Volume 12 — New York Reports

Action to recover $2,000, insured by the United States Life Insurance Company of the city of New York, upon the life of the plaintiff’s husband. He died in June, 1859. The insurers deposited the money in court, and the contest was between Mrs. Eadie and the defendant, Slimmon, who claimed under an assignment from her, which she averred to be void, as having been obtained by coercion. The policy bore date May 6, 1852.

Action for the foreclosure of a mortgage. The contest was between the plaintiff and the defendants Smith and Buckley, personal representatives of Clafflin & Buckley. Each claimed title to the mortgage and the bond for which it stood as security, by assignment from one Bedell, the mortgagee. The mortgage contained a covenant that the mortgagee would not assign the same without the written consent of the mortgagor, or one week’s notice to him of the intention to assign.

The plaintiff brought his action to recover an installment of $2,700 alleged to be due on a contract for carpenter work, materials for a building erected by the defendant, and also for extra work done on the building. The contract for the performance of the work was entered into, and the work commenced, about the 1st September, 1854.

The plaintiff was the assignee of Thomas H. Rodman, receiver, &c., who recovered a judgment against the defendant, Gerard R. Beekman, for $1,668.17, in the Supreme Court. The defendant Beekman was a son of Stephen D. Beekman, deceased, who died on the 30th day of October, 1856, having made his will June 23,1856, and a codicil October 29,1856. The other defendants, Bayles, Hibbard and Van Wagenen, were named in the will and codicil . of Stephen Beekman, as his executors.

This action was commenced in August, 1856, to recover damages for an alleged trespass upon a farm in the county of Cortland, and was tried in January, 1858, at the Cortland Circuit, before Mr. Justice ' Mason and a jury, when» the plaintiff was nonsuited. An exception to the decision granting the defendant’s motion for a nonsuit, which was affirmed at the general term, presented the only question brought here for review.

<p>Appeal from the New York Common Pleas. The case is fully stated in the following opinion:</p>

<p>The purchase at a sale of real estate for the payment of an intestate’s debts, ' by one acting as the agent or for the benefit of the administrator, is void, ! and the title of the heirs is not affected thereby. ¡</p> <p>It seems, that chapter 82 of 1850, for the protection of purchasers at sales made by order of surrogates, is constitutional in its retrospective provision as to titles claimed under sales made before the statute: Per Davies, J.; Denio, Ch. J., and Smith, J., concurring.</p> <p>The evidence necessary to confer jurisdiction upon a surrogate to order the sale of real estate on the application of an administrator, considered and discussed, per Davies, J.</p>

Action commenced in the Superior Court of Buffalo, by the respondent, as assignee of 'William H. lathrop & Co., upon a policy of insurance, issued by the defendant to William H. Lathrop & Co., on the 1st of May, 1855, by which it insured the schooner Samuel Strong, to the amount of $2,000, against the perils of navigation on the lakes, from the date of the policy until the 1st of April, 1856.

Action upon the subscription of the intestate to the capital stock of the plaintiff. The plaintiff undertook to become incorporated under the general railroad act of 1850. In May, 1853, its articles of association were filed, and the intestate, June 8th thereafter, became a subscriber for one thousand dollars of the capital stock, and paid ten per cent at the time of subscribing, and died in September, 1853.

In his answer the defendant set up a counter-claim, and on the trial evidence was given in support of and against it. The referee, in his finding of facts, made ^no statement in respect to the facts on which the counter-claim was founded. Judgment was rendered for the plaintiff, and was affirmed at general term, but the court at general term made a new statement of facts on which its judgment was founded, which included all the facts proved in respect to the counter-claim.

This action was brought in the Supreme Court for the recovery of damages alleged to have been sustained by the plaintiff, the owner of the schooner Forest, for the delay of the defendant in receiving a cargo of coals carried by that vessel from Oswego to Toronto, and which were shipped from the former port by the agents of the defendant and consigned to him at the last mentioned place.

The defendants were the owners of the schooner Stella, and on the 4th February, 1856, conveyed her to one Jacobs, who, on the same day, executed to the defendants a chattel mortgage upon the vessel to secure the payment of $6,000 of the purchase money, conditioned to pay this sum in various installments.

Action for damages to a passenger on the defendant’s railroad, from the running off the track of the car in which he was riding. Upon the trial, it appeared that the accident was caused by the breaking of the axle of the car. It was extremely cold, and there had been an unusual severity and continuance of cold weather before the accident; which, it was proved, chrystalizes iron and renders it brittle.

<p>Appeal from the Superior Court of the city of New York. Action to restrain the defendants, who owned the lot on the northeast corner of Eighth street and Third avenue in the city óf New York, from erecting a building thereon covering the whole lot, and to require them to leave a space of eight feet between the building and the line of the street, in conformity to the plan on which the dwellings of the plaintiffs and other proprietors of adjacent lots were located. From the pleadings, and the finding of the judge before whom the cause was tried, these facts appeared: In 1829, a strip of land, sixty feet in width from the Second to the Third avenue, was conveyed to the city of New York for the purposes of a public street. It was accepted by the city, and became a part of Eighth street, as it was then called. On and prior to February, 1831, and before any of the land had been built upon, one Davis became the owner of all the lots on both the sides of this street. Davis made a map of the street between the Second and Third avenues, in which the street was shown as seventy-six feet wide, eight feet being added on each side. He called the ayenue, thus widened, St. Mark’s Place. This was before he sold or built on any of the lots. Soon thereafter, in conformity with this plan, Davis erected sixteen dwelling-houses on the south side of the street, and thirteen on the north side. They were of a superior class, all upon one uniform line, eight feet back from the original line of the street—the eight feet being devoted to doorsteps and areas inclosed in iron fences. When Davis sold any of the houses or lots, he exhibited this plan to the purchasers, and represented to all who had purchased that the street was always to remain as laid out, and that, when he so formed and laid out the street and' built thereon, he gave, up and dedicated the strip of eight feet of land on each lot to be" used as a part of the Place in the manner it has since been used. It would appear that the effect of this plan of building was to save the sidewalk from the encroachment that it would otherwise have suffered from the projection of the doorsteps, and thus, in effect, to widen the available footpath. In October, 1832, after sales to the plaintiffs, Davis sold two lots to one Henriques. The conveyance, though absolute in form, appears to have been in the nature of a mere security—Davis retaining the right to dispose of the property and account for the proceeds. In 1833, he negotiated the sale of these lots to one Wilkes, showing to him the plan, or diagram before mentioned, and declaring his intention that the buildings to be erected thereon should be set back eight feet from the original line of the street. On one of these lots, which was on a corner, Wilkes erected a building, owned by the defendant at the time .of commencement of this suit, and which it was preparing to tear down. This building and two others erected by Wilkes were located in conformity to the line previously adopted and built upon by Davis. The deeds of Davis were absolute and unrestricted, conveying the legal title to the entire lots as bounded by the original jine of the street. One of the mesne conveyances under which the defendant derived title refers to a “certain court-yard .of eight feet in width” as included in the premises, and at the end of the habendum clause are the words, “subject to all restrictions and covenants, if any exist, in relation to keeping the court-yard perpetually open as said court-yard.” The defendant bought, it was found by the judge, with notice that it was claimed there were restrictions which would prevent it from acquiring a right, as purchaser of the lot, to build upon the eight feet described as court-yard.</p> <p>The judge found, as a conclusion of law from these facts, that Davis had made a valid dedication of the eight feet of land on each side of the street, and that its validity is not-affected by the fact that it was made with the intention and understanding that the proprietors of lots should be at liberty to inclose eight feet as an area or court-yard. He ordered j udgment for the relief demanded in the complaint. The judgment was affirmed at general term, not on the ground of dedication, but on the ground that the original purchasers having verbally agreed to, and executed a plan for, the improvement of the Place, they were bound to adhere to it, and the defendant, purchasing with notice, took subject to the same equity. The defendant appealed to this court.</p>

The cause was tried before a referee, who found these facts: In January, 1854, Bailey recovered a judgment against the Oriskany Manufacturing. Company, for $706.46, upon an indebtedness which arose in the years 1849, 1850,1851,1852, and 1853.

Action by the receiver of the Union Insurance Company (a mutual company, organized. under the act of April 10, 1849), to recover the amount of a promissory note, alleged to have been executed by the defendant, in the name of H. D. Snow, without authority, of which note the following is a copy: “ $105.

The plaintiff filed his bill in the late Court of Chancery as a creditor of the Boston and Mew York Coal Company, a corporation created by the laws of Maryland, to compel the defendant, Sturgess, a stockholder of that company, to pay the balance remaining unpaid upon his stock to the plaintiff, as such creditor, to the amount necessary to satisfy his debt.

<p>Appeal from the Supreme Court. The facts are stated in the following opinion:</p>

This was a motion to dismiss the writ of error, issued in June last, the return to which had been filed with the clerk; on the ground that this court has no jurisdiction to review the judgments of the court below, in the present state of the proceedings.

This was an action in the nature of an action of debt on a judgment rendered in the New York Superior Court, April 17,1847, for $612.93, in favor of one James N. Olney, against Abner T. Pearce, the defendant, and afterwards assigned to Thomas Dobson, the present plaintiff. From the answer, it appeared that the judgment sued upon was fraudulently entered up by Olney.

The material facts, and the judgment of the Supreme Court, are stated in the following opinion. The relators appealed to this court.

After the reversal of the conviction and judgment in this case, at the September term in 1860 (22 N. Y., 95), the record having been remitted to the Oyer and Terminer of Albany county, the District Attorney again moved the trial of the case, when the defendant had leave of that court to plead the former conviction and judgment in bar; and she accordingly put in 'three special pleas setting forth the indictment, plea of not guilty, trial, verdict and sentence.

<p>On the trial of an indictment for keeping a bawdy house, evidence is admissible of repeated arrests of girls at the prisoner’s house upon the charge that they were prostitutes; that the prisoner procured bail ior them; that such arrests were made at late hours in the night; and that women before convicted as prostitutes were frequently found at his house.</p>

The defendant was convicted in the Mew York Court of Sessions on an indictment charging him, in distinct counts, with forging and uttering a certain false instrument and writing, which instrument and writing was set out in the indictment in hcec verba, and was as follows: “ No. 492. Jersey City, Sept. 8, 1861. The Bank of Jersey City: Pay to the order of Livermore, Clews & Mason, twenty-four hundred and sixty-six dollars and ninety-three cents. M. Barker & Son. $2,466.93.

' Error to the '¿Supreme Court. The plaintiff in error was indicted in the New York General Sessions. The first count charged him with feloniously and burglariously breaking and entering, in the daytime, the dwelling-house of Christopher Thomas, “ with intent to commit some crime therein,” but not specifying what crime. The second count charged a larceny, in the dwelling-house before-mentioned, of a gold ring, the property of Minna Thomas.

The prisoner was convicted at the Yates Court of Sessions, con an indictment for seducing and having illicit connection with Mary.......,■ under promise of marriage.

Action on a promissory note, whereby the defendant promised to pay the plaintiff $100 with interest “ when $50,000 are subscribed to the endowment of such institution, or in four equal annual installments, as I shall choose.” On the trial before Mr. Justice Johhsoh without jury, it was proved that more than four years had elapsed between the making of the hote and the commencement of the suit; that more than $100,000 had been subscribed, in similar notes, to the endowment of…

<p>Appeal from the Supreme Court. The facts are sufficiently stated in the following opinion.</p>

The plaintiff had a verdict, which, upon motion by the defendant, upon the minutes of the court, was set aside and a new trial granted, and the order was affirmed at the general term. The plaintiff appealed to this court stipulating, that if the order should be affirmed, judgment absolute should be rendered against him. The case is sufficiently stated in the following opinion.

Action upon a promissory note in the words following: “ [The Secretary may number and date this note.] $1,200.

This action was upon a premium note, of which the following is a copy: “ $180.00—For value received, in policy No. 1,4'7'7, dated 8th October, 1851, issued by the FEtna Insurance Company of Utica, I promise to pay the said company, or their treasurer for the time being, the sum of one hundred and eighty dollars, in such portions and at such time or times as the directors of said company may, agreeably to their charter and by-laws, require.

<p>Appeal from the Supreme Court. The facts proved on the trial were these: John R. Wyman, the plaintiff’s intestate, died in January, 1859, seised of a hotel, on which he had effected insurance to the amount of $8,000. The policies ran to Wyman, “his executors, administrators or assigns,” and contained this clause, ■ “ the interest of the insured in this policy is not assignable unless by consent of this corporation, manifest in writing, and in case of any transfer or termination of the interest of the insured, either by sale or otherwise, without such consent this policy shall be void and of no effect.” Wyman died wholly insolvent, leaving a widow, the-plaintiff, who took out letters of administration, and two children, his heirs-at-law, who were defendants. In October succeeding Wyman’s death the insured property was destroyed by fire. The insurers adjusted the loss and paid the amount to David B. Prosser, Esq., who had been appointed guardian of the infant heirs, under a stipulation entered into by aJJ the parties concerned that Prosser should hold the money subject to the direction of the court, to be paid to the parties to whom it might be adjudged to belong, the heirs, the administratrix or certain creditors, who, before the intestate’s death, had recovered judgment against him, which was a lien on the insured property for an amount exceeding its value. Prosser insisted upon his right to hold the money for the heirs, and the action was in the nature of a bill of interpleader to try the right of the several parties. The decision of the Supreme Court, at general term in the seventh district, was that the plaintiff, as administratrix of Wyman, was entitled to the money, and not the heirs-at-law. From this judgment Prosser, as guardian of his wards, appealed to this court.</p>

The complaint in this action set out the organization of the Dresden and Penn Yan Plank Road Company, in June, 1850, and the construction, by such company, of a plank road from Dresden to Penn Yan: that, on the 4th of June, 1854, George W. Simmons (the intestate) was elected secretary and treasurer of said company, and immediately after such election entered upon the discharge of the duties of these offices, and continued in the discharge of such duties until his death.

Action commenced in 1858 to recover compensation for personal services rendered by the testator of the plaintiff for the defendant in the State of California.

In November, 1861, when this suit was commenced, the defendant was engaged in-the construction of a pier in the harbor of New York, and had sunk a “crib” at a point west of the foot of Battery Place,… Held: that if the pier was unauthorized by law, it would be, per se, a nuisance, without regard to its effect upon navigation, and rejected the evidence; to which the counsel for the defendant excepted.

<p>The crediting by a bank to a dealer of the proceeds of a note which it had been induced to discount by his fraudulent representations, and the payment thereof upon his checks, do not prevent the bank from setting ‘ up the fraud by way of defence or counter-claim in his action for moneys subsequently deposited.</p> <p>Where such action is brought before the maturity of the note, evidence that the bank had offered to return it upon discovering the fraud is not a prerequisite to its giving proof of such fraud. Nor is it an objection that the bank was shown to have held the note and presented it for.payment at maturity. The latter fact, it seems, is not conclusive that it had affirmed the contract of discount.</p>

The parties submitted a statement of facts under section 372 of the Code, and asked the judgment of the court whether the defendant was liable to a tax imposed on it in Hew York city, upon $100,000, which, previous to February, 1852, it had déposited in mortgage securities with the comptroller of this State, and which remained in his custody when the tax was assessed.

Action to recover the value of 300 shares of the capital stock of the Michigan Southern and Northern Indiana Railroad Company, wrongfully sold and, converted by the Bank of Albany, of which the defendant was receiver.

The alternative writ, sued out in May, 1859, commanded the defendants to restore the relator to the office of patrolman and member of the police force of the Metropolitan Police District, organized under an act of the Legislature, passed April 15, 1857, from which, as alleged, they had illegally removed him; and his right, as set out in the writ, was, in substance, that being one of the police of the city of New York, duly appointed and sworn, when the act of April, 1857,…

<p>Appeal from the Supreme Court. The action was commenced at the January term of the court in 1844. The declaration was the ordinary one in ejectment, as the practice then existed; and the plea was not guilty. The cause was tried at the Westchester Circuit' in November, 1834, and the defendant had a verdict, which was afterwards affirmed at a general term, and judgment entered for the defendant. A writ of error was brought on this judgment to the Court of Appeals, ■ and in October, 1857, this court reversed the judgment and ordered a new trial. (16 N. Y., 193.) In August, 1859, by leave of the Supreme Court a supplemental and amended complaint was filed and an answer put in by the defendant, in which answer matters occurring during the pendency of the proceedings were set up as an additional defence.</p> <p>The supplemental and amended complaint set forth the proceedings in the action; and by way of supplement and amendment alleged that since the joining of issue, Clara Requa, one of the plaintiffs, had died intestate, and without issue, leaving the remaining plaintiffs, and Jacob Requa and Amy Wiltsee, her brothers and sisters, her only heirs-at-law, and the descent of her share of the premises to her said heirs; that since her death her brother, Jacob Requa, had conveyed the interest that descended to him from Clara, to Nathaniel Requa, one of the original plaintiffs; and that since her death her sister, Amy Wiltsee, had conveyed her interest, that descended to her from Clara, to Q-loade Requa, one of the original plaintiffs; that since the joining of issue James Requa, one of the original plaintiffs, had died intestate, leaving issue who are named, and who are now plaintiffs in this action, and the descent of his interest in the premises to said issue; that the action had, by an order made since the death of said Clara and James, and since said conveyances, been revived and continued in the name of the present plaintiffs; that the present plaintiffs are seised of and entitled in fee simple to the said lands and premises described in the said declaration and thereinbefore described; that the defendant had entered upon the said lands and premises and ejected the plaintiffs, and unjustly withheld the possession thereof: demands judgment for possession of the premises and for mesne profits.</p> <p>The answer to the supplemental complaint as amended, denied every allegation contained therein, and alleged that the lands in question were a part of the real estate of Isaac Requa deceased, and were in 1821, conveyed by a master in chancery to Steuben Swartwout, the grantor of the defendant, under and by virtue of a decree of the Court of Chancery made in a suit to partition said lands; that by proceedings in said suit the net proceeds in money of said lands were retained, invested or disposed of by the court; that pursuant to law said moneys came into the custody of the chamberlain of the city of Hew York; that on the application of the plaintiffs in this action an order was made by the Supreme Court in 1855, directing a distribution of said moneys to and among the plaintiffs in this action, and other persons entitled; that pursuant to said order, the plaintiffs or their ancestor received from said city Chamberlain seven-ninths of said money; that the plaintiffs were thereby estopped; that the plaintiffs were parties to the partition suit, and if any irregularity existed in that suit, it had been waived and cured by the receipt of said money. Affirmative relief was demanded that the plaintiffs might be enjoined from asserting any claim to or attempting to recover any part of said premises.</p> <p>The new trial ordered by this court took place before Mr. Justice Brows' (without a jury), in March, 1860. On this trial all the evidence given in the former trial was read; and new evidence of matters occurring in 1855 was given. The judge ordered judgment for the defendant, allowed an amendment to the answer after this hearing, ordered an injunction against the plaintiffs, and judgment for costs. The judgment was affirmed at the general term in February, 1861, and an appeal taken from this judgment by the plaintiff to this court; and at the September term in 1861, the judgment was reversed and another new trial ordered.</p> <p>The second new trial took place at the March circuit in 1862, before Mr. Justice Lott and a jury. On the trial the same evidence was given as on the first new trial before Judge Brown, the same being read from the case printed on the appeal to this court, by stipulation between the parties, and no new evidence was given, except on the question of mesne profits. On this trial, by direction of the court, a verdict was rendered in favor of the plaintiffs, upon which judgment was afterwards- entered, and which judgment was affirmed at a general term in September, 1862. From this last judgment the present appeal was taken.</p> <p>The action was tó recover seven parts of an undivided sixth part of about twenty-three acres of land in Greenburgh, Westchester county. These facts were disclosed: The premises, together with other lands, formerly belonged to one Isaac Bequa, who previously to 1826 died intestate, and without issue. He left surviving him two brothers, two sisters and the children of two deceased brothers; and also a widow. Samuel Bequa was one of these brothers, and was entitled to one-sixth part of the lands, as heir of his brother, Isaac Bequa, deceased. The plaintiffs were, or represented, seven of the nine children of Samuel Bequa, who died intestate on the 18th June, 1826, and claimed by descent seven-ninths of one-sixth part of the lands in suit. It was conceded that Samuel Bequa owned the undivided sixth part prior to April, 1826, when a partition suit in chancery to divide the premises was commenced. On the 18th April, 1826, Isaac Davids and Julia Ann, his wife (who was a niece of Isaac Bequa), filed a bill in chancery for a partition of all the lands of which Isaac Bequa died seised, and made parties defendants the other heirs-at-law, and among them Samuel Bequa, the father of the plaintiffs, and Harriet Bequa, the widow of Isaac. The lands to be partitioned were in six parcels. On the 29th May, 1826, the bill of complaint was taken as confessed against Samuel Bequa and the other defendants. On the 18th June, 1826, and before any other proceedings took place in the suit, Samuel Requa died at Green-burgh, intestate, leaving issue nine children, of whom the plaintiffs represent seven, and Jacob Requa and Amy (after-wards by marriage Wiltsee) were the others. Without any notice of the termination of Samual Requa’s interest, or any proceedings to bring in those to whom his title had' passed, the suit in partition was proceeded with as follows: On the 23d June, 1826, an order was entered referring it to a master to report if a partition could be made or a sale was necessary. On the same day the master reported that a sale was necessary; and on the day following the master’s report on the title was filed, stating the rights and interests of the parties, and not noticing the death of Samuel Requa. On the 24th June, 1826, a decree was made confirming the master’s report, reciting it as to the interests of the parties; adjudged them to be seised in common of the shares as reported, and ordered the lands to be sold. On the 16th August, 1826, the lands were all sold; four parcels, containing 127 acres (and including the premises in question) to Steuben Swartwout for $3,709.60, being at the rate of $29 per acre. On the 6th November, 1826, the master’s report of sale was filed, and an order made confirming it, and directing deeds to be executed to the respective purchasers on payment of their bids; thereupon on the 26th November, 1826, the master executed a deed to Steuben Swartwout for his purchase, which was acknowledged the next day and recorded on the 9th December,. 1826. In all these proceedings no notice had been taken of the title having passed to the plaintiffs, the heirs of Samuel Requa, nor had anything been done to bring them in as parties, or to affect their rights.</p> <p>On the 15th August, 1826, one Minot Mitchell filed a bill in chancery against the heirs-at-law of Isaac Requa, deceased, claiming that the latter at his death was indebted to him in $200, and praying that the proceeds of the sale in partition might be applied to the satisfaction of his debt, and that the proceeds should be enjoined in the meantime. Mitchell made the heirs of Samuel Bequa parties to his suit. On the 16th August, 1827, a petition in that suit was made by Jacob Bequa. in the name of the heirs of Isaac and Samuel Bequa, and as administrator of Isaac Bequa, praying a reference as to the amount of Mitchell’s claim, and offering as administrator to pay it, and praying that the injunction should be dissolved. On this an order was made without opposition on the 8th September, 1827, for a deposit of' $500, out of the proceeds of the partition sales with the assistant register in chancery to answer the decree that Mitchell should obtain, and that the injunction in Mitchell’s suit should be thereupon dissolved.</p> <p>On the 1st October, 1827, (nearly a year after the deed to Swartwout had been made) the plaintiffs in the partition suit presented a petition to the Chancellor, stating the bill for partition, the decree for sale, and that Samuel Bequa, one of the defendants, “since the said proceedings or some of them” had died intestate, leaving heirs, &c. (naming the now plaintiffs among them) praying an order pursuant to the statute, that the suit stand revived against the heirs-at-law and widow of Samuel Bequa. On the same day an order was made ex parte that the suit do stand revived, &c., pursuant to the prayer of the petition.</p> <p>On the 16th July, 1829, (two years and eight months after the deed to Swartwout) a consent was given, reciting the sale in the partition suit, and that an injunction was laid on the proceeds by a suit in the name of William Van Wart to secure a claim against Isaac Bequa, and- that Harriet Bequa, widow of Isaac, was nevertheless entitled to dower in all his lands, and thereupon consenting that one-third of the amount of all the sales should be invested by the assistant register in chancery, and that he should pay the interest to her for life, and that the principal abide the further order of the court. This consent was signed by Yan Wart’s solicitor, and by William H. Dyckman, solicitor for Daniel Bequa (the brother of Isaac Bequa, deceased), “ and others of the defendants." On filing this consent an order was entered by the complainant’s solicitor in the partition suit' for such investment, amounting to $1,593.20. The consent and order were entitled in the suit' of Van Wart against the heirs of Isaac Requa, including the plaintiffs, and also in the original partition suit with the plaintiffs’ names introduced as defendants.</p> <p>On the 2d May, 1836, the defendant Holmes, acquired his title by a deed from Steuben Swartwout, who, in consideration of $7,000 (over $300 per acre) conveyed twenty-three acres of the one hundred and twenty-three acres purchased at the partition sale (for $29 per acre) with fall covenants and warranty.</p> <p>It subsequently appeared that, excepting the $500 deposited to answer Mitchell’s claim, and the $1,593.20 for Isaac Requa’s widow, the proceeds of the sale had never been brought into court; thereupon, on the 27th May, 1841 (four years after the deed to the defendant, and fourteen years and more after the deed to Swartwout), a petition was presented to have these proceeds brought into court. It was entitled in the partition suit, introducing the names of the original defendants and Samuel Requa’s children in his place. ' It was sworn to by Jacob Requa, and purported to be in behalf of all the said defendants, setting forth on information merely, and with much incorrectness as to dates, the bringing of the partition suit some time prior to August, 1826; that the lands were sold on the 21st August, 1826; the order of the master to execute the deeds; that the moneys were paid, not to the master, but the solicitor of the complainants; that he was using them without any separate deposit, except the two sums of $500 and $1,593.20; “ that after the decree for the sale Samuel Requa died, and that in October, 1827, the proceedings were revived against his heirs-at-law.” The prayer was that the solicitor should account for the money. Mr. Dyekman, the solicitor for the petition, testified that he was never employed by the heirs of Samuel Requa in the partition suit nor until the suit of Mitchell had been brought; that he did not know the date of Samuel Requa’s death, and took the information in the petition from a statement of the complainant’s solicitor in the partition suit. It did not appear that any order was made upon this petition, although the solicitor who had the money, resisted it.</p> <p>In October, 1854, while this suit was pending in the Court of Appeals, Harriet Requa, the widow of Isaac died, and the $1,593.20 set apart for her dower interest became liberated. On the 11th May, 1855, Jacob Requa, in his own name alone, presented a petition entitled in the partition suit for the distribution of this dower fund, of which he claimed that he was entitled to one-eighth of one-sixth, and prayed an order of reference as to the persons entitled to it. An order was thereupon entered of course by his attorney, Irving Paris, referring it to a referee. On the 19th October, 1855, after advertising for parties in Hew York city newspapers, the referee reported that the plaintiffs were each entitled to Tf $ parts of the dower fund; and an order was made on the 24th October, 1855, for the payment of the dower fund accordingly. The plaintiffs gave to Jacob Requa a power of attorney to receive their shares of the fund so invested, and on the 21st December, 1855, Jacob Requa, as their attorney, received the amounts, being $31.02 each.</p> <p>On the 15th March, 1862, a notice in the name and on behalf of the plaintiffs was served on the defendant, notifying him that the money thus received was not received with any intent or purpose to ratify or adopt any sale of the lands in said partition suit, nor with any understanding of any such supposed effect, and offering to refund or replace the sums received with interest. The plaintiffs accordingly on the trial refunded the money with interest, and paid the same into court.</p> <p>The plaintiffs limited their claim for rent and occupation of the premises in dispute to six years prior to the trial, and withdrew all testimony relative to any anterior period, the defendant not objecting. Evidence was given by the defendants as to the value of the improvements put on the premises by the defendant, and those claiming under him. It was admitted that the mesne profits were absorbed by the improvements. The jury, by the direction of the court, found that the permanent improvements were of greater value than the rents and profits, and the plaintiffs were not, therefore, entitled to recover anything for mesne profits. To this direction there was no exception.</p> <p>When the plaintiffs rested the defendant moved for a non-suit which was denied, and.exceptions taken.</p> <p>At the close of the whole evidence the defendant’s counsel requested the court to submit the following questions of fact to the jury:</p> <p>1. Was there a ratification of the title under the master’s sale on the part of the plaintiffs ? .</p> <p>2. Did the plaintiffs elect to take the money instead of the land?</p> <p>3. Did the plaintiffs recover this money with a knowledge of all the proceedings, or with the means of knowledge ?</p> <p>The justice refused to submit any or either of these questions to the jury, and decided that there was no question of fact to be submitted to the jury, to which refusal and ruling the defendant excepted.</p> <p>The defendant’s counsel requested the judge to charge the jury that the plaintiffs were estopped from claiming title in this case. The judge refused, and an exception was taken.</p> <p>He further requested the judge to charge that the facts proved, established a ratification by the plaintiffs of the master’s sale. The judge refused so to charge.</p> <p>He further requested the judge to charge that the facts proved showed an election on the part of the plaintiffs, by taking the money, to ratify the title of the defendant under the partition sale. The judge refused so to charge.</p> <p>The judge then charged the jury that the evidence introduced by the defendant was insufficient to prevent the plaintiff’s recovery, to which the defendant excepted.</p> <p>The judge then directed the jury to find a verdict for the-plaintiffs for the premises in question according to their several interests; to which decision the defendant excepted.</p> <p>The- judge also charged and directed the jury that as the permanent improvements made upon the premises claimed, were proved and admitted to be in value greater than the rents and profits, the plaintiffs were not entitled to recover anything for the use and occupation, or- rents and profits of said premises. The jury thereupon rendered a verdict for the plaintiff in accordance with such direction of the judge.</p> <p>During the progress of the trial the defendant’s counsel excepted to several rulings of the judge.</p> <p>1st. To admitting in evidence the deeds from Jacob Requa to Nathaniel Requa, and from Amy Wiltsee to Grloade Requa; of the interest in the premises they acquired by descent from Clara Requa, who died pendente lite.</p> <p>2d. That evidence of the value of the use and occupation of premises was admissible.</p> <p>3d. To the refusal of the court to rule that the plaintiffs could not recover rent for improvements.</p> <p>4th. That an inquiry as to rental, upon a supposition of a perpetual lease, was proper.</p> <p>5th. To permitting the plaintiffs to limit their claim for mesne profits to six years prior to the trial, and to strike out the evidence relative to an anterior period.</p> <p>6th. To refusing to allow the defendant to prove that Swartwout and Holmes, after the respective deeds to them, improved the property with the knowledge of the plaintiffs, and- without objection from them.</p> <p>7th. To receiving in evidence the notice to the defendant that the plaintiffs, by taking the money, did not intend to ratify and adopt the partition sale, and their offer to refund the same.</p>

The original plaintiff, Anna R. Ludlam, and the defendant Maximo M. Ludlam, were the only children of Richard L. Ludlam, who died at New York in April, 1838, when the said Anna R. was less than one, and her brother Maximo less than seven years of age.

Action to recover the value of personal property, taken by the defendant’s intestate, sheriff of Monroe county, upon an execution issued upon a judgment in favor of one Cappell, against Thomas Young. The plaintiff claimed, the property under a chattel mortgage executed by Young to him, and put it in evidence, and gave evidence tending to show that the property, or most of it, was in his possession at the time it • was taken’.

Martin for leave to issue execution upon a judgment of that Court for $77.58, which order was affirmed at a general term. The judgment was recovered August 22, 1842, against A. S. Garr, who died pending the appeal, and his executor was substituted as respondent.

<p>The grant of land, with “ the privilege of water to turn a fulling mill, when the same is not wanted for carding wool,” the grantor then owning and operating a carding machine, and the reservation by him in a subsequent grant of “ water for carding machines and fulling mill,” are not a limitation of the purpose to which the water is to be applied, but of the quantity to be taken.</p> <p>A quantity of water equal to that used, at the time of the grant and reservation, for carding and foiling, may be used by those claiming under the grant and reservation for any óther manufacturing purpose.</p>

Action on a marine policy. On the trial these facts appeared: Brett, Yose & Co. procured from the defendant, in the city of Hew York, a policy of insurance upon the brig Inda on account of whom it might concern, loss to be paid to them, from the 3d of October, 1852, to 3d of October, 1853, in the amount of $5,000. In October, 1853, it was renewed for a year longer, till October 3d, 1854.

The case was this: In April, 1841, William T. Battle (who is the nominal plaintiff in the action) and the defendants composed a copartnership, doing business as. common carriers on the Erie canal, by the name of the Troy and Erie line. The copartnership consisted of the firms of Gf. P. Griffith & Co., who did business at Troy, and acted as the agents of the copartnership at that place, and also of the firms of Townsend & Coit and S. Thompson & Co., located at Buffalo.

Action to recover the amount of a promissory note for $681.25, dated August 3,1855, made by the defendant payable to the order of the Atlas Mutual Insurance Company twelve months after date.

<p>Appeal from the judgment of the ¡New York Common Pleas, affirming a judgment of the Marine Court. The summons was issued out of the Marine Court, October 24, 1857, returnable ¡November 2d, in an action upon contract in favor of' the plaintiff, and against the defendant and two others. The summons was served upon Graves only, and a complaint was served at the same time. The defendant appeared and answered the complaint on the return day of the summons, and the cause was adjourned. The trial came on December 17, when the defendant objected to the jurisdiction of the court on the ground that the summons was a long summons and he was a non-resident of the city arid county of ¡New York; and after the plaintiff had proved his cause of action arising upon a note of $500, the defendant proved that he was, at the time the action was commenced, a resident of the city of Brooklyn in the county of Kings, and still was such resident, and thereupon moved that the summons and complaint be dismissed, upon the ground that the court had no jurisdiction. The motion was denied, and the defendant excepted. Judgment was rendered against the defendant, which was affirmed upon appeal to the Marine Court at general term, and subsequently by the Common Pleas. The Common Pleas certified that the case was proper for an appeal to this court.</p>

The plaintiff, as assignee of one Robert Caldwell, brought this action to recover a loss on' a policy of insurance issued by the defendant.

Action for breach of an-agreement to manufacture eighteen threshing machines. The plaintiff refused to accept three of the machines manufactured by the defendants, on the ground that they were not constructed-in a good and workmanlike manner. The plaintiff called a witness to prove the validity of his objection to these machines. The evidence offered, and which was rejected under exception, is stated in the following opinion.

Action brought before a justice of the peace to recover the value of a cow. It was admitted by the defendant that on the night of the 11th of December, 1854, the defendant’s locomotive ran over and killed the plaintiffs’ cow, while on the railroad belonging to the defendant; and that the plaintiffs purchased the cow of Harvey Stevens. The cow was very breachy and would jump and break fences, which was the reason Stevens sold her to the plaintiffs, who were drovers.

<p>Appeal from the Supreme Court. Action for the partition of lands, tried before Mr. Justice Potter, without a jury, at the Saratoga Special Term, in July, 1860. The plaintiff and defendants were the heirs-at-law of John Harris, who died in February, 1859, being seised of the real estate described in the complaint, and sought to be partitioned. The defendants Ephraim and William Harris, severally answered and denied the tenancy in common between the parties, as alleged, and averred that their father, by a last will and. testament, which was never revoked or annulled in any manner, devised said lands, in several and distinct portions, to them; and that they were severally the owners thereof, in fee simple. The plaintiff, in reply to the answers (after a general denial of the new matter stated therein), set up that a former action had been brought by said defendants and one Charles Harris, against the plaintiff and others, in the Supreme Court, for the purpose of having the last will of John Harris proved as a lost and destroyed will; and that said action was duly tried and judgment finally entered therein dismissing the complaint; and claiming that said judgment was conclusive on the defendants’in this action, and that they had no interest in the property by virtue of such will.</p> <p>• The pleadings admitted that the parties were the heirs-at-law of John Harris, deceased, and on the trial it was admitted that he died seised of the property described in the complaint; that the same could be partitioned, and that the value of the lands was at least $6,000.</p> <p>The defendants Ephraim and William Harris then gave evidence tending strongly to show that in July,' 1856, John Harris made and executed a last will and testament, with all the formalities required by the statute; that he was, at the time, of sound .mind and under no restraint; that the instrument was lost or fraudulently destroyed in the testator’s lifetime, and that it was not destroyed by the testator, animo revocandi. The provisions or contents of this will were proved distinctly and clearly by one witness, who drew it, at the request of the testator, and who was one of the. subscribing witnesses to it. According to his testimony, the will contained a devise of all the testator’s lands described in the complaint, to the defendants, Ephraim and William Harris, and there was no devise of any portion of his real estate to the plaintiff, or to the tesr tator’s daughter, Phebe. The memorandum made- by the witness, preparatory to drawing the instrument, was also produced in evidence, or at least that part of it which had been preserved; and there was other evidence corroborative of the testimony of this witness, as to the contents of the will. There was no other witness, however, testifying distinctly ’ to the “ provisions ” of the will, nor was any copy or draft of it shown.</p> <p>After the defendants rested, the plaintiff introduced in evidence the judgment roll in the suit of Ephraim Harris, William Harris and Charles Harris v. Aaron Harris and others, to establish the will of John Harris, as a lost or destroyed will.</p> <p>The judge at special term found these facts:</p> <p>1. John Harris, deceased,' in July, 1856, made a last will and testament, in due form of law; it was duly and properly executed, and at.the time of making it he was, in all respects, competent to devise real estate, and riot under restraint.</p> <p>2. By the terms of the will, John Harris devised to his sons Ephraim and William severally, parcels of land, which together constitute the lands described in the complaint in this action, and which is sought to be partitioned, and was all the real estate of which John Harris died seised.</p> <p>8. The said will of the said John Harris was lost or destroyed in the lifetime of the said John Harris; it was not lost or destroyed by him or by his direction, nor with any intent on his part to cancel, revoke dr destroy the same; and said will was not cancelled, revoked or destroyed by John Harris, but was lost or fraudulently destroyed by some other person or persons against his will and consent.</p> <p>4. In March, 1859, Ephraim Harris, William Harris and Charles Harris commenced an action in the Supreme Court against Aaron Harris and William Burnham and Phebe,- his wife, alleging in their complaint the making and existence of the aforesaid will by John Harris, and setting forth the terms of said will, alleging its loss, and charging the loss and destruction to the said Aaron Harris, and therein praying the judgment of this Court that the said will be admitted to probate as a lost will. Issue was joined by the defendants thereon, and the action and issues were referred to be heard and determined by a sole referee, who, after hearing the testimony, .found and reported thereon as facts: That John Harris, de* ceased, in the complaint named, made and published his last will and testament in due form of law, to pass real and personal estate; that said will was in existence at the time of the death of the said John Harris, and was fraudulently destroyed after his death, by the defendant, Aaron Harris; that the provisions of said will were not proved by two witnesses, and that no correct draft or copy thereof was proved. And the said referee found, as conclusions of law, from the foregoing facts that the will could not be allowed to be proved as a lost or destroyed will, under article third, chapter sixth of part second of the Revised Statutes; and that the complaint of the plaintiff should be dismissed without costs to either party ; that said report became and is the judgment of the Supreme Court, entered in the clerk’s office, 2d February, 1860, and before the commencement of the present action.</p> <p>The judge’s conclusions of law upon these facts were:</p> <p>1. That the last will and testament of the said John Harris, • made in July, 1856, was a will and testament of both real and personal estate, made in due form of law, sufficient to pass real and personal estate; that said will was.duly executed by the testator; with all the forms and requirements of the statute; and that the said will was in full force and effect, unrevoked by the said testator at the time of his death.</p> <p>2. That by the terms of the said will, Aaron Harris, the plaintiff, had no interest in the real estate of the said testator, that gave him a right to institute an action for partition thereof.</p> <p>3. That the judgment in the action, in the Supreme Court, instituted by Ephraim Harris, William Harris and Charles Harris against Aaron Harris, William Burnham and Phebe Burnham, his wife, was not conclusive as to the validity of said will, and was ineffectual against the devisees of the real estate of John Harris, in establishing their title to the said real estate, in this action.</p> <p>4. That the plaintiff’s complaint in this action be dismissed, and that the defendants have their costs.</p> <p>Judgment at special term being entered, dismissing the plaintiff’s complaint, he appealed therefrom, and the judgment was reversed at general term, and a new trial ordered.</p> <p>The defendants, Ephraim and William Harris, appealed from the order granting a new trial, and assented that if such order should be affirmed, judgment absolute might be rendered against them.</p>

Henry C. Patchin died in the city of Hew York, on the 17th day of July, 1857, leaving assets in that city.

The Farmers’ and Mechanics’ Bank, of Hartford, Connecticut, in October, 1854, holding two notes against Paul & Pritchard of Ohio, amounting to $1,585, payable at the defendant’s Bank, on the 18th of November, 1854, sent them to the Canal Bank at Cleveland, Ohio, for collection, which bank on the 11th October, forwarded them to the defendant for collection, with a request, when paid, to remit exchange.

Action on a policy of insurance against loss by fire. The plaintiffs sued as assignees of one Godfrey, by a transfer made after the loss had occurred. Upon the trial these facts appeared: Godfrey who resided in Oswego county, and owned the property insured, applied at the office of Lewis, an agent of the defendant, at Rome in Oneida county, on the 6th of August, 1855, for insurance.

Action for taking and carrying away a parcel of bank bills. The defendant justified as a trustee of the village of Norwich. Upon the trial it appeared that the defendant directed the collector of. taxes of said village to enforce a warrant for the collection of certain taxes for the levy of which the action was brought. The validity of the assessment and of the collector’s warrant depended upon facts, which are sufficiently stated in the following opinion.

Action upon an open policy of insurance, brought to recover a constructive total loss of goods which were damaged on board the bark M. L. Frank, belonging to the plaintiff, while on her voyage from Matanzas to New York. The vessel put into the port of Savannah in distress. The cause was heard upon the issue formed by a demurrer to the complaint, and the demurrer was sustained.

The complaint in this action stated the substance of a deed executed by the defendant to the plaintiff, bearing date July 25th, 1857, by which the defendant conveyed to the plaintiff eighteen lots in the city of Brooklyn, with a covenant on the part of the defendant, that the lots were free from any incumbrance, except three mortgages therein mentioned, amounting in the aggregate to $12,400; and it is alleged that at the time of the making and delivery of the deed the lots…

On the trial, the jury found, by consent, a verdict for the plaintiff for $425 damages, subject to the opinion of the court at general term on a Case. The court, in the second district, ordered judgment on the verdict, and the defendants appealed to this court. The facts are sufficiently stated in the following opinion:

Upon the trial in the City Court of Brooklyn, before Judge Culver, without jury, he found these facts : In May, 1856, the defendant leased from the plaintiff, for the term of five years, certain rooms and-passage ways in the basement, the ground story, and on the second floor of a large building known as the City Central Hall, in Brooklyn, covenanting to pay, as rent therefor, yearly, the sum of $2,700, in equal quarterly payments.

Action upon three drafts made by the defendants, Joy and Monteath, as drawers to their own order and indorsed by them as agents of the Albany and Canal line of tow boats, dated at Albany, June v 20th, 22d and 23d, 1848, drawn upon and accepted by Alfred Hoyt, agent, 16 South street, Hew York, two for $3,500 each and one for $3,000.

In 1855 Osborn Jewell was collector of taxes of the town of Lancaster, in the county of Erie, and in November of that year, he, together with the defendants, as his sureties, executed to Eli H. Bowman, then supervisor of the town, the bond required by the statute (1 It.

Action to recover the penalty of $50 under the act of 1857, chapter 185, for asking and receiving a greater rate of fare than that allowed by law. The trial was before a referee, who found these facts: That the plaintiff, June 7, 1857, at half past eleven o’clock p. M., at the Oneida station of the defendant, in Madison county, the office of the defendant not being open, entered the car of the defendant to be transported to Syracuse, without having purchased a ticket.

Action for the seizure and appropriation of 315 kegs of gunpowder. On the trial these facts appeared: The powder was received at 10 A. M., on a vessel bound to Pensacola, then lying at the pier foot of Twelfth street in the city of New York. It was'put on board from a small schooner, loaded the night before from a magazine on the shore of New Jersey.

At the trial these facts .appeared: In the year 1850, one Leman B. Grarlinghouse was engaged at Hopewell, Ontario county, in purchasing wheat and manufacturing it into flour, which he consigned to Hicks & Hathaway, Boston, for sale on commission, and he drew drafts from time to time on them in the course of their business. Garlinghouse, September 21, 1850, drew a draft at two months, payable to the order of Ralph Lester for $2,000.

Action, commenced in July, 1860, for the recovery of rent, upon a covenant for its payment, made by the grantee in a conveyance of lands in fee, executed in the year 1789.

This was an action of ejectment, or in the nature of ejectment, commenced in 1856, and tried in September, 1860, at the Albany Circuit, before Mr. Justice Could, without a jury.

<p>Where a prisoner has made confessions.under the influence of threats or promises, evidence may be received of facts having been ascertained in consequence of such confessions without proof of his statement as to the facts discovered, unless he require proof of so much of his confession as related to those facts.</p> <p>The jury in criminal cases are bound by the instructions of the court as to the law, to the same extent as in civil cases.</p>

The plaintiff being the owner of a certain horse on the 22d of January, 1851, made an agreement with one Yandermark to sell said horse to him for the sum of $65, which sum, with interest, he was to pay on the first of November following. If he paid for the horse that sum, at that time, the horse was to belong to him; but until such payment was fully made the horse was to remain and continue the property of the plaintiff.

Action brought in the year 1857. The complaint showed that the firm of McCreery & Groulding, sold and delivered goods to the defendant at different times and at her request, for which she gave them three promissory notes, described in the complaint, for the several sums of $200, $374.98 and $176.78. That such firm, at another time, sold and delivered goods to her and at her request, of the value of $10.50.

This was an action upon a promissory note for $125.63 made by the defendant, and payable on demand to the plaintiff or bearer. The note was dated June 29, 1841. The action was not commenced until April 30, 1851. The complaint averred the making of the note, setting out a copy of it, and its non-payment. The defendant answered, pleading the Statute of Limitations, and averring payment of the note in 1841.