Volume 12 — New York Supreme Court Reports

This action was brought to recover the amount of four policies of insurance, issued by the defendant upon the life of William F. Diefendorf, for his benefit, and held by him up to the time of his assignment thereof to the plaintiff by virtue of an assignment bearing date November 4th, 1869. The assured died on the 21st day of March, 1871.

Appeal by the defendant from a judgment entered upon the report of a referee. He found, among other things, that during the years 1871 and 1872, the defendant was engaged in erecting a building known as a wine cellar, upon premises owned by it in the town of Milo, in the county of Yates.

' Appeal from a judgment in favor of the plaintiff, entered on the decision of the court at Special Term. The facts are stated in the following opinion of Lamoot, J., delivered at the Special Term : Lamont, J.: By his will, Park'hurst Whitney bequeathed to his executors, Solon M. N. Whitney and James F. Trott, a special. fund, consisting of a mortgage made to him by Messrs.

Wbét of error to the Court of Sessions in and for the county of Jefferson. The defendant was indicted for a violation of the excise law, and was tried and convicted at the Jefferson County Sessions.

Writ of Error to the Court of Sessions in and for the county of Livingston. The defendant was indicted by the grand jury of Livingston county, at a Court of Sessions held in said county, on the 11th day of September, 1874, for a violation of the excise law.

The action was commenced to recover for the rent of a store in the city of Oswego, at a' yearly rent of $600 from May 1, 1872, the plaintiff claiming a balance due of $375; also for the breakage of one light of glass, of the value of fifteen dollars, amounting in all to $390. The answer contained a general denial, and also the allegation that the rent as agreed upon was $450 per annum, and that that was a fair sum for the use of the store.

This action was brought to recover damages arising from the death of the plaintiff^ intestate. The deceased, while ascending a stairway fastened to the side of a freight ear, was struck by a roof upon one of defendant's sheds, knocked from the ear and billed. The relative position of the track and of the projecting roof sufficiently appears from the opinion.

The plaintiff was a savings bank in Utica, created by chapter 265, Laws of 1851. The Utica Steam Woolen Company was originally a corporation created under the general manufacturing law, passed March 22d, 1811 (2 R. S. [5th ed.], 652), by the filing of a certificate in writing in the office of the secretary of State, on February 27, 1846.

Judgment in this action was ordered for defendant on the ground that plaintiff, having proved his debt in bankruptcy against defendant, was precluded from maintaining this action therefor. The proceedings in bankruptcy were terminated before this action was brought, without discharge of defendant.

This is an appeal from an order of a county judge, ordering a new trial in an action tried before him with a jury. The order set aside the verdict of the jury and granted a new trial, on the ground of excessive damages, and for insufficient evidence, with costs to abide the event. Plaintiff appealed from that portion of the order which reads as follows: “ Said verdict is set aside, and new trial ordered on said motion, with costs to abide the event.”

<p>Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.</p> <p>On or about the 11 oh day of April, 1870, the defendants were severally duly appointed commissioners of excise of the city of Lockport, and qualified and entered upon the discharge of their duties. In April, 1873, the mayor of the city of Lockport stated orally to the other members of the common council of said city: “ I nominate [the relators] to lie commissioners of exciseand the members of the council voted in favor of concurring in such nominations. The relators took the oath of office, filed the same with the city clerk, and assumed to act as commissioners of excise of said city. The mayor never issued commissions to them. From May, 1873, until June 1, 1874, the defendants did not meet or transact business as a board of excise, but on the day last named, they did meet as such board and grant licenses.</p> <p>On the 18th day of June, 1874, this action in the nature of quo wa/rrcmto was brought. The complaint alleged the due appointment of relators, that they were rightfully entitled to said office, and that defendants had usurped the same. The defendants answered separately and denied the complaint and set up title to the office in themselves.</p>

The will of Calvin .Drake was admitted to probate before tbe surrogate of Yates county, August 26, 1872, and the appellant appointed executor thereof. April 11, 1873, Lucy Hewins, only child and next of kin, filed allegations in the office of said surrogate against the validity of said will and the competency of the proof thereof.

The defendants moved,in tbe County Court to stay proceedings upon a judgment of that court for $121, on tbe ground that it was settled. The motion was opposed upon affidavits tending to show that the settlement was procured by misrepresentation or concealment in. regard to the original amount of the plaintiff’s claim.

Controversy submitted without action, in pursuance of section 372 of the Code. The first clause of the will of the defendants’ testator was as follows: First.

This action was brought to recover the value of certain articles of personal property belonging to the plaintiffs’ intestate, which were, at the time of his death, upon a farm belonging to the defendant, and which, it was alleged, had been subsequently converted by him.

<p>Appeal from an order made at Special Term, denying a motion made by appellant for an order:</p> <p>1st. That an attachment issue against the common council of Lockport “as for a contempt for having refused, neglected or omitted to make a return to the appeal in the above entitled matter, as by law required; ” or,</p> <p>2d. That said council be required “ to make and file a return to said appeal; ” or,</p> <p>3d. That in default thereof, an attachment issue against said council; or,</p> <p>4th. That the ordinance be vacated and annulled.</p> <p>The charter of the city of Lockport is contained in chapter 365 of the Laws of 1865.</p>

The court erred in charging the jury that the plaintiff was entitled to punitive damages. The company may be liable for the acts of its servants in the performance of its business, but not for such willful acts as are a departure from that business.

The complaint, after alleging that the defendant Antony Speis made the note in suit to the order of his wife, and delivered the same to her, alleged that she “ thereupon duly indorsed the said note in the following words: ‘ For value received, I hereby guarantee payment of the within note, and hereby, for value, dedicate and set apart my real and personal estate for the payment thereof.

<p>Appeal from a judgment in favor of the plaintiffs, entered on the verdict of a jury, at the Onondaga Circuit.</p>

This was an action brought to declare void certain proceedings of the. commissioners of public works of the city of Rochester, in relation to the construction of a sewer, and to restrain the collection of an assessment therefor, as well as the payment of any moneys already collected.

The plaintiff was allowed to prove, under objection by the defendant, that on the track and in adjoining fields combustible material was thrown by defendant’s engines, and also certain other facts mentioned in the opinion of the court.

<p>Appeal from a judgment in favor of the plaintiff, entered at the Monroe county Special Term.</p>

The court directed judgment for the plaintiff for the possession of the premises, but without prejudice to the defendant’s right to bring an action for the specific performance of a contract of sale thereof, or to be relieved from the forfeiture thereof.

<p>Railroad compcmy — ‘proceedings to acquire title to land — Petition—should disclose intended use of land— chap. 237 of 1869.</p> <p>Where a railroad company takes proceedings to acquire the title to land, under the provisions of chapter 237 of the Laws of 1869, the petition should disclose the specific purpose to which it is intended to apply the land.</p> <p>In proceedings under the act of 1869 the procedure must conform to the act of 1850, hut the allegations of the petition must specify the purpose for which the land is to he taken.</p>

The cases were all tried together before the same referee, • the questions of fact being the same in each case. • The plaintiffs were the owners of property known as the Clifton Hotel and Air Cure, and the furniture therein. The defendants issued policies of insurance upon this property and furniture to an amount of $71,000.

Appeal by plaintiff from a judgment entered on the decision of tide court dismissing the complaint. Officers of corporations to whom the care and management of the corporate property is by law confided, are trustees of that property, bound by the strictest rules of law to execute their trust literally, intelligently and honestly, and to that end to devote the corporate property to its appropriate and intended uses, and none other.

The only causes fo2' separation from bed and board forever or for a limited time, are those provided in the statute: 1. “ The cruel and inhuman treatment by the husband of hiá wife.” 2. “ Such conduct on the part of the husband toward his wife as may render it unsafe and improper for her to cohabit with him.” 3. “ The abandonment of .the wife by the husband, or his refusal or neglect to provide for her.” (2 R. S., 146, §§ 50, 51; Atwater v. Atwater, 53 Barb., 623, 625,…

It was claimed by the appellant, among other things, that the Supreme Court did not acquire jurisdiction to appoint commissioners of estimate and assessment, on account of the failure of the Central park commissioners to locate the said road, and to file maps showing such location, as required by chapter 565 of the Laws of 1865.

This action was brought upon a draft claimed to have been accepted by the defendant, a corporation organized under the laws of the State of Missouri. The draft was not drawn upon the defendant corporation, but upon a body described as “ The Western Department of the Life Association of America.” There is no such department, and Mr. Robertson was not the manager of any such department, and therefore the paper is void.

<p>Try unction— order of reference — when objection to, com be raised only on appeal from it— Oowt of equity —• power to coward damages when injunction has been improperly allowed— TPndertaleing — Action for malicious prosecution.</p> <p>Where an order of reference is made to ascertain the damages sustained by defendant by reason of the issuing of an injunction, the question whether such order was properly made before the entry of final judgment in the action in which the injunction issued, can only be raised on an appeal from the order of reference itself.</p> <p>The authority of a court of equity to award damages to the defendant in an action before it, in consequence of damages which he may have sustained by reason of the issuing of an injunction in such action, rests wholly upon the provisions of the Code of Procedure; and the amount to be recovered on the undertaking given upon the granting of the injunction order, is limited to the sum specified in the undertaking.</p> <p>It seems, that a defendant who has been restrained by injunction and sustained damages thereby, may maintain an action for indemnity in the nature of an action on the case for a malicious prosecution, but such action will be decided under the rules applicable to such latter action.</p>

Graff, and by them indorsed to the plaintiff. The mere acceptance of the note by the plaintiff for the debt of Taylor & Graff was not a payment of the debt, in the absence of any agreement to receive it as such. (Porter v. Taloott, 1 Cow., 384; Oloott v. RatJibone, 5 Wend., 490; Vail v. Foster, 4 N. Y., 312; Tv/rner v. Bank of Fox .Lalce, 4 Abb. Ot. App.

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

<p>Indictment — rape amd assamlt — election — Testimony of one jointly indicted — .Record of prior conviction of petit larrcmy— when admissible.</p> <p>Where an indictment contains two counts, one for rape and one for an assault with intent to commit a rape, the district attorney will not he required to elect on which count he will proceed.</p> <p>Upon the separate trial of one of two persons -jointly indicted for rape, his co-indictee is a competent witness.</p> <p>Where upon a trial for rape the prisoner is sworn and testifies in his own behalf, a record of his conviction of petit larceny is admissible as affecting his credit.</p>

<p>Special Terms of Oyer and Terminer —■ drawing of jwrors for — challenge to the a/rray — Repeal of statute before trial.</p> <p>Where a special term of the Court of Oyer and Terminer is appointed by the governor, in pursuance of section 14, chapter 408 of 1870, the names of the jurors must be drawn fourteen days before the holding of the court, and a challenge to the array for a failure so to do, is proper, and should be sustained.</p> <p>No conviction can he had upon an indictment for a conspiracy to violate the provisions of a statute which has been repealed before the trial.</p>

<p>Qommitiee of lunatic — power to release from lien of mortgage — rights of bona fide pw'chaser.</p> <p>The committee of the estate of a lunatic, who has invested a portion of the estate" in a mortgage, may release a portion of the premises covered thereby without applying to the court for permission so to do.</p> <p>Where such release has been recorded, the fact that it was given without consideration will not render it invalid as against a bona fide purchaser for value.</p>

Under the circumstances of • this case, Mrs. Eenton’s possession was not such notice as to give her unrecorded life-lease priority over this mortgage. (Cook v. Travis, 22 Barb., 338 ; S. 0., 20 N. Y., 400.) This mortgagee used really more diligence than was required.

<p>Annexation act — chapter 613, 1873 — Judge of tenth judicial district — election of, November, 1873 — chapter 329,1874.</p> <p>The provisions of chapter 613 of 1873, to the effect that the territory of several towns (on certain conditions to he annexed to New York city, on the 1st January, 1874), should constitute the tenth judicial district of the city of New York, and that there.should he a justice of the court of said district who should he elected at the next general election thereafter to be held, construed to intend that such justice should bé elected at the election held in November, 1873.</p> <p>It was further held, that such justice was properly elected under the election laws of the several towns as they existed in November, 1873.</p>

The complaint alleged that on the 29th day of April, 1871, an agi’eement was made by the plaintiff with the defendants, through the commissioner of public works, to furnish certain large quantities of pipes to be used in the construction of sewers. That certain large quantities of such pipes had been furnished, amounting to $181,835, upon which $127,284 had been paid, and $54,550 remained unpaid.

<p>MotioN by plaintiff for judgment on a verdict ordered subject to the opinion of the court at General Term.</p>

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

The relator claims that the assessment should be reduced by-deducting therefrom the value of certain shares of stock of the California Dry Dock Company, and also of certain steamships which, although registered at the port of New York, were permanently located on the Pacific coast.

The premises in question, which the railroad company seeks to acquire, are “ not necessary for the purposes of its incorporation,” nor are they “ necessary to the operation of such railroad.” (Chap. 237, Laws of 1869.) . The purpose is to aid the cattle yards, abattoir and elevators, whereas lands cannot be taken for a subsidiary or extraordinary purpose. (W. Y and H. R■ R. Go. v. Kip, 46 N. Y., 552 ; Rens. and /Sar.

<p>Action against trustees for failure to file report does not survive — Tort.</p> <p>The action given by the statute (3 Edm., 735, § 12; against the trustees of a corporation for a failure to file the report required thereby, is penal in its character, and does not survive against the executor of a deceased trustee. • (Davis, P. J., dissenting.)</p>

The action was brought to recover $1,108.08, alleged to have been collected and received by the defendant as treasurer of the plaintiff (the defendant having since ceased to be such treasurer), with interest from April 1, 1867.

CeRtioeari to i'evíew summary proceedings had under the landlord and tenant act. The following affidavits of service of the summons were made, upon the regularity of which this appeal rested: STATE OF NEW YORK, ) „ .

Tbe action was brought by tbe plaintiff to recover from the defendants $2,315, with interest, for one quarter’s rent of tbe ground floor, basement and sub-basement of building No. 738 Broadway, in tbe city of New York. Tbe defendants offered to prove certain facts, set forth in tbe opinion, but tbe court excluded the evidence offered.

<p>Appeal from an order denying a motion for a writ of mandamus, requiring the respondent to sell certain securities held by him and pay over the proceeds to the relator.</p>

The first point of this alleged conspiracy, i. e., the combination to have the property sold for much less than its true value, was a legal injury to the/plaintiffs, for which an action would have lain against the sheriff. If there were a combination among several persons to have this illegal act done, an action would lie against the persons so combining. {Jones v. Cassell, 3 Johns.

<p>Replevin — error inform of judgment im, — corrected by motion md not by appeal— Evidence — offer of rent — not competent evidence of value of me — eaypenses of</p> <p>The proper mode of correcting a judgment entered in a replevin suit, erroneous in that it is for 1he valúe of the property, instead of being for its possession, and in case a delivery could not be had, for its value, is by motion, and not by appeal.</p> <p>Ingersoll v. Bostwialc (22 N. Y., 425) followed.</p> <p>An offer of a certain price for the use of property is not competent evidence from which to determine the amount of damages arising from its unlawful detention.*</p> <p>In an action of replevin, the expenses of taking and removing the property by the sheriff, are not to be included in the damages given for its detention. They constitute part of the disbursements in the action, and should be added to the costs.</p>

<p>Legal business of city of New York ■— by whom conducted — power of corporation counsel to employ additional counsel — §§ 28, 88, chap. 446,1857 — Proceedings to collect taxes — chap. 280 of 1843.</p> <p>It is the duty of the law department of the city of New York to conduct the proceedings for the recovery of the amounts due from delinquent tax-payers, and the corporation counsel is authorized to employ additional counsel to assist him therein.</p> <p>Where, in pursuance of section 28, chapter 446, of 1857, a sufficient appropriation has been made to pay for services to be rendered to the city of New York, it seems that the right to recover for such services will not be defeated by the expenditure of such appropriation for other purposes.'</p> <p>Section 88, of chapter 446, of 1857, requiring a certificate by the head of the appropriate department, as to the necessity of expenditures for which no contract is required, was enacted to regulate the mode in which work required in public improvements should be contracted for and let, and did not include professional services rendered by counsel employed in collecting the amounts due from delinquent tax-payers.</p> <p>The proceedings against delinquent tax-payers, authorized by section 12, of article 11, chapter 230, Laws of 1843, must be commenced within one year after the return of the warrant to be issued by the receiver of taxes for the collection thereof.</p>

MotioN by plaintiff for a new trial, on exceptions taken at the Circuit to the order of the court nonsuiting the plaintiff, and ordered to be heard in the first instance at General Term. The plaintiff sued for his salary as janitor of the Pourth District Police Oourt, from June 1, 1874, to January 31, 1875.

A receiver, as an officer of the court, has a right to apply to the court for instructions in relation to the funds, when the question is as to what may be his duty under its orders. {Gurtiss v. Lemitt, 1 Abb.

This action was commenced and prosecuted in the county of New York, to procure an accounting by the trustees of a joint stock company, known as Wells, Fargo & Co., and for the appointment of a receiver of the undistributed assets in their hands, and such a judgment was recovered on the 7th of February, 1873, under one of the provisions of which, one of the trustees, and a defendant in the action, Ashbel H. Barney, was appointed such receiver.

Appeal by defendant from a judgment entered on the verdict of a jury, in an action brought upon a policy of insurance issued by the defendant to the plaintiff. The question raised on this appeal related to the exclusion by the court of a survey of the insured property. The court erred in excluding the survey.

This action was brought by the plaintiffs, both in their own behalf and also in behalf of all other holders of the bonds of the first division of the St. Paul and Pacific Railroad Company, for an injunction and an accounting by certain trustees.

There were no facts or circumstances proved from which noticé to the plaintiffs of the revocation of the agent’s authority could be legally inferred, and the learned judge erred in submitting such questions to the jury as decisive in the case, independent of proof of actual notice of such ' revocation.

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

MotioN by plaintiff for a new trial, on exceptions ordered to be beard in the first instance at the General Term, after an order made at the Circuit dismissing the plaintiff’s complaint.

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

<p>Assessments — Ohap. 526 of 18ÍQ-, 574 of 1871; 580 0/1872; 813 0/1874.</p> <p>Section 7, chapter 326, of Laws of 1840 (if not repealed), only requires, in case an assessment exceeds in amount one-half the value of the property as assessed by the ward assessors, that such assessment should be reduced to such one-half of the assessed value and vacated as to the excess, and not that it should he vacated in tota.</p> <p>The certificate of the commissioner of public works, required by chapter 574 of 1871, section 5, is sufficient, if it contains a substantial statement of the sum or sums expended.</p> <p>The curative acts, chapter 580 of 1872 and chapter 313 of 1874, should be construed to cover cases where there are mere defects of formality in official certificates which contain, without technical accuracy, the substance of what the statute requires.</p>

This was an action by two of several original grantors, to recover in ejectment the possession of two certain parcels of land, for breach of conditions subsequent. The defendant is the' grantee in possession ; its church edifice stands on one lot, and the other lot is a cemetery. The trial of the cause was commenced before the court and jury.

<p>Bigamy — ■indictment—when'e ma/y he found — Special plea — iiow reviewed — when prisoner has been putin jeopw'dy within the meaning of the constitutional provision.</p> <p>Under tlie provisions of section 10 of 8 Kevised Statutes (5th ed.), 968, providing that an indictment for bigamy may he found in the county where the prisoner is apprehended, the actual arrest, before indictment found, gives jurisdiction; nor will a subsequent escape or discharge on bail destroy such jurisdiction when once acquired.</p> <p>Where issue has been joined upon a special plea, interposed by the prisoner, and a verdict against him rendered thereon, such preliminary trial cannot be reviewed by a writ of error to review his subsequent conviction and trial upon the merits, after a plea of not guilly entered by order of the court.</p> <p>After the trial had commenced, it being discovered that the prisoner had not been arraigned or ashed to plead, to the indictment, he was arraigned, and the indictment read to him. The prisoner objected to any further proceedings, which objection having been overruled, he pleaded not guilty, and again objected to any further proceedings; whereupon the court discharged the jury. Semble, that the irregularity was of such a character as to justify the court in the exercise of its discretion in discharging the jury; that such discharge was with the implied assent of the defendant, and that such partial trial did not constitute legal jeopardy, whereby he was exempted from further prosecution upon the same indictment.</p> <p>In this State a prisoner is considered in jeopardy when he has been arraigned and pleaded to a valid indictment, a witness has been sworn and evidence given, and then, without his consent, a juror has been withdrawn or the jury discharged. (Per Boabdman, J.)</p>

The complaint alleged that in 1871 letters patent were issued to Watrous and Kellogg for an invention relating to the construction of augurs; that subsequently the interest of Kellogg therein was assigned to the plaintiff; that defendant had used the rights granted by the letters patent at its manufactory in Elmira.

<p>Appeal by plaintiff from a judgment entered on tbe report of a referee. Tbe action was brought to restrain defendant from crossing over or using plaintiff’s land .as a passage-way for teams, etc., and to have the title in fee to said lands declared to be in plaintiff. The answer insists upon a right of way, belonging to defendant, over the lands of the plaintiff, and the right of user.</p> <p>The referee found that the defendant had such right of way over the plaintiff’s land from a certain lot of land belonging to ’defendant in tbe rear of plaintiff’s premises, and, as to tbat, denied the relief demanded by plaintiff.</p> <p>The right of way over plaintiff’s land to other lands of the defendant is denied by the finding of the referee, and the use of such right of way for such other lands, is, by the judgment, forbidden and enjoined.</p> <p>The plaintiff appeals from so much of such judgment as gives to defendant any right of way or use of any of plaintiff’s land for any purpose.</p> <p>The consistory deed to Auchmoody does not pass the title of the corporation. It is simply the individual deed of the three consistory members, and as they had no title they conveyed none. (Hatch v. Parr, 1 Hamm. (Ohio), 390; Brinley v. Mann, 2 Cush., 337; Taft v. Brewster, 9 Johns., 334; Stone v. Wood, 7 Cow., 453 ; Spencer v. Field, 10 Wend., 87; Roberts v. Button, 14 Yt., 195.) The consistory deed for the road purports to convey a freehold interest. (Pope v. O'1 Piara, 48 N. Y., 446, 452; Alleman v. Dey, 49 Barb., 641-645; 2 Wait’s Law and Prac., 29-36; Little v. Penn, 34 N. Y., 452.) The consistory deed for the road is absolutely void, for the reason that it grants the real estate of ,a religious corporation without an order of the court, as required by statute. {Mad. Av. Bap. Oh. v. Bap. Oh. in 01. Street, 46 N. Y., 131; Wheaton v. Oates, 18 id., 395; Christie v. Gage, 2 N. Y. S. C., 344.) The deed by the. consistory being void, it is not an estoppel against the corporation. {Crippen v. Morss, 49 N. Y., 63.) Where a deed is void it does not work an estoppel. (3 Wash, on Real Prop., 100; Todd v. Todd, 10 S. C., 298.) Nor does the doctrine of estoppel apply in the case of a person who has not the power to convey, such as an infant or feme covert. {Brown v. McCune, 5 Sandf., 224; 3 Wash, on Real Prop., 69, 75, 107; Loomis v. RucJc, 56 N. Y., 462.) A religious society is under the like disability of a want of power to convey without the aid of a court. (Big. on Estop., 283; Poe d. Chandler v. Ford, 3 Ad. & E., 649 ; 3 Wash, on Real Prop., 74, 75, §9 a; Oarlinghouse v. Whifrwell, 51 Barb., 208; McMaster v. Prest., etc., Lns. Co., 55 N. Y., 222 ; Jackson v. Brinckerhoff, 8 Johns. Cas., 101; Pierpont v. Barncvrd, 5 Barb., 364.) The proper construction to be given to the consistory deed for the right of way is, that it- was a license by the officers of the church, and good as k license to protect the licensee in the use of the way so long as the church might recognize it, but revocable at the will of the corporation. (1 Wash, on Real Prop., 544, 545.)</p> <p>Under the evidence the plaintiff’s remedy was at law. An action of trespass would have determined the question of right, and there is nothing to show that a single action of trespass would not have been sufficient. (Gentil v. Arnand, 38 How. Pr., 94, 95 ; affirmed in 1 Swee., 641; Sixth Av. R. R. Go. v. Kerr, 45 Barb., 138, 142; Sixth Av. JR. R. Go. v. Kerr, 28 How. Pr., 382; Swett v. City of Troy, 12 Abb. [N. S.], 100, 105.) The deeds must be regarded as different parts of the same instrument or agreement. (2 Pars, on Cont. [5th ed.], 503; Jaohson v. JDunsbagh, 1 Johns. Cas. [2d ed.], 92, 98, note a / .Hills v. .Miller, 3 Paige, 254, 256; Stow v. Tifft, 15 Johns., 458, 463; Wilson v. Troup, 2 Cow., 218; Jaclcson v. JMeKenny, 3 Wend., 233; Hanford, v. Rogers, 11 Barb., 18; Hull v. Adams, 1 Hill, 601; Hitchcock v. The N. W. Ins. Go., 26 N. Y., JO, 71.) The attitude of the plaintiff is not permitted either by law or equity or good morals. (Wilson v. Trou/p, 2 Cow., 217, 218; Lovett v. The Germa/n Reformed Church, 12 Barb., 67, 81; Hartshorn v. Brace, 25 Barb., 126, Í29; 1 Story’s Eq. Jur. [6th ed.], 77, § 64, e; 333, § 301; Will. Eq., 46; Big. on Estop., 582-585.) The deacons and elders composing the consistory at the time of giving the deed, were the statutory trustees of the church, and their certificate of incorporation having been acknowledged and recorded, “ such trustees and their successors ” were a body corporate by the name or title expressed in the certificate. (Laws of 1813, chap. 60, § 2; 3 Edm. Stat. at Large, 689.) The deed does not purport to be from private individuals, with a mere descryptio personarum added, but from the consistory (trustees) and their successors.</p>

■ This is an appeal by the defendant, from a judgment rendered against him by Ellicott Evans, police justice of the village of Deposit, in favor of the plaintiff, upon the verdict of a jury, for $100 damages, the amount of two penalties of-fifty dollars each, for violation of the excise laws of this State, besides costs. The following opinion was delivered in the County Court: Edwards, County Judge: The defendant had no license.

<p>Contempt — power to punish for — refusal of witness in Justice's Court to answer question — power of justice to punish for.</p> <p>The power to punish for contempt is, in its nature, an exception to the provisions of the Constitution, and it cannot be extended, in the least degree, beyond the limits which have been imposed by statute.</p> <p>A justice of the peace has no power to treat as a contempt the refusal of a witness, examined before him, to answer a question.</p> <p>A justice has no power to commit a witness for a refusal to answer a question in accordance with the provisions of 2 Revised Statutes, 274, section 204, until the party at whose instance the witness attended shall have made the affidavit required by the said section.</p> <p>The fact that the question is put upon the cross-examination of one of the parties to the action, who has been examined as a witness in his own behalf, does not relieve the justice from compliance with this requirement of the statute.</p>

The general principles governing the cases involving the rights of mortgagor and mortgagee are: If there is an insurance of the building by the mortgagor, loss payable to mortgagee, the insurer cannot claim subrogation. If there is an insurance of the building by the mortgagee, no such right exists as against the mortgagor.

The referee found that on December 5, 1865, the defendant Edward G. Crafts, through Lewis Seymour, his agent, made a loan of $600, in money of one Moses La Grange, for his own exclusive… Held: through assignment, a mortgage given April 28, 1865, by Edward G. Crafts and others on certain real estate, on the foreclosure of which mortgage there was a surplus of $3,573, which was, by order of the court, paid over to the defendant Matthews, as county treasurer of Broome county.

Appeal by defendant from an, order .denying a new trial, and also from a judgment in favor of the plaintiff for $280.0T, entered on the verdict of a jury in the 'Chemung County Court, on an appeal by defendant from” a judgment of a justice of the peace.

<p>This is an appeal from an order overruling a demurrer to the complaint iu this action. Eor opinion of Justice Learned in this case, see 4 Hun, 783.</p>

On cross appeals from a judgment of tbe Justice’s Court, separately heard in tbe County Court, Jones reversed on bis appeal the justice’s judgment and recovered costs of the appeal against Owen, and Owen on bis appeal also reversed the same judgment and recovered his costs of appeal against Jones.

Appeal, from an order denying a motion for an order requiring the plaintiff to make her complaint more definite and certain, by stating an alleged cause of action on an insurance policy separately from an alleged cause of action on a special agreement, and separately from an alleged cause of action on an award.

Ceoss appeals from an order made at Special Term, providing that plaintiffs should serve an amended complaint, wherein they should specify what right in the premises was claimed by the Mayor, etc. That plaintiffs should either strike out so much of the complaint as alleges a neglect to audit the claims referred to, or should state in the complaint that they do not rely on the neglect to audit as a cause of action; or if plaintiffs do elect to rely on the neglect to audit as…

Exceptions ordered to be beard in the first instance at General Term, judgment in the mean time suspended. The action was brought on an undertaking given by the defendants for the release from arrest in a civil action of one Henry Rodewald. The court directed a verdict for defendant. The discharge under the statute was, in any event, inoperative until the papers upon which the same was granted were filed and recorded by the clerk of the city and county of New York.

Weit of error to review the conviction of the plaintiff in error of the offense of mayhem. The plaintiff in error was indicted in the Court of General Sessions of New York for mayhem; pleaded “not guilty” to the indictment; was tried before the city judge and a jury, and was convicted and sentenced to the State prison for the term of seven years.

The defendant Ingraham was appointed a receiver in an action to settle up certain partnership affairs, and paid, as was claimed, exorbitant fees to his counsel, and retained an improper sum for his own services, which acts were done, as the plaintiff claimed, in pursuance of a fraudulent agreement between the receiver and his counsel.

<p>Appeals from a judgment entered upon tbe decision of Justice YaN BbuNt, rendered at the Special Term.</p>

<p>Policy of insu/rance taken out by wife on life of husbmd — assignment of— Agreement of third person to pay premiums — when action lies for breach of.</p> <p>Tlie plaintiff, having taken out a policy of insurance upon the life of her husband, assigned sixty per cent thereof to the defendant, who agreed to “ keep it alive ” for her benefit and that of her family. The defendant, in pursuance of such agreement, paid a portion of the premiums, but subsequently allowed the policy to be forfeited for non-payment of those subsequently accruing. This action was brought by the wife during the life of her husband to recover the value of the policy. Held (1), that as the defendant had entered upon the performance of tlie agreement, lie was responsible for bis misfeasance in relation thereto ; (2), that the fact that the husband was still living was not a bar to the action, but only affected the measure of damages.</p> <p>Whether the wife had power to assign the policy, quaere.</p>

<p>Appeal from an order made at Special Term, vacating a judgment entered upon an award of arbitrators.</p>

<p>Payment of taxes hy mistake — right to recover the same.</p> <p>The plaintiff paid the Croton water charges upon a lot owned hy her in the city oí New York, and received a receipt in which the lot was correctly described. Subsequently, plaintiff presented this receipt at the office of the tax commissioners, and asked for a hill of the taxes imposed upon it; the clerk, by mistake, gave her a hill of the taxes imposed upon a different lot, of which she was not the owner, which she, in ignorance of the mistake, paid; and the amount was credited to the second lot. This action was brought to recover the amount so paid, the plaintiff having been subsequently compelled to pay the taxes on her own lot. Held, that she was entitled to recover.</p>

<p>Striking out material allegations from complaint — derrmrrer to such complaint because wanting such allegations — costs.</p> <p>Upon defendant’s motion, certain allegations of tlie complaint were stricken out , as immaterial; subsequently defendant demurred to the complaint on the ground that it was defective in not containing the allegations which had been stricken out, which demurrer was overruled by the Special Term, on the ground that defendant was estopped from alleging the materiality of that which had been stricken out. Held, that the order overruling the demurrer should be reversed,with costs to abide the event, and that plaintiff have leave to amend the complaint.</p>

<p>Appeal from an order sustaining a demurrer to the plaintiff’s complaint, asking that her judgment against the defendant, Baker Van Voorhis, he satisfied out of certain income of a trust estate held for the benefit of Van Voorhis, which income was not necessary for his support.</p>

<p>Mne for contempt — counsel fee cannot be included in — effect of including it in commitment — Habeas corpus.</p> <p>Where the court, in pursuance of 8 Bevised Statutes (5th ed.), 853, section 21, imposes a fine upon one who has been guilty of a contempt, it has no authority to include therein an allowance for counsel fees.</p> <p>The respondent, having been duly adjudged guilty of contempt in conveying certain real estate in violation of an injunction, was committed until he should pay a fine consisting of the value of the property so conveyed, the costs and expenses of the proceeding, and a counsel fee of $150. Subsequently he was discharged in proceedings on habeas corpus, on the ground that the unauthorized addition of the counsel fee to the fine authorized by the statute, rendered the commitment void. Upon a certiorari to review these proceedings, held, that though so much of the commitment as required him to pay the counsel fee was unauthorized, yet, until the respondent paid the sums legally adjudged against him, he was lawfully held in custody under the commitment; and that the order discharging him should be reversed, and he be remanded to the custody of the sheriff.</p> <p>If the respondent desired to review the order of commitment, he should have appealed therefrom.</p>

Appeal by the Mayor, etc., of the city of New York, from an order vacating an assessment made upon two lots owned by the petitioner, for the expenses of repaving Fortieth street, between Third and Madison avenues. •

<p>Answer — denials in — when sufficient— Code, § 149.</p> <p>Where defendants in their ánswcr “ say that they have no knowledge or information sufficient to form a belief,” etc., and “ aver the truth to be that they are entirely ignorant and uninformed, and have not any knowledge or information sufficient to form a belief,” etc., the answer is sufficient in form to put in issue the facts so denied.</p>

<p>Appeal from orders vacating assessments made upon tbe petitioners’ property for tbe expenses of paving certain streets in tbe city of New York.</p>

<p> Pleading. </p> <p>In an action on a bond, the complaint alleged that, by the terms of the bond, damages for the breach of the contract referred to in it were duly liquidated at $5,000. The answer denied each and every allegation in the complaint not admitted. It admitted the execution of a bond, with the condition mentioned in the complaint. Held, that the answer put in issue the allegation of the complaint, that, by the terms of the bond, the'damages were liquidated at $5,000.</p>

■ The defendant claimed that the judgment in this action was erroneously recovered, because the complaint was for a wrongful conversion… Held: that the foundation of the claim made by the plaintiff was an express contract, alleged in direct terms to have been made.between himself and the defendant; and although the • breach of it was alleged in terms characterizing the defendant’s failure to perform, as wrongful, it was still no more than a non-performance of the agreement…

The General Term, in this case, reaffirmed the doctrine laid down in Matter of Peugnet {ante, p. 434), that the certificate of the commissioners, appointed under chapter 580, Laws of 1872, cured any irregularity in the making of the contract; but set aside this assessment on the ground that the commissioners of assessment had omitted from the assessment roll one block, which should have been included therein.

The court found, among other things, that the defendant was in the possession of the lands in question ; the same being annually cultivated and inclosed with other lands owned by the defendant, which he also cultivated and occupied. That neither the plaintiff, nor its grantors had been in possession, or enjoyed any rents or profits, within twenty years preceding the commencement of this action.

The action was brought to foreclose a mortgage, made by Jacob Spies and Effa, bis wife, to Kebecca Smalley, deceased, and duly recorded in Erie eouuty. The plaintiff claims to own the mortgage by gift from Mrs. Smalley in October, 1868. No assignment by the mortgagee to plaintiff was ever made. Mrs. Smalley died July 10th, 1871, leaving a last will in which the defendant Erb was made executor.

The action was brought upon a bond made by the defendant to one Amos B. Collins, and by him assigned to one Jones, and by Jones to the plaintiff. The defenses were, that the bond was without consideration, and that it was usurious.

On September 5th, 1872, the county judge of Steuben county, upon a petition duly presented to him, appointed the defendants Brundage, Ersley and O’Hargan, commissioners, and authorized and directed them to issue bonds of the town of Greenwood to the amount of $30,000, and to invest them or their avails in the stock of the Rochester, Hornellsville and Pine Creek Railroad Company.

This action was brought by the guardian ad litem, of the plaintiff, who is an infant, to recover damages for injuries occasioned by the negligence of the defendant in running a locomotive engine over the plaintiff. The plaintiff, at the time of the injury, was an infant, two and a half years of age, and lived with his parents, at the corner of Philip and Orchard streets, in the western part of the city of Utica, about half a mile southerly from the defendant’s railroad.

<p>Eminent domain — Cemeteries — Legislative discretion.</p> <p>The legislature may lawfully provide for the compulsory taking of land by rural cemetery corporations. Provision for the proper and decent burial of the dead is a public necessity and duty.</p> <p>The legislature is the proper body to determine as to the necessity and fitness of taking private property for public uses, and as to the agency to be employed in so doing.</p>

Motion made pursuant to the provisions of chapter 907 of the Laws of 1869, chapter 507 of the Laws of 1870, aud chapter 925 of the Laws of 1871, for an order of this court requiring the railroad commissioners of the town of Collins, in the county of Erie, to issue the bonds of said town to aid in the construction of the Buffalo and Jamestown'.Railroad, and to fix the terms upon-.which said bonds shall issue. •

The action was brought to recover, under the statute, for the negligent killing of Coral E. Ross, the husband of Kate L. Ross, the plaintiff, who sued as administratrix, etc., of the deceased.

The action is upon a promissory note, given by the defendant for a sewing machine. The note is as follows : “ $60.00 “ Gbeat Yalley, March 25,1873. “ One year from date, for value received, I promise to pay to L. 0. Miller, or bearer, sixty dollars with use. (Signed.) “S, AMANDA DODGE,” The defendant at the time of giving the note was a married woman, living with her husband on a farm owned by him. She had a separate estate, consisting of timber land.

The plaintiff was accustomed to stable his horses in a barn situated within about two feet of the fence beside defendant’s road; the bedding and manure of the horses were thrown out of a window in the barn near the track, and allowed to accumulate during a hot, dry season, from the spring until July twenty-fifth, on which day it was set on fire by a spark from one of defendant’s locomotives.

■ The 'action was brought to recover the value of a barn destroyed by a fire lighted by a spark from one of defendant’s engines.

The action was brought to rtecover 122 shares of stock in the Commercial Bank of Albany, from the defendant Chas. J. Folger, on payment to him of the full amount paid by him, with semi-annual interest, less the dividends received by him; and' also to recover the money thus paid by defendant Folger for said stock, or the avails thereof, from the defendant Lillie G-. Dox, she being the donee of the same.

<p>Appeal from a judgment of tbe County Court of Erie county, reversing a judgment in favor of tbe plaintiff, recovered in a justice’s court.</p> <p>The action was begun by a short summons, as tbe defendants were non-residents of Erie county. On the return day of the summons, tbe defendant, before answering, raised various objections to tbe sufficiency of the affidavit on which tbe summons had been issued, which were overruled by the justice. The affidavit was as follows:</p> <p>ERIE CouNTY, SS. .'</p> <p>Bernhard R. Wende, being duly sworn, says that he has, as he verily believes, a good cause of action against P. W. Bradley and C. A. Canfield, contractors on the New York Central and Hudson river railroad, which cause of action arose upon contract, express or implied ; and deponent further says, that said cause of action is not for the recovery of money collected by them as a public officer, nor for official misconduct, or neglect of duty by them, nor for damages for misconduct, or neglect in any professional employment by them; but according to the provisions of sections 30 and 31 of chapter 300 of Laws of 1831, no warrant can issue against the said P. W. Bradley and C. A. Canfield; that the said Bradley resides in the county of Ontario, and that the said C. A. Canfield resides in the county of Steuben, and that they are non-residents of the county of Erie; and the said Bernhard A. Wende prays a short summons against the said Bradley and C. A. Canfield.</p> <p>BERNHARD A. WENDE.</p> <p>Sworn before me this 30th) day of June, 1874. j</p> <p>WM. RearioK,</p> <p> Justice of the Peace. </p>

The action was brought by the people of the State to enjoin the defendants from obstructing the City Ship Canal, in the city of Buffalo, by a floating elevator.

The action was brought against the defendant, as a common carrier of passengers, to recover damages for alleged negligence.

The action was brought under the “ civil damage act,” so called.

MotioN by defendant for a new trial, under section 268 of the Code. This was an action to have a deed, given by plaintiffs and Truman G. Avery and wife to Stephen G. Austin, dated January 28, 1870, on property, in Buffalo, declared a mortgage, and for redemption. It was tried at the Erie Special Term, in June, 1874, and the relief asked for granted. The defendant moves for a new trial under section .268 of the Code.

Writ of error to the Court of Sessions of Niagara county, to review the judgment of that court on a plea of guilty.

This was an action to recover damages for unlawfully obstructing and turning upon plaintiff, the waters of Tioga river. The Tioga river was declared a public highway in 1813. In 1868 the plaintiff owned a piece of land on the easterly side of the river, which there had a north-easterly course. One Erwin owned a farm on the opposite side of the river.

The case was tried at the Monroe Circuit, in March, 1875. The summons was for relief, and the complaint was as follows: “ The above named plaintiff,5 by Thomas and Dean, his attorneys, complains against Aaron F. Root, defendant in this action, and for a cause of complaint respectfully shows to this court, that on the 29th day of October, 1872, at Brockport, in said county, the said defendant, with intent to deceive and defraud this plaintiff by inducing the said plaintiff to…

Prior to November 15th, 1861, there existed in Eredonia, N. Y., a religious incorporation, organized under the laws of this State, under the name of the Methodist Protestant Church of Fredonia;' and at that date, Laura C. Selleek, being the- owner of certain real estate in Eredonia, conveyed it to said corporation, its successors and assigns.

This case has already been before the General Term upon a former appeal, the decision being reported in 9 Supreme Court (2 Hun), 520.

The court found, among other things, as follows: That Morgan Lewis, being the owner of the farm of land described in the complaint, on the 1st day of February, 1830, did, by an instrument in writing under his hand and seal, duly grant, demise and to farm let the said premises to Angus McMullin, subject to and reserving an annual rent of thirty-six bushels of wheat, to be delivered at Esopus landing, on the Hudson river, on the first day of February in each year (after the…

Appeal by the plaintiff from a judgment entered upon the trial of this action by the court, without a jury. The action was brought to foreclose a lien, filed by the plaintiff, for brick used in the erection .of a building that the defendants; Patrick Daley and Patrick Daley, Jr., had contracted in writing to construct for the defendant Welch, the owner of the land upon which it was to be erected.

<p>Bight of way — how location of may be determined — Patent ambiguity — pa/rol evidence not admissible to explain.</p> <p>In a conveyance of certain land, a right of way was reserved for a portion thereof “from the public highway along the side of suh-lot, No. to the river, not less than feet wide.” Held, that the reservation of the right of way was not void for uncertainty. The parties interested could locate it by agreement, or by acts, conduct and declarations indicating a practical location, accompanied by user from and after the date of the creation of the right of way.</p> <p>Held, further, that parol evidence of prior agreements between the parties, as tc the location of the right of way, was inadmissible, (1) because the ambiguity was patent and therefore could not be explained by parol evidence; (3) because all prior negotiations and contracts were merged in the deed.</p>

The plaintiff alleged in the complaint: . “ First. That he is the owner of lot No. 2 Park avenue, in said city of Albany. “ Second. That defendant constructed a drain leading from High street, through Johnson alley, to plaintiff’s lot, and that the filth and water through said drain is discharged upon plaintiff’s lot, flooding the same and filling the cellar of the dwelling-house on said lot, now occupied by one Thomas Ellison and family, with sewage from the same. “ Third.

<p>Appeal from an order of the County Court of Fulton county, requiring the plaintiff to file security for costs.</p>

<p>Improper joinder of parties plaintiff — remedy for — nonsuit cannot be granted.</p> <p>Where, upon the trial oí an action brought by two plaintiffs to recover for the conversion of a team of oxen, it appeared that each of the plaintiffs owned one of the oxen, held, that a motion for a nonsuit of both of the plaintiffs, on the ground that they had brought a joint action and shown a several interest, was properly denied.</p>

The action was brought against the defendants, as sureties upon an undertaking given upon an appeal to the General Term. The General Term reversed the judgment, but upon a further appeal to the Court of Appeals the judgment at the- General Term was reversed, and that at the Circuit affirmed. The complaint in this action alleged-that judgment had been entered upon the filing of the remittitur’, and that an execution issued thereon had been returned unsatisfied.

This ease came before the General Term upon exceptions by both parties and cross appeals, the plaintiff complaining that the verdict recovered by him (fifty dollars) was too small, and the defendant insisting, first, that the plaintiff was not entitled to recover at all; and, second, that if he had any cause of action, it was but for the recovery of forty-two cents and interest, and that the verdict was excessive.

The action was brought to recover damages occasioned by the discharge of water upon a lot qf the plaintiff from curbs and glitters constructed by the defendant.

This action was brought to recover the amount of a certificate of deposit, of which the following is a copy: “ CERTIFICATE OF DEPOSIT. “No. 20,186.

<p>Corporation —power of, to gum'antee bonds of (¡mother company — estoppel.</p> <p>Tlie defendant, in pursuance of an agreement made with the Boston, Hartford and Erie Railroad Company, guaranteed the payment of the interest of certain bonds issued by the latter company. Subsequently these bonds came into the possession of the defendant, and some of them were by it, for a valuable consideration, sold and transferred to the plaintiffs’ testator. In an action brought to recover interest falling due on such bonds, held, that the defendant, having itself transferred the bonds and received the avails thereof, was estopped from denying its liability upon its guarantee of the coupons.</p>

Appeal by the board of supervisors of Columbia county from an order of the County Court of said county, ordering said board o ' supervisors to refund to the Hudson City Savings Institution the sum of $1,468.20, collected of said institution, for a tax which said court adjudged illegally and improperly assessed and levied, in the year 1873.

The counsel for each party stated in his points that this was an appeal from a judgment. The court accepted this statement and acted upon it, although the papers did not show an appeal. It did appear, however, that the case was tried before the court, a finding had, and a judgment entered on the finding.

Weit of error to the Court of Sessions of the county of Fulton, to review the conviction of the plaintiffs in error of a violation of the excise law. The plaintiffs in error were indicted for a misdemeanor, and were brought to trial. After the evidence was closed, and the court had charged the jury, one of the jurors stated to the court that one of them thought that they had better retire.

The order was granted upon a vei-ified complaint and affidavits. The copy of the complaint served upon the defendant was defective in that the affidavit was not signed and that there was no jurat. The copy of the order of arrest served was defective in not stating the sum in which the defendant was to be held to bail.

This was a writ of certiorari issued under the provisions of the Revised Statutes (2 R. S., 573, § 69), to review the decision of the defendant, Mr. Justice LeasNed, discharging Henry D. Deni-son, brought before him on habeas corpus.

. A short summons was issued in this action upon the following affidavit: Geeene County, ss.

<p>Appeal from an order denying a motion to dissolve a temporary injunction granted in this action, which was brought to set aside a sale of certain premises, under a decree of foreclosure, and to restrain all proceedings thereunder.</p>