Volume 11 — New York Supreme Court Reports

Milton A. Goodenough, one of the executors of Philetus Philips, deceased, was one of the original parties plaintiff in this action, and died after the entry of judgment. If any cause of action appears by the terms of the complaint, it is one solely in favor of Goodenough personally against the defendant. (Beach v. Gallup, 2 Code R., 66; Taylor v. Corbierre, 8 How.

<p> Receiver—when appointed—Judgment reeovetred against corporation through fraxid of officers—presumption m-ising from faiVwre to take direct proceedings to set asido. </p> <p>The plaintiff, a judgment creditor of defendant, applied for the appointment of a receiver of the defendant, a corporation, which, as a defense to the motion, alleged that the judgment was obtained by the collusion and fraud of the president of the corporation; upon the hearing, time was given to make a motion to open the judgment on that ground, of which opportunity defendant did not avail itself. Held, that the court was authorized to infer, from its failure so to do, that the defense was without merit.</p>

The action was brought for the specific performance of a contract for the sale of certain real estate by the defendant to the plaintiff. The examination of the title disclosed the fact that a judgment lien upon the premises existed against defendant.

<p>Mortgage foreáosme— irregularity—when sale will not be set aside for—Purchaser refusing to complete pur citase—cha/rged with expenses of resale.</p> <p>A court of equity will not order a resale of premises under a mortgage foreclosure for an irregularity in form, when it is apparent that the purchaser cannot be injured by it.</p> <p>On a mortgage foreclosure, in which both the purchaser at the sale had thereunder and his wife were parties, the wife, being an infant, appeared by attorney. The purchaser, having paid ten per cent at the time of sale, refused to complete the purchase, on the ground that the interests of his wife in the premises were not foreclosed. Meld, that, as the effect of the conveyance to him would be to give the wife the same interests which would have been foreclosed had she properly appeared in tlie action, he was not injured by the irregularity complained of, and was bound to complete the purchase.</p> <p>A resale having been ordered on his refusing to pay the residue of the purchase-money, held that he should be charged with the expenses thereof, but not with ■ the expense of proceedings taken to cure the irregularity in the foreclosure as to his wifejs interests in the premises.</p>

<p>Chapter 137 of 1870 — Publication under— Street assessments.</p> <p>Chapter 137 of the Laws of 1870, does not require that a resolution for the repavement of a street in the city of New York, should be published in more than one newspaper.</p>

The court, after an examination of the affidavits, concluded that the respondent, not having ordered the minutes from day to day, and not having appealed,, and there not appearing in the facts anything making the copy of the minutes necessary in his proceedings in the action, reversed the order, with ten dollars costs, besides disbursements, and directed that the motion below be denied, with ten dollars costs, such disbursements to be adjusted by the clerk, and, with the…

This cause has been once tried before a referee who reported in favor of the claimants. The judgment entered upon such report was affirmed by the General Term, and reversed in the Court of Appeals (50 N. Y., 145), and a new trial ordered. During the pendency of the suit, the lien expired, and a personal judgment was entered against the defendant on the last trial.

The improvement for which said assessment was laid, consisted of the grading and paving of Degraw and Douglass streets, from New York avenue easterly to the city line, a distance of about eight thousand feet; and of grading, paving, ornamenting, and otherwise improving Sackett street, from Washington avenue to the city line, a distance of about twelve thousand feet.

The parties made an agreement in writing, in which. it was specified that the plaintiffs should supply the defendants with certain woolen blankets, and that the defendants should sell them on commission.

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

Appear from a judgment in favor of the plaintiff, entered upon the report of a referee. The plaintiff brought the action as the receiver of the property of Varner D. Perry, to recover a balance claimed to be due Perry for pine lumber sold to defendant. The referee found that, in the fall of 1869, Perry delivered to defendant, in Roxbury, Delaware county, 12,000 feet of pine lumber, for which defendant paid him thirty-live dollars per thousand.

Appeal by certain owners from an order made at Special Term, declaring that the'-proceedings taken .on the part of the railroad company to acquire their lands were thereby abandoned and discontinued, and that such owners recover their witness fees and other taxable disbursements on such proceedings, and $150 extra allowance against said company; and by said company from that part of the order which awards costs and an allowance.

<p>Judgment — lien of, as against subsequent mortgage—purchase-money mortgage — party advancing money to pay for land und&r an agreement that it should hi secured hy mortgage thereon.</p> <p>One Eeese, who held a contract for the purchase of certain land, applied to the plaintiff, whom he already owed $500, for a loan of $500 more, to enable him to pay up his contract, agreeing to secure the whole amount, $1,000, by a mortgage to be executed upon the land as soon as it was conveyed to him. The day after the land was conveyed to Eeese he deposited the deed with the plaintiff to hold as security for the $1,000, and about a year afterward executed a mortgage to him for that amount. The mortgage and deed were recorded the same day. Prior to the date of the conveyance to Eeese, one Adams had recovered a judgment against Eeese. Held (1), that as to the $500 advanced for the purchase of the land, the lien of the mortgage was prior to that of the judgment; (2), that as to the prior debt of $500, included in the mortgage, the judgment was entitled to priority.</p>

Justice Hardin, in Onondaga county, at the January Circuit, 1874, the cause having been tried before him without a jury. The facts are contained in a stipulation, and may be briefly stated as follows: The defendant is a corporation formed.

The plaintiff brought his action to recover the possession of a horse, levied upon by the defendant (a constable) under an execution purporting to be issued upon a judgment rendered in a Justice’s Court. The principal question litigated on the trial was, whether the property levied upon was exempt property. The jury found for the defendant.

80, damages and costs, recovered against the defendant at the Erie county Circuit.

<p>Appeal from an order made at Special Term, directing judgment for the plaintiff upon a verdict, and denying a motion for a new trial. The action was brought against the defendant as indorser of a promissory note for $226.25.</p> <p>The defendant claimed that he was discharged from all liability upon the note by an agreement entered into between the maker thereof and the plaintiff, after its maturity, by which the time of payment was extended. The evidence of the agreement was the following receipt given upon the assignment of a mortgage by the maker to the plaintiff:</p> <p>“ I have this day received the assignment of a bond and mortgage, executed by Elijah Eason to Wm. Brown, dated July 25, 1871, for the sum of ($600) six hundred dollars and interest, payable six months from date, upon which I have this day advanced him ($100) one hundred dollars, and I also hold his promissory note for an amount I am not now able to determine, but it is between two and three hundred dollars. Now, if the said Brown shall pay me the amount of the said note and cash advanced, with interest thereon, before said mortgage becomes due, I am to discount to him the sum of thirty dollars from the amount he is to deduct on the mortgage, and if he does not pay the same before due, then the assignment to be absolute for the sum of $525. The balance due on said mortgage to be paid to said Brown when the mortgage is due and collected.</p> <p>“ August 11, 1871.</p> <p>“HUNTINGTON BEARD.”</p>

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

This action was brought to recover of the defendant, alleged to be collector of school district No. 9, of the town of Webster, the amount of a tax assessed in said district for school purposes, and for the collection of which a tax list and warrant were delivered to the defendant as collector of the district, and which had never been returned by him.

Appeal- from a judgment in favor of defendants, entered upon the decision of the court on a trial without a jury. On the death of John Brink, his stock in the Savona Union Store passed to his administrators, the defendants, who thereby became, by operation of law, stockholders, subject to the burdens incident to its ownership.

<p>Motion for a new trial on exceptions ordered to be heard at General Term in the first instance.</p> <p>The plaintiff alleges in the complaint that the defendant, on the 1st October, 1871, was indebted to it for advances of money theretofore made to the defendant by and through the department of public charities and corrections to the amount of $277,930.05, for which sum, with interest from October, 1871, it demands judgment.</p> <p>The answer alleges payment of the debt set forth in the complaint, on the 8th October, 1872.</p> <p>The proof showed that payment of the amount as alleged in the answer, was made in pursuance of a settlement of the claim agreed upon between the parties, and the court thereupon directed a verdict for the defendant.</p>

Buying in their own name did not discharge their principal, but only added the personal obligation of the agents. (Pothier Traité des Oblig., No. 82; Hopkins v. Laconture, 4 La., 64; Thomson v. Davenport, 9 Barn. & Cress., 78 ; 1 Bell’s Comm. Mer. Jur., §418; Wyatt v. Marquis of Hertford, 3 East, 147 ; Taintor v. Pendergast, 3 Hill, 72.) Plaintiff had made no election to credit the agents, and not the principal. (Story’s Agency, §§ 288, 289; McGraw v. Godfrey [Gen. Term Com.

It appeared, from the evidence, that the resolution and ordinance authorizing the improvement were introduced into the board of councilmen, July 1,1868, adopted by that board November 9,1868 ; introduced into the board of aldermen, November eleventh, and adopted by that board November sixteenth. That such resolution and ordinance were amended by inserting the “ crosswalk ” provision by the board of aldermen, December 3d, 1868 ; and by the board of councilmen, December tenth.

Charles W. Walker was arrested for cruelty to an animal in the city of New York, on May 18, 1874. On being arraigned before the police magistrate, he demanded a trial by jury at the General Sessions. He was indicted May 30, 1874, in that court, arraigned therein and pleaded not guilty, June 2, Í874.

<p>Appeal from an order made at the Special Term, overruling a demurrer to the complaint.</p> <p>The complaint alleges that the plaintiff is a religious, charitable, literary, scientific and educational corporation, created and organized March 13, 1865, pursuant to the act of the legislature entitled “ an act for the incorporation of benevolent, charitable, scientific and missionary societies,” passed April 12, 1848, and acts amendatory thereto. That the purpose of said corporation is to provide “.for the gratuitous instruction of Jewish youth in the Hebrew religion and language, and other branches of knowledge, and to promote the study of Hebrew literature.”</p> <p>That the corporation has become the assignee of a lease of certain premises, for a term of twenty-one years from November 21, 1864, with privilege of renewal, made by Hamilton Fish to Joseph Mayer, upon which premises was situate a building which was the property of said Mayer, and which he conveyed to the plaintiff.</p> <p>That, by the covenant in said lease, the lessee and his assigns are bound to pay the taxes imposed on said premises. That the said house and lot are used by the plaintiff exclusively as a schoolhouse or seminary of learning. That the said house and lot is known by the Ward No. 1,234, and taxes have been imposed thereon for the years 1869 and 1870. The plaintiff then alleges that its property is exempt from taxation ; that it has been illegally taxed; and that the illegality complained of forms no part of the record, and can be established only by extrinsic evidence. The plaintiff then demands that the taxes be adjudged void, and the defendant and its agents enjoined and restrained forever from enforcing the same. Defendant demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action.</p> <p>The property in question is not exempt from taxation unless the plaintiff is a religious society. It is submitted that a corporation incorporated under the act of 1848, is not a religious society within the statute. Religious societies in this State are incorporated under a statute other than the statute under which the plaintiff was incorporated, viz., chapter 60 of the Laws of 1813, and the laws amendatory thereto. (See 3 R. S. [Edm. ed.], 687-704.) The tax which in the complaint is alleged to have been imposed upon real estate known as lot No. 1,234, in the Eleventh ward, was not imposed upon the property of the plaintiff. The fee of the lot in question, as appears by the complaint, is owned by Hamilton Fish. The interest of the plaintiff in the premises consists of: First, it owns the buildings situate thereon; second, it owns a leasehold interest in the lot for a term of years. Neither of the interests of the plaintiff is real estate, or liable to taxation as such. They constitute chattels, taxable, if at all, as personal property. By its covenant with the owner of the fee the plaintiff has agreed, as a part of its rent, to pay the taxes which otherwise would be collected from the owner of the fee, and which he is primarily liable to pay to the defendants. Suppose the lease contained no covenant that the lessee would pay the taxes imposed upon the property, then it is clear that the owner of the fee only would be burdened by the tax imposed upon the property, and it would be his duty to pay the tax. It is, therefore, unreasonable that, by procuring a covenant from his lessee that it would pay the taxes, the premises should become exempt entirely from taxation, if the lessee should be a religious corporation. The premises are not exclusively the property of the plaintiff. The interest of the owner of the fee is inconsistent with the claim of the plaintiff, that it is the exclusive owner of the premises. An injunction to restrain the collection of a tax, on the sole ground of the illegality of the tax, cannot be maintained. There must be an allegation of fraud, that it creates a cloud upon the title, or some cause presenting a case of equity jurisdiction. (Morse v. Smedley, 6 Johns. Ch., 28; Heywood v. Buffalo; 14 N. Y., 534; Susquehanna Bank v. Supervisors of Broome County, 23 id., 312; Dows v. The City of Chicago, 11 Wall., 109; Hannewinkle v. Georgetown, 15 id., 547.)</p> <p>By reference to the statute (R. S., chap. 13, pt. 1, tit. 1, § 5, sub. 3), it will be seen that the exemption is of “ every building,” etc., and (but only incidentally) “ the several lots whereon such buildings are situated,” and by the sixth section it is the “ building” that is to be exclusively used and to be exclusively the property, etc., so that it would seem that the use made of the “ building ” carries with it the exemption of the lot. (Chegary v. Jenkins, 5 N. Y., 376, where the plaintiff was not ever owner of the building.) For the purposes of taxation, the plaintiffs are the owners of the lot, that is to say, if they were not exempt from taxation they are the parties to be taxed for the land. The plaintiffs have an estate for years, and are bound to pay taxes. During their term they are the owners of the lot. This is an estate recognized by statute. (3 R. S. [5th ed.], p. 10.) The tax is not against the land but against the person. (R. S. [5th ed.], chap. 13, pt. 1, tit. 2, art. 1, § 1, p. 908.) The tax is a charge against the person, not against the land; the land is merely security for the tax. (Colgate v. The Mayor, 2 Kern., 140.)</p>

The proceeding grew out of a claim for rent, filed by the plaintiff with the defendant as administrator of the goods, etc., of Anna Maria Merriam, deceased; which claim was referred by agreement of the parties, pursuant to the statute. The claim is for rent of the second floor of the premises known as No. 165 Bleecker street, from May 1st, 1873, to April 1st, 1874.

The plaintiff in error was indicted for forgery in the third degree and brought to trial in the General Sessions on the 24th day of September, 1872. The evidence showed that the prisoner procured to be engraved and printed two books containing blank warrants, purporting to be drawn by the auditor of public accounts of the State of Mississippi, upon the State treasurer of that State; and also procured a seal to be engraved.

The ownership of Doremus & Nixon’s claim against the Long Island Navigation Company became vested in respondent when he made and delivered his notes. The very making and delivery of the notes by Williams, and their acceptance by Doremus, concluded the transaction.

This is an application on the part of the relator for a writ of peremptory mandamus directed to the respondents, the board of assessors, commanding said board, or its members, to ascertain the loss and damage sustained by the relator by reason of the amendment or change of grade in One Hundred and Thirty-eighth street, in the city of Hew Y ork, between the boulevard and Twelfth avenue.

The action was brought for an alleged fraudulent concealment by the. defendant, whereby the plaintiffs were induced to accept a bill of exchange.

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

In the month of September, 1871, one Andrew J. Garvey, the owner of certain premises in the city of Hew York, situate on Madison avenue, between Sixty-seventh and Sixty-eighth streets, conveyed said premises to his brother, John Garvey, for a nominal consideration, and John Garvey conveyed them to the defendant, the wife of Andrew J. Garvey.

The plaintiff in error was convicted in the Court of General Sessions of the city of Hew York, on the 15th day of December, 1874, before Hon. John K. Haokett, recorder, and a jury, of the crime of mayhem, and was sentenced to imprisonment in the State prison for the term of fifteen years.

<p>Appeal from an order denying a motion to vacate an attachment. The motion was made solely upon the affidavit upon which the warrant was granted.</p>

The corporation laid a sewer in Ninety-first street, extending from Fourth to Second avenues. Another sewer was constructed in Eiglity-eighth street, between Second and Third avenues. These two sewers were embraced in one contract; and a single assessment, embracing both sewers, was laid, covering all the property in the sewerage district within which the sewers were located.

The resolution for the work was introduced into the board of aldermen January 9th, 1871; adopted March eleventh; introduced into board of assistant aldermen, April twenty-fourth, and adopted April twenty-seventh.

<p>Partnership — effect of assignment of his interest therein by one partner to another.</p> <p>One member of a partnership entered into an agreement with A, to hold two undivided fifth parts of such partner’s interest in the firm in trust for A, and to account to A for the profits, etc., arising therefrom, and that on the dissolution of the partnership such two-fifth interest should immediately vest in A, and should be assigned and set over by such partner to A. One member of the partnership, with the consent of his copartners, but without the consent of A, made a voluntary assignment of all his interest in the partnership to one of his copartners, and retired from the business. Held, that this worked a dissolution of the partnership under the terms of the agreement with A.</p>

Appeal by the plaintiff from a judgment on a verdict in his favor, on the ground that the amount given was too small, and unauthorized by any evidence in the case.

Writ of error to the Court of Oyer and Terminer, held in and for the county of Hew York, to review the conviction of the plaintiff in error for violation of the excise laws, in selling wine without a license. The prosecution should aver the number of the house and the street in which the offense was committed.

The plaintiff recovered a judgment against William Belden, on the 20th day of November, 1867, for $2,530.41. An appeal was taken by the defendant from the judgment to the General Term; and, for the purpose of .obtaining a stay of proceedings while that was pending, James Fisk, Jr., and W. B. Bradford executed an undertaking in the form prescribed by section 335, of the Code of Procedure.

Bondholders must seek their remedies through the trustees who represent them. (Coal Co. v. Blatchford, 11 Wallace, 172, 177.) The First Division Company had the right to hold and use, for the construction of the extension roads, all the property leased to it by the St. Paul Company (which included all the mortgaged property), and all the proceeds of the $15,000,000 issue of bonds, until there should be a default in paying either the principal or interest of said bonds.

Writ of error to the Court of General Sessions of the county of New York. .The plaintiff in error was indicted in the Court of General Sessions of New York city, for grand larceny, in October, 1874, was tried, before the city judge and a jury on the 13th of November, 1874, and was convicted and sentenced to the State prison for the term of five years.

Motion by defendant for a new trial, on exceptions ordered to be heard at the General Term in the first instance, after a verdict in favor of the plaintiff directed by the court. The action was brought upon a contract for paving, etc., in the city of New York. The failure to publish the ordinance in the Leader, one of the designated corporation papers, did not invalidate the contract.

Exceptions ordered to be heard in the first instance at General Term. This action was upon a promissory note made by the defendant, dated March 10, 1870, payable September 15, 1870, for $2,000 in gold, given in payment for the assignment of a patent obtained by Dows, Clark & Van Winkle, in France, on the 17th day of June, 1867, for improvements in the manufacture of iced beverages. The facts are stated in the opinion.

The power of reference which the. court possesses is derived from legislative enactment, and no authority to refer can exist in any statutory proceeding, unless by express affirmative direction in the statute. (Code, §§ 254, 271, 401; 2 Till. & Shearman, 519; 7 Abb., 70; 12 Abb.

<p>Appeal from an order made at the Special Term, denying a motion for leave to amend the complaint.</p>

On or about the 29th day of April, 1873, at the city of Brooklyn, the defendant gave to the plaintiff an order to manufacture for him a set of circus tents, materials to be furnished by the plain tiffj to be completed in three weeks’ time. This order the, plaintiff accepted, and he proceeded to manufacture said tents.

The effect of the words contained in the certificate cannot be greater than a release of a particular demand, followed by a general release of all claims and demands, which has always been held to discharge the particular matter mentioned only. (McIntyre v. Williamson, 1 Edw. Ch., 54; Jackson v. Stackhouse, 1 Cowen, 122; Chitty on Contracts, 90, 858.) The certificate refers to claims under and in connection with the contract.

<p>Appeal from an order directing a reference in an action on contract.</p>

The cause of action set forth in the counter-claim, does not grow out of any contract; and, although pleaded in form ex contractu, is a pure tort, and cannot be counter-claimed in an action for rent. The defendant’s remedy is an action for damages resulting from the plaintiffs’ negligent and abusive use of the license granted them.

<p>Motion for new trial on exceptions ordered to be heard in the first instance at General Term.</p>

<p>Chap. 80, Laws of 1870—power of supervisors to lease armories—ratification of lease.</p> <p>The hoard of supervisors cannot lease buildings for armories simply because, in their opinion, they will sooner or later be needed for the use of some one or more of the regiments of the county. Ho power to make such leases exists, except upon compliance with all the requirements of section 120 of the military code.</p> <p>Occupancy of premises so leased, by one of the regiments of the national guard, and payment of rent from time to time by the officers of the city, cannot be treated as a ratification of a lease made without authority.</p>

The action was brought to recover the value of certain liquors sold to the defendant, and, on the 19th day of February, 1870, by virtue of an order of arrest therein, defendant was arrested by the sheriff of Dutchess county. That order was obtained on the ground, among others, that the defendant had been guilty of a fraud in contracting the debt. Copies of the affidavits used to procure the arrest were served upon the defendant.

Under our statutes the assessment is made upon the property of the corporation and not upon • the stockholder. (Utica Co. v. Supervisors, 1 Barb.

Motion to dismiss the appeal of James Lynch from the order of the Special Term, confirming the report of commissioners of estimate and assessment, made in an application of the department of public parks, for and in behalf of the mayor, aldermen, and commonalty of the city of Hew York, relative to the opening of Kings-bridge road northwardly from the southerly line of One Hundred and Fiftyrfifth street to the Harlem river, as laid out by the commissioners of the Central park…

<p>Appeal from an order sustaining a demurrer.</p>

In this action the summons and complaint had. been served on some of the defendants; demurrers had been put in by the same, attorneys for all; a motion had been made for a preliminary injunction and denied, and on appeal to the General Term the order denying the injunction had been affirmed. The plaintiff thereupon offered to give to the defendants a consent of discontinuance, and to pay them their taxable costs and disbursements.

<p>Appeal from an order made at the Special Term, continuing a temporary injunction.</p>

<p>Appeals from judgments in favor of the plaintiffs in the above entitled actions, entered upon the reports of a referee.</p>

<p>Right of city to dispose of its property—when court of equity will interfere — Ferry franchises — sale of, by municipal corpoiation.</p> <p>Although a city, in a certain sense, holds all its property, franchises and powers in trust for its inhabitants, yet such property may be sold and conveyed by it, except where the property has been conveyed to it in trust for a specific purpose within its proper province, in which case a court of equity will interfere to prevent a misappropriation of the fund or a misuse of the property.</p> <p>All property of a private nature belonging to a corporation, upon which no specific trust is imposed, may be sold by the corporation; but property of a public nature, such as streets, etc., so long as they are held for the public-use, cannot be sold.</p> <p>Where the legislature has granted to a city the exclusive right to establish and control the ferries therein, and a ferry has been established and for a long time maintained at a particular point therein, the city may, at its pleasure, sell and convey the real estate owned by it in connection with such ferry to any person, provided the public be not cut off, by the sale, from the means of intercommunication.</p>

<p>Service of subpcenas — expense of, cannot be included in costs.</p> <p>The expenses incurred by a party in serving subpoenas upon witnesses, cannot be allowed by the clerk as a necessary disbursement, under section 311 of the Code.</p>

The action was for damages caused to plaintiff by his being illegally ejected from defendant’s cars, upon a claim of non-payment of fare. The defendant claimed, among other things, that the evidence of a witness, named Martin, as to the credibility of the plaintiff, was improperly admitted, as he was not shown, as defendant claimed, to have had knowledge of his reputation, or to have lived in the neighborhood of the plaintiff.

<p>Appeal from a judgment dismissing the complaint in an action for false imprisonment, brought against the defendant, a justice of the peace; for issuing a civil warrant upon a defective affidavit.</p>

, entered on the report of a referee. This is an action of interpleader, brought by the surviving executor of Chandler Root, deceased, to determine which of the two defendants is entitled to that residuary share of the estate of Chandler Root, which, by his will, was given to Erastus C. Root, deceased. One of the defendants, Helen Stewart, is the administratrix of Erastus C. Root, deceased, and claims as such administratrix.

The defendant purchased from its customers coupons of railroad bonds due April 1, 1871, and sent them by express for collection. They were stolen from the express company and sold to the plaintiff, a banker, in the ordinary course of his business, without notice of the theft, on April 3, 1871. The defendant stopped payment of the coupons.

The action was brought to recover damages alleged to have been caused by the negligence of the defendants in running saw-logs down the Racket river, whereby the plaintiff’s bridge over said river was carried away.

Two bonds and mortgages of the same date were' executed upon the same property for the purchase-money. One was given to Henry Deal, the other to Mary G. Greene, and each was expressed to be for a part of the purchase-money of the premises. It was intended by the parties that the mortgages should be equal as to priority. They were recorded on the same day; but the former was recorded at a later time than the latter. The mortgagee in the latter mortgage, Mary 0.

This is an action for the purchase-price ($125) of certain furniture. The defense is the statute of frauds. The only question is, whether the goods were accepted and received, so as to take the case out of the statute. The action was tried in a Justice’s Court, and the plaintiff recovered. On appeal to the County Court the judgment was affirmed, and the defendant appeals. The contract for the sale was verbal, and none of the goods were delivered at the time.

The complaint sets forth that the plaintiffs are a railroad corporation under the laws of New York, and the owners of a certain railroad therein; that from their organization until March, 1870, they used said road and performed their duties as owners of the franchise; that in February, 1870, they entered into a written agreement between themselves, as parties of the first part, and the Vermont and Canada Railroad Company, a corporation under the laws of Vermont, and the…

This action was brought to recover moneys collected by the defendant under a power of attorney, given him by Henry A. Cleveland, the plaintiffs’ intestate. It was admitted that the defendant, as such attorney of said Cleveland, had received and still had these moneys, and that a demand had been made by the plaintiff- prior to the action. Part of the moneys were Cleveland’s share of land sold • under a judgment in partition in 1867.

Two questions were presented by this appeal: First, whether or not certain real estate formerly owned by one Kelsey T. Thurber, and by him devised to an adopted son, who died during the lifetime of the testator, passed to his children or to the heirs at law of the testator ; and, second, whether or not the plaintiff was entitled to charge upon the said land the amount expended by him in supporting one Elsie Whitney, whose support and maintenance was provided for by the will.

This case came before the General Term, under an order made at the Ulster Circuit, directing a verdict for the plaintiff, subject to the opinion of this court. The action was for the wrongful taking from the plaintiff, a constable, certain personal property, held by him under certain executions issued by a justice of the peace against one Dolson.

It is a fundamental rule of law that no person is liable.in damages for the necessary or natural consequences of a lawful act. (Radcliff's Executors v. Mayor, etc., 4 Comst., 185; Bellinger v. N. Y. C. R. R. Co., 23 N. Y., 42, 47; Selden v. Del. and Hud.

This is an action brought to obtain a judicial construction of the will, or wills, of John S. Chipman, deceased. The plaintiffs are some of his heirs at law and next of bin. Some of the plaintiffs are also legatees under the will or wills. The plaintiffs aver that they are in doubt as to the time construction of the wills, and as to the validity of the bequests and devises, and as to the rights of the parties.

Appeal by defendant Maria D. Sanford from a judgment entered on the decision of the court at Special Term. The action-was brought by a post-testamentary child, to recover his share of the estate of his father. The case has already been before this court. (61 Barb., 293.) It has since been tried before the Special Term.

Sutton. The Troy and Grreenbush branch of the defendant’s road, as it enters the city of Troy, passes a short distance from the east bank of the Hudson river. Upon that east hank, and between the railroad and the river, are situated the foundry and stove works of Fuller, Warren & Co. The plaintiff’s intestate, William C. Sutton, at the time of the accident by which he was killed, was employed in the carpenter shop connected with the foundry.

<p> Negligence—contributory negligence—Evidence. </p> <p>A train of defendant, upon which plaintiff was a passenger, ran a short distance beyond the station at which she wished to alight, stopped for a moment, and then backed down to the station. As soon as the train stopped, the plaintiff, who was in the last car, supposing it was at the station, and that it would remain there but a short time, without the knowledge of any one in charge of the train, left the car by the rear door, and was on the steps, getting off, when, by a sudden jerk of the train, made in backing to the station, she was thrown off and injured. It was a very dark night. There was no station platform or light where the plaintiff attempted to leave the car, nor at the usual stopping-place, which was across a highway in front of a hotel. The name of the station had not been announced, and no notice had been given to passengers . to alight. The conductor saw the plaintiff after she fell, and made a signal with his lantern to stop the train, but it was not seen. There was no brakeman at the end of the car where plaintiff attempted to alight.</p> <p>Held (1), that the defendant was not guilty of negligence; and (3), that plaintiff, by her negligence, contributed to the injury.</p> <p>On the trial plaintiff was allowed to testify that she understood the train stopped at the station but a short time, and that the station agent’s wife had so told her. Held, error.</p>

This action was brought to recover for injuries alleged to have been sustained by the plaintiff in consequence of the falling of a derrick belonging to defendant; such accident being alleged to have resulted from the negligence of the defendant in not furnishing a sufficient derrick, and also in not using due diligence in keeping the derrick in order.

The claim in suit is barred by the statute of limitations, it being conceded that no action was commenced upon it within six years after the indebtedness is alleged to have accrued. (Code, § 91.) Ho verbal promise can be of any legal force to take the case out of the operation of title 2 of the Code, of the time of commencing civil actions. (Code, § 110; Esselstyn v. Weeks, 12 N. Y., 639; McLaren v. McMartin, 36 id., 88.) Such a promise is not even operative as an estoppel.

<p>Bond of indemnity — Statute of limitations — Costs.</p> <p>More than six years after the cause thereof arose, an action was brought against the plaintiff herein, to recover the rent of certain premises which had been occupied by him as receiver. Against such an action the defendant had, by a bond of indemnity, covenanted to save and keep the plaintiff harmless. The plaintiff, although requested by the defendant to do so, refused to interpose to such action the defense of the statute of limitations, or allow the defendant to do so, but suffered judgment to be taken against him for the amount claimed.</p> <p>In this action, brought upon such bond, to recover from the defendant the amount of such judgment, held, that the defense of the statute of limitations stood upon the same footing with other legal defenses, and was to be treated with the same respect, and given the same favor and consideration, as common-law defenses; that it was the plaintiff’s duty to have set up such defense to the action brought against him, or to have suffered the defendant to do so, and that, having refused to do either, he was not entitled to recover in this action; that the plaintiff was properly charged personally with the costs therein.</p> <p>As between the obligee and obligor, in a bond of general indemnity against claims or suits, a judgment against the obligee is only 'prima fade evidence; and in a suit upon such obligation, the obligor may show collusion between the plaintiff and defendant in the original action, or that his principal had a good defense to such action, which he neglected or refused to interpose.</p>

Exceptions ordered to be heard in first instance at the General Term. This action was upon a policy of insurance on the life of plaintiff’s intestate, tried before the court and jury. Plaintiff had a verdict for its full amount. A motion was made, on the coming in of the verdict, for a new trial on the minutes, which was denied.

<p>Warrant— recital in, of legal offense—when ojfiaw' protected in execution of.</p> <p>Where a warrant shows a case within the jurisdiction of the justice issuing it, although it does not recite a legal offense, the officer executing it will be protected in so doing.</p>

Writ of error to the Court of Sessions in and for the county of Tompkins. Held: that in all cases the assignment of peijury, on which a conviction is asked, must be of matter material to the issue to be tried, and that materiality is always a question of law; that the words in the first count designated as untrue contained no answer to the complaint; were not responsive to any allegation therein; did not help to…