Volume 14 — Barbour's New York Supreme Court Reports

<p>A sale of property upon execution, made after sunset, is void, and the proceedings of the sheriff are thereby rendered void ah initio.</p> <p>Where a party, whose property was levied on by execution, objected to the sale, on the ground that the property was exempt from execution, but he afterwards turned out the property to the sheriff, to be sold at a future day; Held that this was nothing more than a claim of exemption, in order to gain time; that the sheriff, in subsequently selling the property, acted under a claim of authority given by law, and not under an authority given by the party; and that an abuse of his authority, by the sheriff, made him a trespasser ah initio.</p>

This action was brought to recover against the defendants as indorsers of a check, of which the following is a copy: “ Cashier of the Farmers’ Bank, pay Bela Barber, or bearer, two hundred and twenty-five dollars — cents. $225. James Swart.” Indorsed as follows: “ Bela Barber, Francis N. Mann. Pay Day O. Kellogg or order without recourse. Kellogg & Co.” The cause was referred to a referee, who reported in favor of the defendants, and the plaintiff appealed.

This was an action of debt on a judgment recovered in the supreme court in the year 1823. Plea payment, and replication taking issue thereon. The cause was tried at the Hew-York circuit in January, 1848, before Justice Morse, without a jury.

This was an appeal from, an order or decree of the surrogate of the city and county of New-York. Lewis Moore made his will on the 31st of May, 1840, appointing the appellant, Michael P. Moore and Lewis Moore, two of his sons, his executors. On the 15th December, 1840, he made a codicil to his will, making some slight changes in the disposition of his property. The testator died on the 8th June, 1843.

The complaint set forth in totidem verbis the following bond or specialty: “ Whereas Truman Root and Franklin Hoag, of Saratoga Springs, on the thirteenth day of October last past, purchased of George Ferris his stock in trade situated at Sara-toga Springs aforesaid, among which were various goods, wares, and merchandise, an inventory of which is hereto annexed, marked A, amounting to three hundred forty-nine dollars and seventy three cents, which were purchased by the said…

The complaint in this cause alledged that the plaintiffs, in September, 1850, were copartners, and as such, owners of a quantity of merchandise specified, of the value of $3000, which the defendant, being sheriff of Warren county, wrongfully seized and carried away out of their possession, and they prayed a return and damages.

This was a demurrer to a return, made to an alternative writ of mandamus. The writ bore date the 2d of June, 1851, and was directed to the board of supervisors of Fulton county, naming each one individually.

This was an action commenced by the plaintiff as superintendent of common schools in the town of Athol, before a justice of the peace of Warren county.

This action was commenced in a justice’s court. The plaintiff in his complaint alledged that he had lost a flock of sheep and lambs, and that the defendants, having found where said sheep were, went to the plaintiff pretending not to know where they were, and that it was a matter of risk altogether on their part, and by such false pretenses induced the plaintiff to sell the sheep for $10, when they were in fact worth a much larger sum.

The defendant assigned a judgment to the plaintiff, which he, the defendant, recovered against John C. Hash, on the 15th of February, 1838, for $3819 debt, and $24,87 costs. The judgment was entered by confession, upon bond and warrant of attorney, by the terms of which the judgment was to be paid or collected $500 in one year, $500 in two years, and the residue in three years thereafter.

<p>In Egiuity. This was a creditor’s bill, filed in December, 1846, upon a judgment in the supreme court, in favor of the plaintiff, against Augustus B. Childs and Ebenezer Childs, for $102,82, docketed January 1st, 1846. The case was heard on pleadings and proofs. The facts sufficiently appear in the opinion of the court.</p>

This was a motion on the part of the defendant for a new trial on a case. The action was commenced in March, 1848, and the declaration was in assumpsit, on the common counts, for real estate, contracts for the sale of real estate, buildings, improvements upon land, and rights, interests, claims and possessions of the plaintiff, of, in and to certain real estate conveyed, assigned and delivered to the defendant; also for money alledged to be due upon an account stated.

This was an appeal from a judgment entered upon the report of a referee in favor of the defendants, against the plaintiff. The action was commenced in March, 1849, and the acts complained of took place in May, 1847. The other facts necessary to an understanding of the points decided, are stated in the opinion of the court.

The complaint in this action stated that the common council of the city of Buffalo resolved that á sewer be constructed in Elk-street, in said city, from the Clark and Skinner canal to the canal slip near Louisiana-street. And the street commissioner of said city was, by such resolution, directed to contract with the defendant for the construction of said sewer, in accordance with the proposals for said work before reported to the common council.

Appeal by the defendant from a judgment rendered at a special term of the court. The complaint alledged that, on the 1st day of April, 1838, Gerard W. Morris and Henry Morris were owners, as,tenants in common with L’Amoureux and others, of a farm in Greenbush, each of them owning one-twentieth part thereof.

This was an action of ejectment, brought to recover possession of the one undivided fifth part of a farm situate in the town of Kingston, Ulster county. There had been two trials in this cause. The first trial resulted in a verdict for the defendants. The plaintiffs then paid up the costs, and obtained a new trial under the statute. The second trial was had before Justice Harris, on the 30th April, 1851, and resulted in a verdict for the plaintiffs.

This was an action of assumpsit, brought upon the following contract, in writing: “ Little Falls, May 15th, 1847. “ Messrs. Bigelow, Moore & Taylor, Troy: “ Gentlemen—Mr. Rodney Durkee informs me that he is negotiating with you to purchase and supply wheat and corn to stock his mill, in this village, the ensuing seasbn.

In Equity. This bill was filed in the supreme court, in equity, in January, 1848, for the purpose of setting aside a certain bond for $151,933,44, given by the plaintiff to the American Life Insurance and Trust Company; and of having a certain conveyance made by the Holland Land Company to trustees for the security of the payment of the money mentioned in the bond, declared void; and the property mentioned in that conveyance conveyed to the plaintiff, and the money received…

Assumpsit, tried before Hoyt, justice, at the Livingston circuit in December, 1847. The action was against the defendant as indorser of a bill of exchange or draft, drawn by O. P, Wilder upon George L. Davis for $500, dated Perry, July 9th, 1845, payable to the order of the drawer, six months after date, and indorsed by the drawer, David L. Stewart, and the defendant. On the face of the draft was written, “ accepted, payable at the Merchants Bank in the city of Hew-York, Geo.

Appeal, by the plaintiff, from a judgment rendered at special term. The facts are sufficiently stated in the opinion of the court.

This action was commenced September, 25th, 1849. The complaint alledged that the defendants purchased of the plaintiffs on the 10th of February, 1849, goods to the amount of $691,84, on a credit of six months from the time of the purchase and delivery of the goods; the expiration of the credit, and a payment of $300, on account; and the residue, $391,84, in arrear and unpaid, with interest; claiming judgment for that sum.

<p>Motion to set aside the report of a referee. On the 7th of April, 1846, the defendant entered into a contract under seal, of that date, with John Hinchcliff and Samuel Hillman, by which he agreed to furnish them a sufficient quantity of wool to run their factory for one year from date, for the consideration of his commissions of three cents per yard on all cloths manufactured by them after the date of the contract; Hillman & Hinchcliff agreeing to deliver to the defendant all cloths manufactured by them during the year, to be delivered on every Saturday night for the period of one year; the defendant to have entire control of the cloths, to have or hold or sell, whenever or wherever he could get the best prices for the same; Hillman & Hinchcliff agreeing that the cloths might he sold by some good auction house for cash, if thought advisable; and that all expenses attending sale, transportation, insurance, defendant’s commissions, &c. should he deducted, and the balance paid over to them the said Hillman & Hinchcliff. The defendant also agreed, in and by the contract, to. advance ten cents per yard on all the cloths manufactured, as fast as they should be delivered. The contract then concluded as follows: “ The expenses consist in the cost of the wool, transportation, commissions, and the advance of ten cents per yard, insurance, &c.; all of which the said parties of the second part [Hillman & Hinchcliff] do agree to pay or allow to be deducted out of the sale of the cloths,”</p> <p>On the 13th of July, 1846, Millman gave the defendant a chattel mortgage on two sets of machinery, consisting of four carding machines, two spinning jacks, six power looms, one picker, one shearing machine, one press with plates and papers, one brushing machine, one gig, one dye kettle, one steam regenerator, one pair fulling stocks, bobbins, spools, and all other articles attending said machinery, or all articles, tools, &c. belonging to the establishment; also all the wool, cloths, yarn, &c. and all other goods and chattels whatsoever then remaining in the basement and third stories of the Hydraulic buildings, on Brown’s mill-race in the city of Rochester, in possession of said Millman & Hinchcliff; conditioned to pay the defendant “ the sum of any or all such losses which may arise, or which the party of the second part may in any way sustain by or under a certain contract made by the parties of the first part to the party of the second part, for the manufacturing of wool into cloths, on 7th day of April, 1846; said losses, if any, to be paid to the said party of the second part, on demand,” <fcc. Millman & Hinchcliff being indebted to the plaintiffs, who were partners in business under the name and style of Gallery & Cushman, in the sum of §300, on the 10th September, 1846, made and delivered to them a draft or order upon the defendant in the words and figures following: “ William Prindle, Esquire—Sir: Pay to Gallery & Cushman, or order, three hundred dollars, out of the balance that will be due us from the sales of cloths that you now have or may have of us, together with the woolen machinery upon which you have a chattel mortgage, after deducting the amount you have advanced us, with your charges and commissions. Rochester, September 10,1846. Millman & Hinchcliff” This draft or order was, on the day of its date, accepted by the defendants, in words and figures following: “ Accepted, 10th Sept. 1846.” The present action was brought upon this acceptance, to recover the amount of the order and interest.</p> <p>The cause -was referred to Orlando Hastings, as sole referee, and tried before him on the 31st day of January, 1849. On the . 17th day of June following, he made a report in favor of the plaintiffs, for §333,83, which included the amount of the draft and interest from November 6,1847, the time the suit was commenced.</p> <p>On the trial the foregoing facts appeared, and also the following. That Millman & Hinchcliff were partners in the manufacturing woolen cloths in the city of Rochester. That their partnership commenced in April, 1846, and that Hinchcliff went out of the business on the 23d day of October in the same year. That during the continuance of said business, between the month of April, 1846, and the time when Hinchcliff went out of the business, Millman & Hinchcliff manufactured and delivered to the defendant for sale, 11,8811 yards of cloth, which the defendants sold at Boston, New-York, Buffalo and various other places, the chief part of them in New-York. Very few of them had been sold when Hinchcliff left the business in October. When he went out, Robert Carpenter took his place in the business. At the time when Hinchcliff went out, there was stock on hand, which had been purchased by the defendant and delivered to Millman & Hinchcliff, sufficient to make about 4000 yards of cloth. Millman & Carpenter went on and manufactured this, with other stock furnished by the defendant, into cloth, and delivered it to the defendant for sale. It would require from 5000 to 6000 pounds of wool to make 4000 yards of cloth. The wool from which most of the cloth delivered by Millman & Hinchcliff to the defendant was manufactured, was purchased in Rochester, at 28 cents a pound. There was 8000 pounds so purchased. The defendant produced, upon the trial, an account, which was admitted to be correct, showing the dates and amounts of his advances to or for the benefit of Millman & Hinchcliff and Mill-man <fc Carpenter, in pursuance of the contract of April 7,1846, and of the quantities of cloth received, and dates when received, and of the proceeds of all the cloths received by him, and dates when received. He also produced, at the plaintiff’s request, an account of the proceeds of the sale of the property described in the chattel mortgage, which sale took place May 11,1847, under the mortgage, which proceeds amounted to $1389,06. From the accounts presented it appeared that from the 2d of May. 1846, to the 80th April, 1847, inclusive, Millman & Hinchcliff and Hillman & Carpenter had delivered to the defendant, in all, 21,123| yards of cloth.</p> <p>By the account of sales of cloth, it appeared that the defendant had received on such sales, from the 7th August, 1846, to the 30th April, 1847, inclusive, in all $7853,15, and that the defendant’s account of payments for wool delivered, commissions, advances, &c., from the 7th April, 1846, to June 14,1847, inclusive, amounted to $9455,02, to which was added Hillman & Hinchcliff’s note and interest, up to February, 1849, $211,88, making in all $9666,90. It did not appear that the defendant had settled with Hillman & Hinchcliff, or with Hillman & Carpenter.</p>

Washburn sued Jones before a justice of the peace, for an injury to his horse in Jones stable, Jones being an inn or tavern keeper at the time, and recovered a judgment for $71,50, together with costs. Jones appealed to the county court, where the judgment was reversed. This appeal was from the judgment of the county court, reversing the judgment of the justice.

Rehearing of so much of a decree made at special term before Selden, justice, as held the defendant Perley Hunger personally liable to the complainant to the extent of §1700, and interest, &c. upon a certain contingency; and. of so much of said decree as refused said Hunger his costs of the defense.

The action was upon a bond of indemnity. The condition of the bond, after a recital that an execution in favor of Alonzo Forsyth and the defendant Baird, against William Porter, had been issued to the plaintiff as sheriff of the county of Livingston, by virtue of which a deputy of the plaintiff had levied on certain goods and chattels, alleged by the said Forsyth and Baird to belong to said Porter, but which were claimed by one Sanford Disbrow who had replevied the same from…

Appeal by the defendant from a judgment entered at a special term. The complaint was upon a policy of insurance against fire for 2500 dollars on a sawmill at Brantford, in Canada West, issued to Elijah C. Bens, on the 13th June, 1849, for five years from that day. The building, it was stated, was destroyed by fire on the 17th January, 1851.

This was an action brought to recover a lot of land in Warren county, and was tried at the Warren circuit in June, 1852, before C. L. Allen, justice. The plaintiffs were four of the heirs at law of Henry Walton, who died in 1845. It was proved that in 1792, lot 2 in lot 10 of the 25th allotment of the patent of Kayaderosseras was conveyed in fee, by the other tenants in common, to Henry Walton, and it was not denied that he became seised of the whole of lot Ho. 2.

This was an action commenced in a justice’s court of St. Law- ■ pence county by Stephenson, against the defendants and Epaphroditus Buck.

This suit was commenced in April, 1850, and the complaint was on two notes, dated April 1,1845, signed hy the defendant and 13. Losee, one for $2000, the other for $3000, both joint and several, and payable one year after date, to the plaintiffs or bearer, with interest. The defendant denied indebtedness, and alledged that the notes were executed by him as surety for Benjamin Losee, without any consideration whatever, which the plaintiff knew.

The complaint in this case was on a chattel mortgage, dated November 19th, 1831, due on the 1st of January, 1833, and it alledged that the defendant had used up and disposed of the property mortgaged, that no part of the money had been paid, and demanded the sum secured by the mortgage, and interest from date. The terms of the mortgage were not given, but a copy of it was attached to the complaint, and marked A.; but the complaint did not refer to that. .

This was an action to recover possession of a horse and some cattle and farming utensils, alledged to be withheld from the plaintiff, executrix of J. F. Huntington, by the defendants. The defendants, who were husband and wife, denied the allegations of the complaint, and set up property in themselves, and also in the wife. The cause was tried at the Clinton circuit in February, 1852, before Mr. Justice Hand.

This was an appeal from the judgment of the St. Lawrence county court, affirming the judgment of a justice’s court. In December, 1843, Anastasia Ford recovered a judgment against the present plaintiff for nearly $70. A transcript thereof was filed with the clerk of St. Lawrence county in April, 1844. In January, 1850, the St. Lawrence county court ordered the clerk of the county to issue execution on the judgment; which was issued in that month.

This was a summary proceeding to remove the defendant, as tenant.

This was an action in the nature of a quo warranto, brought for the purpose of testing the right of the defendant to the office of… Held: used and executed the said office of treasurer of the state of New-York, and still did hold, use and execute the same, and without any legal warrant or authority, had claimed, used, received and enjoyed all the rights, franchises, fees and emoluments belonging or appertaining to the said office, which rights and franchises, he, the…

The defendant Mead owned a piece of ground in 1849, adjacent to the village of New Rochelle, and bounded on one side by the road from that village to White Plains, and on another side by the New-York and New Haven railroad. This piece of ground the defendant Mead caused to be surveyed and laid out into village lots, for the purpose of selling the same at auction.

This was an appeal by the defendants from a judgment rendered against them at a special term of the court, on the verdict of a jury. The action was for a breach of a contract to furnish a quantity of barley to the plaintiffs. On the trial, at the Dutchess circuit in September, 1851, before Justice Barculo, the following letters, among others, were given in evidence. “ Sackett’s Harbor, August 6,1850. Messrs.

This action was commenced in the month of June, 1851, in the city court of Brooklyn, By the plaintiff, Edwin Beers, for the recovery of seven hundred and sixty-five dollars, alledged to have Been lent and advanced By him on or about the 10th and 13th days of December, 1850, to the defendants, The Phoenix Glass Company, and the further sum of fifty-eight dollars for the discount of uncurrent money alledged to have been discounted for them by him as a broker, between the 1st…

This was an appeal by the defendants from a judgment of the Orange county court. The action was originally commenced before a justice of the peace, to recover the value of a cow belonging to the plaintiff, killed by the engine of the defendants, upon their road, in April, 1850. The plaintiff claimed to recover on the ground of the defendants’ neglect to fence their road at the place where the cow was killed.

<p>The directors of a mutual insurance company do not act judicially in making assessments upon premium notes.</p> <p>Having ascertained that the company is liable for a loss, and that it has not sufficient funds to pay the same, the directors are to ascertain who were the members of the company at the time the loss occurred, and then their assessment is to be made upon each in the proportion which the amount of his deposit note bears to the amount of all the deposit notes.</p> <p>They have no right to take into consideration the length of time any person has been a member, in determining the amount of his assessment,- or whether he shall be assessed at all.</p> <p>If they omit to assess the deposit notes of any persons who are then members, and liable for their proportions of the losses; or if they include in the assessment the amount of previous assessments, from the payment of which the parties assessed have been released, the assessment is invalid.</p>

This was an appeal from an order or sentence of the surrogate of the county of Albany. On the 17th of March, 1852, Nicholas Wever presented a petition to the surrogate, praying that an order might be granted that Francis I. Marvin and Uriah Marvin render an account of their proceedings as executors of the last will and testament of Uriah Marvin, deceased.

<p>In suits before justices of the peace the jury must always he put in charge of a constable sworn to attend them; unless they find a verdict on the spot, without leaving their seats. And this, whether the jury retire from the court, or the court leaves them alone in the court room.</p> <p>A justice of the peace cannot receive a verdict unless the plaintiff is present, or some one appears for him. If it is fairly to be inferred from the justice’s return that he received a verdict in the absence of the plaintiff, a judgment entered thereon will be reversed.</p>

<p>So mere representation, made by a party insured, is a warranty. To constitute a warranty, it must be contained in the policy; or if contained in another instrument, it must be made part of the policy, by the agreement contained in the policy.</p> <p>Thus the proposals and conditions usually annexed to the printed policy are by its express terms to be used and resorted to to explain the rights of the parties; and a compliance with them is as essential on the part of the insured as if they were written in the body of the policy.</p> <p>But a mere reference to another paper—as a survey, or an application—does not make it part of the policy, nor bind the insured by its contents as by a warranty.</p> <p>A warranty must be complied with, in all respects, even in those that do not seem to affect the risk.</p> <p>A representation which is false will avoid the policy if the actual riskis greater than it would be were the representation true. And it seems that this is so, even if the misrepresentation was honestly made.</p> <p>But a misrepresentation in a matter that does not affect the risk or the amount of the premium will not avoid the policy, unless made with an actually fraudulent design.</p> <p>The reference made in the old fashioned policies still used in the city of JSTewYork, to the proposals and conditions, does not make the application of the insured a warranty; although in the mutual policies the application is by their express terms made part of the policy, and so amounts to a warranty.</p> <p>Although a warranty must be complied with, even in matters that do not seem to affect the risk, yet the courts are liberal to the assured in giving an interpretation to the warranty; and attach no importance to the printed words, when the written words even impliedly indicate an intention different from the printed. And they have been strict in requiring the insurer, who draws up the policy, and deliberately chooses his own language, to use such words as will, in their literal understanding, clearly convey the intended meaning. Per Mitchell, J.</p> <p>Where a policy insured parties against damage by fire on their stock as rope •manufacturers, contained in a brick building; Held, that it sanctioned the use by the insured of their stock as rope manufacturers in that building; one of which uses was the manufacture of ropes. And that it would permit the business of a “ rope maker,” although that was enumerated among the specially hazardous kinds of business, in the policy.</p> <p>The business of hackling hemp and spinning it into yarn, is distinct from that of making rope; and is not included in a prohibition of the trade of “ rope makers,” contained in a policy of insurance.</p> <p>Insurers are assumed to know the usages of trade; and when they use a term having a limited meaning in the trade, and in a policy to one engaged in that trade or in a business closely connected with it, both parties must be assumed to have understood the term in the sense in which the trade usually understand it.</p> <p>Evidence of such usage is always admissible.</p> <p>Where parties applied for insurance upon their stock as rope manufacturers, contained in a brick building occupied as a storehouse; Held, that the application was merely a representation, and not a warranty that the building was used only as a storehouse.</p>

This was an appeal from an order of the special term,'striking out the answer of the defendant as sham, false and frivolous. The complaint, after stating that the defendant Henry Bushnell made a note payable to the order of his co-defendant, George W. Bushnell, contained an allegation that the payee indorsed and delivered the note to the plaintiff. The answer of the defendant II.

This was an application on the part of Benjamin Welch, for an order against James M. Cook, to compel Cook to deliver over to him, the said Welch, the hooks and papers in the custody of the said Cook, belonging and appertaining to the office of treasurer of the state of New-York.

This was an application to confirm the commissioners’ report of estimate and assessment in the above matter. The Brooklyn and Growanus Toll Bridge Company, incorporated by chap. 291, of laws of 1833, appealed from the commissioners’ decision, and opposed the confirmation of their report.

In Equity. On the eighth day of September, 1852, the defendant agreed to sell to the plaintiffs a farm of forty-three acres of land, situate near Astoria, in the county of Queens; and to execute and deliver to them a warrantee deed for the said land, on condition that the .plaintiffs paid for the same land $21,995, as follows: “ $10,995 thereof in cash, in thirty days from the date hereof, when the deed for said premises and possession thereof are to be given; $3000 thereof…

In Equity. This was a motion to continue a preliminary injunction restraining the defendants from enforcing an ordinance of the common council of the city of Brooklyn, The facts appear in the opinion of the court.

<p>The facts in this case are stated in the opinion of the court,</p>

This was an action of ejectment, for lots A. and B., in a certain allotment of Kayaderosseras patent, in Saratoga county, tried a second time before Mr. Justice Hand, in June, 1851. The jury found a verdict for the plaintiff for the one hundredth part of lot B., and the defendant tendered a bill of exceptions, upon which he now moved for a new trial. The suit was commenced in October, 1845, and was first tried in 1848, and a new trial granted.

Griffin sued Sutherland before a justice of the peace, for the alledged wrongful taking of personal property. The defendant, who was a deputy of the sheriff of the county of Columbia, justified the taking and sale of the property under and by virtue of an execution against the plaintiff’s property, issued out of the county court. The cause was tried before the justice and a jury.

In Equity. This suit was originally commenced by a bill filed before the vice chancellor of the third circuit.

Tuts was an appeal by the defendants, from a judgment rendered against them at the circuit. The complaint alledged that on or about the 19th of June, 1849, without .leave and wrongfully, the defendants took and converted to their own use, the canal boat “J. L. Ward,” and the furniture thereof, the property of the plaintiffs.

This cause was tried at the Greene circuit in April, 1849, before Mr. Justice Parker, a trial by jury having been waived by the consent of parties. In September, 1843, the Ulster Iron Company leased to one Horace Gray, for the term of five years, their Iron Works at Saugerties, in the county of Ulster.

On the 16th of March, 1841, a judgment was entered up in the supreme court, on bond and warrant of attorney, in favor of William Mann against the deceased and Abraham L. Lawyer, for $658,76 debt, and $16,91 damages and costs. The judgment was entered on a claim against the deceased, for money borrowed by him. Lawyer signed a joint promissory note first, $nd afterwards the bond, as the surety of the deceased.

The defendant Bartlett and John 0. Fuller, the lunatic, executed and delivered to the defendant Warren a bond and warrant of attorney, bearing date the 22d day of February, 1848, by virtue of which the defendant Warren caused judgment to be perfected on the 22d day of February, 1848, for $1300 debt and $16,50 damages and costs.

Case submitted under § 372 of the code of procedure. The following are the facts as agreed upon: In the month of October, 1851, the plaintiffs delivered to Pliny A. Moore, John B. Tibbits and George M. Wheeler, who were then engaged in business as commission merchants, in the city of Troy, under the firm name of Moore, Tibbits & Co., a quantity of flour to be sold by them' for the plaintiffs upon commission, with no permission, to sell on credit.

Motion to set aside report of a referee. The action was trover, commenced in January term, 1847, for 100 barrels of flour, marked “ Otsego mills.” The cause was referred to Alexander F. Wheeler, Esq, sole referee. From the evidence in the case it appeared that in the fall of 1846, one Francis Dennison, residing in the state of Michigan, sold to the plaintiff 880 barrels of flour.

The complaint in this action alledged and set forth that the plaintiffs were the owners of certain real estate in Oochecton, Sullivan county, described as in division lot ISTo. 60, in great lot lío. 1 of the Hardenburgh patent, containing about 650 acres; that a stream of water called and known as the Callikoon creek, ran through the said land for about one mile ; that on the said premises they had recently constructed a dam across the creek, at large expense, and in…

This action was brought against the defendant as a common carrier, to recover the value of certain goods delivered to him to he transported from Buffalo to Milwaukie. and which were alledged to have been lost. On the trial the plaintiff showed that the defendant kept an office at Albany, and was engaged in the business of transporting goods upon the Erie canal, and occasionally west of Buffalo, on the lakes.

<p>A married woman cannot convey to her husband, by deed, all her dower right in his real estate, under the “ act for the more effectual protection of the property of married women,” passed April 7, ^848, and amended in 1849.</p> <p>$he safer and more reasonable construction of that act will restrict the right of a married woman to convey to persons other than her husband.</p>

Appeal by the plaintiff from an order made at special term, overruling a demurrer to the defendants’ second answer. The action was brought to foreclose a mortgage executed on the 13th of November, 1844, by the defendants Brooks and Hodgman and one West Davis to Susan Daubeney, to secure the payment of $1600, the purchase money of the mortgaged premises.

This action was commenced in August, 1850, and the pleadings were framed under the code of 1849. It was an action for the alledged conversion of a large quantity of flaxseed, of the value of $600, the property of the plaintiffs. The process was served only on Frost, and not on Rider. Frost alone appeared and put in an answer, containing, with respect to each allegation of the complaint a general denial thereof as was allowed by § 149 of the code of 1849.

Appeal by the defendants from a judgment entered against them at the circuit. The action was brought to recover an alledged loss under a policy of insurance against fire, issued by the defendants to R. 0. Weeden. The plaintiff sued as assignee of the policy. The cause was tried at the Saratoga circuit in April, 1852, before Willard, justice, a jury being waived.

This cause came before the court upon appeals by the defendant from orders made by a justice at special term, upon demurrers. The action was brought to enforce the collection of certain demands against the defendant, which had been purchased by the plaintiff at a public sale of the effects of the St. Lawrence Bank, by the receiver of said bank, had under the decretal order of the chancellor.

This was an appeal by the plaintiff from an order made at a special term, dissolving an injunction. The act creating the defendant a body corporate, was passed on the 11th of May, 1846.

Demurrer to the second and third counts of the declaration. The action was covenant.

This was a motion by the defendant to set aside the report of a referee, and for a new trial, upon a case. The action was assumpsit ; and the declaration contained the common counts, for goods sold and delivered, &c. The referee reported $114,66 due to the plaintiff. The facts are set forth in the opinion of the court.

Appeal by the defendant from a judgment entered upon the report of a referee, for the sum.of $213,75, besides costs. The opinion of the court sets forth the facts.

On the 13th of April the cause was reached, and called on for trial by the defendants, who were ready, with their witnesses in attendance. The plaintiff applied for a postponement, which was denied. He then gave notice of discontinuance, and made a tender of costs. Ten days afterwards, but during and at the same circuit, on reading sundry affidavits, which were not set forth in the case, and on hearing counsel on both sides, the order appealed from was made.

Motion hy the defendant for a new trial, upon a case. The action was upon a guaranty.

Appeal by the plaintiffs from a judgment entered in favor of the defendant, upon the report of a referee. The action was brought to recover for supplies furnished to the schooner Hudson ; the complaint alledging that the defendant was the owner of the vessel, and that the supphes were furnished at his request. Ho credit was given to the defendant, by name.

The action was tried at the Brie circuit in June, 1852, before Justice -Allen. The plaintiff was the administrator of Washington Willetts, deceased.

Action to recover the possession of personal property. The plaintiffs, on the 16th August, 1850, sold to one Zebina Judd 166 stoves, and a quantity of hollow ware pertaining to the stoves. The purchase amounted to $2082,66.

Wilkins & Lockwood were commission merchants in Buffalo, and the agents and factors of the defendants, who were partners, doing business as forwarding and commission merchants at San-dusky, Ohio, and also engaged in purchasing and selling produce. They had in October, 1849, in the possession of Wilkins & Co., 8822 bushels of wheat, which Wilkins & Co. upon consultation with the defendants and with their consent, sold, partly on credit, to Joy & Chapin of Buffalo.

The action was tried by a referee, who reported in favor of the plaintiffs. A motion was made in the recorder’s court to set the report aside, which was denied. The case is sufficiently stated in the opinion.

This action was brought to recover damages for breach of a contract entered into between the plaintiffs and defendants, by which the defendants agreed with the plaintiffs to take the cylinders then used by the plaintiffs at their mills at Youngstown, and lay them down on new cast iron frames, furnishing all new connections, flywheel, with a good and suflicient copper flue heater with all eccentrics, &c. and to put the same in a well finished workmanlike manner, of suflicient…

<p>The defendant, being the owner of the soil in a highway, sold to P. a hank of sand therein, in front of the plaintiff’s premises, where he resided. P., in taking away the sand, dug down four or five feet below the surface of the ground, for a distance of some three rods, opposite the plaintiff’s land. The excavation was about eight feet from the plaintiff’s fence, and the earth had partially caved in, to within about four feet of the fence, but none of the plaintiff’s earth, or fences, or improvements had been in the least disturbed. Held that no action would lie for damages.</p>

This was an appeal by the plaintiff'from a judgment of the Monroe county court. The action was commenced before a justice of the peace to recover a penalty of the defendant for taking excessive toll. (See 1 R. S. U ed. 719, §§ 50, (51;) Laws of 1847, p. 231, § 47; Id. p. 352, eh. 287.) The facts, as agreed upon by the counsel for the parties, were briefly these: The defendant was a toll gatherer on the Rochester and Greece plank road, at their west gate.

Appeal by the plaintiffs, from a judgment entered upon the report of a referee. The complaint was upon seven promissory notes, each of $100, and each payable to the order of Frederick Silence at the Eochester City Bank, and each bearing date October 28,-1847; on which the plaintiffs claimed to recover $819,70. The defendant, by his answer, denied all indebtedness to the plaintiffs.

This was an appeal by the defendant from a judgment entered upon the report of a referee, in favor of the plaintiff, for $3309,90, besides costs. The action was brought to recover damages for the wrongful taking of .400 sticks of pine timber. The defend? ant, in his answer, claimed to be the owner of the timber under a purchase thereof at a sale upon executions issued against Moses P. Little.

This was an appeal by the defendants from a judgment entered against them at the circuit, upon the report of a referee. The action was brought against the defendants upon a note in the following words: “ Canandaigua, Aug. 1,1849. Six months from dato, for value received we promise to pay to the order of J. M. Wheeler, at the Ontario Bank, seven hundred and fifty dollars, with interest. (Signed) Aaron Lampi-iire.

This was an appeal by James Bowers and others, from a decree of the surrogate of the county of Queens. The facts are set forth in the opinion of the court.

This was an appeal by the defendant, from a judgment entered upon the report of a referee. The action was brought to recover of the defendant $133,33, rent of certain premises in Brooklyn. The referee reported in favor of the plaintiff,' for that sum. The only question in the case is stated in the opin- ■ ion of the court.

This was an appeal by Conrad Bowers, from a decree of the Surrogate of the county of Queens, removing him from his trust as executor of Peter Marks, deceased:

This action was brought to recover damages for the value of' certain goods and chattels, viz. a Fourdenier machine, shafting and gearing, <fec. belonging to the plaintiffs, and alledged to have been converted by the defendants.