Volume 12 — Howard's Practice Reports

<p>In reference to Castle Garden, in the city of New-York. In Nov., 1807, the corporation granted to the United States a small portion of the original battery, fronting Castle Garden, and also a water-lot, lying westwardly, “ to be made land, and gained out of the Hudson River, of the breadth of three hundred feet.” This water-lot they had no right to grant, it belonged to the state.</p> <p>This defect in title was supplied by the 2d section of an act of the legislature, passed in March, 3808; by which certain commissioners, appointed under a former act, were empowered “to grant to the United States, for the purpose of providing for the defence of the city, the use of any of the lands and waters belonging to the people of the state, in the city and county of NewYorlc;” “ which lands shall be granted on the express condition of their reverting to the people of this state in case they are not applied to the purposes aforesaid.” (Sess. L. 1808,ch. 51.)</p> <p>These commissioners, in July following, made- a deed of cession to the United States of that part of the Battery which had been granted by the corporation, and extending westwardly into the river to the depth of five hundred feet, covering the whole of the water-lot aforesaid.</p> <p>The United States entered immediately upon the lands thus ceded, filled up' a portion of them, connecting them by a bridge with the Battery, and erected on the ground thus gained from the river an extensive fortification, known for many years as Castle Clinton, being the same building now known as Castle Garden; and in 1521, all the lands thus granted by the corporation and the state, were still in the exclusive possession and occupation of the United States.</p> <p>On the 27th of March, 1S21, the legislature passed an act, the first section of which declared, that “it shall be lawful for the mayor, aldermen, &c., of the city of New-York, to extend that part of the said city usually called the Battery, into the bay, and-into the North and East rivers such distance as they may deem proper not exceeding six hundred feetand the next sentence declares that the lands thereby granted to the mayor, aldermen, &c., and their successors, were vested in them “forever, to remain for the purpose of extending the said Battery for a public walk, and for erecting public buildings and works of defence thereon.”</p> <p>Now the first question is, what is to be understood by the words in this last act— “ all that part of the city usually called the Battery !” Held, that these words did not embrace Castle Garden, or any part of the lands ceded to the United States.</p> <p>Nor did they embrace that part of the Battery which the corporation had before granted to the United States. But the true explanation of those words is found in the deed given by the corporation in 1815, to the purchasers of the lots on the Bowling Green, and on State-street. The covenant in that deed describes the lands to which it relates as “vacant grounds belonging to the corporation in the vicinity of the premises granted, and commonly called the Battery.” They should be construed as applying exclusively to grounds then vacant, and then belonging to the corporation.</p> <p>Castle Garden, therefore, cannot be treated as an extension of the Battery under the act of 1821; and the corporation do not derive their title to it from that act, and do not hold it subject to the supposed trust which that act created.</p> <p>The origin of the title of the corporation is the act of congress of March, 1822, and the surrender and delivery of the possession, which, under that act, was made to the corporation by Gen. Scott, in 1823. From that time all the lands comprising Castle Garden, originally ceded to the United States, have been treated and used by the corporation as the property of the city of New-York, not subject to any trust or dedication whatever; and hence by an adverse possession, which has lasted more than twenty-five years, the title of the corporation has become absolute, not only as against individuals, but as against the public and the state itself.</p> <p>In 1821, it was not in the power of the legislature, whatever might have been its intention, to convey to the corporation any title to the lands, or any part of the lands, which, under the act of 1808, had been ceded to the United States. The state was in no sense the owner, nor had it any estate or interest in those lands, which could be the subject of a valid transfer.</p> <p>It is immaterial whether the grant to the United States was of the use of the lands, or of the lands themselves; since, whatever may be the form of expression,- a grant which transfers the right of possession for an indefinite period, and which may remain in force forever, unless defeated by a future contingent act or event, creates a fee, and no other or less estate.</p> <p>"Every estate which, although it may be determined upon a contingency, has no positive limit to its duration, is a fee.</p> <p>The definition of a fee embraces every estate which is not for life, for years, or . at will—every estate which in its nature is descendible.</p> <p>There can be no reversion upon a fee, whether the fee be absolute or conditional. A reversion, in its legal signification, is applicable only to an estate which remains in the grantor and his heirs, and which is to take effect in possession upon the determination, by its own limitation, of an outstanding particular estate—an estate for life, or years; and it takes effect, immediately on the determination of the particular estate upon which it depends, and may be alienated to the same extent, as an estate in possession.</p> <p>But where a condition is annexed to the grant of a fee, the estate granted is not determined merely by a breach of the condition. It can only be determined by an actual entry of the grantor or his heirs; and a mere right of entry for a condition broken is not assignable or transferable at all.</p> <p>in this case, when the condition was broken by the dismantling and abandonment of Castle Clinton as a work of defence, it was competent for the state alone to defeat, by an actual entry, the estate which it had granted. As no such entry was then made, the fee, vested in the United States, passed to the corporation of the city, and by the lapse of time, and the continuance of an adverse possession beyond the statutory period, has now become absolute,— freed from any trust or dedication, and discharged from any condition.</p> <p>The plaintiffs, therefore, have no title to relief against the defendants upon the-ground of a breach of trust. (The ground upon which the plaintiffs asked relief, in consequence of a breach of covenant, contained in the deed from" the corporation to the purchasers of lots fronting the Bowling Green and on State-street, was principally considered by Oakley, Oh. J., in which Duer, J., in some additional remarks, concurred, and found adversely to the plaintiffs.)</p> <p>Neither were the plaintiffs entitled to an injunction, in order to prevent the nuisance, which it was apprehended would be created, if the commissioners of emigration should be permitted to execute their intention of converting Castle Garden into a depot for the landing of emigrants.</p> <p>Because the court has no right, under the circumstances, to entertain the question of nuisance at all, as that question has been settled by the act passed by the legislature on the 18th of April last, clothing the commissioners of emigration with fuller powers than they had before possessed; and unless the act can be pronounced a nullity, the court is bound to see that it shall not be defeated.</p> <p>That act makes it the positive duty of the commissioners to designate some one place in the city of New-York for the landing of emigrant passengers, and declares that the place so designated shall be, not such as a court or jury may deem suitable, but such as they may themselves deem proper, evidently meaning that their determination should be conclusive.</p> <p>The powers of our own legislature, in respect to the alteration of the common law, are just as unrestricted as those of the English parliament; and henc?,-i£ the act of April had declared in terms, (which it has done in effect,) that the landing of emigrant passengers at Castle Garden should not be considered and treated as a nuisance, and that no injunction to restrain such landing should be issued, no one would probably have disputed its validity.</p> <p>A power which is possessed and has frequently been exercised by a municipal corporation, cannot reasonably be denied to the legislature.</p> <p>From the depositions read in this ease, it was considered by the court that ther act of April last should be regarded, not merely as valid, but as a wise, salutary and beneficent exercise of legislative power".</p>

The complaint in this case states, th'at the defendants are husband and wife; that they executed their promissory note, payable to the plaintiffs, for the sum of $480,25, sixty days after dale; that the note was given for.goods, wares and merchandise, purchased of the plaintiffs by the defendant, Isabella, the wife of David Hagadon, the other defendant; who was doing business in her own name, and on her own account, apart from her husband; and that she executed the note with…

<p>Motion to discharge from arrest.</p>

Motion that plaintiff be required to make his complaint definite and certain. The complaint contained four counts. In the first, it was alleged, that Daniel M'Kinney, at the time of his death, was indebted to the plaintiff to the amount of $1,200, for moneys paid, laid out and expended by the plaintiff for him, and moneys received by him for the use of the plaintiff.

<p>Motion to vacate order directing an execution against the person to issue.</p>

The complaint wras on a promissory note, made by the defendants, to which the defendants demurred. The demurrer was noticed as frivolous before a justice of this court, under § 247 of the Code, and was held to be frivolous, and judgment was given under that section for the plaintiff, nothing being said in the order about costs.

The plaintiff, in this complaint, averred a sale of goods by himself, on credit, to one Dentz; that plaintiff was, at the time, unacquainted with Dentz, or his means or circumstances; that he was induced to make the sale by certain representations of defendant, that Dentz was solvent and responsible, in good pecuniary circumstances, and worthy of credit, and would undoubtedly pay any amount with which plaintiff might credit him; that these representations were untrue, and…

<p>Application for a decree dissolving marriage contract for fraud.</p> <p>The plaintiff and defendant intermarried in December, 1847, and, as husband and wife, lived together until August, 1854. During this period they have had two children, one of whom is now living. The plaintiff asks for a decree dissolving the marriage contract upon the ground of fraud.</p> <p>•The alleged fraud consists in the defendant’s having, prior to the marriage, and as an inducement to plaintiff to contract it, represented herself as a chaste woman, when, in fact, she was the mother of four illegitimate children; that she concealed such fact fj-om the plaintiff prior to the marriage, and that he only discovered it in August, 1854.</p>

Proceedings supplementary to execution. On the return of an execution unsatisfied, against the property of the judgment-debtor, an order was granted requiring the defendant to appear and answer concerning his property.

Motion, in the first judicial district, in a suit to foreclose a •mortgage on land in Orange county, being the second judicial district; the case having been referred for trial to a referee in the first district, and the trial, having proceeded, being now in progress therein.

The action was for goods sold and delivered to the defendants, as partners, by the plaintiff. The complaint set forth three different purchases, amounting in the whole to $162.85, and stated that the defendants had paid $75 on account of such purchases. The balance, amounting to $87.85, with interest, the plaintiff claimed to recover in this action. The defendant Palmer, though served with summons and complaint, did not answer.

This was a motion for leave to file a supplemental complaint, .alleging, among other things, as additional matter to the original • complaint, that, April 26th, 1850, the plaintiff was appointed assignee of Solomon Kipp, trustee, of Ruth S. Harrison, and that, April 22d, 1853, the defendant was appointed executor of John Harrison, deceased.

<p>What matters considered irrelevant and redundant in the statement in the complaint of the cause of action, for the possession and conversion of personal property.</p> <p>( The pleader, in this case, seems to have entertained enlarged views in ref * erence to the description of the cause of action, and to have exercised quite a liberal indulgence in applying consequences to the defendant.)</p>

This action was tried before Justice Balcom, without a jury, at the Delaware circuit, in January, 1856, when the following facts were proved:— The relator, on the 10th day of July, 1852, recovered a judgment in' this court against Ira Whitcomb and Contine Connelly, overseers of the poor of the town of Middletown, in Delaware county, for $112.05 damages, and $59.47 costs, on an account that0 the relator purchased of Jonathan C. Allaben, and which account was for services…

This action was commenced to recover one quarter’s rent of the first floor of the premises, No. 8 Fulton-street, ending 1st of May, 1855, under a hiring for one year from 1st May, 1854, with the privilege of one year more. The answer sets out the agreement of renting, and alleges— That the renewal provided for in the lease was the main inducement to the taking of the lease, and principal cause of its value.

Motion to strike out answer of defendant, Delia Selfridge, because not verified. Defendant claims- 1. That verification of the complaint is not regular; and answer need not be verified. 2. That a motion to strike out an answer could not be entertained for such a cause; as the plaintiff’s remedy (if his verification were sufficient) was to disregard the answer, return it, and enter judgment. 8.

<p>Demurrer, to complaint for subrogation and redemption of mortgaged premises.</p>

This is an appeal from a judgment of the county court of Allegany county, reversing a judgment of a court of a justice of the peace, on appeal by the defendant in the justice’s court. The action before the justice was brought against Burbank to recover damages on account of his failing to build a steam saw-mill, in a proper manner, according to his agreement with one William M. Truman, and which had been assigned to the plaintiffs.

<p>The original establishment and designation of “ Christy’s Minstrelsentities the founder thereof to the protection and benefit of that appellation exclusively. Without a proper license, the assumption and use of that style and name of amusement by others, will be perpetually restrained by injunction, under the law prohibiting the pirating of trade-marks.</p>

Motion to -change the venue. This action was brought upon a note made by the defendant, payable to the plaintiff’s assignors. The plaintiff resides in the county of Schenectady, and the defendant in the county of Schoharie. The venue was in the county of Albany. The defendant’s attorney, in due time, served upon the plaintiff’s attorneys a demand, that the trial be had in the proper county.

<p>The legislature of this state has the power to enact laws prohibiting the sale of intoxicating liquors, and to provide penalties for their violation.</p> <p>The act of April 9, 1855, so far as it prohibits the sale of intoxicating liquors, imposes penalties for its violation, and provides for their enforcement, is not in conflict with any article or section of the constitution of the United States or of this state. (See People agt. Berberrich Sf Toynbee,' 11 How. Pr. R 289,, contra, and Wynhammer agt. The People, id. 530, in accordance with this decision.)</p> <p>The courts can only declare an act of the legislature void when it conflicts with the written constitution.</p> <p>The legislature is the sole judge of the necessity for such laws as it shall enact, and unless its acts trench upon the provisions of the constitution, they become the law of the state, and are beyond the reach of judicial repeal.</p> <p>Life, liberty and property, although entitled to protection, are each liable to forfeiture for a violation of the law. If an act, or any portion of it, is otherwise constitutional, the violators of such act, or portion, may be deprived of their property under its provisions, and it will be by “ due process of law.”</p> <p>It is not necessary for the prosecutor, under this act, to disprove any qualification, or show that the case does not come within any exception or saving clause. If the liquor sold was for any reason privileged, the burden of establishing that privilege rests with the defendant.</p> <p>Foreign liquor, after it has passed beyond the hands of the importer, or the original package is broken for use or sale, so that it ceases to be foreign commerce, is not exempted from the operation of the statute by the last clause of section one.</p> <p>Those sections of the old excise law, which prohibited the sale of all liquors in quantities less than five gallons without a license, are not repealed by this act, but still remain in force.</p> <p>it seems, that the second section of article 1 of the constitution, (which provides . that “ the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever,”) does not apply to trials for offences below the grade of grand larceny.</p>

<p>The jurisdiction of the supreme court, in reference to the proceedings for opening and extending streets, See., in the city of New-York, is wholly derived from the statute relating to such proceedings.</p> <p>The power vested in the court by that statute is supervisory, and not appellate. It was evidently the intention of the legislature to vest in the court a broad discretion in the exercise of this power. Its office is to see that no injustice is done.</p> <p>The exercise of a power so entirely discretionary is not the subject of review upon appeal. Hence, it is declared by that statute, that the report of the commissioners of estimate and assessment, when confirmed by the court, shall be final and conclusive upon all parties; and the title to the property proposed to he taken for such improvement shall, upon such confirmation, vest in the corporation.</p> <p>Quere ? Whether this proceeding, in reference to opening streets, See., can be called a special proceeding, within the meaning of that term, as defined in the third section of the Code, which declares'that every other remedy, except such as are obtained by an action, is a special proceeding.</p> <p>If an application for such confirmation is a special proceeding, within the meaning of the Code, or the act of 1S54, the decision thereon is not the subject of review upon appeal; though it comes within the letter of the Code, and that statute authorizing an appeal: because the jurisdiction of the court is taken away by the statute under which the proceedings originated, which declares, “ that the order, or judgment of the court, in the premises, shall be final and conclusive.”</p> <p>This having been settled, in respect to an appeal from such an order, from the. general term of the supreme court to the court of appeals, it must be equally true in respect.to an appeal from an order made at special term to the general term. The order, when made at special* term, is equally the order of the supreme court, as if made at the general term.</p> <p>It is a familiar rule, that an appeal will not lie from an order which the court was authorized to make or not, in its discretion.</p> <p>The statute, when it says, “ that the order, or judgment of the court, in the premises, shall be final and conclusive,” is evidently speaking of the original order or decision of the court in the premises, in the first instance, and not the last order the court would ordinarily have power to make. Per Peabody. J.—Cleuke, J. dissenting.</p>

Demurrer.—This action was brought by the plaintiff, as receiver, to set aside an assignment executed by the defendant Williams, to the defendant Clark. The assignment was made on the 5th of January, 1850.' It embraces all the property and effects of the assignor, except such articles as are by law exempt from levy and sale. It is made for the benefit of creditors, giving preferences.

This is an action of replevin, brought against the defendant, for taking goods alleged ■ to belong to the plaintiff, from the possession of one Flandrow. In November, 1842, Wyman recovered a judgment against Flandrow by confession, on bond and warrant of attorney. In December following, an execution was issued, and the entire contents of a thread and needle store of Flandrow’s was levied on.

<p>The relator, Munson 1. Lockwood, was duly elected Brigadier-General by the field-officers of his brigade—then comprising the county of Westchester—in 1841. He held that office, and was in the discharge of its duties, when the act of May 13, 1846, was passed. Under that act a brigade was formed including Westchester county (except one town) and the three counties on Long Island. The latter act provided that the Brigadier-General in commission and highest in rank, residing in such brigade district, should be the commanding officer of such brigade.</p> <p>Under an act of May 13, 1847, the counties of Long Island were detached from the brigade then under the command of'the relator, and' a district was formed consisting of the militia of the counties of Westchester, Putnam, and Rock-land, constituting the seventh brigade. The command of this brigade was assigned, by the commander-in-chief, in general orders, dated the 9th of June, 1847, to the relator, Gen. Lockwood. He continued to act in that capacity until 5th May, 1855, when the governor of the state issued a general order, revoking so much‘of the order of the 9th June, 1847, as assigned the command of the brigade to the relator, and directed and commissioned the defendant, William W. Schrugham, to the command of said brigade.</p> <p>The question is, which of these gentlemen had the better title to the actual command of the seventh brigade ?</p> <p>By the present constitution, the provision for electing brigadier-generals by the field-officers of the brigade is continued. And the 5th seetion of the 11th article is in the following words •. “ The commissioned officers of the militia shall be commissioned by the governor; and no commissioned officer shall be removed from office, unless by the senate, on the recommendation of the governor, stating the grounds on which such removal is recommended, or by the decision of a court-martial pursuant to law. The present officers of the militia shall hold their commissions subject to removal as before provided."</p> <p>By the act of April 17, 1854, (tit. 2, § 5,) it is provided, that brigadier-generals shall be chosen by the field-officers of their respective brigades. The 9th section says, that whenever the office of a brigadier-general is vacant, the commander-in-chief shall issue an order for an election to fill the vacancy. The 43d section is as follows: “ The commander-in-chief is hereby authorized and empowered to appoint and commission the brigade, regimental and company officers, necessary to facilitate the organization of all military districts not now sufficiently organized to authorize an election. All officers superseded by such appointment shall become supernumerary officers.”</p> <p>Held, that the provisions in the act of 1854, as to the election or appointment of officers, were not intended to remove the then existing officers. The governor, therefore, was not authorized by that act, nor any other statute, to displace the relator, or to appoint the defendant.</p> <p>It has never been decided that one holding an elective office shall be denuded of it, by the enlargement of the district which elected him, and to which his official action was confined. The universal practice has been the other way.</p> <p>Where an individual is the actual occupant, and claims, under possession and color of right, to hold an office, and a claim to such office, and an interference by another, is interposed, the incumbent should not be required to elect to consider himself out of the possession of the office, and then to resort to a tedious action to procure his restoration. A mandamus is the proper remedy in such -B case. If the inóumbent is entitled to the office, he should be promptly quieted in the discharge of his duties.</p>

This was an action by part-owners of a vessel, against the ship’s husband, for not insuring the vessel, her freight, &c. The complaint set forth, that the remaining part-owners had been applied to by the plaintiffs to join in the action as plaintiffs, and had declined so to do, and were for that reason made defendants. The defendant, Oaksmith, demurred for a defect of parties.

<p>None of the provisions of the Code, in relation to “proceedings supplementary to execution,” are applicable to judgments against corporations. (10 How. Pr. R. 4S7, decides the same, so far as § 292 is concerned.)</p> <p>The proceeding under § 294 is one merely in aid of the principal proceeding against the judgment-debtor, and must he had in connection with it; and cannot be resorted to independently of any proceeding against such judgment-debtor.</p> <p>Under the Code, an attorney has a claim in the nature of a lien upon a judgment recovered by him for his client, for his services in the suit, and a right, as against the client, to collect the judgment and retain the proceeds, or sufficient of them to satisfy his claim for his services.</p> <p>By § 299, when a party is summoned before the judge under § 294, and denies the debt alleged to be due, or claims the property alleged to belong to the judgment-debtor, such debt or property shall be recovered only in an action hy the receiver. Therefore the judge, upon these supplementary proceedings, has no jurisdiction to try such claim.</p>

<p>When a verdict is taken at the trial term for the plaintiff, subject to the opinion of the court at the general term, the court at general term may dismiss the complaint, -although no leave is given at the trial term to move for such dismissal.</p> <p>If a new trial in such cases is granted on suggestion that the proof held to be insufficient can be supplied, the court will impose upon the plaintiff the payment of the costs of trial, and all subsequent proceedings, as a condition of such new trial.</p>

On the 19th of April, 1855, a judgment,'in the case second above entitled, was- entered up for the sum of $1,021.60, by confession under § 383 of the Code; and on the 28th of December, ' 1855, a like judgment by confession was entered in the first entitled suit for $397.09.

This was an action brought by Van Wyck against Howard, proprietor of the Irving House, to recover the value of the property stolen from one Forbes while he was there as a guest,

The complaint alleged that the defendant, Germon Hicks, on the 10th day of January, 1855, made his promissory note for $500, payable sixty days after the date thereof, to the order of the defendant, Alerton Hicks; and that the defendants', Alerton Hicks and Joseph B. Hicks, afterwards endorsed the note ; and the same was thereupon, for value received, transferred to the plaintiff, who is now the bona fide owner and holder thereof; that the note, at maturity, was duly…

This was an appeal from the judgment of a justice of the peace, certified into this court. On the trial below, the plaintiff proved his cause of action and rested. The defendant, as a set-off, produced a note, purporting to be made by the plaintiff, payable to Jonathan Hudson or bearer, and to prove said note called the payee as a witness.

Demurrer to complaint. The defendant, H. E. Bevier, indorsed a note made by his brother, J. L. Bevier, payable to the order of A. Ferguson, to secure a debt due to Ferguson. A. Ferguson transferred the note by assignment, and without indorsement, to the plaintiff, who sues the defendants to recover the amount and another claim.

A preliminary injunction was granted, restraining the defendants from committing waste, &c. A motion was subsequently made to dissolve the injunction. The motion was founded on the pleadings, and was granted. In April, 1855, the cause was referred for hearing and decision; and, in July, the- referee made his report, dismissing the complaint, with costs. No judgment has been entered upon the report.

<p>Motion to set aside writ of assistance.</p>

<p>In removing a cause from the state courts to the circuit court of the United States, the act of congress requires that it be made to appear to the satisfaction of the state court that a suit is commenced by a citizen of the state in which the suit is brought, against a citizen of another state; next, that the matter in dispute exceeds the sum or value of $500, exclusive of costs.</p> <p>Again: the defendant shall, at the time of entering his appearance in such state court, file a petition for the removal of the cause for trial into the next circuit court to he held in the district where the suit is pending, and offer good and sufficient surety for his entering in such court, on the first day of its session, copies of said process against him; and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein.</p> <p>The jurisdiction of the state courts, and that of the United States courts, is concurrent. And it is an admitted rule that, in cases of concurrent authority, the tribunal which first obtains jurisdiction, and is competent to administer it, will retain it, and another will not interfere. The act of congress, however, confers a privilege innovating upon this rule, and prescribes how and when this privilege may be exercised. Therefore the statute must be, in its fair construction, pursued, or the acknowledged jurisdiction of the first tribunal must be sustained.</p> <p>i</p> <p>Now, what is the meaning of the phrase “ entering his appearance in the state court” which the statute employs? {The authorities upon this question fully examined.)</p> <p>Heidi that the entiy of an appearance in a state court must be interpreted by the course and practice of that court; and that what is held in such court to be a submission to its authority in the cause, whether coerced or voluntary, must be deemed an appearance. And further, when such submission has once been made, it cannot be retracted.</p> <p>Therefore held, where the defendants appeared by counsel in open court, upon the argument of a motion for injunction—read affidavits to oppose it—'the endorsement of such affidavits with the names of the attorneys of the parties, and a recital of all this in an order of the court, that few acts could be more conclusive of an appearance in the state court.</p>

On the 17th of April last, by special act of the legislature, the Metropolitan Gas-Light Company was incorporated, with authority to manufacture gas for lighting the streets of this city.

<p>Motion to dissolve injunction.</p>

Motion to set aside order dismissing complaint, &c. The summons and complaint were served on the defendants, Dewey and wife, on the 2d of September, 1854, and on the defendant, Eleanor Ward, on the 9th day of the same month. On the 7th of September, the attorney for the defendant, Elias Dewey, served upon the plaintiffs’ attorney an answer and a notice of trial for the Schoharie circuit, to be held on the third Monday of the same month.

<p>Motion to discharge or vacate order of arrest, made by special county judge of Oneida county.</p>

This action was brought to recover the possession of a heifer. There was evidence tending to show the defendant secretly took the heifer from the plaintiff’s possession. The plaintiff offered to prove, on the trial, that- he and his servants spent several days in searching for the heifer,, after she was taken by the defendant, before he found her, as part of the damages he sustained by reason of the taking and detention of the heifer by the defendant.

The relator in this proceeding was duly appointed under the act of March 12, 1855, a marshal to take the census in and for the town of Lima, in said county of Livingston; and for the service rendered under the supplemental act, passed April 6, 1855, became entitled to be paid the sum of two dollars per day for the time actually expended.

The complaint in this action was served with the summons. The summons contained a notice, that if the defendant failed to answer the complaint within twenty days, &c., the plaintiffs would take judgment against the defendant for |363.16, with interest thereon from the 30th day of July, 1855, besides costs.

The complaint makes a case for an accounting between the parties, in respect to the proceeds of the sales of two houses and lots in the city of New-York, in which they were jointly interested—claims a balance due the plaintiff, and prays for an accounting, &c. It charges that a house and lot, on the Third avenue in New-York city, was bought, and paid for in part, with such proceeds, and conveyed to the defendant, and seeks to have such house and lot disposed of, if…

Motion on the part of the defendant to dissolve an injunction-order. The motion is made upon the complaint, answer and affidavits. An injunction-order was, on the 27th of. February, 1856, granted by the county judge of Dutchess, Upon the service of this injunction-order, the defendant obtained, from Mr. Justice Emott, one of the justices of this court, an order requiring the plaintiff to show cause why the above injunction-order should not be dismissed and vacated.

Isaac Adriance moves for a mandamus against the supervisors of the county of New-York, to require them to remit so -much of the taxes on his real estate in John-street, as is levied on the increased valuation of said property by the tax-commissioners, beyond the valuation by the assessors; and also to remit the tax on any valuation of his property on the Third and Fourth avenues, and between 58th and 59th streets, beyond the value sworn to by him.

<p>There is no reason for saying, that a defendant, administratrix, unreasonably resisted or neglected the payment of a demand against the deceased’s estate, where it appeared that she had good reason to suppose there was a valid defence to the claim, in whole or a material part of it; and that probably the defence interposed would have been successful if, at the trial, she could have procured her witness. Under such circumstances it was her duty to attempt a defence.</p> <p>And in order to charge an estate with costs, on the ground of a refusal to refer a claim, it must appear affirmatively that there was a refusal by the legal representative to refer.</p> <p>Where the claimant said to the administratrix, on presenting his account, "I don’t want any trouble about it, as we have always been good friends,.and I am willing to have the account referred to some disinterested persons,” and she replied, “ I hope there will be no trouble about it; and I will see George [her son] about itand on the same day a summons upon the claim was put into the sheriff’s hands, but not served until some fourteen days afterwards.</p> <p>Held, that it was natural that the administratrix should understand that a general leaving out of the matter in the nature of an arbitration was intended, instead of a strict legal reference under the statute; besides, there was, in fact, no refusal to refer; and she was entitled to a reasonable time after the demand, to consider what to do, and to take counsel if necessary.</p>

Motion to set aside judgment, &c., for irregularity. The action was tried at the Ulster circuit in April, 1855. Upon the trial, the plaintiff was nonsuited. The judge who presided at the trial made an order that the plaintiff have sixty days to make a case, or bill of exceptions; that the defendant have the same time to make and serve amendments thereto; and that the hearing be had, in the first instance, at the general term.

<p>This action was tried at the Tompkins circuit, before Mr. Justice Balcom, on the 9th day of February, 1856.'</p>

The plaintiff, by her next friend, filed her complaint in this case against her husband, the defendant, praying relief against him; first, for an absolute divorce on the ground of adultery; and secondly, for a limited divorce, on the ground of cruel and inhuman treatment. The defendant interposed a demurrer to the complaint, on the ground that several causes of action had been improperly united.

<p>This was a motion to refer the cause, on the ground that the trial would require the examination of a long account.</p> <p>It appeared, in opposition to the motion, that a receiver had been appointed of all the effects of the company, upon the application of a stockholder, and that the company had been enjoined perpetually from exercising any of its corporate functions.</p> <p>An answer had been served by the receiver in the name of the corporation in which the facts aforesaid had been pleaded.</p>

<p>On the removal of a cause from the state court into the circuit court of the United States, where there is an injunction, the order for removal may provide that it (the order) shall not operate of itself, to dissolve the injunction.</p> <p>Although there is no provision in the statute for continuing the injunction on such removal, as there is in cases of special bail and attachment, yet, the cause may be remanded to the state court; and whether the removal carries with it the injunction in full force or not, it is important that, in case the cause is remanded, it should come back in the same situation as when it left.</p>

Motion to set aside report of referee. The action was brought to recover a balance of account alleged to be due from the defendants to the plaintiff. It was tried before a referee. The case was finally submitted to the referee for decision on the 18th of May, 1853.

The plaintiff obtained a report in this action before a referee against the defendant, which stated there was due the plaintiff from John P. Ryerss, deceased, the sum of $1,329.20, besides costs.

The plaintiff is an assignee, under an assignment executed to him by J. H. Sf J. D. Lyon, of their property, in trust to pay their creditors. As such assignee, he brought this action to recover a balance alleged to' be owing from the defendant to the assignors at the time of the assignment. The defendant obtained a report of a referee in his favor, and now moves for an order directing the costs to be paid by the plaintiff personally.

Creditor’s Bill.—The complaint in this action is in the form of an ordinary creditor’s bill under the old practice, stating the recovery of a judgment since the Code, the issuing and return of execution nulla bona, and that Bennett, the judgment-debtor, had made an assignment to the other defendants, Bennett and M£Coy, to hinder and delay creditors, and asked that the assignment be set aside, and that defendants pay their judgment.

Motion to set aside judgment, &c. The action was brought upon a note made by the defendant, payable to the order of one Emerson, for $131.89. The defendant, in his answer, admitted the execution of the note, and stated that, while Emerson was the holder of the note, he became indebted to the defendant, to the amount of $98.12, for work, labor, &c.; and it was agreed between him and the defendant, that such indebtedness should be applied upon the note.

This is an action against the maker of á promissory note. The complaint alleges the making of the note; that it has matured; that the whole amount is due to the plaintiff; that it was endorsed and delivered to him by the payee therein named; and demands judgment for the amount thereof. The answer, first, on information and belief, says, that the plaintiff is not the holder or owner of the note, and that E. F. Brown is the owner and party in interest.

<p>In actions on promissory notes against the makers or endorsers, where the answers are only a denial of the allegations in the complaints, and in which no affidavits of merits are made or served, and there is no appearance by the defendants at the trials, and in which inquests are taken, the court will notare» sv/me the defences had been unreasonably or unfairly conducted; biit other facts must be established to entitle the plaintiffs to extra costs in such cases.</p> <p>Extra costs are not given to the plaintiff under § 308 of the Code, for the sole ‘ purpose of punishing the defendant. They should be given only in actions where two facts concur, viz., 1st. That the defence has been unreasonably or unfairly conducted: 2d. That the ordinary costs are insufficient to compensate the plaintiff for his expenses in the action.</p> <p>In actions on promissory notes, where the answers contain only a denial of the allegations in the complaints, slight evidence only will be required beyond the facts appearing by the pleadings, to authorize the court to award extra costs to the plaintiffs where inquests are taken.</p>

<p>If an allegation in a complaint be such that the defendant, being examined as a witness, would not be obliged to answer as to its truth, he may, when pleading, deny the allegation, and omit to verify his answer.</p> <p>But if the defendant, in pleading to such an allegation, declines to answer it at all, on the ground that such answer might subject him to a criminal prosecution, he admits it, for the purposes of the action. s</p>

<p>Demurrer to complaint.</p>

On the trial of this action before Mr. Justice Balcom, at the Tompkins circuit, the plaintiff proved by a witness that the defendant, in July, 1854, at the town of Lansing, in said county, assaulted the plaintiff, and threw him down, and jumped upon him.

Demurrer to complaint. The action was brought by the plaintiff as administrator of his deceased wife.

<p>Motion for an order to strike out the 14th count, or statement of cause of action in the complaint, on the ground that it contains several causes of action not separately stated; and if not struck out, to have the same made definite and certain hy amendment, stating in what respect. Also, that the 11th, 12th, and 13th counts or causes of action be made definite and certain, &c.</p> <p>The llth, 12th, 13th and 14th counts.of the complaint are as follows:—</p> <p>“llth cause of action. The plaintiff alleges that the said intestate, at the time of his death was indebted to the plaintiff in the sum of six thousand dollars, for money had and received by the said intestate to the use of the plaintiff, and that no part thereof has been paid to the plaintiff.</p> <p>“ 12th cause of action. The plaintiff alleges that the said intestate, at the time of his death, was indebted to the plaintiff in the sum of six thousand dollars, for money paid, laid out and expended by the plaintiff for the said intestate, and at his request, and that no part thereof has been paid to the plaintiff.</p> <p>“ 13th cause of action. The plaintiff alleges that the said intestate, at the time of his death, was indebted to the plaintiff in the sum of six thousand dollars, for money lent and advanced by the plaintiff to the said intestate at his request; and that no part thereof has been paid to the plaintiff.</p> <p>“ 14th cause of action. And the plaintiff further alleges, that during the lifetime of the said John M. Holley, deceased, to wit, from the first day of January, 1826, to the time of the death of the said John M. Holley, this plaintiff and the said John M. Holley were, at sundry times during the said time, jointly interested, and joint owners and tenants in common, with Augustine H. Lawrence, Myron Holley and Abraham L. Beaumont, now deceased, and Samuel Hecox and Nelson Stafford, in certain lands and real estate, situated in Lyons, county of Wayne, and state of New-York, and known as the Biggs’ farm property, which lands were, to a large amount during the said time, sold out in parcels and village lots, by the proprietors thereof; and were so joint owners of divers bonds, mortgages, and contracts for the payment of money arising out of sales of said land 1 and real estate: that divers sums of money were received for sales of the said lands and real estate, and for the rents thereof, by the said John M. Holley in his lifetime, which were the moneys of all the proprietors of said lands, and to be accounted for to all the said proprietors by the said John M. Holley: that the other said proprietors also received divers sums of money for the said •lands and real estate, and for the rents thereof, which were the moneys of all the said proprietors of said lands, and to be accounted for to all the said proprietors of said lands : that the plaintiff, during the time, paid, laid out and expended large sums of money, that were due for the purchase of the said lands and real estate, and that were due for improvements upon the said lands, and for articles of personal property purchased for the use of said land and real estate, and for the benefit of all the said proprietors, and by the said proprietors at the time of. such purchase and expenditure; which said moneys, so paid out and expended by the plaintiff for the said John M. Holley and other said proprietors, were to be accounted for by them, and paid to the plaintiff in just proportions, according to the rights and liabilities of all the said proprietors respectively, upon an accounting and settlement of the affairs of said Riggs’ farm property among the said proprietors; and the plaintiff alleges that the said John M. Holley, during his lifetime, became and was, and, was at the time of his death, largely indebted to the plaintiff by reason of the said receipts of money by the said John M. Holley, in his 'lifetime, and by reason of the said payments and expenditures by the plaintiff, as above stated; and the plaintiff alleges that no accounting or settlement of the accounts among the said proprietors was made before the death of the said John M. Holley. And he alleges that no accounting or settlement of the said accounts was ever had or made between the plaintiff and the said John M. Holley, nor between the plaintiff and the said defendant as administratrix aforesaid; and that the said defendant, as administratrix as aforesaid, is still largely indebted to the plaintiff on account of the said receipts by the said John M. Holley in his lifetime; and on account of the said payments, by the plaintiff, for the said John M. Holley and the said proprietors of the said lands and real estate, to wit, in the sum of six thousand dollars.”</p>

This was a demurrer to the complaint, on the ground that it improperly united two causes of action. The plaintiff, in one count of. his complaint, claimed to recover for the breach of a contract of warranty on the sale of a horse, and in the second claimed damages for a fraudulent representation in regard to the quality and condition of the same horse. At the special term, judgment was given for the plaintiff on the demurrer, and from this judgment the defendant appealed.

Demurrer to the complaint. This action was brought upon a promissory note, set out in the complaint as follows:— “ Walton, JYew Road, Sept. 13, 1854. “ Six months from date, I promise to pay George W. Cobine fifty-eight dollars, with use. [Signed] “ Cynthia St. John.” The complaint showed that the defendant Cynthia St. John was the wife of the defendant Peter St. John at the time she executed the note.

Motion to dissolve injunction. The action was brought by the plaintiff as chamberlain of the city of Troy.

<p>Where a question of fact—(amount due from attorney to client, of moneys collected)—has been, by an order of the court, sent' to a referee to pass upon, and on a motion for an amendment of the order, it appears that there are contradictory statements and suspicious circumstances attending the case, the court will direct that the parties and their witnesses be examined openly on oath before the court.</p>

This action was tried at a circuit court held by Mr. Justice Gray, when the plaintiff obtained a verdict for $208, which was the full amount claimed by the plaintiff, of the estate represented by the defendants. The plaintiff, upon the pleadings and on affidavits, now moves for costs against the defendants, on the ground that payment of the claim on which the money was had was u unreasonably resisted or neglected ” by the defendants.

This was an appeal from an order made at special term, allowing a demurrer to the second answer of the defendant. The action was brought to recover possession of two hundred and seventeen acres of land in Legg’s patent, in the town of Moriah, in the county of Essex.

Before Welles, Justice. Trial by the court—jury waived by the parties.

The defendant, on the 23d day of July, 1855, confessed a judgment to the plaintiff, before John Uhle, Esq., a justice of the peace, who was the father-in-law of the plaintiff, for $19.53; and judgment was entered by said justice against the defendant for $20.78, damages and costs.

Motion to set aside nonsuit, and for a new trial, -on bill of exceptions. The action was commenced by summons and complaint in the county court of Wayne county.

In this case a judgment was entered in the marine court by order of a single justice in favor of the plaintiff. From that judgment an appeal was taken directly to the common pleas at general term. The plaintiff, denying the jurisdiction of the common pleas to entertain an appeal, refused to appear in that court.

The action is for the partition of certain premises, situated in Milo, Yates county, and also to set aside a deed therein mentioned to the defendant Mary E. Seely. The complaint shows that, on the 15th day of Nov., 1852, the defendant Peter J. Seely and Abel B. Hunt, were seized as tenants in common in fee simple of the premises, describing them.

<p>Where judgment is ordered for the plaintiff by reason of the frivolousness of the answer, by a judge of the supreme court at chambers, leave should not be given to the defendant to amend his answer or to interpose a new one; but he should be put to his motion at a special term for such leave.</p> <p>The order, however, may be without prejudice to the right of the defendant to malte a motion at a special term for leave to answer, or to amend his answer.</p> <p>In such a case the defendant should prepare his answer, or amended answer, and offer it to the plaintiff’s attorney. If he declines to receive it, the defendant should embody his proposed answer in his moving papers, so that the court may see what it is, and know that it contains a good or meritorious defence to the action.</p> <p>An application for judgment to a judge at chambers is not a trial of an issue of law. It is a motion, and only $10 costs can be allowed on such application.</p>

<p>An affidavit for an attachment, which omits the title of the cause—does not state who “deponent” is, whether plaintiff or defendant—and in no part of which is either plaintiff or defendant individually, named, nor is it anywhere stated who is plaintiff or who defendant, is entirely insufficient.</p> <p>And it cannot be properly connected with a summons in the action so as to uphold it, especially where it appears the affidavit was made and sworn to a day previous to the issuing of the summons.</p>

Motion to strike out, &c. The action was brought to recover the possession of land.

<p>Application for injunction and receiver.</p>

<p>Motion on behalf of plaintiff for a new trial on a case.</p> <p>The action was for an assault and battery, and was tried at« the Ontario circuit in February, 1854, before a jury, who rendered a verdict for the defendant. The facts are sufficiently stated in the following opinion.</p>

Present, Justices T. R. Strong, Welles and Smith. Motion to set aside judgment, and thirty-seven other judgments against same defendants, in favor of other plaintiffs.

This was a motion made by the appellants to “ amend the return in this case by substituting the case as settled by the supreme court in pursuance of its order, as reported in 11 th Howard’s Practice Reports, (page 134,) for the original case, annexed to said return.”

The complaint stated that Samuel Ward died on the 11th of March, 1850, seized of a farm in the town of Jefferson, in the county of Schoharie, containing one hundred and eighty-one acres; that he left a widow, Eleanor Ward, him surviving, and four infant children, Chapman S. Ward, Polly Ward, Cornelius S. Ward and Joel Ward, in whom his real estate vested, subject to the right of dower of the widow; that the farm was worth not more than ten or twelve hundred dollars, and that…

<p>The mortgage in question, bearing date 2d Feb., 1846, was made by the defendant Joseph Blunt, then owner in fee of mortgaged premises, to Jonathan Miller, to secure $2,400, and was junior to a still larger one outstanding on the same premises, then held by the Mutual Insurance Company.'</p> <p>Both of these mortgages were upon premises known on the tax-rolls of the city of New-York as Nos. 8486, 8487, 8488, 8488 1-2, 8489, 1534 and 1533, of the 16th ward.</p> <p>In 1846 the Mutual Insurance Company obtained a decree for foreclosure and sale under their mortgage, and report of the sale was made on the 21st May, 1847. Meantime, and on the 20th March, 1847, the plaintiff, Kortright, had become assignee and holder of the 2d of Blunt’s mortgages, the same now in question.</p> <p>At the master’s sale, under the decree in favor of the Mutual Insurance Company, all of the lots were put up for sale by the master, and bid off—Kortright himself bidding in a portion of them, including lot No. 1533, which was the last sold.</p> <p>But, on subsequently finding that the whole moneys directed by the decree to be paid, had been raised without resorting to the avails of No. 1533, the master refused to give plaintiff a deed for that lot.</p> <p>On No. 1533, at the time of such foreclosure sale, there were outstanding unpaid taxes for the years 1843, 1845,1846.</p> <p>Kortright, as the next older incumbrancer after the Mutual Insurance Company, became entitled to the whole of the surplus moneys under that sale.</p> <p>From the moneys retained under the foreclosure sale, the master paid the moneys provided for by the decree and the whole of the taxes, including the assessments, on lot 1533, but refused to refund the' sums paid in for taxes on 1533 after he found it unnecessary to convey that lot. The surplus then remaining, after such taxes had been paid, was something over $300, and was paid over to Kortright; and thus he, in effect, paid the taxes on 1533, since such payment diminished pro tanto the surplus moneys.</p> <p>The equity of redemption of the mortgaged premises in question, (lot 1533,) was sold by Blunt to John H. Agnew, subject to the mortgage in question, and by Agnew was conveyed to the defendant H. C. Cady, in June, 1847.</p> <p>Cady took without knowledge or notice, constructive or otherwise, that Kortright claimed the taxes on lot 1533, above mentioned, were a lien on the land; for by the tax-books they appeared to have been paid.</p> <p>This suit was commenced in July, 1847. In August, 1847, Cady tendered the plaintiff’s, attorney the whole amount remaining unpaid on the mortgage, and the costs of suit up to that date, which the plaintiff’s attorney refused to receive, unless he would also pay the aforesaid taxes on lot 1533, which the master had paid out of avails of the sale under the Mutual Insurance Company mortgage, as above stated, which sum Cady refused to pay.</p> <p>The plaintiff was not in this city (his then place of residence) when that tender was made, nor had his attorney any authority to receive the money, further than was incident to his general power as attorney.</p> <p>The mortgage in question is now charged on lot 1533 alone, the other lots, which it covered originally, having been sold under the Mutual Insurance Company foreclosure sale.</p> <p>There is no testimony to show that Blunt knew or was apprised at the time of the tender made by Cady to the plaintiff. After such tender, Cady was made a party defendant.</p>

Motion by plaintiff to set aside the verdict in this action for irregularity. This action was tried at the Madison circuit in October, 1855, One of the jury, and the constable who had charge of the jury, swear, that the jury retired in the evening to make up their verdict; that after the jury had deliberated a while, they were informed by the sheriff the judge had directed that the jury should seal their verdict, and bring it into court the next morning.

Motion to stay proceedings of plaintiff to assess damages on writ of inquiry to sheriff of Saratoga county. At a special term in March, 1856, the demurrer of the defendant was overruled, on argument, with liberty to defendant to answer over, on payment of costs, within twenty days.

Motion to set aside execution. On the 7th of July, 1848, the plaintiff recovered a judgment against the defendant, upon which, on the 7th of September following, an execution was issued to the sheriff of Albany, which was returned unsatisfied.- On the 25th of August, 1855, the plaintiff issued another execution upon the same judgment, which the defendant moved to set aside, on the ground that more than five years had elapsed since the recovery of the judgment.

This was an action to foreclose a mortgage, executed by the defendants George V. Shaffer and Christina Shaffer, his wife, dated January 29th, 1852, given to the defendant Martha Millard, and assigned by her to the plaintiff, who, with the defendant Samuel R. Millard, guarantied its payment.

<p>Motion to set aside foreclosure and sale of mortgaged premises.</p>

<p>If a non-resident defendant, within one year from the entry of judgment, is allowed to come in and defend, that fact of itself does not open the judgment, nor stay proceedings upon the execution.</p> <p>But a third person asking to come in and defend or contest the plaintiff’s claim, must do so before judgment.</p>

This was an action tried before a referee at Ithaca, who made a report for the defendant. On the adjustment of the defendant’s costs by the clerk of Tompkins county, the plaintiff objected to the clerk allowing the defendant fees for Charles Rockwell and Ezra Lozee, travelling 213 miles each, as witnesses in the action. It was shown they Resided in Ohio, and that each of them attended one day as a witness for the defendant before the referee.

This action, which was in trover, was commenced in 1844 by the testator—was tried in his lifetime, and verdict for $900 in his favor. After his death, and in January, 1847, the suit was revived in the names of the plaintiffs. In October, 1847, the court set aside the verdict, and ordered a new trial. In 1851, it was referred ; and in March, 1852, the referee reported in favor of the defendant.

Demurrer to complaint. The action was brought by the payee of a note against the maker. The complaint contained a copy of the note, as follows :— “ Troy, Oct. 11,1854.—Four months after date, I promise to pay to the order of G. N. Marshall, three hundred dollars, at the Farmers’ Bank—value received. $300.

<p>Where the complaint avers, in an action on contract, the sale and delivery of a bill of goods on a certain day, whereby the defendant is now indebted, &c., and the answer avers, that they were purchased on a credit of six months, and that the credit has not expired, it is not new matter in the answer requiring a reply, but a special denial that the defendant is indebted, as alleged in the complaint.</p>

<p>If a warrant is not valid on its face, the justice who issues, and the officer who executes it, are liable for assault and battery, and false imprisonment, at the suit of the party arrested.</p> <p>In an action for false imprisonment, the plaintiff may recover the actual expenses incurred by him in procuring his discharge by writ of habeas corpus, where the warrant of arrest was void on its face.</p> <p>That the warrant, under which the defendant acted in enforcing the Prohibitory Law, was no protection. That every officer acting under a law which shall prove to be unconstitutional, is responsible for his acts as if they were performed without color of law.</p>

The complaint in this case is in the old form of a judgment-creditor’s bill, after the return of an execution unsatisfied, except that it alleges positively that the defendant is interested in certain property, and particularly in ten or more shares of the capital stock of the Excelsior Fire Insurance Company, or of some other company, or that he has money deposited to his credit, or securities for money held in trust lor him, or for his benefit; and that it does not pray a…

<p>Trial by the court—mortgage foreclosure case.—The facts will sufficiently appear in the opinion.</p>

<p>Where some of the creditors agreed in writing, with their debtors, to accept, in fall satisfaction, the debtors’ notes for forty cents on the dollar, payable in three and six months, and instead of the notes being given or tendered, the debtors made an assignment—held, that the debtors had waived the discount (sixty per cent.) and remitted themselves to their original indebtedness to those creditors.</p>

<p>Motion to dissolve injunction made on complaint and answer,</p>

<p>In an action affecting the title to lands, the court may change the place of trial as matter of right.</p> <p>Where one defendant makes default, and it appears that he is assisting the plaintiff against his co-defendant, the latter may move alone, for a change of the place of trial.</p>

The defendants were sureties of the executors of John Thurs-by, deceased, upon an appeal from a judgment rendered at the special term, to the general term of the supreme court. (See Mills agt. Thursby and others, executors, ante page 385, for the, form of the judgment.) The defendants demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action.

<p>A person being a resident and tax-payer of the city of New-York, owning real and personal estate therein, may file his complaint for himself and all others interested, in an action against the corporation and others combining with it, for the purpose of preventing their disposition of the property of the city contrary to the charter of the city, or the statutes of the state, or in breach of the duties of the corporation as quasi trustees, when this unlawful disposition will cause a loss to the city.</p> <p>The same principle will allow also an action, after the design of the defendants is partly accomplished, even by the execution of a deed, for the purpose of preventing any title being set up under that deed, and to cause the defendants to do such other acts as may be necessary to redress a wrong done, or about to be done, to the city.</p> <p>A governor of the almshouse of the city of New-York cannot purchase for himself alone, or for himself and others, real estate belonging to the corporation of the city. A deed given upon such a purchase cannot be sustained.</p> <p>The law which declares that no head of department, or other officer of the corporation, shall be directly or indirectly interested in the purchase of any real estate, or other property belonging to the corporation, includes the ten governors of the almshouse—they are the chief officers of the executive department of the corporation, known as the Almshouse Department.</p>

The complaint shows that the bank has surplus funds, beyond its capital, amounting to more than $426,000, of which nearly $180,000 consists of investments in United States stocks; that these facts were duly established before the commissioners of taxes and the supervisors of the county, but were disregarded by them, and that the bank was taxed on the United States stocks, as well as on its other surplus funds.

The defendant Maxwell moves to set aside a sale made of the mortgaged premises, and for an order that the sheriff shall not execute a deed to the purchaser. He is the owner of the premises subject to two mortgages—one to the plaintiff, and the other to the Mechanics’ Building Association; and is liable for any deficiency to the association.

<p>This is an appeal from a judgment entered on tne report of a referee. The complaint contained two counts for work and labor performed and goods sold by the plaintiff and at the defendant’s request.</p> <p>The second answer of the defendant set up a counter claim for wrork and labor, goods sold, &c., amounting to $100, and claimed judgment against the plaintiff for $50. There was no reply to this answer. The referee found and reported that the plaintiff had performed work and labor for the defendant, and sold and delivered to him property of the value of $39.94, and decided, as a matter of law, that the plaintiff, by omitting to reply to the answer of the defendant, admitted the set-off therein claimed; and that the defendant, in claiming to set off the demand set up in his answer, and claiming judgment for $50, was entitled to recover the sum of $50 over and above the amount of the plaintiff’s demand as proved. There are no exceptions in the case, which contains only the notice of appeal, pleadings and referee’s report. Judgment was entered on the report, and the plaintiff appeals to this court.</p>

<p>A notice of sale on a foreclosure of a mortgage, by advertisement, which states that the sale will take place at the City Hall, (New-York,) is sufficient, without stating the particular place. All the buildings used for holding courts within the Park, are by law deemed parts of the City Hall; so that the notice would be too indefinite, were it not that, by common usage, there is one established place for such sales, and that is the rotunda in the City Hall proper.</p> <p>The statute (1844, amending 2 R. S 545, § 8) makes the sale a bar only to such parties “ who shall have been served with notice of said sale as required by law;” and those parties are, the mortgagor, or his personal representatives, and the subsequent grantees and mortgagees, whose conveyance and mortgage are on record at the time of the first publication of the notice, and all persons having a lien under a subsequent judgment or decree.</p> <p>The notice is to be served personally, or by leaving it at their dwelling, in charge of a person of suitable age, or by serving a copy, at least twenty-eight days prior to the time therein specified for the sale, by depositing the same in the post-office, properly folded and directed to the persons at their places of residence.</p> <p>Therefore, where service is made by mail, the twenty-eight days are to be counted from the time of the deposit of the letter, and not from the post-mark, or the forwarding of the letter. And a notice deposited on the 4th of April for the 3d of May, held sufficient, although it was post-marked the 5th of April.</p> <p>Where the affidavit shows that the notice of sale was once affixed, it is sufficient, without also showing that the individual who affixed it, afterwards saw it there. If the notice is once affixed, it is presumed that it remained so an til the contrary appears. And semble, that a subsequent removal by a stranger would not affect the title.</p> <p>The affidavit may be made by the person who affixed the notice, or by any other person who saw the notice during the time required. This last is intended to be an equivalent to the first; so that one who saw the notice posted twelve weeks prior to the time of sale, has seen it during the time required.</p> <p>It cannot mean that such other person should see it posted every minute, hour, or day, or even week, of the twelve weeks; but it is safer and more prudent to see the posting weekly.</p> <p>Where a subsequent incumbrancer claims an assignment of a mortgage, on foreclosure, he must tender the amount of principal and interest, and costs, to the mortgagee; merely saying what he will do, and thereupon paying the amount into court, by depositing in a trust company, does not stay the proceedings of the mortgagee, nor stop the interest due to him.</p>

<p>Appeal from the judgment of the county court, affirming the judgment of the Albany justices’ court.</p>

<p>Motion for a preliminary injunction to restrain the defendants from acting as trustees of the Laight Street Baptist Church, New-York.</p>

<p>Motion to strike out the answer of defendants as sham and false, on affidavits of its falsity. The action was upon two promissory notes. The complaint was not sworn to. The answer consisted of a simple denial of each and every allegation contained in the complaint.</p>

This is an action against a husband, for the alleged debt of his wife, arising out of a sale of goods which were delivered at a hardware store kept by the wife in Elmira.

<p>A complaint in an action for a breach of promise of marriage, alleging, in substance, in reference to a promise, that, in a conversation between the parties at a time and place specified, the plaintiff asserted, among other things, that the defendant had promised to marry her; and that, at the same time and place, the defendant said to the plaintiff, he acknowledged he had done wrong in promising her as he did, and hoped she would forgive him; but if he should many her, as they had talked, and she go to his house, it would make both miserable for life: and further alleging, that the defendant said to the plain- . tiff, in reply to her entreaties, she must try to forget it, and acknowledged he had done wrong, and that he was sorry for it, without otherwise averring a promise, does not state facts sufficient to constitute a cause of action.</p>

<p>It is very doubtful whether the common council of the city of New-York have any power to authorize any committee to inquire into the conduct or action of any person not a member of either branch of the city government—especially where such conduct may amount to a crime.</p> <p>Where a special committee of the common council, appointed “to investigate the action of the committee on streets, who had under consideration the widening and improving of Reade-street,” made inquiries of a witness before them, in reference to his own acts, with individuals, other than the committee,</p> <p>Held, that the special committee had no power to make such inquiries; they were not proper and pertinent questions within the meaning of the statute.</p> <p>The statute has enlarged the grade of offence of bribery, at common law, from misdemeanor to & felony.</p> <p>The law is well settled, that a witness is jprivileged from answering any question which will have a tendency to expose him to any kind of punishment upon a criminal charge.</p> <p>And the witness must himself be the judge, how far the answer may tend to criminate him. But the witness may be compelled to state the grounds upon which he refuses to answer.</p>

<p>A complaint, in an action by an assignee of a mutual fire insurance company, on a premium note to the company, payable in such portions, and at such time or times, as the directors of the company may, agreeably to their charter and by-laws, require, alleging that the plaintiff, as assignee and trustee of the property and effects of the company, ascertained the losses and expenses, and settled and determined the sums to be paid by the members liable to contribute, as their respective proportions of such looses and expenses, without averring that the directors made, or caused to be made, an assessment on the note, is bad on demurrer.</p> <p>A voluntary assignee cannot make a valid assessment on such a note.</p> <p>Whether an action can be maintained on such a note, without a prior personal demand of payment of the assessment—quere ?</p>

<p>Where a child in infancy was given, verbally, to an uncle and aunt, who took its custody, care and tuition for nine successive years;</p> <p>Held, that the uncle and aunt, especially when in accordance with the child’s interests and inclinations, were entitled to a parents rights. The natural parents of the child, under such circumstances, had no legal claim to it.</p>

On the 31st day of July, 1855, the plaintiffs issued a summons in this action to the sheriff of Oneida county, to recover $347.43, for goods sold and delivered by the plaintiffs to the defendant. On the same day the plaintiffs, upon the affidavit of one M‘Nall, procured an order from one of the justices of this court, requiring said sheriff to arrest the defendant, and hold him to bail in this action in the sum of $700.

<p>Appeal from an order denying a motion to strike out part of an answer.</p>

<p>In an action for rent due, where there is a lease under seal, the plaintiff may-elect to sue on the covenant, and thereby make the covenant his cause of action ; or sue for the debt, (rent,) and by so doing make the subsequent occupation his cause of action.</p> <p>And in the latter case, the lease under seal may be given in evidence to establish the relation of landlord and tenant, and to show the amount of the debt^ even, where the lease is not set out or referred to in the complaint.</p> <p>The Code does not affect these questions, (which were the same at common law,) only so far as the form of bringing the actions are concerned—there net being any section that abolishes causes of action; nor, it seems,,one that has been entirely able to confound them.</p> <p>Interest is recoverable on rent due, in an action for use and occupation.</p>

<p>If a complaint, in an action ex contractu, contain allegations of fraud, whether stated succinctly as issuable facts or otherwise, they will be stricken out as irrelevant and redundant.</p>

This was an application to remove a general guardian, appointed by the surrogate of Westchester county^ of the infant, Hannah M. Pierce, aged twelve years. The father of the infant resided, in his lifetime, in Westchester county, where he died in 1845, leaving a widow and this infant.

<p>Where the plaintiff’s claim, and the defendant’s counter-claim, each are over $50, and on the trial judgment is rendered for the plaintiff, by setting off one claim against the other, for less than $50, both are equally in the wrong, and each equally liable to the other for costs. It is a proper case, under the Code, for offsetting the costs of each against the other.</p>

The pleadings in this action are as follows:— Ci The plaintiffs complain of the defendant, and allege, that heretofore, to wit, on the 3d day of December, 1855, the above named Philander Wheeler recovered a judgment in the supreme court of the state of New-York against the said defendant, in an action upon contract, for the sum of eleven hundred and thirty-four dollars and eighteen cents, damages and costs, which said judgment was duly docketed in the office of the clerk of…

<p>Motion to strike out a demurrer to complaint as frivolous.</p>

<p>By § 388 of the Code, the court, or a judge, may, in their discretion, order either party to give to the other a copy of papers under his control containing evidence relating to the merits of the action or defence.</p> <p>It would not be discreet ever to grant the motion where the production of the paper would help to deceive; and where there is a party in being who can be called upon to tell the whole truth, and then to produce the paper required.</p> <p>So held, where the defendant, who wished to prove a counter-claim, applied for the delivery, by the plaintiff, of an account rendered by the defendant to the plaintiff, and which account the plaintiff claimed was objectionable—and the objections had been stated to the defendant alone, which statement the plaintiff was unable to prove, if the account, as it stood, was delivered to the defendant as evidence of his counter-claim.</p>

Demurrer to complaint. This was an action in equity, by the receiver of the defendant Samuel Bell, appointed in proceedings supplemental to execution, to set aside various fraudulent conveyances, made by Bell to his son William L. Bell. The defendants both appeared, and put in a joint demurrer, specifying that different causes of action were joined in the complaint, and that the complaint did not state facts sufficient to constitute a cause of action.

<p>Where a court of competent jurisdiction decides a jurisdictional question, (a commitment for contempt of court,) a justice of this court, at chambers, has . no right to review such decision collaterally.</p>

<p>Covenants in a deed against nuisances and the erection of steam engines, on the premises, create easements for the benefit of other respective land owners. And it is unnecessary to insert them in subsequent conveyances to bind subsequent grantees.</p> <p>Where such covenants have been inserted in a deed by an original owner, a subsequent grantee, or his lessee, whose conveyances contain no such covenants, may be perpetually restrained by injunction from erecting a steam-engine on the premises.</p>

Action for the specific execution of an agreement to construct a bridge for crossing over defendant’s railroad, or for damages for its non-fulfilment. Tried before a referee, who denied the prayer for specific performance of the agreement, but made a report for the plaintiff, and ordqggd judgment in his favor for $250, with costs of suit.

The complaint in this cause charges, that in May, 1854, the defendants were commissioners of highways of the town of Kent, in the county of Putnam. That it was their duty, as such commissioners, to repair, or cause to be repaired, the bridges in said town; and the plaintiff avers, that from the sources mentioned therein, the defendants had, or might have had, ample and sufficient means to keep all the bridges in said town in repair.

Burgart, as the assignee of one Conradt Scheiss, sued, in a iustice’s court, the defendant for the rent of certain premises. The plaintiff called Scheiss, his assignor, as a witness. The defendant objected to his being sworn, for the reason that no notice of his examination had been given.

The first of these actions was upon a hill of exchange drawn by Anson Wolcott upon G. W. Rogers & Co., three of the defendants, and afterwards endorsed by John Craig, another defendant, and discounted by defendant D. W. Powers. c The second suit was an action in equity, to restrain the acceptors from paying the draft, and Powers from transferring it, and asking that the same be cancelled and declared void-, for usury.