Volume 14 — New York Reports

(Reported below, 1 N. Y. S. C. [T. & C.], 397.) This action was upon a policy of insurance issued by defendant June 4, 1869, insuring plaintiffs’ “brick grist and plaster mill,” situate in the city of Poughkeepsie, for one year.

(Reported below, 1 N. Y. S. C. [T. & C.], 400.) This action was brought by plaintiff as assignee of the Central Bank of Brooklyn (appointed under the United States bankrupt law, § 35), to recover moneys alleged to have been paid defendant by said bank in contemplation of insolvency, in violation of the provisions of the Revised Statutes.

<p>Payment of forged commercial paper, without inspection, under circumstances giving the party paying no previous opportunity for inspection, does not, of itself, preclude a recovery back of the money so paid. The ’ party paying, lio'wever, is bound to use due diligence in making the inspection as soon as he lias the opportunity and in giving notice of the forgery, and if by his failure to do so the party receiving payment is prejudiced, such negligence will defeat a recovery.</p> <p>The banking-house of O. & Co. had an arrangement with defendant by which the latter agreed to take up each day, at the clearing-house, all commercial paper of the former there presented by other hanks; upon being notified of the amount, 0. & Co. were forthwith to send their check therefor and to receive the paper, and if, upon inspection, any portion should prove not to he good, O. & Co., upon sending back to the bank through which it came, before the close of banking hours, were to he entitled to a credit for the amount. On a certain day O. & Co. received the usual statement and sent check for the amount, receiving therefor the paper making up the amount of the statement. Among them was a forged certificate of deposit, purporting to be signed by 0. ■& Co., which was not presented at the clearing-house, but was sent by plaintiff to defendant for collection. On arriving at the office of 0. & Co., the certificate was examined by their cashier, who passed it to the book-keeper with the other paper. After the close of banking hours the . forgery was discovered, and O. & Co. immediately notified plaintiffs and also telegraphed to plaintiffs’ principal, from whom they had received the certificate for collection. Plaintiffs received the notice prior to the acknowledgment by them of the receipt of the certificate. On the next day O. & Co. returned the certificate to defendant and were credited back the amount. In an action to recover the amount of the } certificate, held, that the payment by O. & Co., under the circumstances, did not preclude them from claiming a restitution of the money; that the action of the cashier was not a binding recognition of the genuineness of the certificate, nor did the failure to discover and give notice of the forgery during business hours render the previous conditional payment absolute; and, therefore, that defendant was justified in refunding the money.</p> <p>Price v. Neal (3 Burr., 1354) distinguished.</p>

This action was brought by plaintiffs as tax-payers of the town of Thompson, Sullivan county, to restrain defendants, who were railroad commissioners of said town, appointed under the act authorizing certain towns in the counties of Sullivan hud Orange to issue bonds in aid of the Monticello and Port Jervis Railroad Company (chap. 553, Laws of 1868)> from paying over moneys levied and collected in said town and paid over to them by the town collector, as directed by his…

(Reported below, 1 N. Y. S. C. [T. & C.], Ad., 23.) This was an action to recover damages for the alleged negligence of defendants, causing the death of Owen Swords, plaintiff’s intestate. Defendants were the owners of the south half of pier nlumber eleven, in the city of New York.

. Appeal from, j udgment of the General Term of the Supreme Court in the first judicial department, affirming the proceedings of defendant, the hoard of commissioners of taxes and assessments of the city and county of New York, iu assessing the relator which were brought up for review on writ of certiorari.

This was an action of ejectment to recover possession of a lot in the city of Brooklyn.

This action was brought by plaintiff, a banking association, organized under the general banking law of the State, upon a promissory note, of which the defendant Hale was maker, and the defendant Case indorser. The defence was usury. The note was discounted by plaintiff, and it was conceded on the trial that $13.50 was paid, over and above the lawful interest.

(Reported below, 4 J. & S., 470.) This action was brought to recover a sum of money alleged to have been paid by plaintiff to defendant by mistake. The facts, as found by the referee, were in substance as follows : On the 1st day of December, 1869, Lunt Brothers, merchants in New York, gave to a stranger, in exchange for twentydive dollars, a check for that amount, drawn upon plaintiff, payable to the order of Henry Smith.

The applicant, Henry W. Genet, was convicted of felony at the December term for 1873 of the Oyer and Terminer, and upon such conviction was committed to custody to await sentence pending an application for the sett-lenient of a bill of exceptions. Before that application was disposed of or sentence pronounced he escaped from custody and has since been a fugitive from the State.

These are appeals from orders of the General Term of the Supreme Court in the first judicial department, affirming orders of Special Term denying motions, on behalf of defendants, to vacate judgments entered on forfeited recognizances. The judgments were perfected in the manner prescribed by article 4, section 8, chapter 315, Laws of 1844. The judgment records in each case consisted simply of the recognizance and a certified copy order forfeiting the same.

The relator had obtained a license from the said board. A complaint was made to the board against him, under section 8, chapter 549, Laws of 1873, for selling beer on Sunday, by a sergeant of the police, of which complaint the following is a copy: “ Brooklyn, Feb. 9, 1874. “ John S. Folk, Superintendent of Police: “ I hereby report George H. Presmeyer, keeper of liquor saloon corner of Fifth avenue and Twenty-sixth street, for violation of excise law, at 8.15 p. m., on the…

(Reported below, 4 J. & S., 488.) This action was brought to compel the defendant to transfer upon it s books 200 shares of its capital stock, claimed to have been purchased by plaintiff.

(Reported below, 1 Hun, 689; 4 N. Y. S. C. [T. & C.], 215.) This action was brought for the alleged wrongful conversion of certain personal property. An order of arrest was issued therein under which defendant was arrested.

(Reported below, 1 Hun, 381.) The facts pertinent to the questions discussed appear sufficiently in the opinion. The writ of error is right in form, and it is properly before the court. (Harting v. People, 26 N. Y., 154; Burge v. People, 5 Park., 9; chap. 56, Laws of 1872; People v. Appo, 18 How. Pr., 350; Foot v. Beebe, 17 Wend., 483.) Materiality is an essential element of the crime of perjury.

The nature of the action, and the facts pertinent to the Questions discussed, appear in the opinion. The issue of fact in this action should have been tried in the county where the subject thereof was situated. (Code, § 123; Ward v. Davis, 6 How. Pr., 274; Brush v. Mullany, 12 Abb. Pr., 344; Miller v. Hull, 3 How. Pr., 325; 1 Wait’s Pr., 181, 182, and cases cited.)

This action was brought for the foreclosure of a mortgage made by the defendant George Hubbard and wife. Plaintiff sought to recover of defendants C. S. Maltby and Thorn J. Houston, in case the mortgaged premises should not realize, upon sale, sufficient to pay the mortgage debt, the value of certain wood cut upon the mortgaged premises, the complaint alleging fraud and collusion between them and the mortgagor.

(Reported below, 3 Daly, 361; 10 Abb. Pr. [N. S.], 140.) This action was brought to recover fees for pilotage out of the port of Hew York of a sea-going steam vessel owned by defendants.

<p>The words “ actual possession,” as used in the provisions of the Revised Statutes, authorizing proceeding to compel the determination of claims to real property (1 R. S., 312, § 1), mean a possession in fact effected by actual entry upon the premises; an actual occupation.</p> <p>Plaintiff, in proceedings pursuant to said provisions prosecuted by action, as authorized by the Code (§ 449), in order to show three years’ actual possession, proved a deed to their ancestor of the premises, his decease intestate, that they were his heirs at law, and that the premises were vacant. Held, that this neither established nor gave ground to presume an actual possession.</p>

Appeal by Jesse P. Hatch and others, judgment creditors -of defendant Hiram L. Suydam, from an order of the General Term of the fourth judicial department, reversing so much of an order of Special Term as gave to said Hatch and others priority of claim to certain surplus moneys. (Reported below, 2 N. Y. S. C. [T. & C.], 460.) This was an action for the foreclosure of a mortgage made by said Hiram L. Suydam.

Appeal by James Yearance, receiver of defendant, from order of the General Term of the Supreme Court in the fourth judicial department, reversing an order of Special Term denying a motion to compel said James Yearance, as receiver, to pay the judgment heréin, and directing said receiver to pay such judgment. This action was brought in 1870, upon a policy of insurance issued by defendant.

On the 2d of February, 1865, Hiram Frisbie, of the town •of Sennett, in Cayuga county, made his last will and by it made the following bequest, viz-.: “ Fourth. I give and bequeath to my sister Polly Carter the use and profits of $2,000, to be paid her by my executor hereafter named.” “ Fifth.

(Reported below, 1 N. Y. S. C. [T. & C.], 16.) The summons in this action was for relief.

These are appeals, the one from a judgment of the General Term of the Supreme Court, in the first judicial department, affirming a judgment of Special Term, sustaining a demurrer on behalf of defendant Chapman, to plaintiff’s complaint, the other from a judgment of said General Term, affirming a judgment in favor of said defendant, entered upon a case submitted under section 372 of the Code.

Appeal -from judgment of the General Term of the Court of Common Pleas for the city and county of ¡New York, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of .the action and the facts appear sufficiently in the opinion. By the action of the judges of the court appointing officers thereof on May 31, 1872, plaintiff was superseded and removed from office.

This action was brought upon an alleged parol contract to insure and to issue a policy, made by one Carpenter, as agent of defendant. Plaintiff’s evidence tended to show that Carpenter was agent of defendant, had authority to negotiate contracts of insurance, agree upon all ,the terms, and to fill up and deliver policies, he being furnished for that purpose with policies executed in blank by defendant’s president and secretary.

<p>Appeal from order of the General Term of the Supreme Court in the fourth judicial department, affirming an order of Special Term denying a motion to dissolve a preliminary injunction.</p> <p>This was an action brought by plaintiff, as a creditor of “ The People’s Safe Deposit and Savings Institution of the State of Hew York,” against the stockholders, the assignees in bankruptcy, and such creditors of said bank as had brought suits against the stockholders, seeking to restrain such suits, to collect the liabilities of said stockholders in one common fund, to be distributed among such creditors as should come in, etc.</p> <p>A temporary injunction was obtained, and, upon motion to dissolve the same, the order appealed from was granted.</p> <p>This order is appeal-able, under section 11, subdivision 4 of the Code. (37 N. Y., 573; 3 Keyes, 480.)</p> <p>Ho appeal lies to the Court of Appeals from either the order and judgment thereon overruling the demurrer, or from the order sustaining the injunction. (Baker v. Cocks, 50 N. Y., 689; Paddock v. Springfield F. Ins. Co., 12 id., 591; Adams v. Fox, 27 id., 640; Ferris v. Aspinwall, 10 Abb. [N. S.], 137; Coit v. Stewart, 50 N. Y., 17.) The order sustaining the injunction does not necessarily affect a substantial right; and it was not a question of discretion, and, therefore, is not appealable. (Paul v. Munger, 47 N. Y., 469; People v. Schoonmaker, 50 id,, 499; Van Dewater v. Kelsey, 1 Comst., 533; Wakeman v. Price, 3 id., 334.)</p>

This was an action for crim. con. The complaint alleged that defendant had criminal intercourse with plaintiff’s wife, “on or about the 10th day of October, 1868, and on divers other days and times after that day, and before the commencement of this action,” at the house of the plaintiff, and at the house of the defendant, in Brooklyn. ■ The motion was that plaintiff be required to deliver to defendant’s attorney “ a statement in writing of the particular times and places at…

(Reported below, 2 N. Y. S. C. [T. & C.], Ad. 5.) The nature of the action and the substance of the complaint is set forth sufficiently in the opinion. The tax-payers are the proper parties to bring the action. (Laws of 1872, chap. 161, § 1; De Baun v. Mayor, etc., 16 Barb., 392 ; Milhau v. Sharp, 15 id., 193 ; Stuyvesant v. Pearsall, id., 244; Christopher v. Mayor, etc., 13 id., 567; Adriance v. Mayor, etc., 1 id., 19 ; Hanson v. Vernon, 1 Am.

(Reported below, 1 Hun, 132; 3 N. Y. S. C. [T.&C.], 653.) The appeal relates to the disposition of a bequest in the eleventh clause of the will, to the children of Ann Maria Tucker, who had died previous to the making of the will, leaving the three children named in said clause.

This was an action for divorce, a vinculo. In August, 1852, a final judgment was perfected in favor of plaintiff granting the divorce, hut making no provision for alimony. On the 11th of November, 1871, plaintiff made a motion for alimony upon an affidavit showing, in substance, that since the decree she had become unable to support herself and that defendant had become wealthy. Defendant appeared by counsel and opposed.

(Reported below, 2 N. Y. S. C. [T. & C.], 299.) This was an action against defendant, as sheriff of the county of Ulster, to recover moneys collected by him upon execution. The plaintiff, on the 5th day of July, 1872, recovered a judgment against one Cornell in the Supreme Court in the county of Oswego, for $2,280.38.

(Reported below, 1 N. Y. S. C. [T. & C.], 143.) This action was brought to recover moneys alleged to be due plaintiff under a contract made June 7, 1865, between plaintiff and defendant’s board of town auditors, for the. laying of pipes and the supplying of certain streets of the town with gas.

(Reported below, 1 Hun, 223 ; 2 N. Y. S. C. [T. & C.], 1,) This action was commenced in 1869. The defendants being non-residents, an attachment was issued therein and levied upon sufficient property of defendants. This was released by their giving an undertaking with sureties. Defendants appeared and answered, and the issues were referred.

<p>It is proper to determine in a foreclosure suit a controversy between plaintiff and a grantee of the mortgagor, as to the right of the latter to remove an erection made by him on the land, and the court may by the judgment in the action, in case the right is established, protect it by authorizing the removal before the sale, or providing that the sale shall be subject to such right.</p> <p>An order, therefore, granting a temporary injunction restraining such removal, is not a final determination of the question; it is within the ■ discretion of the court of original jurisdiction to grant; and the exercise of this discretion cannot be reviewed here.</p>

The nature of the action and the facts pertinent to the question discussed appear in the opinion. An equitable action can only be tried by a jury when all the issues are so ordered to be tried. (Vermilyea v. Palmer, 52 N. Y., 472.) The Special Term has a discretion to submit certain questions to a jury, and no appeal lies therefrom. (Wood v. Mayor, 4 Abb. [N. S.], 152; Hackford v. N. Y. C. R. R. Co., 53 N. Y., 654; 2 Danl.

This was an action for breach of an alleged parol contract. The plaintiff had been charged as the indorser of a promissory note. He had been sued in an action with the maker, but had so bargained with the creditor as that judgment had been taken against the maker only. He had further agreed with the creditor, that on the payment of a part of the debt, further time was given for the payment of the residue.

This action was brought to recover back alleged overcharges paid by plaintiff upon goods purchased by him of defendants, which were made by the latter in violation of a contract between the parties. The facts appear sufficiently in the opinion. Plaintiff’s promise to purchase goods from defendants is a good and sufficient consideration for the defendants’ promise to sell at certain low prices.

This action was against defendant as a common carrier, for failure to deliver goods intrusted to it for transportation. The referee found the following facts: That on the 2d day of October, 1871, the plaintiff purchased at the city of Hew York, of the firm of H. B. Claflin & Co., a quantity of goods, and directed them to ship the same to him at Janesville, Wisconsin, by the, defendant’s line.

The complaint in this action, in substance, alleged, that on the 3d day of April, 1871, plaintiff was the owner of a promissory note made by defendant, payable to the order of Britton & Go.-, for $2,165.86; which was indorsed by the payees and transferred to plaintiff before maturity; that prior to its maturity the payees failed and made an assignment; that on or about the day mentioned, defendant, for the purpose of deceiving plaintiff and inducing him to surrender up the…

This action was brought against' defendant, as sheriff of the county of Kings, to enforce the liability imposed upon him by section 210 of the Code, in consequence of the failure to justify of the sureties for the plaintiff in an action for the claim and delivery of personal property.

(Reported below, 1 Hun, 421; 3 N. Y. S. C. [T. & C.], 589.) This action was for moneys had and received. The facts are sufficiently stated in the opinion. Plaintiff had a legal title to the money in question. (Carver v. Creque, 48 N. Y., 385, 388, 389; affirming S. C., 46 Barb., 507, 512, 513.) The payment to defendant did not operate to discharge the payor from any liability to plaintiff, and there is no trust and implied promise to pay the money to him.

(Reported below, 2 Hun, 142; 4 N. Y. S. C. [T. & C.], 413.) This action was brought to set aside an assessment upon certain premises in the city of Brooklyn, for grading and paving Franklin avenue in said city, as a cloud upon plaintiffs’ title. Upon the trial the plaintiffs proved that they were invested, as executrix and executor respectively of the last will of Leonard Marsh, deceased, with the legal title to the premises in question.

(Reported below, 3 N. Y. S. C. [T. & C.], 406.) This action was brought to recover the price paid for a barrel of gin purchased by the plaintiff of the defendants, and which the complaint, in substance, alleged had come into the possession of defendants and they refused to deliver it up.

(Reported below, 3 ÍT. Y. S. C. [T. & C.], 771.) This action was brought to recover damages for the loss of the plaintiffs’ steamboat, Telegraph, sunk by a collision with •defendant’s steamer Drew, which was alleged to have occurred through the negligence of those navigating defendant’s boat.

• Appeal from . judgment of the General Term of the Supreme Court in the first judicial department, modifying judgment in favor of defendant, entered upon the report of a referee. , /. This action was brought to have an executory contract for the sale of lands in the city of New York, which was recorded in the office of the register, declared void, and to have it canceled of record, as a cloud on plaintiff’s title.

Special Term exonerating defendant, as bail of one John J. McGurk, and dismissing the complaint on payment of ■ costs. (Eepovted below, 2 FT. Y. S. C. [T. & 0.], 621.) The plaintiff commenced an action against said John J. McGurk, in which she procured an order of arrest.

<p>Appeal from order of the General Term of the Supreme Court in the first judicial department, affirming an order of Special Term denying a motion, on the part of plaintiff, that a commission rogatory issue herein to the French tribunals to take the testimony of two witnesses residing in Hice, France.</p> <p>A motion was heretofore made for the same purpose which was denied and a commission in the ordinary form was issued to take the testimony of one of the witnesses named. This was duly executed and returned. This application was then made upon affidavits tending to show that the attendance of witnesses could not be compelled before a commissioner; that the witness, whose deposition was taken, was hostile to plaintiff and her testimony untrue, she not feeling obliged to tell the truth as she would if under oath administered by a judicial officer of France.</p> <p>The execution of the commission was proper. (2 Brightly’s Dig. [1869], 204, § 2; 12 U. S. Stat. at Large, 769, § 5; Nelson v. U. S., 1 Pet., 235 ; Lincoln v. Battel, 6 Wend., 475 ; Canjolle v. Ferrie, 23 N. Y., 93 ; McMahon v. Allen, 18 Abb., 292; Shaffer v. Wilcox, 2 Hall, 502.)</p> <p>The order was not appealable. (Code, § 11, sub. 4.) The commission rogatory was unnecessary. (Raney v. Weed, 1 Barb., 220.)</p>

(Reported below, 3 H. T. S. C. [T. & C.], 235.) These proceedings were instituted under and in accordance with the provisions of the act (chapter 639, Laws of 1857), providing for the building and repairing of bridges across streams dividing towns.

(Reported below, 3 N. T. S. C. [T. & C.], m.) The complaint alleged in substance, that plaintiff Mary Haddow is the widow and her co-plaintiffs the children of Robert Haddow, who died intestate in 1868, having left his family some years prior thereto.

This action was brought to restrain defendants from using the words “ gold medal ” as applicable to their manufacture of salaratus, plaintiff claiming an exclusive right to such use as a trade mark.

This action was brought to foreclose a mortgage executed by one John White, who died previous to the commencement thereof The defense was that prior to the execution of the mortgage, said White conveyed the mortgaged premises to John P. White, who conveyed them to defendant Jane White. These deeds were not recorded, and the question was as to whether plaintiff was a bona fide mortgagee for value.

(Reported below, 2 R. Y. S. C. [T. & C.], 292.) This was an action to enforce an alleged trust in favor of plaintiff, as creditor of Elijah W. Hawkins, arising by virtue of the provision of the statute of uses and trusts (1 R. S., 728, §§ 51, 52) in land, the consideration for which had been paid by said Hawkins and the conveyance made to the defendant, his wife.

This action was brought to .recover damages for injuries received by plaintiff, while getting off a train on defendant’s road, alleged to have been occasioned by defendant’s negligence. Plaintiff took passage at Rochester for Fort Plain, where she arrived about 3 a. m. The brakeman called out the name of the station, the cars moved slowly, but did not stop.

This action was brought upon two promissory notes made by defendant. Prior to the making thereof, a contract had been entered into between one Jones and the defendant and Sarah B. Haight, for the repair by Jones of a building and the erection of others upon certain premises in Hew York, the title to which was in said Sarah B. Haight.

This action was brought to recover damages for the alleged negligent causing the death of Thomas Hammond, plaintiff’s intestate. Said Hammond was, at the time of his death, in the employ of defendant as a fireman upon a locomotive running upon its road.

This was an action under the statute in relation to mechanics’ liens in the city of New York (chap. 500, Laws of 1863), to foreclose a mechanic’s lien upon certain premises in said city. Defendant, prior to October 14, 1871, was the owner of fourteen lots on Seventy-fourth and Seventy-fifth streets. He had contracted with one Orlando S. Williams, Jr., .to erect buildings thereon.

(Deported below, 2 N. Y. S. C. [T. & C.], 458.) The court' before whom the defendant in error was tried was composed of the county judge and two justices of the' Sessions, one of whom, Alden S. Baker, was, upon the trial, called as a witness on the part of the prisoner, and was sworn and examined without objection; he was subsecpiently recalled and examined for the prosecution without objection or exception.

<p>Appeal from order of the General Term of the Supreme .Court, in the fourth judicial department, reversing a judgment in favor of plaintiffs, entered upon the report of a referee. •</p> <p>This action was brought upon a policy of insurance, issued by defendant to William Rann, plaintiffs’ testator. The policy was issued September 14, 1870, for the sum of $1,500, term, three years, upon a dwelling-house owned by Rann. The policy contained this clause:</p> <p>“ Builders' Bisk. — The working of carpenters, roofers, tinsmiths, gasfitters, plumbers, or other mechanics, in building altering or repairing the premises named in this policy, will vitiate the same unless permission for such work be indorsed in writing thereon, except in dwelling-houses only, where five days are allowed in any one year for incidental repairs, without notice or indorsement.”</p> <p>A carpenters and mechanics’ risk for two months was granted, and indorsed on the policy, dated December 31, 1870. The referee found, in substance, that Bann, during the two months, made extensive repairs and improvements, which work continued up to March 1, when it ceased. Two weeks thereafter carpenters, in the employ of Bann, commenced work, putting new sidings on the outside of the building, in place of the old clapboarding. This work liad progressed three days, when the building was destroyed by fire, which was the work of an incendiary. As matter of law, the referee found that, under the said condition, the work was authorized, and did not vitiate the policy.</p> <p>The repairs being made at the time -of the fire were such as were incidental to the use of the property, and were covered by the clause in the builders’ risk, allowing five days for incidental repairs. (May on Ins., 244, § 226.) The insurer assumes the risk of necessary and ordinary repairs, in the absence of any stipulation to the contrary, (5 Hill, 10 ; 2 Den., 75; 3 Coms., 122; 18 N. Y., 169.)</p> <p>A condition in a policy, not complied with, vitiates it. (Mead v. N. S. Ins. Co., 7 N. Y., 530.)</p>

(Reported below, 1 Hun, 643; 4 K T. S. C. [T. & C.], 226.) The facts stated are in substance these: The sheriff of the city and county of Hew York had attached certain moneys owing by the plaintiff to one James T. Campbell, a resident of South Carolina, in a suit in the Supreme Court of this State, brought by James and Denis Carolin against said Campbell. The regularity of the proceedings on the attachment was conceded. The indebtedness to Campbell was also admitted.

This was a motion to dismiss an appeal. The nature of the action and the facts appearing on the' motion are sufficiently stated in the opinion.

This was an action of ejectment, to recover possession of certain lots in the city of ¡New York. Martha B. Carnes was originally the plaintiff; upon her death the present plaintiff was substituted, he claiming possession as tenant by the curtesy. Both parties claim under Charles W. Houghton, a former owner of the premises.

(Reported below, 1 K. T. S. C. [T. & 0.], 61'5.) This action was brought, among other things, to have a sheriff’s deed of certain lands in the city of Brooklyn, declared inoperative and void, and to set aside a decree of the surrogate of Kings county, allowing a balance claimed to be due upon the judgment under which said lands were sold, which was against plaintiff’s testator, and directing the payment thereof to defendant Markham, as assignee of said judgment.

This was an action for the partition of certain lands situate in the city of Rochester, of which Charles Mulford died seized. The deceased left a will which, after a bequest to his wife, the defendant Charlotte A. Mulford, contained the following clauses: “ Third.

(Reported below, 2 H. Y. S. O. [T. & O.], 330.) This was an action to obtain a construction of the will of William C. Lefevre, late of Carthage, Jefferson county. The testator made his will on the 1st day of March 1872, and died on the third day thereafter leaving a wife but no children surviving him. His estate was valued at $47,000 all of which was personal except about $2,000 in value of real property. He owed at the time of his death about $1,000.

(Reported below, 2 N. Y. S. C. [T. & C.], 318.) This was an action to foreclose a mortgage executed by defendant Hamilton J. Snyder to Charles W. Snyder, plaintiff’s testator. The facts are sufficiently stated in the opinion. The conveyance by Snyder and wife could not operate to defraud his creditors.

<p>Appeal from judgment of the General Term of the Superior Court of the city of New York, modifying, and affirming as modified, a judgment in favor of plaintiffs, entered upon the report of a referee. (Reported below, 4 J. & S., 158.)</p> <p>This action was brought to recover a balance alleged to be due for the rent of certain premises in the city of New York. Defendant sets up, as a counter-claim, damages for an alleged breach of an agreement in the lease, on the part of plaintiffs, in regard to the erection of a steam hoistway.</p> <p>In November, 1867, the plaintiffs entered into a written agreement with one A. D. Dickinson, by which they agreed to demise to him, for three years from February 1st, 1868, the whole of the store and premises known as Nos. 87 and 89 Leonard street, at the yearly rent of $26,000. The agreement contained, inter alia, the following provision :</p> <p>u The said Ayer & Co. agree that, in case the lessees shall so desire, they will put in an efficient steam hoisting apparatus, in and for the said premises, and, in case the same shall be put in, the said lessees shall pay for the use thereof twelve per cent per annum on the cost of the same, at the usual quarterly days for the payment of rent, and keep the same in repair, the usual wear and tear excepted.” Dickinson agreed to enter into a lease himself, with or without partners, or to procure a responsible firm to become lessees. At this time the building constituted one store; on the easterly side was a stairway, leading to the stores over the first or ground floor. In the entrance-way, in front of the stairs, was a hand hoisting appai-atus, coming down to the floor. In December, 1867, Dickinson underlet to the defendants all of the premises above the first floor, at the yearly rent of $13,000. By that agreement or lease, Dickinson gave to the defendants the benefit and advantage of the stipulation above mentioned, in relation to the hoisting apparatus, and the defendants assumed and undertook to pay the rent therefor to the plaintiffs. About the 1st of February, 1868, the defendants notified the plaintiffs that they desired the hoisting apparatus to be put in, and the latter thereupon procured an engine and machinery for such apparatus, and, on the 13th of March, 1868, had so far put it up, that it could have been completed within two or three days thereafter, but, on the day last mentioned, they were restrained from proceeding therewith by an order of injunction, which had been obtained in an action brought against them by the defendants in this action, to restrain them from completing the putting up of the apparatus in the only hall ór passage-way through which the occupants of the lofts above the first floor could enter their premises. After that order was served, an agreement in writing was made on the nineteenth of March, between the parties to this action, the material part of which is as follows:</p> <p>“It being inconvenient and injurious to the business of the said Kobbe, Corlies & Co., that the work of erecting the hoistway in the building Mos. 87 and 89 Leonard street, so far as relates to that part of the same in the present entrance gangway, and above the first floor of said building, should be continued till a new stairway and entrance is provided, and tlio steam hoistway can be at once substituted for the present hand hoistway, the said Kobbe, Corlies & Co. agree that, if said steam hoistway shall be completed, and a new entrance, within a reasonable time, they will consider the work of completing the steam hoistway as completed from and after Monday, the twenty-third day of March, instant, so far as relates to the covenant in their agreement for a lease to pay for the use of the same at the rate of twelve per cent per annum. '</p> <p>“ The said Kobbe, Corlies & Co., however, hereby require and insist that such new entrance and stairway, as aforesaid, shall be completed and made ready for the use of themselves and their customers before the work upon such steam hoist-way is, and above said gangway and present entrance, shall be commenced.”</p> <p>At the time that agreement was made the firm of Amidown, Lane & Co. had become the lessees, under Dickinson, of the first floor, basement and sub-cellar of the building, and they afterward refused to permit the plaintiffs to build a new passage-way over their portion of the premises, unless they were paid §2,500 therefor. About the seventeenth of October, however, they agreed with the plaintiffs to give their consent to the construction of the rear passage-way, in consideration of §1,000, and thereupon the plaintiffs built the same and completed the erection of the hoisting apparatus about the 1st of November, 1868. Dickinson assigned his lease to plaintiffs. Defendants claimed damage at the rate of §3,000 per annum until the hoisting apparatus was completed, and deducted from their quarterly payments at that rate, refusing to pay the balance. Plaintiffs sought to recover this balance, and also the agreed percentage on the cost of the hoisting apparatus, from the 23d March, 1868, according to the second agreement.</p> <p>The referee found, that, neither by the agreement of November, 1867, nor that of March, 1868, nor otherwise, did said plaintiffs undertake or agree that a ne# entrance and stairway, separate from the entrance and gangway used in said buildings in the months of February and March, 1868, should be substituted therefor, or should be completed or made ready for the use of said defendants and their customers before the work on the steam hoisting apparatus for said defendants was commenced or completed. That the plaintiffs did, within a reasonable time after the defendants became the lessees and occupants, proceed to and commence the erection of the steam hoisting apparatus in the said premises, for the use of the defendants, and were hindered and prevented from completing the same by defendants, in the manner herein-before stated and set forth, and that plaintiffs were not guilty of any breach or violation of any provisions, whether express or implied, contained in the said agreement of November, 1867. He thereupon directed judgment for the full amount claimed. The General Term modified the same by deducting the amount allowed for percentage on the cost of the new apparatus prior to its completion.</p> <p>Defendant’s damages were for the breach of the contract forming plaintiffs’ cause of action, and was proper matter of counter-claim. (Code, § 150, sub. 1; Meyers v. Burns, 35 N. Y., 269; Davis v. Banks, 2 Swe., 184; Nichols v. Dusenberry, 2 N. Y., 283; Whitbeck v. Skinner, 7 Hill, 53; Dorwin v. Porter, 5 Den., 306.)</p> <p>The instrument of March 19, 1868, contains no words of contract, promise or agreement on the part of plaintiffs, and imposes no direct burden or obligation upon them. (Smith on Cont. [3d Am. ed., 1853], 89, 90 ; Palmer v. F., P. and C. Plankroad Co., 1 Kern., 376, 388; Wemple v. Stewart, 22 Barb., 154, 160; Newell v. Wheeler, 36 N. Y., 244, 253; Battle v. Roch. City Bk., 3 Comst., 88; Culver v. Sisson, id., 264 ; Elder v. Rouse, 15 Wend., 218; Salsbury v. Philips, 10 J. R., 57; Whitley v. Loftus, 8 Mod., 190; Branch v. Ervington, Doug., 518; Mead v. Billings, 10 J. R., 99; Bull v. Follett, 5 Cow., 170; Ackley v. Haskins, 14 J. R., 74; Thomas v. Gumaer, 7 Wend., 43.)</p>

This action was brought to recover back ten per cent paid by plaintiff upon a purchase of defendants, at auction sale, of premises in the city of New York, and to recover' the auctioneer’s, surveyor’s and counsel fees, etc., paid by plaintiff.

(Reported below, 1 Hun, 437; 3 N. Y. S. C. [T. & C.j, 776.) This action was brought to recover damages for injuries sustained by plaintiff while traveling upon a street in the city of Albany and crossing a branch track of the Rensselaer and Saratoga railroad which was used by the defendant. Plaintiff’s wagon was struck by a train of cars belonging to defendant and he was thrown out and injured.

(Reported below, 3 N. Y. S. C. [T. & 0.], 40.) This action was brought by the plaintiff as assignee of one Calvin Skinner, to recover a balance claimed to be due by virtue of an assigment .of a bond and mortgage upon real estate, from, the said Calvin Skinner to the defendant Valentine.

This action was brought upon a promissory note bearing date April 1st, 1871, made by one Anson Ingraham and indorsed by George Ingraham, defendants’ intestate, payable to the order •of plaintiff one year after date, at his house in Jackson, N. Y. The court, after finding the making- and indorsement of the note, the due presentment, protest and notice, found the following facts : In the early part of the year 1868, Anson Ingraham borrowed of the plaintiff five United States…

This action was brought to recover the amount of a check alleged to have been deposited with defendant and credited to plaintiff, but afterward, without authority, charged back to him. The court found in substance as follows: That on the 2d day of November, 1868, plaintiff was the owner and holder, for value, of a check, dated on that day and drawn by one E. D. Merritt on the Portchester National Bank, for the sum of $550.

This action was brought to recover for 200 barrels of potatoes, alleged to have been purchased for the defendant by plaintiff] together with fifty dollars for freight, advanced in transporting them from Glens Falls to Mew Fork by a canal boat, and for commissions, storage and other expenses.

(Reported below, 3 N. T. S. O. [T. & C.], 5.) This action was brought to recover damages claimed to have been sustained by plaintiff in consequence of the bursting of a sewer on his premises. The referee found substantially the following facts: That there was a sewer in the city of Troy, known as “ the crooked sewer,” which commenced at a point near Ninth street, and run to the Hudson river, at a point at the foot of Jacob street, in said city.

The answer was a general denial. The plaintiff’s evidence showed that one Oldknow Pooley, a produce merchant in Guelph, Canada West, shipped… Held: in order to provide for their payment.” “ That his authority to do so had been recognized and assented to by plaintiffs in the customary course of dealing with respect to all the previous shipments made under similar circumstances, and defendants had a right to rely upon the authority the plaintiffs had thereby conferred on said…

This action was brought to recover damages, for injuries sustained hy plaintiff in consequence of the fall of an elevator in defendants’ mill, in which plaintiff was an employe.

(Eeported below, 2 N. Y. S. C. [T. & C.j, 614.) This was an action upon two policies of insurance issued by defendant, one dated May 20th, 1871, the other September 30th, 1871.

This was an action to foreclose a mortgage executed by defendant Haskins to secure a joint bond executed by himself and defendant Wilkins. The bond was executed, as appeared by the ex'idence, by the latter as surety for the former. The complaint was in the usual form praying a foreclosure and sale, and for a judgment for any deficiency against both defendants.

<p>Appeal from judgment of the General Term of the Supreme Court in the third judicial department, affirming a judgment in favor of plaintiff entered upon a decision of the court at Special Term.</p> <p>This was an action to foreclose a mortgage executed by John La Grange to Lewis Seymour, plaintiff’s testator, upon lands in Cortland county. Defendant George A. Hulbert was made a party, as assignee, of a mortgage made by La Grange to George O. Bowen. Hulbert answered alleging his mortgage to be a purchase-money mortgage and a prior lien.</p> <p>The facts which were undisputed were briefly as follows : On the 1st clay of April, 1868, Bowen had the legal title and was in possession of the premises in question. He had before that contracted to sell them to La Grange for $2,500, $100 of which had been paid. The balance, by the terms of the contract, was to be paid and secured on that day. Seymour, who resided in Binghamton, had agreed to loan La Grange $1,500, to be secured by a bond and a mortgage on the premises. On the first day of April La Grange went to Binghamton and delivered his bond to Seymour for the loan of $1,500, and agreed to execute a mortgage on the premises and have it recorded in the county clerk’s office and represented that he owned the premises and had a deed of the same, and it was understood that Seymour’s mortgage was to be the first lien. Seymour on that day paid to La Grange $900, and the next day, the second of April, sent him by express $600, being the balance of the loan. La Grange paid Bowen $900 on the second, $500 on the third and $100 on the sixth of April, when he received a deed from Bowen, and at the same time gave back a mortgage for $900 to secure the balance of the purchase-money and took possession of the premises. La Grange executed and acknowledged the mortgage to Seymour on the first day of April and left it at the clerk’s office for record, with the deed from Bowen, on the fourteenth of April. The purchase-money mortgage to Bowen was recorded on the seventeenth of April, when he sold and assigned it to the defendant.</p> <p>Upon these facts both the Special and General Terms held that the Seymour mortgage was entitled to preference, although they differ as to the grounds-of the decision, the former holding that it was protected by the recording act, and the latter upon the ground of superior diligence.</p> <p>A deed and purchase-money mortgage given at the same time must be construed together as one contract. (3 Wend., 233, note; 15 J. R., 457-477; 1 Barb., 280-285; 1 Sandf. Ch., 141; 26 N. Y., 68; 43 How. Pr., 462 ; 23 N. Y., 532 ; 4 Wend., 623 ; 13 Barb., 145 ; 10 id., 97, 354; 4 Kent’s Com., 98, 99; 6 Wend., 226; Jackson v. Littell, 10 Alb. L. J., 267.) Seymour took the interest conveyed subject to any prior equity attached to the subject. (22 N. Y., 567; 49 id., 286; 52 id., 138; 46 Barb., 211; 3 id., 267; 4 Paige, 215 ; 6 id., 310; 1 id., 125 ; 3 Barb., 267; 4 N. Y., 215-221'; 55. id., 325, 335; 23 id., 252; 13 id., 121; 17 id., 583; 6 Hill, 93; 6 Duer, 232; 20 J. R., 637; 24 Wend., 115; 21 id., 499; 20 id., 26; 10 id., 86.) Plaintiff was not a subsequent purchaser- as to defendant’s mortgage. (4 Kent, 455; 15 Wend., 545; 20 id., 46; 17 J. R, 548; 1 J. Ch., 240; 34 N. Y., 417; 41 id., 417; 10 Mass., 45-48; 35 Barb., 361; 7 id., 176; 7 Cow., 360.) Plaintiff had sufficient notice to put him on inquiry and to defeat his claim to be a bona fide purchaser. (6 Paige, 383; 1 id., 461, 492; 2 id., 202; 4 J. Ch., 38; 15 N. Y., 354; 50 id., 612; 40 id., 314; 24 id., 380; 12 J. R., 418; 24 Wend., 284; 2 Lans., 414.)</p> <p>Seymour’s mortgage was a prior lien under the recording acts to the Bowen mortgage. (3 R. S. [5th ed.], 45, 50, pt. 2, chap. 3, §§ 1, 69; Peabody v. Roberts, 47 Barb., 91; Bayley v. Greenleaf, 7 Wheat. [U. S.], 46.) The taking of the mortgage by Seymour was an entire transaction. (McGowan v. Smith, 44 Barb., 232.) This mortgage took effect from its delivery. (Girard’s Title to R. E. [1st ed.], 169; Jackson v. Schoonmaker, 2 J. R, 230-234; Jackson v. Bard, 4 id., 230-233 ; De Roude v. Olmsted, 47 How., 177.) Delivery to the county clerk was a good delivery to Seymour. (Church v. Gilman, 15 Wend., 656.) The mortgage would have been good, even if given before La Grange received his deed, (F. L. and T. Co. v. Maltby, 8 Paige, 361; F. L. and T. Co. v. Curtis, 7 N. Y., 466.) In equity Seymour’s mortgage was for purchase-money. (McGowan v. Smith, 44 Barb., 232, 234; Kettle v.Van Dyck, 1 Sandf. Ch., 76.) When Bowen took his mortgage his equitable lien was merged in the legal security. (Hare v. Van Deusen, 32 Barb., 95 ; 7 Wheat., 46 ; Fisk v. Potter, 2 Keyes, 66.) The earliest recorded mortgage is presumptively the prior lien, and he who claims it is not has the burden of proof. (Freeman v. Schroeder, 43 Barb., 618.)</p>

This action was brought under the provisions of the act for the formation of manufacturing corporations, etc. (§ 18, chap. 40, Laws of 1848), against defendant, as a stockholder of the New York Silk Manufacturing Company, organized under said act, to recover a balance due from the company for the salary of one Douglas, plaintiff’s assignor, as superintendent of the company. The action was commenced April 2d, 1872.

This was an action upon a bond given to discharge an attachment issued at the instance of the plaintiffs against the ship “Edith,” under the provisions of chapter 482, Laws of 1862, to enforce a claim for work and materials, in repairing and furnishing said ship. The work and materials were furnished at Mew York. The Edith was a domestic vessel, owned in Mew York. She was engaged in foreign commerce.

■ Appeal from order of the General Term of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered on a verdict and granting a new trial. (Beported below, 2 N. 7. S. C. [T. & C.], 247.) This action was brought by plaintiff, widow of Oliver C. Fitch, upon a policy of insurance issued by the defendant insuring the life of said Fitch, the amount payable to his wife, or in case of her death before her husband to their children.

(Reported below, 1 Hun, 323.) This action was brought to foreclose a mortgage executed by defendant to William Patterson, plaintiff’s testator.

Appeal by defendants Bruñe and Whitredge from judgment of the General Term of the Supreme Court in the first judicial department, affirming a judgment in favor of plaintiff entered upon a decision of the court at Special Term.

Morange, an attorney and counselor of the court, to disbar Richard B. Kelly, also an attorney and counselor, so far as it directed the disbursements and costs of motion to be paid by the applicant.

The judgment was by default. It appeared, by the moving papers, that the affidavit that the time for answering had expired and that no answer or demurrer had been served, was signed and duly sworn to by one of plaintiff’s attorneys before a notary public who accidentally omitted to sign his name to the jurat, and that the omission was not discovered until after entry of judgment. The county clerk entered the judgment without calling attention thereto.

The said City Court was created by and organized under the provisions of the act, entitled “An act to revise the charter of Long Island City.” (Chap. 461, Laws of 1871.) .

This action was brought to recover back an alleged excess of payment upon a bond and mortgage. The court found the following facts, in substance: On the 7th day of February, 1852, Norris M. Woodruff and others executed a bond and mortgage, on premises situate in Water-town, to the bank department, for $5,000, payable in ten years.

In March, 1866, the firm of Day & Lathrop purchased of Rawson, Buckley & Co., the plaintiffs, at New York, a quantity of merchandise with instructions to ship the same to Day & Lathrop, at Dryden, Michigan, by the Grand Trank Railway to Dryden, via Ridgway. The plaintiffs instead of following these instructions shipped them by the American Express Company, of which defendant is treasurer.

This'action was brought to recover back moneys alleged to belong to the county of Richmond, and to have been unlawfully obtained by defendant.

This action was brought by plaintiff to recover a balance of salary alleged to be due him as superintendent of defendant’s mines in Nevada,… Held: proper, as it appeared they were done and made in the discharge of their duties, by the managing officers, in the course of the company’s business, and relating directly to current transactions therein; that it was not necessary to show authority by express resolution of the board of directors, or by power of attorney, or other…