Volume 12 — Barbour's New York Supreme Court Reports

This was an action to recover real property, [ejectment,] and was commenced in April, 1849. The pleadings were framed under the code of that year.

This action was commenced by the plaintiff in July 1850, before a justice of the peace of Essex county, by a summons.

In Eq,uity. The bill in this cause, was filed in the clerk’s office in Essex county, on the 26th of June, 1848, before the code of procedure went into operation. The defendants, the Port Henry Iron Company, and Hooper, Coffin and Bullard, and Joseph Tuckerman, appeared and put in their answers, without oath, the same having been waived, to which replications were regularly filed. Ralph W. Crooker appeared but did not answer.

In E gouty. George Lovett, the plaintiff in the first above entitled suit, filed his bill against the corporation of the German Reformed Church, to foreclose a mortgage executed by Henry Gable and John H. Wiegand, individuals connected with the Dutch Church, calling themselves chairman and secretary of the board of trustees of the German Reformed Church, and who were at that time in possession of the church property, under a decree of the chancellor, but which was…

This was an action of assumpsit, brought by the plaintiffs against the defendant as the first indorser of a promissory note for $960,47, dated Newburgh, June 29th, 1842, made by John A. Wells, payable twelve months after date, to the order of George W. Wells, [the defendant,] at the Bank of Newburgh. The declaration contained the common money counts only, to which the defendant pleaded the general issue.

The two first counts of the plaintiff’s declaration were general, for freight of divers goods, merchandise, chattels and coal, claiming $800. The declaration also contained the common counts for work and materials, goods sold and delivered; a general money count, and an account stated. The defendant pleaded the general issue, and a tender of $85,40.

<p>This action was brought to recover a balance due upon a promissory note, of which the following is a copy:</p> <p>“#27,500. New-York, Augt. 27,1847.</p> <p>Three months after date I promise to pay to John Rankin or order, twenty-seven thousand five hundred dollars, for value received, having deposited with him as collateral security one thousand shares of New-York and Harlem Railroad stock (with authority to sell the same on the non-performance of this promise,) and I agree to keep a margin of ten per cent during said time.</p> <p>James McCullough.”</p> <p>The declaration contained the money counts at length, with ar copy of the note indorsed thereon, with a notice that the same would bo given in evidence under the money counts. The defendant pleaded the general issue and gave notice of set-off, and of an agreement made at the same time with said note by which the plaintiff agreed that the stock mentioned in the note should not be transferred, nor pass out of his hands, during a period of three months from the date thereof, without the permission of the defendant and notice of the breach of said agreement; and also notice of the defendant having paid to the plaintiff $4,000 to keep up • a margin of ten per cent under the condition contained in said promissory note or agreement, together with notice of recoupment of the same. The issue came on to be tried before his honor Justice Edwards, at a circuit court, held in the city of New-York, on the 24th day of March, 1849, and upon the trial the plaintiff proved the hand-writing of the defendant to the said promissory note, and rested his cause. The defendant called as a witness the plaintiff, John Rankin, who being duly sworn, upon being shown a paper, said, that the same was signed by him, at the same time with the promissory note, a copy of which is as follows:</p> <p>“ This is to certify that I hold one thousand shares of the New-York and Harlem Railroad Company stock, as collateral security for an advance made to James McCullough, certificate numbers as follows: [giving the numbers.} And I hereby agree that the said stock shall not be transferred, nor pass out of my hands, during a period of three months from this date, without his permission. John Rankin.</p> <p>New-York, August 27th, 1847.”</p> <p>That he retained in his own hands those identical shares of stock distinguished by the numbers set forth in last mentioned paper, from the 27th of August until the 80th day of November, 1847; that it was sold on that day by Hopkins & Weston, at the brokers’ board, by the plaintiff’s direction. The net proceeds of the sale was $20,525. On the 27th of November, 1847, the plaintiff gave to the defendant written notice of his intention to sell on the 80th of November, 1847, at the brokers’ .board, the above enumerated shares of stock, unless the defendant complied with the terms of his said note, and that he should hold the defendant liable for any deficiency on such note, to meet the requirements of the note. That the plaintiff gave to the defendant his note for the same amount, and for the same time, at the time that he received this note from the defendant. The defendant came to the plaintiff and proposed that if the latter would let him have his note, he would give the plaintiff his note for the same amount, with the stock as collateral security, and 1$ per cent for the use of the plaintiff’s credit. Two or three days after the exchange of the notes, the plaintiff received the 1$ per cent, amounting to $343,75, in cash. Defendant never paid him any thing on account of the margin of ten per cent mentioned in the note, and nothing whatever beside the $343,75. On his cross-examination the witness said that on the 1st of December, 1847, written notice that said stock had been sold the previous day, and of the amount of the net proceeds of the sales was given to the defendant, as follows: “Please take notice that the stock collateral to your note of August 27,1847, was sold yesterday at the brokers’ board, and I have received acct. sales. The net proceeds are $20,525, which, deducted from amount of your note, $27,500, leaves due me $6,975, which I shall thank you to pay me to-day.” Which notice was signed by the plaintiff, and directed to the defendant. The plaintiff paid his note on the 30th of November 1847, the day it fell due. The defendant suspended payment on the 18th of September, 1847. The defendant here rested his defense, and the plaintiff called a witness, who testified that on the 27th of November, 1847, he delivered to the defendant, in person, a written notice, dated 27th of November, 1847, above set forth; "that on the 30th of November, 1847, he presented the note on which this suit is brought, to the defendant, in person, about eleven o’clock in the forenoon, and that the defendant refused to pay it; that on the 1st of December, 1847, he delivered a written notice dated 1st of December 1847, above set forth, to a clerk in the office of the defendant, Front-street, defendant himself being absent. The plaintiff then called as a witness, Edward N. Hopkins, who testified that he was a stock-broker. Upon comparing the numbers of the shares named in the paper hereinbefore mentioned, signed by the plaintiff, and dated August 27, 1847, with a memorandum of the sale of stock- made by Hopkins <fc Weston, at the board of brokers, on the 30th of November, 1847, he found the same to correspond exactly. The sale was made by witness at the board of brokers, in the usual manner. This board is the place where stocks are bought and sold daily; the sales of the day are published, and the quotations of the prices of stock are made from these sales. The board is composed of stock-brokers; that he received from the plaintiff the above enumerated shares of stock, on the 30th of November, and sold it on the same day. Another witness testified that he had cast the interest on the balance due on the note, after deducting the proceeds of the sales of the stock, and that the amount due was $7,617,71. The plaintiff then recalled Edward N. Hopkins, and proposed to ask him what Harlem Railroad stock was worth on the 18th of September, the time when the defendant failed in business. To which the defendant’s counsel objected; but the court overruled the objection, and allowed the question to be asked, and the defendant’s counsel excepted. The witness then testified that the stock was worth 68| on the 27th of August, 1847; 56-| on the 18th of September, 1847; 41-| on the 30th of November, 1847, and 42¿ on the first of December, 1847. On his cross-examination, he said, that part of the stock which he received from the plaintiff sold for 41|, the rest for 4TJ per cent. The case was here closed and the defendant’s counsel requested the judge to charge the jury, 1st, That the agreement of the defendant to exchange notes with the plaintiff, to give the stock as collateral security to the payment of his note, and to pay 1$ per cent was usurious, and, therefore, the plaintiff could not recover on this note. 2d. That the holding of the stock until the note became due, was a condition precedent to the recovery of the plaintiff upon the promissory note, and the sale having been made on the 30th of November, 1847, was a violation of that agreement, and therefore the plaintiff could not recover in this suit; or if he could recover, then that the defendant was entitled to a deduction of one per cent, the difference in the prices of stock on the 30th of ¡November and 1st of ¡December, 1847. 3d. That the sale, when made, should have been a public sale, and that the plaintiff was not authorized to sell the stock at the board of brokers. But the judge refused so to charge the jury, but directed them to find a verdict for the plaintiff for $7,617,71. And the counsel for the defendant excepted thereto, and moved for a new trial.</p>

This was a writ of error to the court of common pleas for the city and county of New-York.

This was an appeal by David Reed and Ann J. Van Wart, executor and executrix of the estate of Nathaniel Fisher, deceased, from that part of a decree of the surrogate of the county of Westchester, made the first day of October, 1850, in the matter of the final settlement of the accounts of Oliver Cornell, executor, &c. of Isaiah Underhill, deceased, which directed and ordered that the one-fifth of the proceeds arising from the sale of the premises directed to be sold by the…

<p>A parol disclaimer of the landlord’s title, by the tenant, does not work a forfeiture of a written lease for a term of years.</p> <p>But it is sufficient to excuse the landlord from the necessity of regular formal demand of the rent.</p> <p>In all the cases of recovery in ejectment by the landlord against his tenant, the recovery is had upon the ground of a condition broken, and not by reason of the disclaimer; which affects not the rights of the parties, but only the rules of evidence.</p> <p>A lease which provides that if the rent be not paid at the time appointed, it is “ to be recovered in an action of debt,” precludes the idea of a forfeiture of the lease by reason of the non-payment of rent.</p> <p>The remedy by ejectment to enforce the payment of a rent reserved, is never allowed, except where a right of re-entry is expressly stipulated for between the parties to the grant.</p> <p>It is not allowed where the lease does not exact a forfeiture, for the non-payment of rent; nor because of the parol declarations of the tenant in regard to the title.</p>

This was an appeal from the judgment entered in the city court of Brooklyn on the report of referees, in a suit by the plaintiff against the defendant as his assignee. The'cause was referred, by that court, to three referees, who made a report in favor of the plaintiff, which, on the application of the defendant, was set aside by the court below, who ordered the report to be referred back to the referees for the purpose of reviewing the same.

This was an appeal from the judgment of the city court of Brooklyn, rendered in favor of the respondent, plaintiff in the court below, against the appellants, defendants in that court. The-action was brought by the plaintiff, Jacob Carpenter, against Sylvanus . B. Stilwell, the landlord, and Isabella Ambrose, the tenant, of a house and lot in the city of Brooklyn, to recover the possession thereof.

This was an action brought to recover $1000 as stipulated damages for the breach of an agreement for the sale of land.

This was an appeal to the supreme court, at general term, from the decision made by Justice McCoun, at the special term • held in Suffolk county, in September, 1850, whereby he reversed, for error in law, the decision of the surrogate of Suffolk county, made the 18th of September, 1849, upon the application of the appellant, admitting to probate the alledged nuncupative will of her husband, William L. Hubbard, of Greenport, Long Island, and granting to her letters of…

The plaintiff, as assignee of Wright, Mallory and Smith, contractors for sections 42 and 24 on the Hudson River Railroad, brought this suit against the company, to recover an alledged balance due to them for constructing those sections. The action was referred to referees, who reported in favor of the plaintiffs for $22,579,24, and judgment was entered thereon. The defendants took a bill of exceptions, and appealed to the general term.

This was an action brought by the plaintiff against the defendant, to recover the amount of taxes assessed by the assessors of the town of Monroe, in Orange county, upon wild, uncultivated, and unoccupied forest land, belonging to the plaintiff, in Rockland county, from the year 1844 to the year 1849, both inclusive, and collected by the collectors of the same town during those years, amounting in the whole to the sum of $484,89, for which sum he demanded judgment.

This was an appeal from the decision of Mr. Justice McCoun, made at the special term held in Suffolk county, on the 2d of September, 1850, denying the motion of the appellants, who were defendants in the suit, to dismiss the complaint of the respondent, the plaintiff in the suit, and adjudging that the assignment from Gr. The appellant, Henry H. Huntting, and his partner, Gilbert 0.

Application having been made to the defendants according to law, to lay out a road in the town of Wright, and the defendants having refused to lay out the road, the relators appealed from their determination to the county judge of Schoharie. Referees were thereupon appointed, in pursuance of the provisions of the act of December 14,1847, to hear and determine the appeal. The referees reversed the decision of the commissioners, and proceeded to lay out the road.

This was an action for taking and converting the plaintiff’s personal property, and was tried at the Onondaga circuit, in February, 1851. The defendants denied that they took and converted the property at the time and place mentioned in the complaint.

Ejectment for dower. The action was commenced in 1844, tried December, 1848, and a verdict for the plaintiff subject to the opinion of the court at general term, The facts are suffu ciently stated in the opinion.

This action Was tried before Mr. Justice Wright, at the Greene circuit, in June, 1850, without a jury. The plaintiff claimed to recover the amount of a promissory note made by the defendant, dated the 9th day of December, 1846, and payable to the order of the plaintiff, six months after date, for $1015,89 with interest.

This was an action for slander, tried at the Schoharie circuit in June, 1850, before Mr. Justice Parker. The words alledged to have been spoken by the defendant, as stated in the complaint, were, “ You have sworn false“ You have sworn false under oath “ You have lied under oath.” The complaint contained no averment that the words were spoken in reference to a judicial proceeding.

On the 21st of November, 1851, an alternative mandamus was granted, at a special term, directed to Rufus H. King, supervisor of the town… Held: lest complaint should again come,” &e. The writ was served by delivering a copy “to each of the supervisors personally, at the town in which he resides, and showing to each the original writ under the seal of the court.” On the return day of the writ, the defendants’ counsel, without making a return, objected to the allowance of a…

This was a case submitting a controversy for the decision of the court, without action, under § 372 of the code. The following facts were agreed upon. The defendants were the assessors of the town of Watervliet, in the county of Albany, and had made out the assessment roll for said town for the year 1851.

Motion to dissolve an injunction. The plaintiff commenced his action by summons and complaint against the defendants, praying for a perpetual injunction restraining the defendants from constructing their railroad track through the farm of the plaintiff, without providing a suitable farm crossing hy a viaduct at a point selected by the plaintiff, nearly in front of his buildings and directly opposite to the lane leading to his barn.

This was an action upon a contract dated January 1st, 1848, between William Wadsworth and the defendant Wilcox, by which the former agreed to sell, and the latter to purchase and pay for, about 130 acres of land. The price agreed to be paid was $3254,75, $325 of which was paid on making the contract.

The action was ejectment, tried at the Steuben circuit, in February, 1851. The plaintiff claimed title to the premises in question under a sheriff’s deed. The premises were sold by the sheriff of Steuben, to the plaintiff, on the 23d of October, 1845, by virtue of an execution duly issued upon a judgment in the Steuben common pleas, for $80,20, in favor of John Noyes against Joseph Wilbur and Amos 0. Wilbur, docketed the 26th of November, 1842.

This was an action upon a promissory note made by the defendant, Amon Lamphire, to the order of and indorsed by Reynold Peck. The complaint alledged the making of the note, and the indorsement of the same by Reynold Peck, in his lifetime. The following is a copy of the note: “$800. West Bloomfield, September 10,1849.

<p>Where it appears, in an action by a lessor, for rent, against a person alledged to be an assignee of the lessee, that the defendant is in possession under the lease and with the assent of the lessee, and that he has all the benefits of an actual assignee, he will be estopped from setting up that he is assignee only by parol agreement and not by a valid written instrument. But if the defendant is in only as under-tenant, he may show that fact.</p> <p>The question, in such an action, is not whether the defendant is assignee by a valid instrument as between him and the lessee, but whether he has held himself out to the landlord, or to the world, as such.</p> <p>Whether a lease is to be deemed property, so as to pass under a general assignment of the lessee’s property, or not, depends upon the election of the assignee to enter .under it, or his determining his right to elect, by some other act, or omission to act. Instead of being property, such a lease may be a heavy incumbrance ; or a debt instead of a benefit.</p>

These three cases were appeals from orders entered at the ¡New-York special term, in May, 1851, denying the motions of the defendant to discharge the attachments granted in those actions respectively… Held: in another case, that where the motion to set'aside an attachment is made on affidavits, on the part of the defendant, the plaintiff may introduce counter affidavits, and bolster up his case.

<p>According to the true construction of the statute relative to limited partnerships, (2 R. S. 3d ed. 52, § 24,) in the case of a dissolution of such a partnership, by act of the parties, before the expiration of the term for which the partnership was formed, the notice of such dissolution must not only have been filed and recorded, pursuant to the directions of the statute, but the full period of publication must also have elapsed, before the partnership can be considered to be dissolved. The partnership continues until the notice has been published for four weeks.</p> <p>The notice thus prescribed, is similar in its nature to that by which the special partnership may be created ; the period for which the partnership was to continue has been made known to the public, by the filing of the original certificate, and its publication in the newspapers. The notice thus given, the statute allows the parties to retract, by another notice made public in a similar manner ; and until the provisions of the statute, respecting this second notice, have been complied with, the public are authorized to rely upon the terms of the first notice.</p> <p>Where, during the continuance of a special partnership, the special partner sold out his interest in the concern to tho general partner, for a sum exceeding the amount of the capital he had placed in the business, and for the price of his interest so sold, received a security, pledging to him all the personal property of the partnership: Held, That this, in effect, amounted to a withdrawal, by him, of the capital he originally contributed to the co-partnership : That he had secured to him that which, by the copartnership, he had contributed in cash, and without security, tobe employed in the business, and to-stand as indemnity to those who should deal with the partnership ; and that the transaction was, in effect, an alteration of the capital of the partnership-; and the consequence prescribed by the statute ensued, viz.: if the business was carried on, he was thereafter liable as general partner.</p> <p>An account is to be considered liquidated from the time it is rendered, if objections are not made to it.</p> <p>For the omission, by either partner, to pay a debt justly due by the partnership, it seems the other partner still continues liable, even after dissolution of the partnership.</p>

<p>The finding of a referee upon questions of fact, will not be reviewed' ih the supreme court, at general term.</p> <p>Where one party is in possession of personal property, on which he has a lien, and another party, with notice of that lien, acquires a subsequent one, the party having the prior possession, has the better right until his lien is satisfied.</p>

This was an action of debt upon a bond executed by the defendants Walker, Crafts & Clarke, upon the issuing of an attachment in favor of Baird, the plaintiff, against Walker as a non-resident debtor. Plea nil debet, and the statute of limitations, as to the debt owing to the plaintiff by Walker. Replication taking issue upon the second plea. The cause was tried at the Hew-York circuit in October, 1849, before Justice Jones,, and a jury.

<p>Appeal from an order made by a single judge at chambers, denying a motion on the part of the defendant for judgment, on the ground that the plaintiff had not replied to the answer.</p>

This case came before the court on a bill of exceptions, taken by the defendant, to the ruling of the justice who presided at the trial of the cause, and to his refusal to charge the jury as requested by the defendant. The cause was tried at the New-York circuit, in October, 1847, before Mr. Justice Morehouse and a jury.

This case came up on a bill of exceptions, to the decisions and charge of the judge at the circuit. The cause was tried at the New-York circuit, in September, 1848, before Mr. Justice Edmonds, and a jury.

This was an appeal from an order of the surrogate of the city and county of New-York. On the 28th of January, 1847, Robert T. Hicks, as the brother of Henrietta Hicks, deceased, applied to the surrogate of New-York for letters of administration upon her estate. A citation was issued to the other next of kin, returnable on the 4th of February, 1847.

Demurrer to a declaration containing five counts. All the material parts of the declaration are set forth in the opinion of the court.

This was an action on the case, brought by the plaintiff, James S. Holman, against Claudius Dord, Daniel Behrman and Edward Rowe, defendants.

This was an appeal from an order made at the New-York special term in April, 1851, by Mr. Justice King.

Motion by the plaintiff, to set aside the report of a referee. The action was in the nature of replevin, to recover the possession of personal property. The cause was referred to a referee, who decided that the plaintiff could not maintain the action, inasmuch as it appeared that the defendant was not in possession of the property at the commencement of the suit. He therefore reported in favor of the defendant.

This was an action of ejectment tried before the Hon. P. Gridley, one of the justices of this court, at the Herkimer circuit in September, 1851. By consent of parties a verdict was taken for the plaintiffs subject to the opinion of the court upon á case to be made, with leave to either party to turn such case into a bill of exceptions. The plaintiffs claimed title to the premises in question as heirs at law of Bela Fosgate deceased.

<p>It seems, that a party may show an agreement, By parol, to pay an additional sum at some future day, as interest on a note or bond on which lawful interest is reserved.</p> <p>If a note signed by several persons is void as to one, for usury, it is void as to all; and sureties may interpose this defense.</p> <p>In an action against three defendants, on their joint and several note, one of them can not be admitted as a witness for his co-defendants, even if a judgment by default has been previously taken against him.</p>

On the 26th February, 1850, these parties entered into a contract in writing and under seal, by which the plaintiff agreed that he would, on the first of April thereafter, ■ execute to the defendant an assignment of the lease which Cary Smith and wife had previously assigned to the plaintiff, and all the plaintiff's interest in said premises; and also execute to the defendant a warranty deed of certain premises in Malta, which the plaintiff had purchased of Chase and wife,…

This action was commenced in May, 1850, before a justice of the peace, and was tried on the 14th of June thereafter, before the justice and a jury. The action was brought to recover damages sustained by the plaintiff, the year previous, occasioned by the defendants and their servants in constructing the tunnel in their railroad at the north end of Church-street in Whitehall.

At the special term of this court, held before Justice Cady, at Fonda, on the 25th day of November, 1850, a motion was made for a perpetual stay of the execution in this cause, and for an order compelling the plaintiff to acknowledge satisfaction thereon, upon the ground that the same had been fully paid and satisfied.

Previous to the 2d of September, 1846, Harvey Granger died intestate, and on that day letters of administration of his goods and chattels, were duly granted by the surrogate of the county of Saratoga, to Maria Granger, his widow, Giles J. Slocum and Harvey F. Granger.

<p>To enable the holder of a bank bill, or negotiable paper, to retain the same, against the true owner, he must have come by it in the usual course of his business, and, for a full and fair consideration. He must have parted with something on the faith of the note or bill.</p> <p>It was agreed between the Lewis County Bank and the Bank of Watertown, that the former should send $10,000 of its circulating notes to the latter, and that the Bank of W. would return coin for it. The notes were accordingly counted out, at the L. Co. Bank, sealed up, directed to the Bank of W. and delivered to a messenger, to be carried by him to the Bank of W-One M. obtained possession of the packages, opened them, and placed between the same a letter signed by him, addressed to the cashier of the Bank of W., directing him to apply $1500 of the money in payment of a draft drawn byM., then held by said bank. M. then resealed the packages, and addressed the same to the cashier of the Bank of W.; who, on receiving the bills, took $1500 thereof, and applied it in payment of M.’s draft, which he cancelled; giving the L. Co. Bank credit for the residue of tho money. The letter of M. was written and sent without the knowledge or consent .of any officer of the L. Co. Bank; and that bank objected to the application made of the $1500, as soon as informed of it. Held, that the Bank of W. acquired no title to the $1500; and that having repaid it to the L. Co. Bank, under an agreement reserving the question as to their right thereto, they could not recover it back.</p>

This action was commenced in August, 1849, and was br ought to recover the amount due upon a promissory note made by the defendants to the plaintiff, also for money paid, lent and advanced, and had and received, and for services as captain of the steamboat Francis Saltos, and also to recover the forty-six fiftieth parts of all the liens on the said steamer existing on the 11th of February, 1848, and created by act and operation of law and held by the plaintiff or others.

Demurrer to complaint. The complaint charged that on the 28th of August, I860, the defendants fraudulently obtained from the plaintiff, who was old, infirm and blind, a certain writing, without consideration; that the plaintiff was ignorant of the contents of the paper, and that the defendants, although requested, had refused either to deliver up said paper or inform the plaintiff of the contents thereof; but that the plaintiff was informed and believed that said writing was…

This was an action of ejectment, brought to recover the possession of a strip of land, situated in the town of Greenburgh, in the county of Westchester, and occupied by the defendants in the extension of their railroad from Harlem river, through the county of Westchester. Issue was joined, and it was referred to Hon. Albert Lockwood, county judge of the county of Westchester, as sole referee ; and came on for trial, before him, on the 12th March, 1849.

<p>Demurrer to the defendants’ return to a writ of alternative mandamus. The writ recited that prior to the month of April, in the year 1847, an application was made, pursuant to the statute, to lay out a public road through lands belonging to Silas Olmsted in the town of Greenburgh in the county of Westchester ; that legal proceedings were had thereon, pursuant to the statute, and the commissioners of highways, upon the oath of twelve freeholders, determined to lay out said road or highway, and on the 3d day of April, 1847, made and subscribed an order laying out said road, pursuant to the statute, which order was duly filed and recorded. That on the 19th of April thereafter, Ger'shom Levinus, one of the commissioners of highways, and two of the assessors of said town assessed the damages of Olmsted by reason of the laying out of said highway through his land, and made and subscribed their certificate thereof, which was duly certified by a justice of the peace. That the said Silas Olmsted considering himself aggrieved by such assessment, on the 26th of April, 1847, signified the same by serving a written no-, tice upon the town clerk, who was also a justice of the peace ; by which notice he demanded a review of the ássessment and that a jury should be called for that purpose. That a jury was accordingly summoned, who after viewing the premises, &C. on the 12th day of May, 1847, assessed the said Olmsted’s damages at five hundred dollars, and made and subscribed their certificate of such assessment. That the said assessment was laid before the hoard of supervisors of the county of Westchester, at their annual session on the 12th of November, 1847. That the said board refused to act thereon, and passed the following resolution: “ Resolved, that in the opinion of this board, the proceedings in relation to assessing damages by reason of the laying out of a highway as existed before January 1st, 1847, have been abrogated by the new constitution, and consequently that, they can not entertain any question or resolution relating thereto.” That the board thereupon refused to cause the said assessment of $500 to be levied and collected, as required by law. That a similar application was made to the board of supervisors in November, 1848, and with the like result. That the said board had ever since that time, and always, refused and neglected to cause the said damages, so assessed, to bo levied and collected, as required by law. The writ then commanded the said board of supervisors to cause the said $>500, so assessed to Olmsted, with interest from February 1, 1848, to he levied and collected in the said town of Grreenburgh, pursuant to law; or that they should show cause to the contrary, <fcc.</p> <p>The defendants, by their return to the writ, admitted that an application Avas made to the board of supervisors at the time and for the purpose mentioned in the Avrit, to assess and levy the said damages. And they alledged that it appeared to said board that all of the proceedings in relation to the laying out of the said road, down to and including the order of the commissioners of highAvays to lay out the same and the assessment of the damages of the said Silas Olmsted, by the commissioners of highways and the assessors, as well as by the jury, as stated in the writ, took place subsequent to the first day of January, 1847, at which day the new constitution of the state took effect, which declares that when private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the state, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by lavv. That inasmuch as all the proceedings in relation to said road were instituted and took place subsequent to the 1st day of January, 1847, and as no provision had been made by laov as Avas directed in the said new constitution, the board of supervisors Avas not authorized to assess and levy the said damages on the toAvn of Grreonburgh, &c.; and that they thereupon made the resolution and decision set forth in the Avrit. That the said Silas Olmsted, by his counsel, at the next annual meeting of the board of supervisors [in 1848,] rcneAved his application to the board, as stated' in the Avrit, and that after hearing counsel for the said Olmsted and for the town of Greenburgh, the board decided that they would not review their former decision. The return also alledged a dedication of the street, or the right of passage, across his lands, to the public, by Olmsted, previous to his application for an assessment of damages, wherefore the defendants denied that the proceedings to assess the damages were according to law ; or that the defendants unjustly or illegally refused to assess and levy the said damages, as charged in the Writ.</p> <p>The plaintiffs demurred to this return, and assigned several special causes of demurrer.</p>

<p>Where an agent rightfully receives money for his principal, which ought to be paid over by the principal to a third person, such third person can not maintain an action against the agent for the recovery, though the agent has never in fact paid it over to his principal, and though the agent had notice of the claim made by such third person.</p> <p>An attorney who forecloses a mortgage for his client, by advertisement under the statute, and out of the money arising from the sale'retains the costs, and pays over to his client the amount of the mortgage debt, can not be held liable for the surplus, to the person having the oldest lien thereon. The action in such case must be brought against the client.</p>

This was an action of ejectment tried at the Orange circuit in October, 1848, before Justice Edmonds. The jury found a special verdict on which the justice presiding gave judgment for the plaintiff. The defendant appealed.

The plaintiff sued the defendant before a justice of the peace and declared as follows : “ Plaintiff complains that the defendant, on or about the 7th day of January, 1850, for a valuable consideration, fraudulently transferred and delivered to plaintiff a certain promissory note, made by James 0.

This action was brought to recover for work, labor and services, performed by the plaintiff for the defendants. It was tried at the Albany circuit in March, 1851, before Mr. Justice Parker.

Action to recover the possession of land, tried at the Columbia circuit, in October, 1850, before Mr. Justice Parker.

Motion to set aside report of referees. In the year 1846, the defendants, who were hide and leather merchants in New-York, furnished to the plaintiffs a large quantity of hides, to be tanned into leather. The plaintiffs agreed to tan the hides in a good and workmanlike manner, and to make them gain in weight, as much as good tanners make, from the same description of hides.

This Was an action to recover damages for the injury sustained by the plaintiff, in consequence of a collision upon the defendants’ road. It was tried at the Albany circuit, in March, 1850, before Mr. Justice Parker. It appeared upon the trial, that on the morning of the 3d of November, 1848, two trains of passenger cars left Albany for Schenectady. The second train left a short time after the first. There Avere two passenger cars in each train.

Demurrer to declaration. The first count of the declaration alledgéd that the defendant, on the 6th of September, 1839, made his certain instrument in writing, of that date, subscribed bj him, and then and there delivered to the plaintiff, by which the defendant, for value received, agreed, at the expiration of. one year from the date of the instrument, to purchase of the plaintiff for the sum of $8000, thirty shares of the capital stock of the Southern Life Insurance and…

This was an action commenced and tried before Benjamin Smith, a justice of the peace of Monroe county. C. S. and H. Martin, the defendants in error, sued Voorhees, the plaintiff in error, before the justice, in a special action on the case.

Action of covenant, tried before Marvin, justice, at the Monroe circuit, in February, 1848. The declaration contained two counts.

Sprague, the appellant, sued Cadwell, the respondent, before the justice, where judgment was rendered against him in favor of Cadwell for the costs of the suit, which judgment was affirmed by the county court. The facts and proceedings before the justice, as far as material to be here stated, appear in the opinion of the court.

<p>Appeal by the defendants from a judgment at special term, entered on the report of a referee. The case is sufficiently stated in the opinion of the court.</p>

The action in the court below was tried at the October term thereof, in the year 1844. Upon the trial, the counsel for the plaintiff helow offered in evidence certain depositions of one William R. Patten, a witness residing in the state of Michigan, by virtue of a commission duly issued for that purpose, on interrogatories duly settled by stipulation between the attorneys.

This was an action for slander, tried at the Steuben circuit, in August, 1848, before Marvin, justice.

This was an action of replevin in the cepit for a piano forte. The plea was non cepit, &c. The cause was tried at the Monroe circuit in October, 1848, before Welles, justice.

This was an action of ejectment, brought by the plaintiff to recover dower, as widow of Philip E. Runyan, deceased, in certain real estate situated in the town of Gorham, Ontario county.

Demurrer to plea. The action was commenced in the court of common pleas of Monroe county in March, 1847, and became transferred into this court by the operation of the new constitution. The declaration contained four counts, all of which were for assault and battery and false imprisonment.

In Equity.] This was a demurrer to the answer of the defendant. In their complaint the plaintiffs showed their incorporation and organization under the act of May 7th, 1847, in relation to plank roads, for constructing a plank road from Auburn to Cato, in the county of Cayuga, and the completion and putting in use said road.

This was an appeal from a judgment of the Monroe county court. The action was originally commenced before a justice of the peace, to recover of the defendant a penalty of §10 for violating the sixth section of the ordinance of the city of Rochester, in relation to nuisances, passed June 15, 1847. The defendant put in an answer, denying the charge, specifically and generally.

This was an action brought against James H. Hooker and Pope Gatlin, to recover damages for non-performance of a special contract. The defendants, among other things, alledged that Richard H. Pattison at the time of making the contract, was a copartner with them, and was, and still is, jointly interested with them in the contract. The plaintiff replied that Pattison was an infant, and the defendants demurred.

This was an action of ejectment, tried before the court without a jury. The plaintiff established a title in fee to three-fourths of the premises, through a deed from Jacob A. Briggs, her father, to the plaintiff and others, his children, &c. dated Feb. 1,1827.

This was an action to recover the value of a span of horses, attached by Ormsby as a 'constable, by virtue of attachments against Hiram Salisbury. The cause was tried at the October circuit of Onondaga county, 1850. Salisbury testified that on the 10th of May, 1850, the plaintiff had a personal mortgage against him of $500 for borrowed money, by which the horses were mortgaged; that the plaintiff wanted the money, and he, the witness, was going to sell the horses to raise it.

The plaintiffs in their complaint alledged that the defendant was indebted to them in the sum of $125,75, together with interest, on an account for printing paper, goods, wares and merchandise, sold and delivered to the defendant. ' There was no allegation in the complaint that the defendant was a corporation, and nothing to indicate the character of the defendant, except the name in the title of the suit.

In EauiTY. The bill in this case was filed for the purpose of obtaining a perpetual injunction, to restrain the defendant from selling, upon a judgment and execution in her favor, and against one Austin Cross, certain real estate described in the bill. The facts are fully stated in the opinion of the court.

Motion by the defendants, upon a case, for a new trial. The plaintiff, as administrator of Henry Waddell, sued the defendants as administrators of Lucas Elmendorf deceased, on a judgment against Elmendorf, entered in the supreme court, by confession, on a bond and warrant of attorney, on the 13th of November, 1810, for $2744,40, besides costs. The bond was dated July 22, 1809, and was executed by Lucas Elmendorf and Henry Waddell.

<p>This was an appeal from a decree entered in favor of the plaintiffs, at special term, on the report of a referee.</p> <p>Wm. James Boggs was the general agent of the defendants for ITew-York and vicinity, with full power from them to effect insurances binding on them, and to deliver policies. He employed 0. W. Bentley, an insurance agent at Albany, to act as the agent of the company at that place, and gave him written instructions indicating his powers. The plaintiffs were common carriers by the canal, between Albany and Buffalo, by the name of the Western Transportation Company. They needed the use of more boats than they owned, and agreed with Teall & Co., on the 24th of April, 1847, to ship three boat loads of goods in boats of Teall & Co., between that time and the 3d of May then next, inclusive. This last firm was called the Erie Canal Company. Under this contract three boats belonging to the Erie Canal Company were loaded by the plaintiffs; viz. the Wm. Gilmer, the Credit and the Tim. Teall & Co., in pursuance of an arrangement with the plaintiffs that they should effect insurance for the plaintiffs, or for their benefit, upon the cargo so shipped, arranged with Bentley to insure the cargo. Talcing (as is most favorable to the defendants,) Mr. Boggs’ representation of the facts, they were as follows : Bentley called on Boggs about the 5th of May, 1847, and said that he had an application for the plaintiffs for the boats Wm. Gilmer, Credit and Tim, and five other boats, for $2000 each, up trips, meaning $2000 on the cai’go of each boat going from Albany to Buffalo; that the Credit was then loading at Albany; and he wanted to know if Boggs would take the risks. Boggs inquired if the boats were good, and was answered in the affirmative. He then said that he would take the risks. He was asked to make out a policy for the Credit, as the line was not completed. When they were, Bentley was to give a list of the names of the other boats to be insured. Boggs testified, “ As I told Bentley I would take the risk on the Credit, he wanted the policy. I told him I had no inland policies on hand, but expected some in a few days, from the defendants’ office in Cincinnati. He then asked me if I had the power to make risks binding. I told him I had. He asked me if I would make the risk on the cargo of the boat Credit binding from that day, in the name of S. G. Chase & Co. I told him I Would, and did, and I made the application binding by entering it on the application book.” He further testified that nothing was said as to making the policy in the name of Teall <fe Co. for the benefit of Chase & Co. That “ Bentley requested that the Credit should be made binding, but that none of the other boats should be. He asked me if the Credit was binding for S. Gr. Chase & Co., and I told him it was, and that I would make out and send the policy as soon as they came to hand.” Boggs afterwards received inland policies, and made one out for the plaintiffs, and another for Teall & Co. He testified that he “ made them out exactly according to Bentley’s request,” and that they were in conformity with the agreement for the insurance. The policy thus made out for the plaintiffs commences thus: “The Washington Mutual Insurance Company of Cincinnati : Cargo—By this policy do cause to be insured, lost or not lost, S'. G. Chase <Sp Co. on account of Western Transportation Company, loss, if any, payable to S. Gr. Chase <fc Co. on merchandise for boats Wm. Gilmer, Credit, Tim, Champion, Teetotal, S. P. Williams, and Monticello, from Albany to Buffalo, or to any point on the western canals or lakes within the state of Hew-York, to wit, §2000 on up trips of each boat from the date of this policy to the first day of December next, inclusive, or to the close of navigation, if prior to that date.” Sum insured §14,000, premium §140.</p> <p>The Credit proceeded with her cargo on her route, and was struck by another vessel and sunk, and her cargo injured to an amount exceeding §3000. Boggs was notified of the loss, and sent agents to take care of the property. He afterwards received the policies from the defendants and forwarded one for the plaintiffs, commencing in the form above stated, to Bentley, and another for Teall <fc Co. Bentley suggested to the plaintiffs that the policy should have been in the name of Teall & Co. for the benefit of Chase <fc Co.; and with their approbation altered the policy in lead pe7icil, so that the Gilmer, Credit and Tim should be in one policy insured to Teall & Co., and the amount insured, and the premium, be charged accordingly, and another policy be given to the plaintiffs for the Champion, Teetotal, Williams and Monticello, owned by them, and a third one to Teall & Co. on other vessels owned by them. Bentley then sent down the policies, with these alterations, to Boggs, who tore off the seals and names of the president and secretary of the company, and afterwards, when requested to deliver the policies, refused to do so. The plaintiffs, not being able to procure the policies to sue on, at law, after waiting until the time for the company to pay the loss had matured, filed their bill, to compel the defendants to deliver a policy pursuant to the agreement, or to pay the amount insured. The cause being referred to a referee, he dismissed the bill, as to Boggs, (who was made a defendant,) but without costs, and on the 28th of February, 1850, he reported in favor of the plaintiffs, against the company, for $2346,08. From the judgment entered on that report the insurance company appealed.</p>

This was an action on a promissory note, purporting to be made by the defendants Horner <fc Ibbotson, who were partners, on the 9th day of June, 1848, in the name of the copartnership (Ibbotson &■ Horner,) payable to the order of Joseph F. Darling, sixty days after date, for §724,66. The action was brought against both makers, and Darling, the payee and indorser; but Horner was the only defendant served with process.

<p>This was an action to foreclose a mortgage given by Magill to the plaintiffs on the 21st day of February, 1849, upon a village lot in Malone, Franklin county, to secure the payment of a bond given therewith for the sum of $1500, payable in cotton shirtings or cash six months after date. The plaintiff, at the time of executing the mortgage, held two notes against Magill1 and others, then amounting to $890, and the balance of the debt, $610, was for cotton sold and delivered to Magill at that time. The mortgage was given to secure these sums, and was recorded on the 7th of March, 1849. On the 22d day of December, 1846, Magill, in consideration of one . dollar, and that the Northern Railroad Company would construct their road across the premises, granted or released to them, for that purpose, therein describing the property, and stipulating as follows: “ All that part of the land owned or occupied by the party of the first part, situate in the town of Malone, in the county of Franklin, to be bounded by parallel lines, including in width a space of five rods, as such lines shall be located by the said Northern Railroad Company, for the reasonable use of the said company and its assigns, in the construction, maintenance, use and accommodation of such railroad, with one or more tracks and suitable turnouts, on a course surveyed, and that may be established, under the said act, on and ove.r the land hereby released and conveyed. To have and to hold the same to the said party of the second part, and its assigns to their use as aforesaid, without molestation or hindrance in the construction, maintenance, operating and accommodation of the said railroad, and without further claim for compensation or damage from the party of the first part, or any persons claiming under them, except • nevertheless said road shall not be built on the line as located by Mr. Appleton, but on a different one, then an equitable difference shall be paid said party of the first part between said locations.</p> <p>The party of the second part covenants and agrees that if the said railroad shall be built upon said premises, it shall be built with reasonable care and skill, and that it will erect and maintain suitable fences on each side of said railroad, when the same shall pass through cultivated or improved and enclosed land.”</p> <p>On the 21st day of August, 1848, the company, wishing to deviate from the route located by Appleton, did so, and paid Magill $150 therefor. The grant or release, was never recorded. There was contradictory evidence, whether the company had taken possession at the time the mortgage was given, and as to what they had then done on the land. The judge who tried the cause, found that the company before that time, had surveyed and staked out their road, and had set the posts for the fences, and had probably built part of the fence; but decided that their possession was not sufficient to constitute notice to the plaintiffs, or put them upon inquiry. There was no proof of actual notice to the plaintiffs of the grant, or that the company was doing any thing on the lot.</p>

Demurrer to answer. The action was brought upon an undertaking executed by the defendants as bail for one Sylvester Levy. The complaint alledged that in June, 1851, the plaintiffs commenced an action in this court against Sylvester Levy, for the recovery of a debt due from him.

This was an appeal from the Herkimer county court. The cause was originally commenced by Smith, against Dygert, before a justice of the peace, to recover the penalty of §5, given by statute for preventing the passage of the plaintiff’s sleigh, upon a highway.

This was an appeal by the plaintiff from a judgment entered against him at special term, on demurrer to the complaint.

This was an action to recover the value of a pair of oxen, ox cart and yoke, tried at the Washington circuit, in June, 1851, before Hon. A. 0.

This was an action of ejectment for the east moiety of a lot of land in Warren county. Isaac Buttolph purchased the whole lot of John K. Beekman, 24th September, 1813, and lived upon it till he died, intestate, in November, 1834, leaving a widow, who died in the spring of 1850. On the 16th of March, 1832, Isaac Buttolph and wife conveyed in fee, the west half to his son Bethel, the defendant, to take effect on the death of Isaac.

This was a suit for a divorce a vinculo matrimonii, for the adultery of the defendant. The parties were residents of and married in this state, on the 10th day of January,%L844 ; and for a time cohabited as man and wife here, during which there was issue one child, now living. But some difficulty arising, the plaintiff filed a bill in the court of chancery of this state, to obtain a decree of separation; which was granted, and entered on the 30th day of March, 1846.

' The plaintiff brought this action before a justice of the peace, and recovered against the defendant the amount of four penalties of f>5 each, for exacting and receiving from him more toll than he was liable to pay for traveling and passing over the Bridgewater and Utica plank road.

This action was brought by the plaintiff, a judgment creditor of Richard Gregg, having an execution returned unsatisfied, to reach and subject to his judgment, a certain lot and premises claimed by the wife of Gregg ; the plaintiff alledging the conveyance to the wife to be fraudulent and void as against the creditors of the husband.

This was an action brought by a husband to recover the damages which he had sustained by means of slanderous words spoken by the defendant, of the virtue, chastity and fidelity of the plaintiff’s wife, in consequence of which she became and was depressed in her mind, weakened in her body, and injured in her health, so much, that she became and was unable to attend to her ordinary business and occupation, and the plaintiff thereby lost her services and was compelled to…

This action was commenced in August, 1847. The declarar tion contained two counts, upon a special contract for the salo • and purchase of wheat, assigning as a breach a refusal to receive and pay for the wheat; also the common counts for goods bargained and sold, and sold and delivered.

Motion by the receiver of the defendants to be allowed commissions on the value of the deposit notes surrendered by him under the order of the court. The receiver was appointed by the chancellor in September, 1845, and the order of appointment directed hinu “to collect, sue for and recover,” all the demands due to the company, including said notes.

This was an appeal from a judgment of the Cayuga county court. The cause was originally commenced before a justice of the peace. It appeared by the return of the justice, that on the 15th of March, 1849, Calvin Tanner executed a chattel mortgage, upon a cow and other property, to Dennis Tanner, to secure the payment of $63 and interest, one year from date; which mortgage was filed in the proper town clerk’s office the next day.

This action was brought to recover damages against the defendant for neglecting to obey a process of subpoena duces tecum, issued in behalf of the plaintiff and served on the defendant as a witness in a certain action which at the time was pending in this court in favor of the said plaintiff against one Amasa Carpenter, for slander.

This was an appeal by the defendant from a judgment of the Broome county court. The cause originated in a justice’s court; where the plaintiff declared upon a note or agreement, dated Dec. 6, 1850, executed by the defendant, by which he promised to pay to the order of the plaintiff, sixty days after date, fifty dollars, in shook staves at ten dollars a thousand.