Volume 14 — New York Supreme Court Reports

54, entered upon the verdict of a jury. Also, from an order refusing the defendant’s motion for new trial. The action was commenced against “The Water Commissioners of the City of Poughkeepsie,” as defendants. They interposed an answer, upon which the cause was tried at the Dutchess Circuit, in March, 1874, when the plaintiffs were nonsuited. On appeal from the judgment dismissing the complaint, the General Term ordered a new trial.

<p> Policy of insurance — assignment of. </p> <p>When a policy of insurance, payable to the assured “ or his assigns,” contains a clause providing that it can be assigned only upon the written approval of the company, it is an agreement on the part of the company to pay the amount of the policy to the assured, or to such person as shall, with its consent, become the assignee thereof. Without such consent an assignment is of no effect as regards the insurance company.</p>

<p>Public nuisance — action for removal of — who may maintain — effect of long continuance of.</p> <p>No definite amount of damage is necessary to authorize a person to maintain an. action to abate a public nuisance ; if he sustain any special damage it is enough.</p> <p>Such action may be maintained by one having only a leasehold interest in the premises, injuriously affected by the nuisance.</p> <p>No length of time will legalize an unauthorized obstruction in a navigable stream.</p>

The notice of appeal to the County Court stated, among other things: First. That the justice erred in finding that the plaintiff rendered service for the defendant, in a sum exceeding in value the sum of twenty-five dollars. Second. The justice should have found and decided that full payment had been made for all services rendered by plaintiff for defendant, and the said justice erred in not so finding.

<p>Will — conversion of real inJo personal estate — discretion given to executors.</p> <p>Ail intention on tlie part of a testator; to llave Ms real estate converted into personalty, or treated as such, is not rendered less imperative, nor will the real estate fail to he regarded as personalty, by reason of his giving to his executors a discretion, as to the time, manner and terms of sale.</p>

<p>Appeal from a judgment, in favor of the plaintiff, entered upon tlie trial of this action by the court, without a jury.</p>

<p>Laying out of highways — notice to owners — recital in order — effect of.</p> <p>Commissioners of highways acquire no jurisdiction to make an order laying out a highway, until notice in writing has been given to the occupants of the lands-through which the road is to run, as required by section 77, article 4, part 1,. title 1, chapter 16 of the Revised Statutes.</p> <p>The order contained the following recital: “and notice in writing of at least three days having been given in form of law ” to the occupants of the lands through which the highway was to run. Held, that this recital was not proof of the facts therein stated.</p>

<p>Justice's Court— appeal from — Beturn — payment of fees for— Code, § 353.</p> <p>'Upon appeal from a judgment rendered in a Justice’s Court, the payment of the fees for making a return is jurisdictional, and without it no appeal can he perfected.</p>

<p>Appeal from a judgment in favor of the plaintiff entered upon the report of a referee, in an action for the conversion by defendant of 400 shares of Mariposa Company stock, the property of James M. "Waterbury.</p>

<p>Appeal from an order made at Special Term, in the county of Kings, directing the issuing of a peremptory mandamus to the Secretary of State, requiring him to file in his office a certain certifi cate whereby the petitioners proposed to create a corporation.</p>

<p>Appeal from a judgment in favor of the defendants, in an action brought for the foreclosure of a mortgage on premises on which a first mortgage had been foreclosed, in an action in which the present plaintiff appeared by attorney. Plaintiff offered to show that the notice of appearance was a forgery; the evidence was excluded.</p>

<p>Trespasses — 3 S. 8. (5th ed.), 624, § 4— Treble damages.</p> <p>Wliei'e in the complaint in an action of trespass, reference is made to section 4 of 3 Revised Statutes (5th ed.), 624, providing for the recovery of treble damages, such reference will not operate to destroy or prevent the maintenance of the action for a trespass, not of such a character as to authorize the assessment of treble damages. If not entitled to treble damages, the .plaintiff may recover single damages, if entitled thereto, by the evidence given upon the trial.</p>

Prior to December, 1869, John Crawford,1 of the city of New York, was indebted to Albert Cole in the sura of $4,000 and upwards. He was then the owner of certain lots of land situated in Yonkers, in the county of Westchester.

<p>Appeal from a judgment in favor of the plaintiff entered upon the trial of this action by the court without a jury.</p>

The demurrer was interposed upon the two grounds: 1. That plaintiffs have not legal capacity to sue; and, 2. That the complaint does not state facts sufficient to constitute a cause of action. The sworn complaint sets forth subs!antially the following facts: Cornelia D. Mead died about June 28,1872, leaving this defendant, her husband, and the plaintiffs, together witli Hannah D. Mead, Roswell Mead and Lizzie D. Mead, their children.

On the 20th day of May, 1875, the legislature passed an act for the division of the town of Fishkill, in Dutchess county, into two towns, to be know as “Wappinger,” and “Fishkill.” By the terms thereof, the act took effect immediately: and it was fnr-« ther provided by section 2 that the town officers, elected in the old town, in March, 1875, should “ hold over and perform the duties of their respective offices” for both new towns until the first Tuesday of March, 1876.

<p>Manufacturing corporations — chap. 40 of 1848 — right to mortgage — right to take back mortgage on sale of land— chap. 517 of 1864 — form of assent required by — time of filing of — number of stockholders whose assent is required.</p> <p>The acl, chapter 517 of 1864, authorizing manufacturing- corporations to execute mortgages, with the written assent of two-thirds of their stockholders, prescribes no particular form in which such assent is to be given. Any instrument is sufficient, which contains reasonable evidence of the consent of two-thirds of the stockholders, and which contains enough to identify the mortgage to which such assent is intended to be given.</p> <p>Such assent is sufficient, even though the amount, to secure which the mortgage is to be given, is not specified therein.</p> <p>•Parol evidence is admissible to identify the mortgage, when the description of it in the written instrument is imperfect.</p> <p>Qumre, whether such evidence would be admissible for that purpose, when the description was false.</p> <p>Tiie provision of the statute requiring the consent of the stockholders owning at least two-thirds of the capital stock, refers to the stock issued, or agreed to be issued, or actually subscribed for, and not to the nominal amount to which tiie capital stock is limited in the certificate of incorporation.</p> <p>The only effect of the section of the statute providing that the mortgage shall be valid provided that the written assent “shallfirst be filed,” is to prevent the mortgage from taking effect as a valid instrument until after the filing of the assent.</p> <p>Semble, that even if the assent were not executed or filed until after the recording of the mortgage, the latter would become valid and effective from the time of such filing-. (Per Talcott, J.)</p> <p>It was stipulated, in this case, that the assent was filed with the county clerk on tiie fourth of November, and it appeared from the certificate of the clerk that the mortgage was recorded on that day, at 8.15 P. K. Held, that the legal presumption was that the assent was filed at the earliest possible moment, and therefore prior to the time of recording the mortgage.</p> <p>Where a corporation, created under the act of 1848, is desirous of selling a portion of its real estate to another corporation, it may, if necessary, agree to advance money to the latter to be employed in the erection of buildings upon such land, and take a mortgage for the purchase-price of the land sold, and the money so advanced.</p>

<p>Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury, dismissing the plaintiff’s complaint.</p>

<p>Motion to dismiss an appeal from an order of the Special Term, confirming the report of a referee.</p>

<p>Evidence — opinion of witness — when inadmissible.</p> <p>In an action to recover damages sustained by defendant’s drawing a dredge over plaintiff’s oyster bed, a witness was asked, against defendant’s objection and exception, “ What, in your opinion, would be tbe damages of dredging across a bed of tbe size of Newton’s [plaintiff], planted with young oysters?” Held,, that it was error to allow the witness to answer tbe question.</p>

<p>Appeal from a judgment of the Special Term dismissing the complaint as to the'defendant Eliza L. O. Ornger.</p>

<p>Appeal from an order of the county judge of Westchester county, denying a motion to dismiss proceedings supplementary to execution, instituted by the executrix of the plaintiff herein.</p>

<p>Receiver — of national hank — action by creditor.</p> <p>The appointment of a receiver under the national bank act does not absolutely dissolve the corporation, nnd in an action to establish the claim of a creditor which has been rejected either by the comptroller or receiver, the bank and the receiver may both be made parties defendant.</p> <p>Pahquioque Rank v. Bethel Bank (86 Conn., 325; S. 0., 14 Wallace, 283) followed.</p>

<p>Code, § 267 — construction of— Judgment — need not be signed by judge — Nuisance — judgment for removal of.</p> <p>The provisions of section 267 of the Code, that “judgment upon the decision shall he entered accordingly four days thereafter,” is simply a direction to the clerk, who, in theory, enters the judgment upon the decision of the court, that he shall do so within four days.</p> <p>There is no provision of law requiring a judge to sign the judgment.</p> <p>Where the decision of the court simply directs the defendant to remove a nuisance, it is erroneous to provide in the judgment entered thereon that if defendant should fail to do so, then the sheriff of the county should do so.</p>

<p>Attorney — lien on judgment — laches in enforcing — Statute of limitations.</p> <p>Although the court will extend its aid to an attorney, to prevent his being defrauded by auy collusive action between the parties to a suit, out of his reasonable compensation, yet he is called upon to invoke the aid of the court with clue diligence; anil great and unreasonable delays and laches on his part, in asserting his rights, will be as fatal to his claim, as it would be to the claim of any ordinary suitor.</p> <p>Although proceedings by au attorney to enforce liis claim do not constitute an action within the literal operation of the statute of limitations, yet in enforcing it the court will be governed by the analogy of the statute.</p>

<p>Mechanic's Men — cannot be enforced against public property of municipal corporations.</p> <p>Property held by a municipal corporation for specific public uses, is held in trust for government purposes, and cannot be taken by an individual for the satisfaction of his private claim, under color of general laws, intended to secure the application of the property of a debtor to the satisfaction of the claims of creditors.</p>

The action was brought originally in the name of Charles C. Lathrop, as plaintiff, but pending the reference it was, on application to the court: “ Ordered, that the Washoe Tool Manufacturing Company be, and the same hereby is substituted as the plaintiff in this action, in the place and stead of Charles O. Lathrop, on payment of trial fee, witnesses’,fees, and ten dollars costs of motion, to be taxed by the clerk of this court.” The referee found, among other things, that…

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made on the minutes of the justice before whom the ease was tried.</p>

<p>Appeal from an order' continuing an injunction restraining the defendants as landlords from prosecuting summary proceedings to remove the plaintiff as lessee, from certain premises in New York city, for non-payment of rent under two leases executed by' the defendants to plaintiff.</p>

<p>Practice — judgment in ejectment — record of — correction of.</p> <p>A. judgment in ejectment reciting erroneously that a verdict was found for defendant, instead of stating that plaintiff ’s' complaint was dismissed hy the court, having been entered by the defendant’s attorneys, and the defendant having taken no steps to open and correct it, he cannot impugn the record by producing the clerk’s minutes of the trial for the purpose of defeating amotion to vacate the judgment and for a new trial on payment of costs.</p>

<p>National hank— attachment — § 57, chap. 106 of 1864, U. 8. Stat. — § 2, chap. 269 of 1873, U. 8. Stat.</p> <p>The amendment to the national banking act, passed in 1873 (chapter 269, § 2), providing “ that no attachment, injunction or execution shall be issued against such association or its property, before final judgment in any such suit, action or -proceeding in any State, county or municipal court,” relates only to suits, actions and proceedings against associations located -where the suit is brought, and not to cases where the action is against a non-resident corporation.</p>

a new trial, upon exceptions directed by the court to be heard in the first instance at the General Term. The fraud was the essence of the cause of action, and a failure to sustain the allegation of it by proof would have justified a nonsuit, eveu though a' liability upon a contract had been established.

That the pier did not leave an intervening space of at least “ one hundred feet ” between it and an adjoining pier upon the south, as required by section 2 of chapter 763 of the Laws of 1857. And, 2d. Because a portion of said pier, upon which is erected a building used by a yacht club, extends into the harbor or bay beyond the grant which the defendant, as assignee of John Gore, had from the State.

<p>Recognizance — denial that indictment therein, mentioned was found — forfeiture of.</p> <p>In proceedings to forfeit a recognizance, tlie allegation by the surety that no such indictment as that described in the recognizance has been found, gives rise to a question of fact, -which must be tried and determined by some tribunal, if the recognizance does not operate as an estoppel against the defendant. Where in such a" case no request is made by the surety for an order directing the prosecution of the recognizance by the district attorney, even if the court might have considered the facts alleged in determining whether the order of forfeiture should be made, yet the relator cannot have that question considered on a writ of certiorari. His remedy is by application to the Court of Common Pleas. *</p> <p>Six indictments were found for forgery on the same day. Reid, that it was not necessary that the recognizance should specify to which one of the six it referred.</p>

The testator, by his will, after directing the payment of his debts and funeral and testamentary expenses, gave : First. To his wife, all his household goods. Second.

<p>Appeal from order continuing an injunction restraining tbe defendant The Panama Railroad Company, and the other defendants as directors of said company, during the pendency of this action, from establishing a line of steamships to be owned, run and operated by the said railroad company between the port of New York and the port of Aspinwall, in the republic of New Grenada, and between the port of Panama, in said republic, and the port of San Francisco, in the State of California; and also from purchasing or entering into contracts for the purchase or construction, by or on behalf of or for said Panama Railroad Company, of steamships oi other vessels to be used on such a line or lines.</p>

Hognet, deceased, to be made parties to this proceeding in the place of said Hoguet, who died pending a reference ordered on the application of his eestui que trust to have an order discharging said Hognet as trustee opened, and for an accounting by him. Except as provided by statute, the established course of equity is to proceed by bill to remove a trustee or permit him to resign.

From the time of the receiving of the trunk on board the ship for transportation, the masters and owners had a iien on the goods for their freight, ánd their responsibility as carriers commenced. „ (Mactaggart v. Henry and ors., 3 E- D. Smith, 398; Oamden H. B. and Trust Co. v. Belhnap, 21 Wend., 354; Schroeder v. Hudson R. R. R. Co., 5 Duer, 55; Grosvenor v. FT.

<p>Railroad company — Refusal of pamnger to pay feme — removal of — no right to be tajeen bade on tendering fare.</p> <p>A passenger having been put off a car for refusing to comply with the rules of the company, cannot demand, as matter of right, to be taken back again upon complying with the rule violated, unless he beat a regular station, and then and there obtain a ticket or tender his fare.</p>

This was an action brought by C. S. Archer, the above-named plaintiff and appellant, to test the title to the personal property and machinery of a distillery, Nos. 46 and 48 Marion street, in the city of New York. The plaintiff claimed title thereto under, and-by virtue of a bill of sale of the same from James England, in wífó’se name the title stood, and possession acquired thereunder.

This is an appeal from a judgment entered on the 24th day of February, 1875, upon a decision rendered after the trial of the action at Special Term of this court by Justice Yan Brunt, dismissing the plaintiff’s complaint, in an action brought to establish the right of the plaintiff, as tenant by the curtesy, in certain real estate alleged to have belonged to his wife. By the terms of the will of Adam Muller, his children became vested of his real estate.

<p>Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury by direction of the court. The action was brought to recover for rent of certain premises in the city of New York. The defendant had executed a lease of the premises with •he grantor of the plaintiff for ten years, at an annual rent of $5,000. The lease was under seal, and had been recorded. By a subsequent parol agreement the rent was reduced to $1,000, and the lessees paid this sum to the lessor, taking his receipt in full therefor, until the property was conveyed to the plaintiff, who demanded the rent specified in the lease.</p> <p>The jury should have been allowed to pass upon the issue of fact in respect to the agreement. (Wmchell, Ehr., etc., v. Hick.s, 18 N. Y.,_558 ; O'Neill v. James, 43 id., 84; Barnes v. Perine, 12 id. [2 Kern.], 18. A lease may be surrendered otherwise than in writing. (2 R. S., 139, § 6. [Edm. ed.].) The making of a new lease of the same premises to the same tenant, during the term of an existing lease, operates as a surrender of the prior lease. (Yiner’s Abridgment, tit. “ Surrender,” F., and cases cited ; Roberts on Frauds, 253, 255, and cases cited; Platt on Leases, vol. 2, p. 506, and cases cited; Woodfall’s Landlord and Tenant [10th Eng. ed.], 267, et seq., and cases cited; Kent’s Commentaries, vol. 4, pp. 103, L04; Brown’s Statute of Frauds, 47, 49-55, and cases cited ; Wash, burn on Real Property [3d ed.], vol. 1, pp. 475-480, and cases cited; Livmgston v. Potts, 16 Johns., 28; Van Rensselaer’s Heirs v. Penniman, 6 Wend., 569.) The assignee of a reversion stands in the shoes of his assignor. (1 R. S., 698, § 23 [Edm. ed.] ; Van Rensselaer v. Hays, 19 N. Y., 83.) The new lease need not be in writing. (Yiner’s Abridgment, tit. “ Surrender,” F., and cases cited; Mellows v. May, Cro. Eliz., 874; Thomas v. Cooke, 2 Starkie, 408 [1818]; S. C., 2 B. & Aid., 119; Lyon v. Reed, 13 Meeson & Welsby, 284 [1844] ; Nickélls v. Atherstone, 10 Q. B., 943 [1847] ; McDonnell v. Pope, 9 Hare, 705 [1852]'; Van Rensselaer’s Heirs v. Penniman, 6 Wend. 570 [1831]; Schieffelin v. •Carpenter, 15 id., 400 [1836] ; Smith v. Niver, 2 Barb., 180 [1848]; M'Kinney v. Reeder, 7 Watts, 123 [Penn.].) The new agreement here was executed, and an executed parol agreement may always vary or discharge a specialty; and because it is not the agreement alone, but the thing done under it, that is relied on. {Keating v. Price, 1 Johns. Cas., 22 [1799] ; Fleming v. Gilbert, 3 Johns., 528 [1808] ; Lattimore v. Harsen, 14id., 330 [1818] ; Dearborn v. Cross, 7 Cow., 48 [1827] ; Delacroix v. Buckley, 13 Wend., 71 [1834]; Townsend v. Empire Stone Dressing Co., 6 Duer, 208 [1856]; Dodge v. Crandall, 30 N. Y., 294 [1864] ; 9 Alb. Law Jour., 297, and cases cited ; Dickinson v. Commissioners, etc., 6 Porter, 128 [Ind.]; White v. Walker, 31 111., 422, p. 17, fols. 58, 59.)</p> <p>The alleged agreement to reduce to $4,000 was nudum pactum. (1 Chit, on Cont., 62 [Am. ed. of 1874] ; Parmelee v. Thompson, 45 N. Y., 58.) In order to effect a surrender by act or operation of law, there must be a mutual agreement between the parties, that the lease shall terminate, and an actual yielding up of the premises'. {Bed-ford v. Terhune, 30 N. Y., 453; Whitney v. Myers, 1 Duer, 266; McKenzie v. Farrell, 4 Bosw., 192.)- Strictly, a surrender by act or operation of law, exists, only when the new estate accepted by the lessee is created in writing. (Rob. on Frauds, 253, 254; 2 R. S., 134, 135, § 6; 4 Kent Com., 103, 104.)</p>

<p>Agency — Liability of municipal corporation, under contract made mill its agents — chap. 202 of 1870.</p> <p>The plaintiffs having furnished materials for the erection of a court-house, upon the purchase thereof by commissioners designated for that purpose under chapter 202 of 1870, and authorized to locate and erect a court-house in the city of New York, for the purposes of the city, hut having no continuous or-corporate powers, held, that the city was liable therefor.</p> <p>Maximilian v. Mayor (9 N. Y. S. C. [2 Hun], '263) distinguished.</p>

The referee in this case found that the plaintiffs were partners doing business in the city and State of New York under the firm name of Peter Y. King & Co.-; that the defendants were aliens, subjects of Spain, carrying on business in the island of Cuba, and had business with the plaintiffs relating to advancements by plaintiffs on shipments consigned to plaintiffs for sale by them in New York, as factors.

<p>Building law — chap. 625 of 1871 — powers of superintendent under — Injunction— when allowed to pi'event trespass.</p> <p>The powers of a public officer, under an act of the legislature for the protection of life and property — & <7., the superintendent of public buildings in New York — are limited to the exercise of a proper discretion, and the exigency of the circumstances, and he will be restrained by injunction from an arbitrary exercise of power.</p> <p>An injunction maybe granted to restrain a trespass, when irreparable injury ma^ result from the threatened wrong.</p>

<p>Practice — supplemental complaint— Code, §§ 468, 469, 121 — Buie 97.</p> <p>After judgment of foreclosure, and before sale, tbe plaintiff died, and bis executor assigned the judgment. Reid, that tbe assignee was properly allowed to file a supplemental complaint, to carry the judgment into effect.</p> <p>Under the former equity practice it was allowable to file a bill after a decree had been recovered, but not executed, to carry it into effect after the death of the complainant, and the acquisition of his interest by another person. The same relief may be obtained by means of a supplemental complaint under the Code.</p>

<p>Appeal from a judgment dismissing the complaint, with costs, .•and an extra allowance.</p>

Conklin from the respective positions of president and trustee of the Mechanics and Traders’ Savings Institution of the city of New York, which, it is claimed, he unlawfully held and occupied, and to establish the right of the relator William Floyd, a trustee, to the office of president of the said institution. The Mechanics and Traders’ Savings Institution was incorporated by chapter 368 of the Laws of 1852.

The plaintiff was a teacher of the French language in the defendant’s school from September, 1868, until July, 1873. During the first year she wás employed two hours a week for the sum of $200. The second year she was employed seven hours and a half a week, and after that fifteen hours a week. No agreement was made as to the rate of compensation after the first year.

, Appeal from a surrogate’s decree for tbe settlement and distribution of a testator’s estate. The testator had no lineal descendants, but left him surviving his widow, one sister of tlie whole blood and three half sisters. His estate consisted principally of ships, he leaving no real estate except liis homestead and burial lot, which were devised to his wife.

Miller from receiving or dis- - posing of the income of a trust fund to which he was entitled as . beneficiary, and of which the other defendants were the trustees.

<p>Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury in an action on a promissory note.</p>

Ceetioeaei to tlie Court of Special Sessions to review the conviction of the plaintiff in error of a misdemeanor. Wilson S. Wolf, for the plaintiff in error. The court can review all the evidence. (Mullin v. The People, 24 N. Y., 399.) The legislature cannot confer upon the board of health power to enact ordinances. (.People v. Albertson, 55 N. Y., 56; Corning v. Greene, 23 Barb., 53; Bacon v. Robertson, 18 How., 480.)

The action was brought to recover for money lent in Philadelphia in the year 1865. The defendant, among other defenses in his answer, set up the statute of limitations. No evidence was offered by the defendant on the trial, and the court directed a verdict for the plaintiff.

The action was brought to recover the amount of a note, guaranteed by the defendant. The defendant offered to prove that the note was given in payment of certain goods sold; that part of the goods were inferior to sample, and that when the guaranty was made the plaintiff agreed to deduct the price of such inferior goods from the amount of the notes. This evidence was excluded. The court erred in striking out the evidence of the defendant Jacobs.

This action was brought to recover for goods sold and delivered. The defendants admitted the purchase, and alleged in their answer, that they had given their notes, three in number, in settlement of the account; that one of tbe notes had been paid, and that the others were not jet due.

It appeared that the direct examination was had, the evidence signed by the witness, and certified by the judge, and the matter then adjourned to another day, for the purpose of a cross-examination. The sickness of the witness prevented a cross-examination ever being had, and the evidence taken was filed in the clerk’s office.

<p>Appeal from a judgment in favor of tbe plaintiff, recovered on a referee’s report.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon a verdict of a jury by direction of the court, in an action against the sureties upon a lease.</p>

Appeal by the relators from an order made at Special Terra, ■denying a motion for a mandamus compelling the defendants to ¡restore the relators to membership in their board. The power to make bylaws must be .exercised reasonably, with sound discretion, and strictly within the limits of the charter, and in perfect subordination to the Constitution and the rights dependent thereon.

<p>Appeal from judgment of the Special Term in favor of the plaintiff, in an action for the foreclosure of a mortgage.</p>

Term, sustaining the demurrer to plaintiff’s complaint in an action to establish certain legacies, and set aside the probate of a codicil to a will. By a codicil to a will of real and personal property, the testator provided for the payment of certain legacies to the appellants. By a subsequent codicil these legacies were revoked. The appellants were not next-of-kin to the testator, and were not cited to appear on the probate of the will.

Immediately upon the probate of the will and first codicil the infants, appellants, had such an interest as should have entitled them to a hearing in opposition to the probate of the alleged second codicil. ( Walsh v. Ryan, 1 Bradf., 433; Terlume v. Brook-field, 1 Bedf., 220; Re .Lucius Chittenden, 1 Tuck., 135; Kipping & Barlow v. Ash, 1 Bobt. [Eccl.], 270.) The application came within the spirit of the Bevised Statutes.

Hardy to be insured $6,000 on merchandise, principally whiskey and packages containing the same, their own or held by them in trust or on commission, or sold but not delivered, contained in granite and brick building situate Nos. 213 and 215 State street, in Boston, Mass, (other insurance permitted without notice until requested), against all loss or damage to the same by fire for and during the term of twelve months,- commencing the risk the 21st day' of January, 1873, at…

The relief sought was purely formal. It was for neglect to except to conclusion of law, and that, too, when the intention to appeal had been exhibited by prompt service of the notice. The moving papers showed that the omission was by a mistake in practice. This fact was not controverted. The omission had not in the slightest degree prejudiced the defendant.

Appeal by defendants from an order overruling a demurrer to the complaint, in an action of ejectment. The complaint was in the following form: “The plaintiff complains that, on the 1st day of December, 1871, she was possessed of all that piece of land (describing certain premises).

<p>Appeal from a judgment in favor of the defendants, entered on the report of a referee dismissing the complaint in an action upon a promissory note.</p>

Appeal by the plaintiff from a judgment at Special Term dismissing the complaint upon the pleadings. The action was brought to recover for commissions and expenses earned and incurred by Smith Barker, the plaintiff’s intestate, as trustee of the estate of John Pentz, deceased. The answer set up an account stated, made and rendered by the plaintiff, and full and complete payment and satisfaction.

Appeal by the plaintiff from an order of the Special Term, denying a motion to have an attachment declared dissolved, and the sheriff directed to deliver over property in his hands to an assignee in bankruptcy. An order should have been granted declaring the attachment dissolved.

<p>Witl — signature of testator — place of.</p> <p>The signature of the testator written in a will in the middle of the last clause appointing his executor, but after the clause disposing of his property, is a sufficient subscription to satisfy the requirements of the statute.</p>

The action was brought upon an undertaking, signed by the defendants as sureties, upon an appeal from a judgment in favor of the plaintiffs. Before the judgment was affirmed, the judgment debtor was discharged under the bankruptcy act, and the answer of the defendants in this action sets up such discharge. To this the plaintiffs demurred.

The bail was indemnified by the wife of Henry Rodewald, his principal, against any loss which might result from his becoming bail.

Both parties resided in Kings county, and the defendant had a place of business in the city of New York. Before answering the defendant demanded that the place of trial be changed to Kings county.

<p>Application for a writ of peremptory mandamus directing the respondents to assign the applicant to duty as one of the justices of the Marine Court.</p>

<p>Public administrator New York city — Interest upon deposits made by Mm — who entitled to.</p> <p>Whore funds are deposited by the public administrator to the credit of himself and the comptroller of the city of New York, as required by law, the interest allowed on such moneys by the bank in which they are deposited belongs tc the next of kin, on the distribution of the estate, and not to the city. But after the settlement of the administrator’s account, and the payment of the balance remaining in Ms hands into the city treasury, to be there preserved awaiting an application for it by its lawful but undiscovered owner, no interest on such balance is chargeable against the city.</p>

<p>Appeal from order denying a motion to set aside a writ of ne exeat.</p>

Appeal by defendant from a judgment entered in favor of the plaintiff, upon the report of a referee in an action against the drawer of a check.

<p>Appeal by the plaintiff from an order of the Special Term, sustaining a demurrer to the complaint.</p> <p>The action was brought by the plaintiff to remove a cloud upon his title to certain real estate, occasioned by an assessment for grading Seventy-ninth street, New York, and also to restrain the collection of said assessment, and to obtain other equitable relief.</p> <p>The act of 1874 cannot be taken into consideration on a demurrer to the complaint. The act is a local one, and must be specially pleaded ‘by answer. (Cook v.. Chase, 3 Duer, 634; Nones v. Hope Ins. Co., 5 How., 96; Hotchkiss v. Elting, 36 Barb., 39; Wilson v. The Mayor, etc., 6 Abb.,, 198; 15 How., 500; Vibert v. Frost, 3 Abb., 120; Hobart v.. Frost, 5 Duer, 672; Fulton Ins. Co. v. Baldwin, 37 N. Y., 648 ;. Malone v. Stilwell, 15 Abb., 421; Nellis v. He Forrest, 16 Barb.,. 65 ; Loomis v. Tift, id., 541.) 'The legislature does not possess' the power of abridging the jurisdiction of the Supreme Court. {Alexander v. Bennett, Ct. of App. MSS.; Be Hart v. Hatch, 6 N. Y. S. C. [T. & 0.], 186; Landers v. Staten Island R. R. Co., 53 N. Y., 457 ; Cook v. Whipple, 55 id., 160; McCartney v. Bostwick, 32 id., 57 ; Reubens v. Joel, 13 id., 488 ; Sherman v. Felt, % id., 186 ; Grade v. Freeland, 1 id., 232 ; Parsons v. Bedford, 3-Pet., 433 ; Blackman v. Van Inwager, 5 How. Pr., 367; Newell v. Wheeler, 48 N. Y., 486.) The omission to advertise the proceedings of the common council was a failure to comply with a necessary condition precedent, (Jewell v. Steinbugh, 58 N. Y., 86, and eases there cited; Horwin v. Strickland, 57 id., 492; Adams v. Sara-toga, etc., R. R. Co., 10 id., 328 ; Van Rensselaer v. Witbeclc, 7 id., 517; Mayor, etc., of Baltimore v. Horn, 26 Md., 194; Benny v. Mattoon, 84 Mass., 383.) The plaintiff seeks to obtain two separate and distinct kinds of relief, and, as the complaint can be sustained upon one of these grounds, the demurrer, which is to the whole complaint, must be overruled. (The People v. The Mayor, etc., 8 Abb., 7; Sinclair v. Fitch, 3 E. D. Smith, 677; Richards v. Edick, 17 Barb., 260; Graham v. Cammann, 5 Duer, 697; Hammond v. Hudson R., etc., Co., 20 Barb., 386; Bank of Louisville v. Edwards, 11 How., 218 ; Hillman v. Hillman, 14 id., 456.)</p> <p>cites Lennon v. Mayor (55 N. Y., 361); Matter of Mayor (50 id., 504); Bolán v. Mayor (Ct. of App. [1876]).</p>

Appeal by defendants from a judgment entered in favor of tbe plaintiff, upon tbe report of a referee, in an action to recover a balance of indebtedness due from defendants Jacob Hoffman and Julius Weinberg, tbe assignors of tbe other parties defendant.

The complaint set out as a'cause of action, that the defendant Kemp was the owner of a lot of land on Fifth avenue, a public street in the city of New York, and unlawfully made an excavation several months prior to May 27,1873, in the sidewalk opposite his premises, and constructed an insecure bridge for foot passengers over the excavation, and that it was the duty of the defendant the municipal corporation to keep said avenue in good order and to protect any. excavation…

The action was brought to enforce the specific performance of a contract for the purchase of certain real estate, provided such performance could be • decreed; and otherwise for the… Held: that a verdict against the weight of evidence, although not within the express terms used in section 264 of the Code, declaring that the judge may entertain the motion upon exception, as for insufficient evidence or for excessive damages, yet it is clearly within its intention and spirit.

■ Appeal by the defendants from a judgment, rendered on the verdict of a jury against them, for selling liquor without a license. The complaint charged an unlawful sale by the defendants of spirituous liquors, to be drank on their premises in the village of Gloversville, on each of the days, commencing on the 12th day of February, 1875, and ending with the 13th day of March of the same year. The defendants interposed as a defense: 1. A general denial. 2.

The plaintiff was the owner of certain premises fronting the north side of Court street in the city of Binghamton. On the 29th July, 1873, the common council of the city passed a resolution, which was approved by the'mayor, directing the setting of curb-stones along the north side of Court street, according to the established grade therein specified, to be completed on or before the twenty-fifth of August, then next.

The facts in the case were, that on February 18, 1865, Ethan A. Pierce purchased a farm in 'Truxton, New York, by parol, and immediately entered into possession thereof, paying- part of the purchase-price. March 21, 1865, Pierce executed a mortgage to Aurora O. Pierce, which was recorded October 12, 1865.

<p>Corporate note — when makers of not liable, althougJi signed by their individual names.</p> <p>A note was signed by five persons with, the description added, “ Trustees of St. John’s Ev. Lutheran Church, Hudson, N. Y.,” and stamped with the corporate seal of the corporation, made payable to the order of one Peter J. Bachman, and duly indorsed by him and two others to the plaintiffs. An action was brought against all the makers and indorsers individually. On the trial it was shown that the corporation was indebted to the payee, Bach-man, who requested a note for the amount of his claim, whereupon the note in suit was executed and delivered. There was no evidence that the makers intended individually to assume the church debt. A personal judgment was rendered against all the defendants.</p> <p>On appeal, held, erroneous as to the makers; that proof of the circumstances under which the note was given, with a view to determine the defendants’ liability, was admissible, and the makers were not personally liable.</p> <p>Held, also, that the plaintiffs stood in no better position on this question than would the payee, Bachman, inasmuch as the note, on its face, disclosed the fact that the defense here interposed existed, or that proof to establish it was admissible.</p>

Appeal to the General Term from the verdict of a jury at the Circuit. The complaint in this case alleged, in substance, that Martha Becker was the daughter of the plaintiff; that on or about the 21st day of January, 1872, the said Martha intermarried with the defendant James O. Becker.

Appeals from judgments for the plaintiffs, in two actions tried together, without a jury, at the Ulster Circuit, in October, 1874, the Neal case being replevin for a black horse; the Dubois case trespass for wrongful taking and conversion of a bay horse.

Appeal by the defendants from a judgment against them, rendered on the verdict of a jury. The action was brought to recover for a quantity of potatoes, alleged to have been sold and delivered by the plaintiff to the defendants in November, 1874. The defense was: (1), a general denial; (2), a breach of warranty as to the condition and soundness of the potatoes; and (3), a non-joinder of a party defendant.

This action was commenced March 16, 1871. The action was tried at a Circuit Court held in November, 1871, and a verdict was rendered for the plaintiffs. Judgment was perfected on this verdict, and an appeal was taken to the General Term where the judgment was affirmed. From this judgment an appeal was taken to the Court of Appeals. The cause was transferred to tbe Commission of Appeals, which court reversed the judgment and ordered a new trial.

Appeal by the defendant from a judgment entered on the verdict of a jury. The action was brought on a policy of insurance, dated April 25, 1871, issued by the defendant to the plaintiff’s intestate, and upon his life, in the sum of $5,000. The assured died intestate April 9,1873; and the plaintiffs are his personal representatives.

The complaint in this action alleges, in substance, that the plaintiff agreed, orally, to give the defendant two pieces of land and $300 in exchange for a piece of land on which was a saw-mill, the .$300 to be secured by the plaintiff’s note; that this agreement was with the understanding that the defendant would give plaintiff a •good title to the saw-mill property, free and clear of all incum’brances, for a good title to plaintiff’s pieces of land; that the defendant…

Appeal by the defendant from the judgment of tbe County Court of Cortland county, affirming a judgment rendered by a justice of tlie peace, in favor of the plaintiffs. The action was brought to recover tbe value of a steer, alleged to have been injured and lost through the defendant’s negligence, when being transported over its road.

Appeal to the General Term from a judgment of the Special Term of Columbia county, determining the rights of the parties to certain moneys in the hands of a receiver, entered on the 15th day of June, 1875. The action was brought to foreclose a mortgage of $30,000 held by Alexander T. Stewart, the plaintiff, upon the mill property of Abraham W. Yan Hoesen, at Stuyvesant Falls, Columbia county, New York.

<p>Attorneys — acts done by, under general authority — binding on client.</p> <p>Proceedings regularly had by attorneys, lawfully appearing for the respective parties, cannot, in the absence of fraud, be questioned by their clients because of the want of specific authority to do the acts done or consented to by them.</p> <p>A married woman may charge her separate estate by directing her attorney to allow judgment to be taken against her, though she was not liable in the action.</p>

In the year 1869 an agreement was entered into between the plaintiffs, who were doing business in the city of Boston, Massachusetts, as manufacturers and dealers in leather and hides, and Huntington & Hoyle, who owned and carried on a tannery in the town of Champlain, Clinton county, New York, by which the plaintiffs, at their own cost and expense, were to furnish raw' hides and send them to Huntington & Hoyle, to be tanned at their tannery.

In, and prior to the year 1867, the defendants were trustees of a mutual society of the people, commonly called Shakers, which was located at Niskayuna, in the town of Watervliet. Its constitution provided for the appointment of “trustees or agents,” and that they should execute declarations of trust, which they had done. In 1867 and 1868, the plaintiffs were market gardeners, residing and doing business in Greenbnsh.

Appeals from a judgment in favor of the plaintiff, in an action brought against the makers and indorsers of a promissory note.

On the 1st day of October, 1870, the plaintiffs sold to the defendant their old church edifice, which had been removed from its foundations and placed on rollers, so as to be removed from the lot on which it stood, for a mortgage executed to him by Sarah and James II. Bump on certain premises in Unadilla, Otsego county, N. Y., to secure the payment of $500, and interest, annually, dated October 16, 1869, the principal to be paid five years from date.

The action was brought to recover for meals and lodgings furnished by Gamble & Richardson, proprietors of one of the hotels in Watkins, in entertaining a party of representatives of the press, and directed to be so furnished by the board of trustees of defendant, by resolution duly passed by the board acting as such. The demand, on which the action was brought, was assigned to the plaintiff by Richardson, the surviving partner.

The action was brought by the plaintiff, as receiver, appointed in proceedings supplementary to execution, to set aside an assignment of the interest of the defendant Gilbert Deshaw, in a certain land contract, to his son, the defendant George Deshaw, upon the ground that it was fraudulent and void as to creditors; and the appeal is mainly based on exceptions to the refusal of the judge to allow the admission of certain evidence, by the defendants.

This is an action upon two coupons, for tliii’ty-five dollars eaeb, being for the interest on a $1,000 bond, purporting to be issued by the defendant under a bonding act. (Laws of 1868, ch. 553, and Laws of 1869, ch. 96.) The grounds of defense are: First. That the consents given to the bonding of the town did not state the name of the company in whose stock the proceeds were to be invested. Second.

This action was tried at the Circuit before a judge and jury. The jury found a verdict for the plaintiff. On the defendant’s motion, then made upon the judge’s minutes, to set aside the verdict and for a new trial, an order was made that a new trial be. granted “on the ground that the verdict of the jury in favor of the plaintiff is against evidence.” From this order the plaintiff appeals.

This is an action to recover on a policy of insurance. The defense is, that there was a breach of certain conditions of the policy. The reply of the plaintiffs is, that whatever they did was by the express consent of the defendant’s agent. There are several clauses under which the defense is alleged to arise. Brown Stafford & Son were the agents of the defendants who issued the policy.

<p>Gommission — irregularities in — must be corrected by motion before trial — Evidence —previous statements of witness examined on commission contradicted — without Ms attention being first called to them.</p> <p>Irregularities in tlie return to a commission to examine a witness sliould be taken advantage of on motion before trial, when there is abundant time.</p> <p>Consent to the issuing of a second commission to examine the same witness is not a suppression of the first.</p> <p>Where, on the trial, the defendant gave in evidence, the evidence taken under the second commission, and then the plaintiff gave in evidence, under objection, the evidence taken under the first, held, that the evidence under the first commission was not open to the objection, that the witness could not be contradicted by previous statements made by him, without his attention being first called to them.</p>

<p>Appeal from an order made at Special Term granting a temporary injunction.</p> <p>This is an appeal from an order restraining tbe defendant from proceeding with a sale on two judgments of foreclosure.</p> <p>Tbe facts were that, in 1861, Orson Richards mortgaged for $2,000 a piece of land called, for convenience, on this motion, number one. In 1815, the assignee of that mortgage foreclosed it and perfected judgment, making tbe plaintiff, with others, a party defendant.</p> <p>In 1812, Orson Richards and another gave a note for $1,000 for the purchase-price of a piece of land called number two. In 1815, tbe payee commenced an action to enforce tbe lien of this note on that land, making the plaintiff, with others, a party defendant, and judgment was had for the sale of the land.</p> <p>These two judgments were assigned to the defendant, and the plaintiff seeks to restrain the sale under the same.</p> <p>Premises number one are the principal piling grounds of a sawmill. Premises number two are used for a railroad track from the mill to number one, and these circumstances give an enhanced value to these pieces of land.</p> <p>In 1866, Orson Richards executed a mortgage to tbe defendant to secure $100,000, on which is due and unpaid $53,000. This mortgage covers number one, together with other property. It is in pi-oeess of foreclosure, and the property is largely insufficient to pay the amount. The plaintiff and the trustees of Samuel W. Barnard are parties to the foreclosure, and a motion therein is pending to restrain the plaintiff from committing waste.</p> <p>In 1874, Orson Richards executed to the plaintiff a mortgage to secure more than $50,000, which is unpaid. This mortgage covers number one and number two. It is not averred to cover any thing more.</p> <p>On the 1st of May, 1875, after the two judgments of foreclosure aforesaid, the plaintiff entered into an agreement with Orson Richards, and with certain trustees of the estate of Samuel W. Barnard, by which he agreed to pay such portions of the incumbrance on number one, and number two, as might be necessary to protect the title and he was to have the use of the real estate for three years and seven months, and to apply the profits to the liquidation of his claims, and meantime to insure the safety and title of real estate.</p> <p>The plaintiff has tendered the defendant the principal, costs and charges on the judgments, and demanded an assignment -thereof and of his claims, mortgage, note and judgments. The defendant is willing to receive payment and to discharge the claims, and says that he purchased these judgments to protect his own interests.</p> <p>There are no liens on number one, subsequent to the $2,000 mortgage and prior to defendant’s mortgage. The owner of that mortgage held, as collateral thereto, notes of the defendant and of Samuel W. Barnard.</p>

<p>Justice’s court — Answer — amendment of, during trial — right to — absolute or discretionary — Statute of limitations — Pleading.</p> <p>In an action on a note dated March 1, 1858, brought in a justice’s court, the defendant answered by a general denial and plea of payment and alleged further: “That the note is of no legal or binding force or validity if it had not been paid eleven years ago.” After an adjournment for dinner the defendant’s counsel asked leave to amend the answer by setting up payment, by applying certain goods that had been sold and delivered to the payee of the note; also by pleading the statute of limitations. The justice allowed the former and rejected the latter. Held, that, whether or not the right to such amendment was absolute or discretionary, the answer sufficiently set up the statute to justify and require the amendment if necessary.</p>

<p>Appeal by tlie plaintiff from a judgment entered on the decision of the justice, on a trial without a jury, dismissing the complaint with costs.</p> <p>The action was for damages for fraudulently, wickedly, willfully and maliciously assessing real estate by the board of assessors of the town of Kortright, Delaware county, under the direction and procurement of the defendant (one of the assessors), at one-third of its value; and with like fraudulent, wicked and malicious intent omitting and refusing to assess $470,000 of personal property, all in order to oppress, cheat and defraud the plaintiff, and to compel him to pay more than his proportion of taxes. It is also alleged that the plaintiff applied to the board of assessors for relief, but they declined, and that the taxes were collected and plaintiff had sustained $1,000 damages, for which he demanded judgment.</p>

It was the duty of the defendant to suj>ply such wood for the' alms-house, but it is claimed by the defendant that the contract of the superintendent was made without the requisite authority required by the ordinances of the city authorities.

<p>Appeal from an order of the Special Term setting aside the service of the summons as irregular and void, because served upon the defendant while voluntarily in this State for the purpose of attending court a,s a witness.</p>

On the return day of an order in supplementary proceedings the defendant appeared and was sworn, and the examination was adjourned. On the adjourned'day the defendant, having raised certain objections, refused to submit to the examination, and the parties left. On the same day the plaintiff obtained a second order for the examination of the defendant, which was served upon him, and, upon the day named in the second ordei;, lie failed to appear at the time and place mentioned.

Appeal by defendant from a judgment in favor of the plaintiff, entered upon a verdict of a jury, under direction of the court.

The complaint alleges that Henry Sayre was appointed general guardian for three infant plaintiffs in 1853, received a large amount of their property, and died intestate in 1860, leaving real and personal property, sufficient to pay all his debts, and the defendants Job and Nathan Sayre, and others, his children and heirs at law.

<p>This is an appeal from a judgment, in favor of the defendant, in an action for trespass. The plaintiff is the father of the defendant.</p> <p>On the 8th day of March, 1866, the defendant, in consideration of the sum of $400 in money paid to him by the plaintiff, executed and delivered to the plaintiff a deed of the premises upon which the alleged trespass was committed.</p> <p>The defendant became twenty-one years of age on the 26th day of April, 1869.</p> <p>The defendant removed to Michigan soon after such conveyance, and before he became of the age of twenty-one years had spent, used up, wasted and lost the $400 paid him by his father, the plaintiff, and had no means or property whatever.</p> <p>The defendant returned in 1869 or 1870, and about May 1st, 1873, entered upon the premises conveyed as aforesaid, and then and there demanded of the plaintiff the possession thereof, and gave notice that he would not be bound by the deed he had given, and publicly proclaimed his re-entry and disaffirmance and avoidance of his said deed given during infancy.</p> <p>The plaintiff, thereupon, brought this action for the acts aforesaid, alleging them to be trespasses.</p> <p>A parol avoidance of a deed has no effect to restore the title. (1 Am. Lead. Cas., 320, 321; 5 Humph. [Tenn.], 70; 15 Mass., 359; 1 N. H., 73; 7 Cow., 179; 6 N. II., 337; 5 Miss., 224; 8 Texas, 398.) In asking equity he must do equity, (2 Kent [11th ed.], 241; 1 Pars. Con., 268; Bartholomew v. Finnemore, 17 Barb., 430, and cases cited; Hoof v. Stafford, 7 Cow., 182.) Same rule as to real estate. {Hillyer v. Bennett, 3 Edw. Ch., 239; Kitchen v. Lee, 11 Paige, 107; 1 Am. Lead. Cas., 320.) When an infant becomes of age and goes into a Court of Chancery to set aside Iris conveyance he must offer, in his bill, to return the purchase money. (1 Gray, 455; 6 Poster, 280; 41 N. H., 346, 353; Bynde v. Budd, 2 Paige, 193; Badger y. Phinney, 15 Mass., 359; 54 Barb., 554; Maltby v. Harwood,, 12 Barb., 480.) The same rule applies when an infant makes a purchase as when he sells. {Henry v. Boot, 33 N. Y., 553; Gray v. Lessington, 2 Bosw., 263; Medbury v. Watrous, 7 Hill, 111.)</p> <p>A deed made during infancy may be avoided by the infant after coming of age, at any time within the term of twenty years limited by statute, by entry and demand of possession of the premises conveyed, or notice that he would not be bound by his former deed; {Bool v. Mix, 17 Wend., 119-134; Yoorhees v. Yoorhees, 24 Barb., 151; 1 Wash, on Real Prop. [3d ed.], 401; 1 Pars, on Con. [6th ed.], 322; Jackson v. Carpenter, 11 Johns., 540; Jackson v. jBurchin, 14 id., 124; Sherman v. Garfield, 1 Denio, 329.) Mere acquiescence or failure to disaffirm does not affirm the conveyance (1 Pars, on Con. [6th ed.], 325; Voorhees v. Yoorhees, 24 Barb., 151-153), and disaffirmance must be pleaded. {Bool v. Mix, 19 Wend., 119, 132; Yoorhees v. Yoorhees, 24 Barb., 150; Moak’s Yan Santvoord’s Plead., 564.) Whether the infant is bound to restore the consideration, received on conveyance of his lands, depends upon his having that consideration in his possession, or within his control upon coming of age. (Tyler on Infancy, § 37, p. 77; Jenkins v. Jenkins, 12 Iowa, 195-199; Boody v. McK&nney, 23 Maine, 525; Fitts v. Hall, 9 N. H., 446; Mustard v. Wohlford, 15 Grat., 329-340; 1 Pars, on Con. [6th ed.], 321; Browner v. Franklin, 4 Gills, 463-470; Pitcher v. Taycock, 7 Ind., 398-403; Price v. Furman, 1 Wms. [Yt.], 268-271; Manning v. Johnson, 26 Ala., 451.) By 1 Revised Statutes (Edm. ed.), 667, the father is the guardian of an infant and a conveyance between them is void. (2 R. S. [Edm. ed.], 159; White v. Parker, 8 Barb., 48; Thomas v. Bennei, 56 id., 197; Hassard v. Rowe, 11 id., 22.)</p>

Commissioners appointed under the town bonding act, to issue bonds in aid of a railroad, are estopped from questioning the validity of the proceedings under which they were appointed. Held: that the bonds thereby became nuil and void and the commissioners could not deliver them to the railroad company.

On the 10th day of April, 1855, John O’Dougherty leased to the •defendants, Illustrious, Hiram and Alfred Remington, certain premises in the village of Juhelville, now part of the city of Water-town, for the term of twelve years, at an annual rent of $600, payable semi-annually. By the agreement of the parties the rent was increased to $900, payable semi-annually. John O’Dougherty before his death in 1862, made a deed by which he conveyed the premises so leased to AnnaM.

<p>Infancy — Partnership—assets of — marshalling of.</p> <p>In an action against copartners for a partnership debt, where judgment is rendered in favor of two of the members of the firm, on the ground that the debt was contracted during their infancy, and against the remaining adult member, held, that the judgment against the adult member of the firm was a partnership liability so far as to make the moneys and property of the firm applicable toward its payment.</p> <p>Partnership creditors have a lien in equity on the partnership property, but where there is not enough to pay all in full each must, whether he is a judgment creditor or creditor at large, take his pro rata share of it so far as relates to the personally.</p>

This is an appeal by defendants from an order made at the Onondaga Special Term, denying a motion to dissolve an injunction. In June, 1870, Mrs. Wolverton and her husband gave to Lewis and Reuben Harper a bond and mortgage on certain land in Galen, Wayne county, to secure the payment of $2,397.53. This mortgage was recorded December 22, 1870. The bond and mortgage came through mesne assignments to the plaintiff, who is the owner.

The following oral pleadings were made before the justice: Plaintiff complains against the defendant for the price and value of one Davis sewing machine, worth sixty dollars, taken and converted to his own use by defendant on or about August 1st, 1874, without any right thereto, and plaintiff demands judgment against defendant, waiving the tort, for forty-nine dollars and seventy-five cents, and costs. Defendant denies the complaint.

The defendants are the widow and heirs of Lawrence Hayes, deceased, who died seized of a block of stores in the city of Water-town. The defendants, after the death of Hayes, gave to one John Edwards a power of attorney, dated the 26th September, 1873, to demand and receive their rents and superintend the repairs of their buildings, rent the same, and to do and perform all things in relation thereto.

The widow stands in the character of purchaser for a valuable consideration. (1 Jarman, 440; Redfield, 749, § 25; Isenhart v. Brown, 1 Edw., 411; Pollard v. Pollard, 1 Allen, 490; Hubbard v. Hubbard, 6 Mete., 50; Gole v. Hiles, 10 N. Y. S. C. [3 Hun], 326.) The testator intended that the $2,000 should be paid out of real estate if necessary. Both real and personal are blended together. (Kidney v. Coussmalcer, 1 Yesey, Jr., 436; Aubrey v. Middleton, 2 Eq.

<p>Appeal from a judgment in favor of the plaintiffs, entered on the verdict of a jury, in an action for a breach of warranty in the sale of a canal boat by the defendants to the plaintiffs.</p>

<p>Win — construction of — Legacies—demonstrative and specific.</p> <p>A legacy is held to be demonstrative, when the testator has bequeathed a certain sum of money or annuity in such a manner, as to show a clear, separate and independent intention that the money shall be paid to the legatee in all events. In such a case the legacy, or any deficiency, is to be paid out of the general estate, when the primary fund set apart for its payment fails, in preference to other legacies.</p> <p>But when it is clearly the intention of the testator that a fund is to be created by the sale of certain property, and the income of the proceeds of such sale paid to the legatee as a specific legacy, it is the duty of the executors to invest the money arising from the sale of the property mentioned in the will, and pay over to the legatee the income arising from such investment only.</p>

The action was brought to recover for goods sold and delivered to the firm of Staples & Nott by the plaintiffs, and Sloat, Green-leaf & Company, and Belknap, Palmer & Co. (who assigned their claims to the plaintiffs), at various times between March 21, 1873, and August 18, 1873. The defendant was incorporated April 28, 1873.

<p>Corporation — dissolution of— cannot be effected by a resolution of its directors — JRevised Statutes, part 3, chapter 8, title 4, article 3.</p> <p>A resolution of the directors of a bank, that said bank go into liquidation, be closed and its business cease, and that its franchises be surrendered, does not operate, to dissolve.the corporation.</p> <p>Nothing but an act of the legislature repealing its charter, or a decree of a competent court, can dissolve a corporation so as to preclude suits and actions against it to enforce, its debts and liabilities.</p> <p>A corporation can only effect its voluntary dissolution by petition to the Suprem e Court, and proceedings under article 3, title 4, chapter 8, part 3 of the Revised Statutes.</p>

<p>Appeal — change of nenue.</p> <p>An appeal from an order changing the venue for the convenience of witnesses (if such order be appealable), can only be heard in the department embracing the county to which the action has been transferred.</p>

<p>Appeal from ail order of the Special Term, denying a motion for a new trial upon a ease and exceptions, and also an appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, in an action for injuries caused by the defendant, resulting in the death of the plaintiff’s intestate.</p>

<p>Corporations — voluntary dissolution of — Receiver appointed undeo' chapter 8, part 3, R. 8. —irregular if made bef ore return day of order to show cause — fling bond by — lien acquired between time of appointment and filing bond.</p> <p>Proceedings for the voluntary dissolution of a corporation (chap. 8, part 3 R. S.) are special and statutory, and although instituted in a court of general jurisdiction, must conform to the statute; hence, when a receiver was appointed before the return of the order to show cause, held, that such appointment was unauthorized, the court having no authority to appoint a receiver except in conformity with the statute.</p> <p>The statute pioviding that “ such receivers shall be vested with all the estate, real and personal, of such corporation, from the time of their having filed the security hereinbefore required,” held, that the title of the receiver did not vest until the filing of his bond, and that a creditor of the corporation might obtain a lien by judgment or attachment, on the assets of the corporation, between the appointment and the filing of the bond of the receiver.</p>

Motion by the defendant to set aside a verdict in favor of the plaintiff, upon exceptions taken upon the trial and ordered to be heard in the first instance at General Term.

The defendants Richard N. Johnston and Cordelia Johnston are husband and wife, and were married prior to 1847 and until that time possessed no real or personal property. In that year the wife received from the estate of her father a small amount of personal property, consisting of a horse, wagon and harness, valued at $100. This property was used for a short time by and in the business of the husband, and then sold by the husband for about $100.

Appe'al from a judgment entered on a verdict in favor of the defendant, in an action for damages for the killing of a horse and injury to a wagon and harness belonging to the plaintiff by the defendant. The plaintiff left his horse for half a minute to go into a store when the horse started, and after passing through several streets got on the direct road toward home.

Appeal by defendant Chapman from a judgment entered in favor of plaintiff upon a verdict directed by the court at the Onondaga Circuit, held in January, 1874.

The action was brought in the individual names of the plaintiffs, and not in their representative characters as executors, to recover the amount of a judgment rendered in favor of the plaintiffs as executors of the last will and testament of Samuel Dickson, late of the province of Ontario, in the dominion of Canada, deceased.

This is an appeal from a judgment of the Herkimer County Court, rendered in favor of the plaintiff in April, 1878, and from the order of said court denying a new trial upon the minutes of the court in an action brought to recover of the defendant as administratrix of the estate, of Samuel Morgan, deceased, a claim originally due from one Higgins, the amount of which said Morgan agreed to pay to plaintiff, in consideration of a transfer of a canal boat to him by said Higgins.

Appeal by plaintiff from a judgment of the County Court reversing a judgment in favor of plaintiffs, rendered in a Justice’s Court.

05 costs. The defendant’s husband made a contract with'the plaintiff for the board of himself and wife. The defendant held and detained the property of the wife, claiming to have a lien thereon for an amount due from her husband for such board. The plaintiff brought this action of replevin and obtained possession of the property.

order made at Special Term, vacating and setting aside an order of arrest. It is only to the extent of his • just and proper exercise of constitutional and legal powers that tbe president of Dominica is to be regarded as the executive of that republic.

This action was brought against the defendants to recover a debt due to the plaintiffs from the Sbenandoab Mining Company (a corporation organized under tlie general act of the legislature in relation to manufacturing and mining corporations, passed February 17th, 1848), for failure on the part of the trustees of said company to file or publish the annual report required by section 12 of said act, within twenty days from January 1st, 1874, or within twenty days from January…

Appeals from a surrogate’s order on a final settlement of the accounts of an administrator. From an order directing that a mandamus issue directed to the surrogate of Westell ester county, commanding liim to receive evidence in the matter of the accounting of George S. Wright, administrator.

This action was for work done by plaintiff, in superintending, etc., some work for defendant. The defendant by his answer admitted the delivery of a certain portion of the materials and admitted the credits, and denied every other material allegation. He denies specially that the labor amounted to the sum charged by the plaintiff, or that any other of the materials charged for were furnished by his direction, or that he ever accepted them.

This action, commenced in May, 1873, was brought, under section 449 of the Code, to compel the determination of conflicting claims to real property, pursuant to provisions of the Revised Statutes.

Tbe referee, among other things, found that the defendant Robert W. Milbank, on the 28th of March, 1873, executed and delivered to the plaintiff a bond in the penalty of $20,000, and as collateral security for the payment of the said indebtedness, the defendant Robert W. Milbank and Antoinette L. Milbank, his wife, on the same day executed and delivered to the plaintiff, an indenture of mortgage (foreclosed in this action), whereby they granted, bargained and sold to the…

<p>Note — executed to wife on sale of husband's property — no presumption that it was intended as a gift to her — payment of note to husband — good.</p> <p>Tlie plaintiff had ño separate estate, and her husband, an alien, purchased real estate and had it conveyed to her, not by way of gift, but solely because as such alien he .could not hold real estate, and on a sale of the premises by the husband as his own property, the wife, at his request conveyed the property, and the purchaser gave to the husband in part payment a note made payable to the order of the wife at his request for the reason, as the husband testified, that the title to the premises being in her, he wished to make both parts of the transaction correspond. The note was paid to the husband, although not surrendered.</p> <p>In an action on the note in the name of the wife, held, that as she had no separate estate, and as husband and wife are still one person in law except where she has a separate estate, the husband might sell his property, and a note taken therefor payable to his wife was his property.</p> <p>That the wife never owned the note, and payment thereof to the husband was good, and the wife was not entitled to recover.</p>

The plaintiff is the owner of the fee of the street, subject to the public easement in the same as a street. Tbis street bad been opened, graded, paved, and used as a street for some fifteen years, and for the same time a bridge had spanned the canal at this point on the same grade as the street. The common council of the city passed a resolution directing the rebuilding of the bridge.

Motion to modify order of General Term denied at Special Term, aiid renewed at General Term on leave granted. This action was brought to foreclose a mortgage in the sum of §40,000, dated June 1st, 1860, and executed by John Alfred Pickersgill to John Pickersgill, as committee of Charles F. Pickersgill, a lunatic. John Pickersgill is the father of John Alfred Pickersgill and of Charles F. Pickersgill.

<p>Appeal from a decree of the surrogate on a final accounting.</p>

<p>Appeal from an order made at Special Term, denying a motion for judgment by tbe plaintiffs upon tbe pleadings in the action.</p>

<p>Answer — several defenses — where a demurrer to one is sustained —proper judgment thereupon</p> <p>Where there are several grounds of defense set up in an answer, to one of which a demurrer is put in — which demurrer is sustained — and the court at Special Term thereupon decided “ that plaintiff have judgment for the relief demanded in his complaint against the said William Watts, unless he file and servo an amended answer, and pay the plaintiff costs of this demurrer within twenty days after service of a copy of this order : ”</p> <p>Held, that as the defendant had remaining one issue, to he tried by a jury, he did not need an amended answer for that, and assuming the demurrer to have been good, the judgment should have been, that the plaintiff have judgment unless the defendant succeeded on the issue, with leave to the defendant to amend the defense demurred to on payment of costs.</p>

<p>Bailroad — cannot be benefited by laying a street across its track — Assessment for, on road-bed, void — Bemedy — Demurrer— Cloud upon title — action will lie to prevent, as well as remove — § 59, chap. 277 of 1864.</p> <p>A street was laid out across the track of a railroad, and the commissioners of assessments assessed the strip of land used for operating such railroad, for benefit in opening the street, the assessment was confirmed, and such land advertised for sale for non-payment of the assessment. In an action brought by plaintiffs to set aside such assessment as a cloud upon their title, an injunction was granted and the sale stayed. The complaint alleged that the land so assessed was already devoted entirely to public use, and that the road-bed and track of plaintiffs’ road is upon said land, as appears from the map made by said commissioners; that said assessment is illegal and void, and that proof outside of the proceedings was necessary to prove its invalidity. On a demurrer thereto, on the ground that the complaint did not state sufficient facts to constitute a cause of action:</p> <p>Held, 1. That property, which cannot be used except for the specific public purpose of a railroad, cannot be benefited by laying a street across it.</p> <p>2. That, if the alleged illegality in the assessment consisted only in the above objection, it might be doubted whether such objection should not have been taken by appeal or by writ of certiorari; but, as the defendants, by the demurrer, admitted the entire illegality of the assessment, some fatal defect to its validity must be assumed, not disclosed by the pleadings, but which would be evidenced by proof.</p> <p>3. That this action could be sustained, on the ground that an action will lie as well to prevent, as to remove a cloud upon plaintiff’s title.</p> <p>4. That the defendant had no power to sell the entire road-bed of the plaintiff, nor any lands necessarily used by it for the purposes of its franchise; its general powers being limited by the provisions of section 59, chapter 277 of 1864.</p>

<p>Appeal from a judgment for a perpetual restraining of the defendant from working, using and operating their railroad over and upon the premises of the plaintiff, entered upon a decision by the court.</p>

<p>Appeal from a judgment entered in favor of the defendant against the plaintiff, on the direction of the court to the jury, to find a verdict for the defendant.</p>

The plaintiffs, her heirs at law, were substituted in the place of Maria Jane Cornell who died intestate January 25, 1872. Held: among other things, that the subject-matter of this action was personal and not real property, and that the husband, and not the plaintiffs, the heirs at law of Maria Jane Cornell, was entitled to the same.

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

In May, 1875, the relators, pursuant to chapter 285 of the Laws of 1872, presented a petition to the board of supervisors of Queens county, to borrow a sum not exceeding $60,000 upon the credit of the town of Newtown, in order “ to purchase for public use, and improve,” a portion of the Newtown and Jamaica plank-road. When the resolution came before the board of supervisors, four out of the seven voted in favor of and three against it.

<p>Exceptions, taken to a dismissal of the plaintiff’s complaint at the Circuit, ordered to be heard in the first instance at the General Term.</p> <p>On the 27th of January, 187J, at Summit, in New Jersey, the plaintiff purchased a ticket for a passage over the defendant’s railroad from Summit to New York. The ticket bore upon its face these words: “ Good for this day and train only,” and was dated January twenty-seventh. On that day the plaintiff got upon one of defendant’s trains at Summit, and began his passage to New York, riding as far as a station called Orange Junction,'where, for his own convenience, he stepped off. Between Summit and Orange Junction his ticket had been “ punched ” by the conductor. Later in the day the plaintiff got upon another train of the defendant, at Newark, to complete his journey to New York. He offered the conductor his punched ticket. The conductor said it was not good, as it had been used, and that plaintiff must pay his fare. Plaintiff refused to do so. Thereupon the conductor stopped the train and put the plaintiff off, “ he resisting all the way.”</p> <p>Hpon these facts Judge Pratt, at Circuit, dismissed the complaint, and ordered the plaintiff’s exception to be heard in the first instance at the General Term.</p> <p>cite: Pier v. Finch (24 Barb., 514-516); Palmer y. Charlotte, etc., C. P. P. Co. (3 So. Car. [N. S.], 580); B. O. P. P. Co. v. Blocher (27 Maryland, 277); Townsend y. N. Y. C. and H. P. R. P. Go. (4 Hun, 219); Dana y. Munro (38 Barb., 528); Fullerton v. Dalton (58 id., 236); Pawson y. P. P. P. Go. (48 N. Y., 212); Quimby y. Vanderbilt (17 id., 306); Fevi/ns y. B. S. S. Go. (4 Bosw., 234).</p> <p>cites: Ba/rlter v. F. Y. Q. P. P. Co. (24 N. Y., 599); Van Buslcirlc v. Roberts (31 id., 666) ; Sears v. Eastern Go. (14 All., 436); Dietrich y. Penn. Go. (71 Pa., 432); Elmore v. Sands (54 N. Y., 512); Boice v. II. P. P. Go. (61 Barb., 511); O'Brien y.B. and W. Go. (15 Gray, 20); B. and L. y. Prootor (1 All., 267); Beébe v. Ayres (28 Barb., 275); Barlcer v. Ooffin (31 id., 556); Shedd y. B. and T. Go. (40 Yt, 88); McGlure v. P., W. and B. Co. (34 Md. 532); Churchill y. G. and A. Go. (111.) (3 Am. Railway Rep., 433); Pier v. Finch (24 Barb., 516, 517); Hamilton y. F. Y. Gent. (51 N. Y., 104).</p>