Volume 13 — New York Supreme Court Reports

The defendant was arrested on a charge of wrongfully converting to her own use $20,000 in gold certificates, the property of the plaintiffs. The affidavit of one Leslie showed that, while a clerk in the employ of the plaintiff, he, at the instigation of the defendant, wrongfully took the gold certificates from his employers and gave the same to the defendant, who had converted and concealed the same.

<p>Action for libel — statement of plaintiff— injury to feelings— damages.</p> <p>In this action, brought for the publication of an alleged libel, the answer set up certain mitigating circumstances, and denied that there was any malice on the part of the defendant, or any injury sustained by the plaintiff. Upon the trial defendant offered to prove a conversation between its general manager and the plaintiff, in which the latter stated that he had sustained no damage; that he was quite ready to withdraw the suit, as he had not been injured at all; and that he would have withdrawn it, were it not for his lawyers, who had taken the case for what they could get out of it; which conversation was, upon plaintiff’s objection, excluded. Held, that the conversation was admissible to show the plaintiff’s own estimate of the damages he had sustained.</p> <p>The action of libel can only be maintained upon the ground of injury to the character and reputation; an injury to the feelings is not enough.</p>

<p>Common council of New York — power of, to make lease — who to sign— Comptroller to indorse thereon a certificate that there is a sufficient appropriation to pay the amount to fall due in the current fiscal yea/r.</p> <p>Under the charter of the city of New York of 1873 (chap. 335 of 1873), it is not a part of the duties of the comptroller to execute leases on behalf of the city, and the common council cannot impose that duty as a compulsory one upon him.</p> <p>No lease executed in pursuance of the directions of the common council is of any force or effect until the comptroller, in pursuance of section 29 of the charter, indorses thereon a certificate that there remains unexpended and unapplied a balance of the appropriation applicable to the payment of rent upon leases, sufficient to pay the installments accruing during the current fiscal year, as they are certified to him by the officer making the contract. The certificate is not required to include the rent for the entire period of the term of the lease.</p> <p>The appeal in the first case is from a judgment sustaining a demurrer to the appellant’s return to an alternative mandamus, and in the second, from an order quashing the appellant’s return to an alternative mandamus.</p> <p>Each of these applications was for an alternative mandamus requiring the comptroller to execute leases of certain property in the city of New York, in pursuance of resolutions to that effect passed by the common council. The comptroller refused to execute them, on the ground that there was no money in his hands applicable to the payment of the rents to fall due under them.</p>

The action was brought on an “ undertaking on appeal from a judgment directing the payment of money,” which was made and filed by the defendant and his co-defendant, in the month of May, 1874. The plaintiff’s complaint contained a full statement of the facts ' constituting the cause of action; a full description of the “ undertaking on appeal,” and of the justification of the defendant, and a copy thereof was annexed to the complaint, and formed a part thereof.

Waterbury as tenants in common. A question arose on the trial as to the admissibility in evidence of a letter written to Waterbury, in which the purchaser consented to carry out the contract in pursuance of the agreement, to the bearer of which letter Waterbury said: “ No answer; it is all right.”

<p>Appeal from a 'judgment of the Special Term, overruling a demurrer to the complaint.</p>

Motion to dismiss an appeal taken from so much of an order of the Special Term as granted an extra allowance. The order provided that the plaintiff have leave to discontinue the above entitled action, upon payment to the defendant’s attorney the taxed costs, and the sum of $100, granted as an extra allowance therein.

Appeals from a judgment, entered upon the trial of this action by the court without a jury. Held: nevertheless, for their benefit during their respective minorities by my executors, as trustees in trust to receive the income thereof, and apply the same to the use of such issue respectively, during their respective minorities.

<p>Usury —■ agreement that agent retain $350 as bonus, to be paid his principal — vitiates agreement, though made without knowledge of principal.</p> <p>An agent of the plaintiffs, authorized to loan the sum of $5,000 for them, arranged with the defendant to loan her that sum upon the agreement that he should retain therefrom $150 for his own services, and $350 l'or the plaintiffs as a bonus for the loan. The agent was not authorized to loan the money at a greater rate than seven per cent, nor was any part of the bonus received by the plaintiffs. Held, that the loan was usurious.</p>

<p>Appeal from a judgment of the Special Term, made in an action brought for the construction of the will of Reuben Parsons, deceased.</p> <p>The word “several” here means respective, as was held in Woodstock v. Shillito (6 Sim., 416). The children of each of the four brothers and sisters named in the will, who were living at the time of the testator’s death, took each a vested interest in the share bequeathed or devised to the parent for life, subject to. be divested pro tanto to let in after born issue, if any. (2 Jar. on Wills, 74, 76; Titus v. Weeks, 37 Barb., 136.) The share of-each of these children, in the event of such child dying before its parent, will pass to the personal representative of such child. It will not go over to the survivors. (Everitt v. Everitt, 29 N. Y., 39; Jenkins v. Freyes, 4 Paige, 47; Dingley v. Dingley, 5 Mass., 535; Atty.-Cen. v. Crispin, 1 Br. C. C., 386; Devisme v. Meller, id., 537; Middleton v. Messenger, 5 Yes., 136; Fox v. Fox, 19 Eng. Eq. Cas., 285.) The provisions of the statute forbidding the alienation by a cestui gue trust of his interest in a trust to receive the rents and profits of lands (§ 63, 1 R. S., 730), are not applicable to trusts of personal property. {Kane v. Gott, 24 Wend., 641, 662, Judge Cowen’s opinion ; Arnold v. Gilbert, 5 Barb., 590; Oruger v. Gruger, id., 225; Titus v. WeeJcs, 37 id., 136; Opinion of Denio, J., in Graff v. Bonnett, 31 N. Y., 9.)</p>

<p>Corporation — Section 10 of chapter 40 of 1848 — liability of stockholders undw' — effect of extending time of payment of debt</p> <p>A corporation, created under the act of 1848, being, on the 8th of March, 1867, indebted to the plaintiff in the sum of $39,764.44, it was, on the 4th of August, 1868, agreed that he should accept, in full satisfaction of his debt, the sum of $25,000 in gold, to be paid as follows, viz.: $15,000 in gold coin and $10,000 in the note of the corporation, due January 4,1869. The note not being paid, the plaintiff brought an action thereon, on the 22d of January, 1869, and recovered judgment therein. Subsequently, this action was brought to charge the defend- . ant, as a stockholder of the corporation, on the ground that all the capital stock of the corporation had not been paid in, as required by the act. EelA, that the acceptance of the note did not merge or extinguish the 'original indebtedness, but only operated to extend the time of payment, and that, as the plaintiff had not brought an action against the corporation within one year from the time the original debt became due, viz., March-7,1867, the defendant was not liable.</p> <p>The liability of a stockholder in suplí cases cannot be renewed or extended by any renewal or extension of the indebtedness which the creditor may make with the corporation.</p>

<p>Will— condition — trust.</p> <p>Tlie plaintiffs’ testatrix devised one-half of her estate to her daughter, upon condition that, in anticipation of her marriage, whenever it should take place, all herproperty should be settled upon her for life, with remainder to her issue, or such person as she might appoint by her will; and, “from such marriage, until such settlement, unless it should be made before,” devised the income of the share to her executor in trust to pay over the- net income to her said daughter, with remainder, upon her death, to her issue. After the making of the will the daughter was married with the knowledge and approval of the testatrix, and had issue, but no settlement was ever executed. EM, that, upon the death of the testatrix, the share vested in the executor, as a trustee for the benefit of the daughter during her life, and upon her death, her issue would be entitled to the remainder.</p>

The complaint alleged that the defendants had had in their possession $13,800, an award which had been made to certain owners of property in New Yrork city, these plaintiffs. That the defendants had paid of said award the sum of $11,059.43, leaving $2,740.57 in their hands. The defendant pleaded: first, the six years statute of limitations; second, that the $2,740.57 were retained to pay an assessment theretofore made upon the plaintiffs’ lands and due and payable from them.

<p>Commissioner of public works — Chap. 574 of 1871 — chap. 313, 1874 — Assessment— “frauds”— what a/i'e not.</p> <p>When tlie commissioner of public works, in pursuance of section 5 of chapter 574 of 1871, completes any work, the contract for which has been abandoned by the contractor or forfeited for his misconduct, he is not required to comply with the restrictions and obligations of the general statute relating to the advertising and letting of contracts for public works.</p> <p>Tlie facts that an assessment imposed upon a lot exceeds in amount one-half its valuation by the assessors, and that those making the assessment have adopted an erroneous principle of assessment, do not constitute “ frauds,” but are at most mistakes of law and misapprehension of official duty, and they cannot, under chapter 313 of 1874, be made a ground for vacating the assessment.</p>

The action was brought upon six promissory notes made by the defendant to the order of The Architectural Iron Works, and by it indorsed to the plaintiff.

<p>Order refusing to postpone trial — appeal from — remedy.</p> <p>No appeal lies directly to tlie General Term from an order made at the Circuit refusing- to postpone the trial of a case.</p> <p>Tlie remedy is, in tlie first instance, by non-enumerated motion at Special Term.</p>

This action was brought to recover damages for the alleged conversion of a large amount of personal property.

<p>Statute of limitations — mutual accounts— Gode, § 110 — revival of old, debt by new promise.</p> <p>Accounts are mutual where each party makes charges against the other.</p> <p>Where an executor, in preparing an inventory of the estate, included therein a promissory nolo given by him to the testator, which note was then outlawed: held, that this was a sufficient acknowledgment in writing, within section 110 of the Code, to remove the bar of the statute of limitations.</p> <p>Where an instrument has been executed between persons standing in the relations of parent and child, guardian and ward, physician and patient, or solicitor and client, it rests upon the party seeking to avail himself of the benefit thereof to show it to be fair and just, and that its execution was not procured by fraud or undue influence.</p> <p>If, upon an appeal from a decree of the surrogate, one of the respondents wishes to raise any question between himself and any of the other respondents, he must himself appeal from the decree.</p> <p>Eule 51 only allows a respondent to specify, in his answer, items as to which the decree is erroneous as against him and in favor of the appellant. It does not authorize a review of claims of the appellant against the estate, generally, which have been allowed, or of similar claims of the respondents which have been disallowed.</p>

<p>Bom-d of public instruction of city of W&w York — liability of city upon contract of — TVcurrant for payment of claims— when mandmnus granted.</p> <p>Tlie city of New York is not liable upon a contract for the erection of a schoolhouse, entered into by the board of public instruction, and no action can be maintained against it thereon.</p> <p>Where the board of public instruction wrongfully refuses to draw its warrant for the payment of a claim justly due, the court will, on the application of the party aggrieved, compel the proper officer to draw and deliver such warrant.</p>

This action was brought to recover compensation for services rendered in attending upon the Court of Oyer and Terminer.

Appeal'from an order made on motion at the Special Term setting off a judgment recovered by the defendant against the plaintiff, against one recovered by plaintiff' against the defendant.'

, from parting with or selling, until the final determination of this action, six shares of the capital stock of the Mutual Benefit Ice . Company. Judgment in favor of Dudley against one Shear, was recovered February 10, 1875, and a receiver was appointed thereunder, April 22, 1875. The stock was sold June 30, 1875, by direction of B. C. Lewis & Son, who had received a blank assignment thereof from Shear, as collateral security for a loan to the defendant Gould.

<p>Enfn'ies in books of physician — when books admissible in erñümee.</p> <p>In an action, brought by a physician against the personal representatives of a deceased person, to recover for professional services rendered to the deceased, the diary in which he enters his visits is not admissible in evidence, unless he first proves, that the entries were made by him, that he keeps correct books, and that other debtors have settled with him on the strength of the entries therein contained.</p> <p>Olan'Jce v. Smith (46 Barb., 30) disapproved.</p> <p>Quwre, whether, under section 399 of the Code, a physician can, in such a case, himself prove the correctness of his books, or make any statement in regard to them, as against the representatives of a person deceased.</p> <p>The limit of a cross-examination is in the discretion of the court, and a re-cross-examination on the same subject is purely discretionary, and is the subject of exception only when such discretion is abused.</p>

<p>Appeal from an order of the Special Term, denying a motion to vacate an injunction.</p>

Writ of certiorari to review the right of the relator to the exemption claimed by it from the taxation of its real estate.

<p>Code, § 399 — incompetent evidence — new trial, when granted because of.</p> <p>In an action brought by the payee of a promissory note made by the defendants’ testator, payment was pleaded as a defense. Upon the trial plaintiff having produced the note and proved its execution was asked, and, against the objections and exceptions of the defendants, allowed to answer the question, “Has it ever been paid?” No evidence of payment was given by the defendants. Held, that it was error, under section 399 of the Code, to allow, the plaintiff to answer this question, and that the judgment should be reversed. (Davis, F. J., dissenting.)</p> <p>Where a defendant may have been induced, by the admission of improper evidence, not to offer such evidence as he had to offer in defense, a new trial will be granted, notwithstanding the fact that the evidence given, after rejecting that found to be incompetent, is sufficient to sustain the judgment below.</p>

Writ of error to the Court of General Sessions for the city and county of New York, to review the conviction, of the plaintiff in error, of the crime of grand larceny.

The plaintiffs, who were partners, doing business under the firm of Johnson & Higgins, complained that, between. November 13th, 1867, and November 10th, 1870, they were the owners of a series of bank checks, all payable to their order; that the checks were of the value of their face; that they were stolen from them, and their indorsement forged thereon, and that the checks came to the possession of the defendant who collected them from the bank on which they were drawn.

<p>Appeals from judgments in favor of the plaintiff, recovered upon trials before the court, without a jury.</p>

<p>Interpreter of Disii’ict Oourt of city of New York — officer of court and not of city government — Inspector of elections — acceptance of office of.</p> <p>The position of interpreter of a District Court of the city of New York is an office, and its incumbent is an officer.</p> <p>He is, however, an officer of the court and not of the city government, and the prohibition contained in section 114 of the charter of said city (chap. 335 of 1873) against holding two offices at the same time does not apply to him.</p> <p>As no person can refuse to accept the office of inspector of elections without thereby subjecting himself to a fine, the acceptance of such office cannot be regarded as prohibited by the said section. (Per Brady, J.)</p>

Writ of error to the Court of Oyer and Terminer to review the conviction of the plaintiffs in error of murder. The plaintiff's in error were indicted for murder in the Court of General Sessions for the city and county of New York. Subsequently, and after issue joined, indictment was, against the wishes of the prisoners, transferred to the Court of Oyer and Terminer.

Writ of error to the Court of Oyer and Terminer, to review the convietioh of the plaintiff in error of murder in the first degree.

A judgment in an action to determine the title to an office is evidence against others than the parties to the action. Held: in cases where an officer de facto, without rightful authority, such as a minor, has rendered valid services for a private party, that he cannot recover the fees therefor. (People v. Hopson, 1 Denio, 574, 579.) A person claiming office by appointment from a usurper, can have no greater r-ight or claim than his principal.

<p>This is an appeal by tbe Metropolitan Gas-ligbt Company of the city of New York, from an order of the Special Term, confirming the report of the commissioners appointed by the court to ascertain and determine the compensation to be made to the appellants, for certain real estate taken, by these proceedings.</p> <p>The law is well settled that opinions of witnesses may be taken not only to the value of the land, but how the parcel taken will affect the residue of the contiguous lands of the owner. ( Wood v. Attburn and Rock. R. R., 8 N. Y., 168; Rochester and Syracuse R. R. v. Budlong, 6- How. Pr., 467; MoBurney v. Erie B. B., cited in 6 How. Pr., 467; Troy and Boston B. B. v. Lee, 13 Barb., 169; Boohester and 8. B. B. v. Budlong, 10 How. Pr., 290; Clarh v. Baird, 9 N. Y., 184; Bobertson v. Kip, 35 id., 91; Dewitts. Borly, 17 id., 342; Bondout B. B. v. Deyo, 5 Bans., 298.) When lands are taken from an owner without his consent, “just compensation” to be awarded him is not only the value of the land taken, but also the damages occasioned by the depreciation of the contiguous premises of the owner. The measure of value is not limited to the ordinary use of similar land, but is the value of the parcel for any purpose. (Trustees of College Point v. Dennett, 5 N. Y. S. C., 217.) To such value is to be added the damages for the depreciation of the contiguous premises. (8 N. Y., 168 ; 6 How. Pr., 467; 16 Barb., 273; 10 How. Pr., 290; Albany and 8usg. B. B. v. Dayton, 10 Abb. Pr. [N. S.], 182; Albany and Northern B. B. v. La/nsing, 16 Barb., 68 ; Canand. and Niag. B. B. v. Payne, 16 id., 273; Matter of Utioa, Chenango and Sus. B. B. Co., 56 id., 456.)</p> <p>The opinions of witnesses are properly regarded only as aids toward just conclusions, and not as proofs having a controlling weight. (Boohester and Syracuse B. B. v. Budlong, 6 How. Pr., 470; Troy and Boston B. B. v. Lee, 13 Barb., 169; Troy and Boston B. B. v. N. Turnpihe Co., 16 id., 100.) The market-value of the lands proposed to be taken is rightly the subject of inquiry by the commissioners in this class of proceedings. Whatever additional elements may enter into the determination of damages, such value must, from the nature of things, form the basis of appraisal. (Matter of Fu/rman St/reet, 17 Wend., 649; Matter of WilHa/m and Anthony Streets, 19 Wend., 678; Troy and Boston B. B. v. Lee, 13 Barb., 169; Canandaigua, eto., B. B. v. Payne, 16 id., 275 ; Dayton v. Albany and Susquehanna B. B., 10 Abb. [N. S.], 182; Matter of Utica, Chenango, etc., B. B., 56 Barb., 456; Delaware, eto., B. B. v. Burson, 61 Penn. St., 369; Fleming v. Chicago, D. and M. B. B., 34 Iowa, 353.) An estimate of compensation by commissioners, under the provisions of the general railroad act, does not include allowance for indirect and consequential damages. The effect, of the appropriation of the lands, is to be considered only with regard to the premises which are directly involved in the taking. Compensation for consequential injury to parties whose lands are condemned, growing out of their ownership and use of other separate and distinct property, is not contemplated by the statute. (Canandaigua and Niagara Falls R. R. v. Payne, 16 Barb., 275; Fleming et al. v. Chicago, D. and M. R. R., 84 Iowa, 353.) Any apparent exceptions to the rule will be found to depend upon statutory provisions which enlarge the measure of compensation beyond what is allowed under the railroad law of this State, or upon special clauses in charters providing for consequential damages. (Eng. Railway Clauses Act, 8 and 9 Yict., chap. 20, § 6; Land Clauses Act, id., chap. 18.) Only present values and uses and actual damages can be taken into account in the appraisal of compensation. No allowance is to be made for prospective damages, depending upon the uses, to which it may be proposed to devote the property in the future. Such damages are too remote and contingent to form a ground of award under the statute. (Matter of Furman Street, 17 Wend., 649; Matter of Broadway Widening, 63 Barb., 573; Fleming v. Chicago, D. and M. R. R., 34 Iowa, 353; Somerville and Easton R. R. v. Doughty, 2 Zabr. [N. J.J, 495 ; Canandaigua, etc., R. R. v. Payne, 16 Barb., 271.) The rule is that “ whenever opinions are resorted to, the facts upon which the witness bases his opinions should in all cases be given.” The testimony of experts is governed by the same conditions, for while such testimony is allowable for certain purposes, it must consist of opinions, based upon certain definite facts, and not of conclusions drawn from a general view of the case. (Rochester, etc., R. R. v. Budlong, 10 How. Pr., 289, citing cases; Greenl. on Ev., § 440.)</p>

The deed to defendant, being absolute upon its face, and unaccompanied by a written defeasance, vested the legal title to said premises in defendant. The rights of plaintiff therein were thereafter purely equitable, founded entirely upon parol proof, and enforceable only in a court of equity, in contravention of the strict rules of common law. Such right was merely an equitable right to redeem, unaccompanied by any legal title whatever to the property.

<p>Receiver of corporation — action to recover'unpaid subscriptions — defense to — effect of stockholder acting as trustee —■ estoppel.</p> <p>The plaintiff having been appointed receiver of a corporation in an action brought by the people to procure its dissolution, on the ground of its insolvency, brought this action to recover from the defendant the amount unpaid upon his subscription to the stock of the company. The defendant alleged, that his subscription was made on the faith of representations made to him, at a meeting of the incorporators, that the amount of capital stock required by the charter to be paid in in cash, had been paid in, when, in fact, it had not. Reid, that as the receiver represented the creditors as well as the persons interested in the corporation, these facts constitute no defense to the action.</p> <p>The defendant, after his subscription to the stock of the company, acted as one of its directors, held, that he was thereby estopped from denying its existence, and, as against its creditors, from denying the validity of his subscription.</p>

The action was brought by plaintiff to establish and have declared, its rights in and to the church building on the south side of Fourteenth street, between Third and Fourth avenues, in the city of New York, and also to certain personal property, consisting of carpets, an organ and other furniture in use in said church, of the use and enjoyment whereof the plaintiff had been wrongfully and unlawfully deprived by defendant.

<p>Code, § 899 — services rendered —presumption as to promise to pay for.</p> <p>In an action brought by a physician, to recover for services rendered to defendants’, testator, he was asked whether he treated the testator professionally within the six years next preceding his death. Held, that the question was properly excluded, as inadmissible under section 899 of the Code.</p> <p>Where it appears that for a portion of the services included in the account no charge was intended to be made, it cannot be presumed that it was intended to charge for the others. In this respect, one part of the account cannot be legally distinguished from the other.</p>

<p>Appeal from a judgment rendered in the plaintiff’s favor for |94,255.29, upon tbe report of a referee.</p>

<p>Removal of cause into United States courts — chap. 187 of 1875 (United States statutes).</p> <p>Under the provisions of tie act of Congress (chap. 187 of 1875) providing for the removal of causes into the United States courts, “ before or at the term at which said cause could be first tried, and before the trial thereof,” it is too late to make such application after the cause has been noticed for trial, and placed upon the calendar of the court at a term at which it could be tried, even though it may not have been reached, and even if the trial thereof has been stayed by order, pending the execution and return of a commission.</p> <p>Semble, that, under the aforesaid act, it is not necessary that either of the parties should be a citizen of this State to render the cause a proper one for removal.</p>

<p>Appeal from an order striking out defendant’s answer as frivolous.</p>

Palmer, deceased, and to have such sale cancelled. The will devised the rest and residue of the testator’s real and personal estate to trustees, “in trust, to take, receive and hold all the said rest, residue and remainder of my estate, effects, property and rights of property, during the life of my said wife, Margaret Palmer, to lease or let the real estate so to them devised, and to invest the personal estate and property and the proceeds thereof upon bond and mortgage, on…

<p>Treaty of 1871 between United States and Gee-man empire — jurisdiction of consuls under.</p> <p>Under tlie treaty of 1871, between Ibe United States and the German empire, the courts of this State have no jurisdiction over an assault and battery committed by the mate of a German vessel aipon a sailor thereof, both being German citizens, on board of such vessel while lying in the port of New York, unless it is of such a character as to disturb the peace and public order.</p>

The following are the material portions of the will: “ In the first place, I desire, will and determine that my executors, hereinafter named, shall collect all sum and sums of money due to me from any person and- persons whatsoever; that they shall close my store and other business and concerns, and settle the same; that from the proceeds thereof they shall liquidate and pay all •debts, dues and demands owing by me to any person or persons whatsoever.

<p>Appeal from an order made at the Special Term, directing a reference to ascertain the damage sustained by the defendants by reason of an injunction granted in this action.</p>

Notice of appearance after judgment does not entitle the party serving such appearance to notice of any proceedings upon such judgment. {Abbott v. Smith, 8 How. Pr., 463; lynds v. West, 12 Wend., 235; White v. Featherstonhaugh, 7 How. Pr., 357.)

Certiorabi to review proceedings and judgment of removal of relator, from the office of sergeant of police. The relator was a member of the police of the city of New York. A charge had been lodged against him on the 4th day of February, 1875, in due form, charging him with neglect of duty. This charge was accompanied with a specification stating the particular offense, which, if true, was just ground for removal.

<p>Bond for benefit of tim'd person — satisfaction of by obligee — effect of.</p> <p>A mortgagee, after having duly assigned his bond and mortgage to the plaintiff, received payment thereof from the mortgagor, who paid the same in ignorance of the assignment, believing him to be still the owner of the mortgage. Subsequently upon the demand of the mortgagor, the mortgagee executed and delivered to him a bond, conditioned to pay the full amount of the bond and mortgage to the plaintiff, and to save the mortgagor harmless therefrom, the payment of which bond was guaranteed by the defendant. Thereafter the mortgagor executed and delivered to the mortgagee satisfaction of the last mentioned, indemnity, bond, which he did not however give up or cancel, but thereafter assigned it to the plaintiff. In an action by the plaintiff to recover the amount of the bond and mortgage from the defendant, the guarantor of the bond: held, that he was entitled to recover; that the obligation under the bond, to the plaintiff, was not discharged by the act of the mortgagor.</p>

<p>Appeal from an order, denying a motion for a resale of certain real estate, sold under a decree of foreclosure entered in this action, and requiring the purchaser to complete the purchase of the lots struck off to him.</p>

The above entitled action was pending in the Court of Common Pleas for the city and county of New York, and an order was made by the judge of such court, directing Joshua Brown to appear before the county judge of Kings county to be examined, that his testimony might be perpetuated for such action.

<p>Appeal from an order denying a motion for a new trial, made upon a case and exceptions.</p>

<p>Writ of error — only final judgment can be reviewed by.</p> <p>A writ of error does not lie, either in civil or criminal cases, except from a final judgment of the court to which the writ is directed.</p> <p>Plaintiff in error, having been arraigned in the court of Oyer and Terminer, pleaded not guilty, and also interposed two special pleas, each to the whole indictment. A demurrer, interposed by the attorney-general to the special pleas, having been sustained, the plaintiff sued out a writ of error. Seld, that the judgment was not a final one, and that the writ should be dismissed.</p>

There is an implied obligation on the part of the defendant, by reason of his acting under the contract, that he will sell the houses at some time. As no definite time is fixed by the contract in which the defendant must sell, the law will imply that a reasonable time is intended. (Howe v. Woodruff', 21 Wend., 610.) The question, what is a reasonable time, is mainly one of law. (2 Pars, on Cont. [5th ed.], 535 ; Stodden v. Harvey, Cro.

The .variance between the orders and the writ is fatal. (Butler v. The State, 3 McCord, 383; Com. v. Unknown, 6 Gray, 489 ; Hall v. The State, 3 Kelly, 18; State v. Petty [S. C.], — Hawk., 59 ; Wharton Cr. Law, vol. 1, § 365 ; 1 Tidd Pr. p. 293, and cases cited in note hh.)

Among other exceptions taken on the trial, was one by plaintiff, to the exclusion of the following question: Q. Upon how many previous occasions had you attended parties injured on the road of this defendant’s company, when your services were paid for by a check of the company ?

<p>Appeal from an order of the surrogate of Westchester county, refusing to admit the will of one Lozerne Heady to probate.</p>

<p>Appeal from a judgment in favor of the defendant, entered upon the trial of this action at a Special Term, in an action brought for the foreclosure of a mortgage.</p>

A contract of sale or return is not a contract of sale and repurchase. The seller does not agree to buy a new title to the article contracted for; the buyer does not bind himself to resell and reconvey (with an implied warranty of title or otherwise). The contract is strictly a contract of rescission at the option of the buyer.

The defendant’s testator, by his will, devised all his property in trust for certain purposes therein specified. And, as to the rest and residue of his estate, he directed the same to be divided into three equal shares, one to be held in trust for each of his children for their respective lives, with remainder over upon their deaths.

<p>Corporation — existence of — by whom, cannot be denied — subscription to stock of.</p> <p>This action was prosecuted by aud on behalf of the receiver of an insolvent corporation, to recover the unpaid balance of the subscription to the capital stock thereof, made by the defendant, who had been one of the originators of the enterprise, and, as a trustee of the corporation, had taken an active part in the organization' and management of the company. Reid, that he was estopped from donying the legal existence and validity of the corporation.</p> <p>The only subscription made by the defendant, was to the certificate of incorporation, by placing opposite to his signature the number of shares taken by him.</p> <p>Reid, that this was sufficient as a subscription.</p> <p>Defendant offered to show, that it was agreed between himself and the other projectors of the enterprise, that he was, in fact, to take only a portion of the shares subscribed for by him. Reid, that the evidence was properly excluded as incompetent, and in contradiction of his subscription.</p> <p>Subsequently an arrangement was made, with the approval of the company, by which the defendant agreed to transfer to one E. certain of his shares, upon the delivery to the company of E.’s notes, indorsed by the defendant, for unpaid subscription thereon. In accordance therewith, defendant delivered to the company ten of E.’s notes, indorsed by himself, with directions to transfer the stock to E. upon their payment. These notes were renewed several times by new ones, also indorsed by the defendant. Afterwards, the company, without the defendant’s knowledge or consent, accepted a new note from E., indorsed by a third person. Held, that defendant was a surety for E., and that the company, by taking a new note, and extending the time of payment, without his consent, assumed such note; and that defendant was entitled to be credited with the amount thereof in a statement of his account with the company.</p> <p>The appointment of a receiver after the commencement of a suit, does not cause the suit to abate, but it may be continued by the receiver in the name of the original plaintiff.</p>

Appeal by defendant, The New York Central and Hudson River Railroad Company, from an order denying a motion of said defendant, made on tbe judge’s minutes, to set aside the verdict of the jury, as to… Held: that if the act of Hopper was unjustified, he was guilty of an assault and battery. If it was justifiable, then the other defendant was not guilty of any act which would sustain a verdict against it.

This action was brought to remove a cloud upon the plaintiff’s title, and to perpetually restrain the collection of an assessment made… Held: that as it must be assumed that all these orders were on record, there being no averment that any officer had neglected his duty in this respect, and that as such orders, and the appeal from the second award, formed a part of the record of the laying of the assessment, it appeared from .the record itself, conceding the truth of the…

Justice Morgan, before whom the case was tried without a jury. The action was brought, to recover the value of a package oí goods, delivered by the plaintiff to the company, on the 13t,h July, 1869, at Syracuse, New York, to be conveyed to Pioneer, Pennsylvania, consigned to Isaac Levi. The package reached its destination safely, and in due time.

<p>Appeal from an order denying a motion for a new trial, made upon the minutes of the justice holding the Circuit, and a motion for a new trial on a case and exceptions ordered to be heard in the first instance at the General Term.</p>

This action was brought by Patrick Hays, to recover damages sustained from the negligence of the defendant, in setting a fire upon his lands and allowing it to escape upon the lands of the said Hays. After the commencement of the action Hays died, and the action was subsequently, in pursuance of an order to that effect, continued by the present plaintiffs.

The action was brought .to procure the removal of a structure, erected by the defendant, extending over plaintiff’s premises.

The action was commenced to recover the value of a watch, and certain items of furniture alleged to have been converted by the defendant. The plaintiff claimed title to the watch, ^.a gift from one Holland Turner, who she permitted, after the gift, to carry the watch. He died October 25th, 1869. She claimed title to the balance of the property, as a gift by Amanda Turner, made on her death-bed, March 4th, 1868.

The last will and testament of Joel Parsons, deceased, was proved before the surrogate of Columbia county, on the 14th day. of April, 1856.

Appeal by the plaintiff from a judgment in favor of the defendant dismissing the plaintiff’s complaint, entered on the decision of the court, in an action brought to enforce the payment of a debt out of the assets of a deceased partner, the surviving partner being insolvent.

A motion for a new trial upon the minutes was made and denied, but no appeal was taken from such order. Exceptions to the rulings and decisions of the court are therefore alone considered by the court.

<p>Insurance — when properly is examined by the agent — erroneous desm’ipiion — Conversation between agent and insured person</p> <p>Where no written application tor insurance is made, Dut the agent of the insurance company examines the property insured, and, with full knowledge of the facts, draws up the policy of insurance, errors in the statements of the policy, as to the occupancy of the property, do not constitute a defense to an action brought to enforce it.</p> <p>Evidence of the conversation between the insured and the agent of the insurance company, is admissible for the purpose of showing that the description was not that of the insured.</p>

This is an appeal by the city of Albany and its tax-payers, from an order of the Special Term, taxing the costs and charges of E. J. Meegan, as attorney, and JR. H. Bingham, as surveyor, in the above matter. In 1873 these proceedings were instituted, in pursuance of a resolution of the common council of the city of Albany, for the purpose of widening Hudson avenue, in the city of Albany.

, made pursuant to such judgment. A joint stock association, known as Wells, Fargo & Co., had been dissolved by the action of the managing partners, pursuant to the articles of association, on the 1st day of November, 1866, the plaintiff’s testator being at that time the owner of 100 shares of the stock.

The action was brought to recover the amount of a promissory-note made by the defendant, and indorsed by the payee to the plaintiff. The following answer was put in to the complaint: First defense. The said defendants for a separate answer to the complaint of the plaintiff in this action, and for a first defense thereto, deny that defendants have not paid the said note, or any part thereof, and deny that the same is payable. Second, defense.

<p>Motion to dismiss an appeaT.irom adjudgment of the County-Court of St. Lawrence county, in an action commenced before a justice of the peace.</p>

The defendant, at the time of the death of Justus H. Akin, was indebted to him. Brownell the plaintiff, and Edward Akin the defendant, were the executors of the will of Justus H. Akin and letters testamentary were issued to them. Subsequently, the defendant was removed from his office of executor by the Surrogate.

<p>Appeal from a judgment in favor of the defendant, entered on the report of a referee, in an action brought for the conversion of certain hemlock bark.</p> <p>One Corbin, having a contract for the purchase of land, entered into an agreement with Wood and Van Benschoten, dated June, 1859. By this agreement Corbin sells and conveys to Wood and Van Benschoten all the hemlock bark now on the trees standing and growing on the land. Wood and Van Benschoten were to pay seventy-five cents for each cord of bark in the following manner : $300 on the delivery of the presents, and $300 annually in every year after 1859. They “further agree to have said bark all peeled by the 1st day of September, 1864, piled’ and measured and settled for in full.”.</p> <p>It was further agreed, that they should “ have the right, liberty and privilege of free ingress and egress to enter, at any time and all times, upon said lot, cut, fell and pile said bark, and to draw said bark away at any time hereafter, at the convenience of the parties of the second part,” viz., Wood and Van Benschoten.</p> <p>Prior to September 1, 1864, the date on which the bark contract was to be-completed, Wood and Van Benschoten made two payments thereon of $300 each, in addition to that made at the delivery of the contract.</p> <p>On the 18th of April, 1866, the owner of the land conveyed the same by warranty deed to said Corbin, subject to all legal and equitable rights, if any, growing out of the bark contract claimed by Corbin to be forfeited.</p> <p>In June or July, 1867, Corbin caused the hemlock trees standing on the premises to be peeled, and sold the bark thus peeled. The vendee bought in good faith and sold to the defendants, who paid for the same.</p> <p>On the 19th of July, 1867, Wood, who appears to have been then the owner of any rights existing under the Wood and Yan Benschoten contract, executed a bill of sale, purporting to convey to the plaintiff all the hemlock bark now peeled and lying on the premises, estimated at 34-0 cords, of which about 140 are said to have been peeled under Wood’s direction in 1866, and about 200 under Corbin’s direction in 1867, at four dollars per cord. The bill of sale also conveyed about forty other cords. Wood testified that the plaintiff paid him thereon for about forty cords.</p> <p>The plaintiff now sues for the value of the bark.</p>

This action was brought July 19th, 1873, .to recover $5,000 as liquidated damages, and also for damages generally, for the breach of two certain agreements not to practice as a physician and surgeon in the town of Ticonderoga, in this State; one executed by the parties November 18th, 1868, and the other executed by the defendant November 28th, 1868.

At the trial, upon the plaintiff’s opening the case, the defendants moved to dismiss the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The motion was granted pro forma, on the strength of a former decision at the Circuit by another judge, and the plaintiff’s counsel excepted. From the judgment thereupon entered the plaintiffs appeal. And the question is here argued without objection, as if upon a demurrer to the complaint.

.Writ of error to the Court of Oyer and Terminer in and for the county of Albany.

Writ of error to the Court of Oyer and Terminer, in and for the county of Albany, to review a conviction of the plaintiff in error of forgery in the third degree, for making a false entry in a book of accounts, kept in the office of the State Treasurer. Among the other counts in the indictment were the following: FIRST COUNT.

The action was brought to recover damages for the death of John Sauter, the plaintiff’s intestate, which was claimed to have been caused by the wrongful act or negligence of the defendant. On the 17th of March, 1874, John Sauter was a passenger on one of the defendant’s trains of cars from Schenectady to Poughkeepsie.

The report was made on a statutory reference under the provisions of 2 Revised Statutes, page 89, sections 36 and 37. The confirmation was objected to, on the ground that the testimony should have been signed and filed under the provisions of the third paragraph of rule 39.

<p>Surplus moneys —payment to heirs of mortgagor — when decree dvrects deposit of swrplus with county treasurer — remedy of creditors.</p> <p>Upon the sale of certain real estate under a decree of foreclosure entered in this action, the purchaser, in pursuance of an agreement with the widow and heirs at law of the deceased mortgagor, executed to them mortgages for their interest in the property after the payment of the specific lions thereon. These facts were reported to the court by the referee, and his report was confirmed. Subsequently this motion was made by the administrator of the deceased mortgagor and certain of his general creditors, to have the mortgage set aside, and the amount thereof paid over to the County Treasurer, as required by the decree of foreclosure. Seld, that the motion should have been denied; that the rights of the general creditors could only be enforced in an action brought by the administratrix, and not by a motion or special proceeding.</p> <p>Where, upon a sale under a decree of foreclosure, the referee, with the consent of the parties in interest, sells the premises on time, in order to obtain a better priee, and such sale is reported to and approved by the court, the purchaser has a right to insist upon the terms of his purchase, and cannot be compelled to pay cash, when he bought on time. (Per Learned, P. J.)</p>

The plaintiff’s intestate, Christopher R. Cordell, was, on the 13th day of August, 1873, struck and killed by a locomotive attached to a train of defendant’s, at a place in Albany county, near the line between Albany and Schenectady counties. The locomotive was attached to a train going east.

<p>Contract for sale of land — default — what amounts to rescission of — specific pmformance.</p> <p>Where, by the terms of a contract for the sale of land, the vendor is to deliver the deed on a certain day, and the vendee is then to deliver a mortgage thereon for a specified sum, and before the appointed time the vendor notifies the vendee of his readiness to deliver the deed, and after that day tenders the deed and demands the mortgage, with which demand the vendee refuses to comply, without assigning any sufficient reason therefor, such refusal amounts to a rescission of the contract on his part, and the vendor may thereafter lawfully sell the land to another person.</p> <p>Qumre, whether, after the vendor has sold the land, the court will retain an action, brought by the vendee, for specific performance, in order to award him damages for the breach of the contract.</p>

The affidavit, upon which the attachment, was issued, was made by the agent of the plaintiffs, who swore to the existence of “a cause of action in favor of said plaintiffs and against said defendant, arising out of a contract made and executed by said defendant, and by him delivered to said plaintiffs, and which is more particularly set forth in the copy of complaint hereto annexed in this action, and which contract was executed and delivered by said defendant to these…

Grinnell entitled to an award, made by the commissioners appointed to lay out a drive in the city of New York, to unknown owners.

continuing in force, an injunction previously granted in this action, after judgment had been entered therein in favor of the defendant. After judgment, and pending an appeal therefrom, the court has no power to grant an injunction in the same action, nor to renew a preliminary injunction previously granted. {Erie Railroad Co. v. Ramsey, 45 N. Y., 637-645; Fellows v. Heermans, 13 Abb.

Writ of error to the General Sessions in and for the county of New York, to review the conviction of the plaintiff in error of the crime of grand larceny.

Writ of error to tbe New York Court of Oyer and Terminer to review tbe conviction of tbe plaintiff in error, of murder in tbe first degree.

<p>Olm'k of grand juries in city of New York — ■ojfker of county government — chapter 588 0/1871.</p> <p>The clerk of the grand juries of the Courts of Oyer and Terminer, and General Sessions, in the county of New York, is an officer of the county government within the meaning of that term as used in chapter 583 of 1871, authorizing the board of apportionment thereby created “ to regulate all salaries of officers and employes of the city and county government.”</p>

Writ of error to tbe New York Court of General Sessions, to review the conviction of the plaintiff in error of the crime of grand larceny. This prisoner was indicted for grand larceny in stealing fifty dollars from one William Boss, and was tried at the General Sessions on the twenty-sixth of November. The testimony showed that the complainant, being employed upon a steamer running to Florida, was met by the prisoner on the day the steamer sailed.

Appeal by Henry S. Hewson from an order denying his application for compensation, for a partial failure of title to the land . purchased by him in these proceedings. The order appealed from was made on the report of a referee to whom it was referred to take proof of the facts.

Tbe question in the case was upon the propriety of the following portion of the judge’s charge: “ It is claimed on the part of the defendant Simon, that it is a very extraordinary circumstance, in view of the defense set up in this case and the circumstances surrounding the inception of the note, that Brooks has not made his appearance in the court-room, and that he has not been examined as a witness.

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

<p>Appeal from an order of the Special Term sustaining a demurrer to the complaint.</p>

<p>Action — when on contract.</p> <p>The plaintiff brought this action to recover money placed by her in the hands of the defendant, as her attorney, alleging in the complaint, that the defendant “ received said moneys and securities as her attorney and agent, and promised and agreed to hold the same for her, and to account for and pay over the same to her when demanded.” The complaint also alleged that the defendant had misapplied and appropriated the moneys to his own use. Held, that the action was on contract, and not in tort, and that a reference might properly be ordered therein.</p>

Writ of error to the Court of General Sessions of the city and county of New York, to review the conviction of the plaintiff in error of a misdemeanor.

<p>Appeal from order made at the Special Term, denying a motion to vacate an attachment issued in this action.</p>

This was an action of ejectment for the recovery of the possession of real property, lying in the city of Auburn, Cayuga county, both parties claiming title from the same source, to wit, through Louisa Easterly, deceased, who died seized of the premises, at Auburn, April 10, 1866, leaving her last will and testament, together with her codicil thereto appended in due form, the material portions of which were as follows : “ Third.

<p>Pwol declaration of vendor of land — against whom admitted.</p> <p>Parol declarations of the vendor of land, showing that the vendee has paid the purchase-price thereof, are admissible in an action by or against him, or by or against any other person deriving title from or under him, with notice of the vendee’s claim.</p> <p>Actual possession of land by a vendee is, in law, equivalent to actual notice of his claim, whatever that may be.</p>

<p>Common ca/rrier — liability of, for merchandise carried as baggage — contract for.</p> <p>Bailroad companies are not liable for the loss of merchandise delivered to them, under the guise of baggage, for transportation with a passenger.</p> <p>They are liable, however, if they knowingly undertake to transport merchandise in trunks or boxes, which have been received by them for transportation in passengers’ trunks, unless the agent who receives the package for that purpose violates a regulation of the company by so doing, and the passenger has notice of such regulation.</p>

. This action was commenced in the Supreme Court by the above named plaintifíj as executor of A. A. Curtiss, deceased, for the recovery of a balance claimed to be due the testator from the defendant on account of services rendered and disbursements made by the testator as county clgrk of Livingston county. The items of the account are set out in the complaint, amounting to $383.54, on which had been paid $300.

The action was brought to recover damages for an alleged trespass on the lands of the plaintiff by the defendants, in the village of Speneerport, in October, 1874. The plaintiff, in May, 1872, sold the lands described in the complaint to one Win. H. Sprung, and executed a .written contract for the sale and conveyance thereof to him.

It appeared from the return that the relator is an incorporated stock company, owning and operating a railroad extending from the city of Utica, northwardly, to Philadelphia, R. Y.; its principal business office being in the city of Utica.

<p>Mechanics lien — chap. 489 of 1873 — consent of owner of land to erection of buMding.</p> <p>Chapter 489 of 1873 gives a lien to persons furnishing materials used in the erection of a building, whenever the owner of the land consents to the erection of the building upon it; and such consent may be proved by acts and declarations, as well as by direct evidence. It is not necessary that the acts of the lienor should have been in any way induced by the consent of the owner of the land.</p>

The action was trover to recover the value of a quantity of wheat alleged to have been converted by the defendant, of which the complaint avers James M. Reeder, deceased, and the respondents, James H. and Lyman Reeder, were the owners and in possession as tenants in common.

The action was brought upon an undertaking, in an action of replevin, brought by the Rochester Water-works Company against the plaintiff and his late partner.

<p>Appeal from an order of Monroe Special Term, sustaining a demurrer to the complaint.</p> <p>The complaint alleged that the plaintiff obtained a judgment against one Zelah Stowell, in his lifetime, and caused an execution to be issued and levied upon the life estate of said Stowell, in certain lands therein mentioned, which was claimed to be the only property of said Stowell subject to execution, and caused said life estate to be sold on said execution, and became the purchaser thereof at the sale for the full amount of his judgment, interest and costs, and accepted and received the sheriff’s certificate of sale of said property, and said execution was returned satisfied. Subsequently, and about two months thereafter, said Stowell died, whereupon the plaintiff brought this action', in the nature of a creditor’s bill, praying that the satisfaction of said judgment be set aside and vacated, that said judgment be revived and declared a just and valid debt against the estate of said Stowell; that the said administrators be required to pay the same out of the personal property belonging to said estate, and that in case sufficient personal property could not be found, then that the same be declared a lien upon several pieces of real estate, conveyed by said Stowell, in his lifetime, to the other defendants, reserving to himself the life estate hereinbefore referred to, on the ground that said conveyances were void as to creditors.</p> <p>To this complaint the defendants, Austin A. Phelps and Harriet N. Stowell, interpose a demurrer, on the ground that same does not state facts sufficient to constitute a cause of action against said defendants, said administrators, and the case having been brought to trial, an order was made sustaining said demurrer, with leave to plaintiff to amend within twenty days, on payment of costs.</p>

The following is the alternative writ: The People of the State of New Yorlc to the Board of Supervisors of Livi/ngton county, greeting: Whereas, The commissioners of highways of the towns of Geneseo and Leicester, in the county of Livingston, entered into a contract with one James Conway to construct a bridge over the Genesee river in said towns; and Whereas, Said James Conway did construct said bridge according to said contract, and the same was accepted by said…

The action is brought by the plaintiff, for damages for the seduction by defendant of tjie plaintiff’s minor grandchild, and was tried at the Jefferson Circuit, in May 1874. Both parents of the child died when she was about a year old.

This action was brought by the plaintiff, a bank incorporated under the laws of the State of New York, to recover the amount of a promissory note made by Finlay & Co., dated July 1st, 1872. Finlay’s defense was that the note was usurious.

One of the plaintiffs in driving through the street on a dark and rainy night, in turning out to avoid a projection of the barricade, struck against a post and injured the wagon.

The defendant Merritt, on the 25th of March, 1873, gave to the plaintiff his bond, conditioned to pay him $1,000, at certain times therein specified. To secure its payment he executed and delivered to the plaintiff a mortgage on certain lands, described in the complaint, with the same conditions as to terms and times of payment as the said bond. The mortgage was duly recorded in the county where the land lies.

The action was brought to recover the damages sustained by the plaintiffs, in consequence of the failure of the defendants to manufacture and sell steel rails in pursuance of a contract entered into with the plaintiffs.

The action was brought to recover the value of certain repairs made upon a store of the defendant, by the plaintiff while occupying the same as his tenant. The repairs were made in pursuance of an agreement between the parties by which a new lease was to be taken. The premises were destroyed by fire before the expiration of the old lease, and the new one was never executed. This action was brought to recover the value of the repairs which had already been made.

<p>Railroad eompa/ny — duty of, to maintain fences — gates in — liabilities of company when they are left open.</p> <p>Where a gate is put iu a fence, erected by a railroad company in pursuance of the provisions of the general railroad act, for the convenience of the owners of the adjoining land, and such gate is continually left open by the agents or servants of the company,' or by those doing business with it, the fence is not maintained within the true intent and meaning of the statute, and the company is liable for any injury occasioned thereby.</p> <p>Semble, that the company is liable, even if the gate is left open by the person, for whose convenience it was constructed.</p> <p>The mere fact that cattle are found upon the track, without evidence of any right or authority from the company, does not, of itself, establish negligence on the part of the owner of the cattle.</p>

In November, 1872, the plaintiff was passing along Exchange street, or alley, in the village of Bath, in the county of Steuben, from his shop to his boarding-house, and, on his way, he passed over the rear of a lot owned ■ by defendant, on which he had been erecting a building, having openings in front of the cellar windows to admit light; they were left uncovered, and he fell in and injured himself; and he brings this action against the defendant to recover the damages…

This action was brought to restrain the defendant from proceeding to collect an assessment, claimed to have been made upon the plaintiff’s property, and in such proceeding to create a cloud upon the plaintiff’s title.

This action was tried before the court without a jury. The court found, among others, the following facts: The plaintiff is a resident of Great Britain, and was the owner of a large amount of personal property in the United States for upwards of fifty years before 1871.

The action was brought to recover rent for a dwelling-house in the city of Buffalo, rented to the defendants by a lease, executed to and by both the defendants, for the terra of three years and seven months.

Motion either to strike out part of a return, made by a justice of the peace to a writ of certiorari, or to refer it to a referee to ascertain its truth. The motion was made upon affidavits tending to show that the return was in some respects untrue.

This action was brought for an alleged breach of contract by the defendant, in failing to deliver certain potatoes. ' The contract is expressed in the following letters : Office of T. J. Reynolds, ~| Dealer in Grain, Seeds and Country Produce, j- Livonia Station, N. Y., April 14, 1874. j Irving Kester & Co.: Gents. — Yours at hand, and in reply would say, I think I could put you a load or two of peachblows on cars here at eighty cents per bushel.

The action was for goods sold to the defendant, who was, at the time, a feme sole, carrying on a separate business in her own name, and for her own account. She afterward married, and is sued by her married name for an account made with the plaintiff before marriage. The referee held her liable to be sued alone, without her husband, and gave judgment for the amount of the account, from which defendant appealed to this court.

Jas. C. Smith, at Special Term, in Steuben county. The judge, at Special Term, found that all the facts alleged in the complaint were proved and established.

Appeal by defendant, Koon, from an order directing a verdict for the plaintiff and denying a motion for a new trial. The action was brought upon a promissory note alleged to have been made by the defendant to the plaintiff, and was tried at the Onondaga Circuit. The defendant, in his answer, denied that he made the note in the complaint mentioned.

<p>Code, §. 399.</p> <p>J. Conway sold certain tools to the plaintiff, his daughter; afterward he engaged in the service of the defendants, and, with the consent of the plaintiff, agreed with them that the use of the tools should be transferred to them for an indefinite time, for whatever the use should he worth. When the work ceased the tools were left with the defendants, and this action was brought to recover them. Upon the trial plaintiff offered to prove by Conway, that he had demanded the tools from the defendant Russell, who was dead at the time of the trial, and that he had refused to deliver them. Held, that the evidence was properly rejected as inadmissible, under section 399 of the Code.</p>

Oertiorari to review an assessment, and the proceeding upon which it was granted, to repave East Genesee street, in the city of Syracuse, between Grape and Orange streets.

<p>Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.</p>