Volume 13 — Barbour's New York Supreme Court Reports

This action was brought by the plaintiff, as administratrix of John J. Haring, deceased, to recover damages for an injury sustained by the intestate, by being struck by the engine of the defendants, while he, with another person, was crossing the railroad in a sleigh, on the 2d of February, 1849.

This was an appeal from a decision of the surrogate of the county of Kings, refusing to admit to probate an instrument propounded as the last will and testament of Thomas Lewis, deceased. The will bore date February 2, 1849. The attesting witnesses were William H. Wing and Ferris Tripp, who were both examined before the surrogate. The substance of their testimony is given in the opinion of the court, and need not be repeated here.

This action was brought to restrain the defendants from prostrating a dam across Onondaga creek, owned by the plaintiffs, and by which their mills were supplied with water; the defendants having declared the dam to be a nuisance, and directed the same to be abated by the owners, and in case of their default, by the street commissioner. The cause came before the court upon an appeal from the judgment at special term, overruling a demurrer to the complaint.

This was an action upon a promissory note, and was tried before Justice Monson and a jury, at the Otsego circuit. The issue was upon the genuineness of the note.

This action was brought against the defendant Orrin W. Titus, together with Francis P. Viele and Robert Titus, as the makers and indorser of a promisory note. Viele suffered judgment by default, and judgment passed in favor of the indorser Robert Titus, and against the defendant as one of the makers, upon the report of a referee. The defendant appealed from the judgment against him to this court.

The plaintiff brought this action to recover dower, as the widow of Henry Elwood deceased, in certain lands in Herkimer county. The action was referred by stipulation to a sole referee, upon whose report, judgment was perfected in favor of the plaintiff.

This case will be found reported in 5 Denio, 497. The judgment of the court, there reported, was affirmed by the court of appeals, and the action was tried a second time at the Jefferson circuit, without a jury. The evidence upon the last trial was in part the same as before.

Demurrer to answer. The complaint alledged that on the 23d of January, 1852, the defendant made his promissory note, of that date, by which he promised to pay J. Watson Williams on order, on the 1st day of February then next, $515 at the Bank of the State of New-York, for value received; that Williams indorsed such note and the plaintiff was the lawful holder and owner thereof, for a valuable consideration, and that no part had been paid.

On the 21st of July, 1847, the relator entered into contracts with the canal commissioners for the construction of three sections of the Black river canal and the dam across the Black river.

This action was brought to set aside a deed executed by. the defendant Emperor to the defendant Owen Sheridan, on the 7th of August, 1848.

Motion by the defendant for a new trial, upon a bill of exceptions.

This action was brought for the wrongful conversion of a plow and 50 pounds of sole leather, the property of the plaintiff, in April, 1850.

This was an appeal from a judgment of the Saratoga county court. The plaintiff sued the defendants in a justice’s court. The summons was returned by the constable personally served on the defendant Waterbury. There was no return as to Jordan, the other defendant.

This action was brought for the recovery of the possession of real property situated in the county of Saratoga, by the plaintiffs as some of the heirs at law of Dutee Ballou deceased. The defendant set up as a defense, the will of Dutee Ballou, and claimed as devisee under it. The clauses in the will, under which it was claimed the devise was to be sustained, were as follows: “ First.

This action was brought to foreclose a mortgage. The -facts on the part of the plaintiffs were, that on the 24th day of November, 1847, the defendant, Charles F. Gross, executed to the plaintiffs a bond in the penalty of $28,000, conditioned to pay $14,000 in ten years, with annual interest, and $200 of the principal on the first day of April in each year; and at the same time he executed to the plaintiffs a mortgage with a like condition, as collateral security for the…

This action was commenced upon an agreement made by and between the parties, on the 13th day of February, 1849, in which it was recited that by an indenture bearing date the 20th day of July, in the year 1797, George Clarke, the father of the plaintiff, demised to John Woolsey a certain farm in the county of Montgomery, known as farm number 15 in lot 19, in Corry’s patent, in the town of Charlestown, and that the plaintiff as the devisee of his said father, was then the…

This was a motion to set aside a verdict in favor of the plaintiffs, rendered at the Rensselaer circuit in December, 1849; held by the Hon. I. Harris, one of the justices of this court. The declaration contained counts for goods sold and delivered to one Addison Buck, to he sold in the store of the defendants, on an agreement that he might take money of the defendants, and pay therefor.

<p>W. & O. gave a note dated April 7th, 1849, payable in one year to the defendant or order, which was indorsed by him. In October, 1849, W. & 0. failed and made an assignment to the defendant and another person of all their property, for the benefit of creditors; this note being placed among those of the first class. The property assigned was not sufficient to pay all of the first class. At the time)of the trial, the matter was in litigation, other creditors having obtained dn injunction against the assignees to prevent their paying over the avails of the assigned property, alledging that the assignment was void. On the 9th day of April, 1850, the defendant told the plaintiff, that on the 12th or 18th day of April he would pay and take up the note. On the 15th of April an attempt was made to demand the note of the makers, (who were,, absent,) and notice of non-payment was given to the defendant. The defendant was the clerk of W. & 0. at the time the note was given, and up to the time they failed. Held, that the defendant was liable upon the note.</p> <p>Where the necessary steps to .fix an indorser are prevented by some act of the latter, which puts the holder off his guard, demand and notice of dishonor will be excused.</p> <p>An unconditional promise, with full knowledge of all the facts, is a waiver of demand and notice.</p> <p>If an indorser make an express promise to pay, demand and notice will he presumed. But this presumption, it seems, will be rebutted by proof that demand was made and notice given five days too late.</p> <p>It seems, an assignment of all the property of the maker to the indorser; or of .sufficient to pay the note, and for that purpose, dispenses with demand "and notice. Though the rule would appear to be different, in case of an assignment to trustees for that purpose-, or of a judgment as indemnity; or an indemnity by way of.lien; or a counterbond, without express promise.</p> <p>An indorser who has received an assignment of property, but not sufficient to pay the note, may insist upon demand and notice of dishonor; but, in most cases, he may be liable pro tanto as trustee, though" discharged as indorser. The insolvency of the maker does not excuse demand, and notice to the indorser. But demand is unnecessary if the maker abscond.</p>

This was an appeal from the appraisal and report of commissioners, appointed pursuant, to the 15th section of the general railroad act. (a) The commissioners awarded to the defendant $850 for one acre and forty-five hundredths of an acre of land, taken by the plaintiffs for the use of their road. The report having been confirmed, the plaintiffs appealed, in pursuance of the provisions of the 18th section of the act.(b) The appeal was heard at a, general term, at Albany.

Demurrer to plea. The action was covenant, upon a lease; the breach assigned being the non-payment of rent.

<p>The order in which proof shall he received, on atrial, is in the discretion of the judge, and his decision cannot he reviewed on error or appeal.</p> <p>A suit cannot properly he discontinued, after the defendant has appeared, except by the payment or tender of the defendant’s costs, and the service of notice of discontinuance.</p> <p>After a defendant has put in an answer, setting up the pendency of a former action between the parties, for the same cause, and the plaintiff has replied, alledging that the former action had been discontinued prior to the commencement of the suit, it is erroneous for the judge, after the trial of that issue, to allow the plaintiff to enter a rule mmc pro tunc, for the discontinuance of the former action, and upon the same being entered and the costs tendered, to overrule the defense of a former suit pending. Parker, P. J. dissented.</p> <p>Such an order is not authorized by sections 173 and 176 of the code.</p> <p>In an action for breach of a marriage promise, the loss of the plaintiff’s health is not the direct, natural, and necessary consequence of a breach of the contract; and proof thereof is inadmissible, unless such damages are specially claimed in the complaint. Parker, P. J, dissented.</p>

This was an appeal by the plaintiffs from a decision made at a special term, on demurrer. The case at special term is reported ante, page 63, where the facts are fully set forth.(a)

The relator stated that having provided himself with a public office in the city of Albany wherein to carry on the business of booking emigrant passengers, &c. he did, on the 13th of May, make application to the defendant for a license, pursuant to the 7th section of the act for the protection of emigrants arriving in the state of New-York, passed April 11, 1848; that he tendered to him the sum of $25, and a satisfactory bond, as required by the act; that, although the…

Demurrer to complaint. The action was commenced under the statute of 1847, regulating state prison labor. Its object was to restrain within statutory limits the manufacture of saws in the state prison at Sing Sing. The plaintiffs sued on their own behalf, as well as on behalf of all others, journeymen saw-makers, or saw-makers, having an interest in common with them, and who should come in and contribute to the expenses of the suit.

This was an appeal by the defendant from a judgment entered against him at special term, upon the verdict of a jury. The action was brought for slander, in charging the plaintiff with keeping a bawdy house, or house of ill-fame. The defendant, by his answer, denied the uttering of the slanderous words alledged in the complaint.

This action was brought to recover a balance claimed to be due from the defendants on an alledged loan by one Cornelius J. Rose, to them, which demand the plaintiff alledged had been assigned to him.

This was an appeal by the defendants from a judgment entered at a special term, overruling a demurrer to the complaint. The action was originally brought by the respondents against the insurers, the appellants, to recover a sum of money, on the following state of facts: the appellants, in the year 1848, insured the steam propeller Ontario, then navigating the river St. Lawrence and the lakes, from Ontario to Michigan.

This was an appeal from a judgment of the Monroe county court. The action was commenced before a justice of the peace. It was brought against the defendants, as common carriers, to recover the value of a quantity of garden seeds delivered to them by the plaintiff, to'be carried from-Rochester to Brockville, Canada West, and which they failed to deliver.

In Equity. This was an appeal by the plaintiffs from a judgment of nonsuit, entered upon the report of a referee. The action was brought by the plaintiffs, Andrew Wilson, Abraham Wilson and David Dunlap, as executors of Joseph Wilson, deceased, under the circumstances, and to obtain the relief hereinafter mentioned.

Motion by the defendant to set aside the report of a referee. Held: and still holds possession under the same title, to wit, the Ryerss and Wilber deeds, and in hostility to Bogert’s title. (B.) That the plaintiff could not recover the costs which the Wheelers were compelled to pay to Bogert, because he was not legally liable to pay them to the Wheelers; and he paid them in his own wrong.

Demurrer to complaint. The action was founded upon a contract of which the following is a copy as set forth'in the complaint. “ We, the undersigned, bind ourselves, so far as it is in our power, to see the following cbntract fulfilled. I, John Gr.

Motion by the defendants for a new trial, upon a case. The action was brought upon a note for $500 made by the defendant Gulick and indorsed by the defendant Clark, on the 18th of October, 1849, payable to the plaintiff or bearer on the 15th of June, 1850. The cause was tried at the Steuben circuit in February, 1851, before Justice Johnson.

Appeal by the defendant from a judgment entered upon the report of a referee. The complaint set up a copartnership between the parties, in the year 1844, for the purpose of buying and selling wool; the purchase of $4000 worth; and a loss of about $800; and prayed for an accounting, and for payment of what might be found due. The answer of the defendant put in issue every allegation of the complaint.

Action for breach, of covenants; commenced prior to the code. Demurrers to pleas and replications.

This was an action of trover, for a quantity of wheat alledged to have belonged to Daniel Cary, the plaintiffs’ testator, and to have come to the possession of the defendants during his life. The declaration contained four counts; in two of which it was alledged that the defendants converted and disposed of said wheat to their own use, during the life of the said Daniel Gary; and in the other two counts, it was alledged that the conversion was after the death of Cary.

Demurrer to replication. The caption of.the declaration was of August 2d, 1847, charging the defendants in trespass, for breaking and entering the close of the plaintiff, alledging that said close was laid out into city lots, situate and being in the city of Rochester in the county of Monroe, setting out the boundariés of said close; and that the said defendants then and there by their agents and servants, with cattle, horses, &c. and with divers carts, wagons, &c. and with…

This action was originally commenced before a justice of the peace of Livingston county, where the plaintiff, the present appellant, recovered judgment. The defendant, the present respondent, appealed to the county court of Livingston county, and upon trial in that court, judgment of nonsuit was granted, with costs against the plaintiff; from which he appealed to this court.

Henry Covey, the appellant, commenced an action against the respondent, Jacob Moggie, in the Livingston county court, by the issuing and service of a capias ad respondendum, under the law of 1847, known as the judiciary act. The capias was issued the fifth day of August, 1848, and served the ninth of the. Same month.

Appeal by the defendant from an order of the county judge of Livingston county. On the 28th day of January, 1850, Peter Caton, the respondent, recovered a judgment against the appellant, before a justice of the peace of Livingston county, for $26,18 damages, and 52 cents costs, in an action arising on contract. A transcript was filed in the county clerk’s office of Livingston county, and judgment docketed therein July 20th, 1850.

This suit was commenced prior to the code of procedure. The declaration was against the defendant Sanford as maker, and the defendants Pettit and Johnson as indorsers, upon a note in words and figures following: “ Palmyra, January 3d, 1848. “ Thirty days from date I promise to pay to the order of J. C. Pettit, one thousand dollars, payable at the Farmers’ Bank of the city of Troy, for value received. J. L. Sanford.” (Indorsed) “ J. G. Pettit.

This was an action brought by Parsons, the respondent, to recover from Monteath & Hazard, the appellants, as common carriers, the value of certain goods belonging to the respondent. After the issue was joined between the parties, the action was referred to the Hon. F. Whittlesey as sole referee, who made a special report in favor of the plaintiff, upon which judgment was accordingly entered at special term.

Action against the appellants as common carriers, to recover the value of a quantity of merchandise belonging to the respondent. The goods in question were received by the appellants at the city of New-York, on the 14th and 15th days of .August, 1848, to be carried by them to the city of Albany, and there . delivered to one Adams, the agent, at the latter place, of the Rochester City Line of canal boats.

This was an action of assumpsit, tried before the Hon. N. Dayton, circuit judge, at the Erie county circuit, on the 19th day of June, 1846. The plaintiffs proved the signature of the defendant to, and the indorsement by John W. Stewart, of the following note, and read the same in evidence, viz.: “ $592,í^o- Sixty-three days after date, I promise to pay to the order of J. W. Stewart, at the Mechanics’ Bank, of Buffalo, five hundred ninety-two dollars, for value received.

Appeal by the defendants from a judgment entered at a special term of the court. The complaint was served November 20th, 1848.

This was an action under the code, to recover the possession of personal property alledged to have heen taken by the defendant from the plaintiff. The answer admitted the possession, of the goods in question, in the defendant, and denied property in the plaintiff.

Appeal by the defendants from a judgment of the Saratoga county court. The suit was commenced before a justice of the peace to recover the value of a hog, thrown off a bridge, in the village of Waterford, by the engine of the defendants and killed.

Margaret Faure, the plaintiff, by her son John R. Faure, as her agent, and for her benefit, on the 11th day of September, 1846, entered into an article of agreement under seal, with the defendant, Catharine Martin, of Red Hook, Dutchess county, widow of Jacob Martin, deceased, and general guardian of Beattie Martin, child and sole heir of the said Jacob Martin, in and by which said' Catharine Martin agreed to sell the farm of land in her possession, and whereon she then…

This was an appeal by the defendants from an order made at a special term of the court, directing a peremptory mandamus to issue.

<p>Appeal from an order made at a special term, denying a motion to set aside warrants of attachment in several suits against an absconding debtor, by a creditor whose suit was last commenced, and in whose favor a warrant of attachment was also issued.</p>

This was an appeal by the plaintiff from a judgment rendered at a special term, in favor of the defendants.

The complaint in this action was in the nature of a bill in equity. It stated that in the month of December, 1849, Henry Crippen was duly appointed by the county court of Saratoga county, a committee of the person and estate of Almon Crippen, he, the said Almon then and there being a lunatic, and having been previously adjudged a lunatic, by and under the direction of said court in due form of law.

This was a motion by the People, on the relation of Andrew J. Yates, for a peremptory mandamus, to be directed to' the Canal Board, commanding them to act, and approve or disapprove of the contracts awarded to, and made with, the relator, as stated in the affidavit on which the motion was founded; and to approve or disapprove of the terms upon which, and the manner in which, the hoard of canal commissioners, state engineer and surveyor and division engineer had contracted…

This was an appeal from an .order made at a special term. The matter came before the special term upon the petition of David Evans, of London, warehouseman, transacting business under the name and firm of David Evans &.

In Equity.] This was an appeal by the defendants from an order or decree made by the vice chancellor of the first circuit, on the 2d day of July, 1847. The case before the vice chancellor is reported in 4 Sandford’s Chancery Reports, p. 623, where the facts are fully stated.

This action was commenced before a justice of the peace,of the county of Montgomery in May, 1848, and tried by a jury on the 25th day of July following. The pleadings were framed before the code of 1848 took effect. The declaration contained three counts.

This action was commenced in a justice’s court, in June, 1849. The complaint contained two counts. The first charged that the defendants, by their agents, with an engine and locomotive on their railroad, negligently and unlawfully ran against or over a certain cow of the plaintiff, and so injured her as to render her of no value, to the plaintiff’s damage of fifty dollars.

This action was commenced in 1842, and was brought upon an indebitatus assumpsit, to recover for the board, lodging, washing, doctoring and schooling of Harriet, the infant daughter of John Chilcott, the defendant’s testator, by the plaintiff, before the death of the testator, done and performed at his special instance and request.

In Equity.] The plaintiffs filed their bill in 1844, in the late, court of chancery, before the chancellor, and the cause was transferred to the supreme court by force of the constitution of 1846, and the judiciary act of 1847.

This action was brought to recover real property, with damages for withholding the same. The facts of the case were these: In October, 1843, the plaintiff applied to George D. Ferguson for a loan of $1100, and on the 25th day of that month he gave his bond to the said George D. Ferguson, in the penalty of $2200, conditioned to pay $1100, in one year from the date, with the interest thereon payable semi-annually.

This suit was brought in a justice’s court, to recover upon a promissory note. Issue was joined on the 17th of November, 1849. The defendant’s answer denied the complaint and set up various matters in bar of the demand. The defendant procured an adjournment of the cause until the 1st of December then next, when the parties appeared, and the cause was again adjourned, on the defendant’s motion, until the 14th of February, 1850, when the parties again appeared.

This action was brought against the defendants, as partners, to recover damages for non-performance of a special contract for carrying wheat on the canal. The defendants, among other things, alledged that Richard H. Pattison, at the time of making the contract, was a copartner with them, and was and still is jointly interested with them in the contract. The plaintiffs replied that Pattison was an infant, to which the defendants demurred.

<p>This was an action of assumpsit brought to recover on a guaranty; it was tried at the Rensselaer circuit before Justice Harris, in December, 1849. On the trial the plaintiff produced papers of which the following are copies :</p> <p>“ $117,34. One day after date, I promise to pay David Horton or bearer, one hundred and seventeen dollars and thirty-four cents with use, value received. Troy, September 26, 1838.</p> <p>David Gleason.’"</p> <p>“ Pittstown, August 19, 1839. I have this day conveyed a note to John E. Spicer against David Gleason for $117,39 cents, dated September 26th, 1848, which note I hold myself accountable for the payment thereof, on condition the said John E. Spicer uses proper exertion to collect the same.</p> <p>David Horton.”</p> <p>The plaintiff then called the defendant as a witness, who proved that on the 19th of August, 1839, he bought from the plaintiff a note made by William Lawton and Iram Manchester for $500, and paid the plaintiff in part by this note against Gleason and part in money, and that at the time he conveyed this note to the plaintiff he executed to him the above guaranty. The evidence of the consideration of the guaranty was objected to by the defendant’s counsel as incompetent and inadmissible. The note and guaranty were then read in evidence.</p> <p>The plaintiff then introduced evidence tending to show that Gleason was largely indebted and insolvent, and that he died insolvent about the middle of November, 1839. One of the witnesses however stated on cross-examination, that Gleason had from $150 to $200 worth of furniture exempt from execution.</p> <p>The plaintiff rested, and the defendant’s counsel moved for a nonsuit on the following grounds, 1st. Because the instrument in writing, given in evidence by the plaintiff, dated August 19th, 1839, was variant from the instrument described in the declaration, in that the plaintiff, in his declaration, alledged that the defendant promised to guaranty the payment of the note; whereas the instrument proved, only contained an agreement on the part of the defendant to hold himself accountable, on condition that the plaintiff should use proper exertions to collect the note; and because, in the plaintiff’s declaration, the consideration of the defendant’s promise was averred to be the payment, by the plaintiff to the defendant, of the sum of one hundred and twenty-four dollars and seventy cents; whereas, by the evidence it appeared that the consideration of the promise was the promissory note of Lawton and Manchester, sold by the plaintiff to the defendant. 2d. Because the instrument was a collateral undertaking for the debt, default or miscarriage of Gleason, a third person, and was void, because it expressed no consideration. 3d. Because the instrument was only a guaranty of collection, and was void; no consideration being expressed on its face. 4th. Because nothing short of a prosecution of a suit upon the Gleason note, with due diligence, and a failure to collect by execution, duly issued, would be a compliance with the condition of the guaranty; and, further, that it had not been shown by the plaintiff that, no proper exertion would have resulted in the collection of the Gleason note. 5th. Because it appeared from the proof that Gleason had, at the time of his death, property enough, not exempt from execution, to pay the note, there being plenty of time between the 19th of August, 1839, and the death of Gleason in November, 1839, to obtain judgment and execution. 6th. Because the testimony of Norton in relation to the sale of the note and the consideration of the sale, being excluded, as it should be, the proof of the consideration of the plaintiff’s promise fell to the ground, and the plaintiff’s cause of action declared upon, failed. 7th. The defendant having sold the Gleason note to the plaintiff without fraud or misrepresentation, and none being pretended or shown, the plaintiff could not recover the price paid for the Gleason note.</p> <p>The judge said that in his opinion the guaranty in question expressed the consideration upon which it was given; but as it was conceded by the counsel that the late supreme court held otherwise, when this case was before them on demurrer, in January, 1848, he should so hold, and accordingly directed a non-suit, to which the plaintiff excepted.</p>

This was an action of ejectment, tried at the Ulster circuit, before Justice Harris, in May, 1851. The plaintiff claimed by virtue of a devise in the will of his father, Henry De Witt, executed 2d May, 1887. The testator died May 7,1850. The defendants claimed under a deed from Henry De Witt to John H. De Witt, dated 18th June, 1849, and proved a deed from John H. De Witt and wife to one of the defendants, dated 12th December, 1849.

This was a motion by the defendant for a new trial, upon a bill of exceptions taken at the second trial of the cause, before the Hon. H. P. Edwards, at the Hew-York circuit in November, 1850. The facts are fully stated in the report of the case in the court of appeals, on error to the supreme court, after the first trial. (1 Comst. 392.) The evidence was substantially the same as on the former trial.

<p>A trust estate, being incumbered by a valid mortgage, upon which a decree of foreclosure had been obtained, the trustees effected a loan, from a corporation, for the security of which the mortgage and decree were assigned to the lender who paid the mortgagee’s demand. The mortgage was not discharged, but was kept on foot, for the benefit of the lender. The loan was usurious, and was illegal, as being contrary to the charter of the corporation. Meld that notwithstanding the usury and illegality of the loan, the mortgage and decree remained valid, and were neither extinguished nor merged, but were unaffected by the usury and illegality of the contract upon which they were assigned.</p> <p>Meld also, that the trustees could waive the usury and the illegality, for the benefit of the estate; and that having procured a transfer of the mortgage and decree, from the corporation, they could enforce the same.</p> <p>Held further, that a purchaser of the mortgaged premises who, before such transfer, had acquired, by judicial sale, the equity of redemption, including the title of the trust estate, could not alledge the usury or illegality in the loan from the corporation, to defeat the lien of the mortgage and decree.</p> <p>One who purchases subject to an outstanding mortgage, is precluded from sotting up its invalidity in the hands of its owners, on any ground then existing.</p> <p>Where two.tenants in common of lands subject to an old mortgage, had become involved in perplexing claims and counter-claims, and a litigation between them had ensued, in which their joint interests were ordered to be sold, and the same were sold to a stranger; it was held that one of such co-tenants was at liberty to purchase and hold the old mortgage, for his own benefit, exclusively; and that he might enforce it for its whole amount, although he bought it at a discount.</p> <p>S. owning a lot of land, granted to R. an adjoining lot, with the right to use for a paper mill, water conveyed in a race-way across the lot of S.; R. covenanting that the water should be used for no other purpose. Held that the owner of the R. lot could not convert the paper mill into a cotton mitt, and still retain the easement; but that a purchaser of S.’s lot under a mortgage foreclosure, could restrain him to the use of the water for a paper mill only.</p> <p>On giving a mortgage, bearing interest, for part of an advance of money, the lender took from the borrower an agreement to pay to the broker an annual sum equal to about seven per cent, on the whole advance, until the latter was paid up; calling the annuity a compensation for brokerage, &c. Held that the mortgage was usurious.</p>

<p>The corporation of the city of New-York has no power to make a contract with a particular individual for the building of a market, without advertising for proposals, and without making it through the head of one of the departments. Mitchell, J. dissented.</p> <p>A contract entered into in pursuance of a resolution of the common council, where there has been no other order directing an advertisement for proposals than by a resolution passed by the board of alderman only, is invalid. The power of the courts to control the action of a municipal corporation is not limited to those cases where the corporation is a trustee for an individual, or a class of persons, in respect to a fund or other property in which such individual or class has a peculiar and personal interest, not common to all the corporators.</p> <p>When an act is clearly illegal, and where the necessary effects of such act will be to injure, or impose a burthen upon the property of any corporator, there is enough to warrant the interference of the court.</p>

<p>Under the 10th section of the 1st article of the constitution, and the 22d section of the article of the revised statutes respecting “ raffling and lotteries,” it is unlawful for any one to set up, or propose, that is, to hold forth to others that he has, or will have, any articles, although they be works of art, which are to be distributed by lot or chance to any person who, before the distribution, shall have paid any money for the chance of obtaining such articles.</p> <p>Accordingly, where, by the constitution of the American Art Union, the society was to purchase such works of art as the state of the treasury would warrant, which, at the annual meeting in December, were to become, by lot, the property of the individual members, each member being entitled to one chance, or share, in such distribution, for each $5 by him subscribed and paid, the. method in which the distribution was to be made being particularly prescribed in its by-laws; and the society published its plan, showing that for the payment of $5 any person would become a subscriber, and entitled to an engraving, to a copy, of the Bulletin of their proceedings, and to the chance of one of a number of paintings to be “ distributed by lot among the members, each member having one share for every $5 paid by him;” Meld that the mode of distribution adopted by the Art Union was illegal and unconstitutional. Edwards, P. J. dissented.</p>

This was an appeal by the defendants from an order made at a special term, granting an injunction to restrain the collection of a judgment, out of the plaintiff’s property.

This was an appeal by the plaintiff from a judgment of the Tioga county court. The cause was commenced before a justice of the peace, to recover from the defendants the value of two cows and a heifer, which were alledged to have been killed by the careless, negligent and improper conduct of the defendants, by their agents and servants.

Motion to set aside the report of a referee. It appeared from, the proof that in 1850 two persons being paupers of the town of Pharsalia, Chenango county, were found in the town of Norwich in said county, under circumstances requiring relief as such paupers; The overseer of the poor of Norwich gave notice in writing to the defendant, requiring him as overseer of the poor of Pharsalia to provide for the relief and support of said paupers.

<p>It was not the intention of the non-imprisonment act to give to the creditor upon whose complaint a debtor is arrested, under its provisions, the benefit of the assignment which the debtor may elect to make, to the exclusion of all other creditors of the same degree.</p> <p>The legislature, having abolished the remedy by arrest and imprisonment, as to a certain class of creditors, intended the new remedy as a substitute; and in case it resulted in an assignment, that all the creditors whose right to arrest and imprison had been abolished, and who had instituted a suit or recovered a judgment or decree should share in the distribution of the debtor’s property. Mullett, J. dissented.</p> <p>Consequently a judgment creditor, who makes a demand upon his debtor, to apply rights in action to the payment of his debt, and upon the debtor’s refusal applies for and obtains a warrant to arrest him, before other judgment creditors have taken similar steps, does not thereby acquire a right to have his whole debt first paid. But the debtor’s property in the hands of the assignee is to be distributed among all the creditors who have instituted a suit or recovered a judgment or decree, pro rata. Mullett, J. dissented.</p>

<p>Motion for a new trial. The opinion of the court states the. question upon which the motion was founded.</p>

The plaintiffs, as overseers of the poor of the town of Delhi, Delaware county, sued the defendant, before a justice of the peace, under section 1 of article 1, title 8, chapter 20, part 1, of the revised statutes, entitled “ Of jugglers, and the exhibition of shows, &c.” (1 R. S. 660.) The plaintiffs recovered a judgment for the penalty of $25, and on appeal to the county court the judgment of the justice was affirmed. The defendant thereupon appealed to this court.

<p>Motion by the defendant for a new trial. The action was trover, by a mortgagee of personal property, against the mortgagor, for the conversion of the mortgaged property. The facts are stated in the opinion of the court.</p>

The defendant was intrusted by the plaintiff with a note against a third person, to collect for the plaintiff. He received the money, in 1828, and on being called on for the money, in 1850, he denied having received it. This action being commenced in 1850, he relied on the statute of limitations as a bar. The plaintiff was nonsuited, at the trial, on that defense, and he appealed to this court.,

This action was commenced in a justice’s court, to recover the sum of forty dollars and interest, alledged to be due and owing from the defendant to the plaintiff. The defendant was a resident of Madison county, and the action was commenced by a short summons, before a justice in Chenango county.

This was an action to recover the amount of three bills of exchange, on the ground that the defendants as agents of the plaintiffs, the holders of the bills, neglected to give notice of non-acccptance. The bills were discounted by the plaintiffs in regular course of business, and forwarded to the defendants, their correspondents in New-York, for collection, The drawee resided there. The following is a copy of one of the bills: “$5000. Utica, January 20, 1851.

This was a motion by the defendants, Bentley and Jones, for a new trial upon a case.. The cause was tried at the Dutchess circuit, in December, 1851, before Justice Morse. The action was brought to recover the value of personal property alledged to have been fraudulently obtained from the plaintiffs, by the defendant Bentley, on or about December 22,1849, at their manufactory at Matteawan, in Dutchess county.

This was a motion by the plaintiff to continue an injunction until the final hearing. The grounds of the application, as contained in the complaint, are set forth in the opinion of the court.

This action was founded upon an award of arbitrators. The defendants were general partners, in the manufacture of car wheels, &c. under the firm name of “ Higham & Co.” Higham was the acting member, the other partners composed another firm and were engaged in business in another part of the city of Utica. The submission was by simple agreement executed by Higham in the name of the firm.

The action was for slander, and was tried at the Erie circuit, in June, 1852. The judge, in his charge, in commenting upon the amount of damages, among other things, instructed the jury “that they had a right to take into consideration the fact that the plaintiff had been compelled to come into court in order to vindicate her character.” To this part of the charge the defendant excepted. Verdict for the plaintiff.