; that he was hot an assignee of the purchaser within the meaning of the statute in relation to the cancellation of tax sales, and that his only remedy was by proceedings under the Revised Statutes to recover the moneys paid by him upon his purchase from the state, with interest from, the time of such payment. •</p>

<p>Appeal by plaintiff from order made at Special Term, denying a motion made for a new trial on the ground of surprise.</p>

Appeal by defendant from judgment in favor of the plaintiff, entered upon the verdict of a jury, and from order deny- ' ing defendant’s motion for a new trial.

<p>Appeal from a judgment entered upon the report, of a referee.</p>

Appeal by the defendants, James W. Matthews and John Rofkar, and by John Rofkar, Jr., as their assignee, from a judgment entered upon the decision of a judge at Special Term setting aside assignment as fraudulent and for other relief.

<p>Appeal by defendants from judgment in favor of the plaintiff, entered upon the decision of a referee after a trial of the issues.</p>

<p>Abeéál from a, judgment rendered on a verdict of a jury, and from an order denying defendantis motion for a new trial.’'</p>

Oeoss-appeals from a judgment entered upon the decision of a judgment after the trial of the issues. The judgment dismissed plaintiff’s complaint upon the merits and dismissed defendant’s counterclaim without costs to either party. Both parties appealed. For opinion off the Equity Term, see 6 Mise. Rep. 349.

<p>Appeal from judgment dismissing complaint, entered upon findings, etc., at Special Term.</p>

<p>Appeal from a judgment entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial made upon the minutes of the court.</p> <p>Judgment affirmed, with costs.</p>

<p>Appeal from a judgment in favor of plamtiff.</p>

<p>Appeal from order granting leave to amend complaint.</p>

<p>Appeal from an order granting a stay.</p>

<p>Appeal from an -Order made at Special Term denying, a motion by the receiver of the defendant to compel the latter, to deliver over his -excise license. ■ - ",</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

Appeal by the defendant from a judgment entered on a verdict of the jury in favor of the plaintiff, and from an order denying a motion for a new trial.

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal by the' defendants from a judgment directed in favor of the plaintiff.</p>

<p>Appeal hy the plaintiff from an order made at Special Term denying his motion to compel the delivery of certain chattels replevied herein.</p>

<p>Appeal from a judgment in favor Of plaintiff.</p>

<p>Appeal from judgment, entered on verdict in favor of plaintiff.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

Appeal by the defendant from a judgment entered on a verdict in favor of the plaintiffs and from an order denying a motion for a new trial.