Volume 15 — New York Reports

<p>Appeal from order of the General Term of the Superior Court of the city of New York, reversing a judgment in favor of plaintiff entered on a verdict, and reversing an order of Special Term denying a motion for a new trial and granting a new trial. (Reported below, 2 J. & S, 529.)</p> <p>This action was brought to recover damages sustained by plaintiff through the alleged negligence of defendants’ employe.</p> <p>On the 27th July, 1869, plaintiff was engaged as longshoreman, or loader, in loading bales of cotton upon a cart on defendants’ wharf. There was a row of cotton bales standing on end, on one side of which plaintiff was at work. One Hand, defendants’ delivery clerk, who was upon the other side of the row, pushed over one of the bales, it fell upon plaintiff and did the injury complained of. At the close of the evidence defendants moved for a nonsuit, which was denied. A motion for a new trial was made on the judge’s minutes. The further facts and evidence, pertinent to the questions discussed, are sufficiently stated in the opinion.</p> <p>The order of the General Term reversing judgment and ordering new trial should be reversed. (Grindel v. Mayor of N. Y., 37 N. Y. S. C. [J. & S.], 126; Hackford v. N. Y. C. and H. R. R. R. Co., 53 N. Y., 654; Justice v. Lang, 52 id., 323; Totten v. Phipps, id., 354; McGrath v. N. Y. C. and H. R. R. R. Co., 1 N. Y. S. C., 243; Burton v. N. Y. C. and H. R. R. R. Co., id., 297; Fowler v. Martin, id., 377; Probst v. So. Side R. R. Co., id., Ad. 10; Howard v. Smith, 1 J. & S., 124; Thornton v. Autenreith, 55 N. Y., 659 ; Code, § 264.) The court at the trial properly denied defendants’ motions to dismiss the complaint and to direct a verdict for defendants. ( Courtmey v. Baker, 2 J. & S., 529; Seabrook v. Hecker, 2 Robt., 291; Belton v. Baxter, 2 Swe., 339 ; Ferris v. U. Ferry Co., 36 N. Y., 312; Ernst v. H. R. R. R. Co., 35 id., 9; Gonzales v. H. R. R. R. Co., 38 id., 446; Tebbutt v. B. and E. R. Co., N. Y. Tr., Apl. 14, 1871; O'Mara v. H. R. R. R. Co., 38 N. Y., 445; Plank v. N. Y C. and H. R. R. R. Co., 1 S. C. R., 319; Canning v. N. Y. C. and H. R. R. R. Co., 49 N. Y., 521; Malone v. Hathaway, 2 N. Y. S. C., 664; Sprong v. B. and A. R. R. Co., 3 id., 57; Willis v. L. I. R. R. Co., 34 N. Y., 670; Hackford v. N. Y. C. and H. R. R. R. Co., 53 id., 654; Chapman v. Erie R. Co., 55 id., 579; Smith v. Coe, id., 678.) The court did not err in instructing the jury as to defendants’ liability for the negligence of their clerk at the time of the accident. (Isaacs v. Third Ave. R. R. Co., 47 N. Y., 125; Huzzy v. Field, 2 Cr., M. & R., 432-440; Add. on Torts [Abrd. ed., 1870], 30.) The motion for a new trial was properly denied. (Strictmacher v. S. P. Road Co., 34 How., 74; Polhamus v. Moser, 7 Robt., 489; Vansteenburg v. Hoffman, 15 Barb., 28.)</p> <p>The order of the General Term cannot be reviewed in this court, it must be affirmed. ( Wright v. Hunter, 46 N. Y., 409; Code, § 264.) Defendants were not liable for the act of Hand. His pushing over the bale was not within the scope of his employment. (Isaacs v. Third Ave. R. R. Co., 47 N. Y., 122; Mali v. Lord, 39 id., 381; Vanderbilt v. Tpk. Co., 2 Comst., 479; Frazer v. Freeman, 43 N. Y., 566 ; Bolingbroke v. Swindon, Bd. L. R. [9 C. P.], 575; Poulton v. L. and S. W. R. Co., L. R. [2 Q. B.], 534.)</p>

This action was brought to recover for services alleged to have been performed by plaintiff for defendants as partners. The services were as draughtsman, in drawing plans and estimates for building docks upon a plan bringing into use a patent, in which the evidence showed the defendants had a joint interest.

This action was brought to recover penalties imposed by the “ act for the preservation of game.” (Chap. 721, Laws of 1871.) The complaint contained three counts.

<p>By the amended charter of the city of New York of 1857 (§ 7, chap. 446, Laws of 1857), no other or different notice of a contemplated improvement is required to be published than the resolutions and reports of committees of the common council, recommending the same, and the publication of any other is not a compliance with the statute.</p> <p>Under the act of 1858 (§ 1, chap. 338, Laws of 1858), authorizing proceedings by a “ party aggrieved ” to vacate an assessment for a local improvement in case of fraud or legal irregularity, a former owner of premises assessed, who is bound to indemnify his grantee against the assessment or to remove it as a cloud on title is a party legally aggrieved, and is entitled to apply for relief as prescribed by the act. (Grover, J., dissenting.)</p> <p>Flagging is one species of pavement, and an assessment for reflagging a street is an assessment for repaving, within the meaning of the exception of the act of 1872 (§ 7, chap. 580, Laws of 1872), as amended in 1874 (chap. 313, Laws of 1874), authorizing the vacating for irregularity or omission to advertise, of an assessment for repaving upon property for which an assessment has once been paid for paving the same streets.</p> <p>By the provision of the tax levy for 1863 (§ 2, chap. 227, Laws of 1863), requiring the mayor and comptroller to designate four daily papers and authorizing them in their discretion to designate six others in which to publish the city and county advertisements; the requirement of the charter of 1857, as to the publication of the proceedings of. the cpmmon council in reference to local improvements, is not limited to the four daily papers, but includes as well those designated under the discretionary power.</p> <p>Such a designation is an employment by the corporation, in the absence of evidence that the service was declined by the paper designated. (Grover, J., dissenting.)</p> <p>So, also, in the absence of evidence that a designation made under said act has been revoked or the employment terminated, or the paper superseded in any way as one of the official papers, the presumption is the employment continues.</p>

Appeal by petitioner from order of the General Term of the Supreme Court in the first judicial department, affirming an order of Special Term denying a motion to take proofs and dismissing a petition to vacate an assessment for widening Broome street, in the city of New York. The petition showed, that on the 18th July, 1871, the report of the commissioners of estimate and assessment was confirmed by the Supreme Court pursuant to the statute.

This was a motion, on behalf of Kate B. Howland, claiming to be sole heir and next of kin of James B. Taylor, deceased, of whose estate defendants are sued as executor and executrix, to strike the appeal herein from the calendar, or to postpone the argument until after the determination of proceedings on a writ of prohibition. James B. Taylor died in Hew York city in August, 1870.

<p>Plaintiff held the bill of lading for a quantity of wheat, shipped from M. to B., as security for a draft discounted by it. Upon the arrival of the wheat in B. it was stored by plaintiff’s agent, W., who took a receipt in</p> <p>, his own name. W. made a parol contract for a sale of the wheat to N. to be delivered on payment. To expedite the movement of the wheat, but without intent to part with the title or possession, W. gave to N. an order, directing a delivery of the wheat to the E. R. Co. N. had previously made arrangements with that company for the transportation of the wheat to N. Y., and on receipt the company delivered a bill of lading for the wheat to N., and shipped it. N. upon the strength of, and upon delivery'of the bill of lading, procured a draft to be discounted by defendant, the F. and M. Nat. Bank. In an action for conversion of the wheat, held, that the order simply authorized a delivery of the wheat to theE. R. Co. for W., and did not authorize the delivery of the bill of lading to N. or the shipment without further directions; that the delivery of the order to N. did not make the void parol contract binding, or affect plaintiff’s title; nor was there any neglect on the part of W. which affected such title, or plaintiff’s right of action to recover the wheat; and that defendant acquired no title by the bill of lading; also, that the taking of the receipt by W. in his own name, being without authority, did not affect plaintiff’s title.</p> <p>It was stipulated by defendants on the trial that there had been a' demana and refusal to deliver, and that defendants claimed the right to hold the grain. Held,, that this sufficiently showed a conversion; that plaintiff was not required at the time of making demand to show evidence of its claim; and if so required that the stipulation was a waiver thereof.</p> <p>The factors’ act (chap. 179, Laws of 1850) has no application to such a case, either in favor of the F. and M. Nat. Bank or the consignees named in the bill of lading delivered to N.; the latter not having accepted the draft drawn upon them.</p> <p>Also, held, that plaintiff was not limited in its recovery to the amount of its advances; as the defendants were wrong-doers it was entitled to recover the full value.</p> <p>Plaintiff was entitled to recover the value of the wheat at the time of the conversion, with interest.</p>

(Reported below, 3 Hun, 221.) This action was brought to recover damages alleged to have been sustained by plaintiff in Hew Orleans, through defendant’s negligence. Defendant was a non-resident; the summons was served by publication. Defendant did not appear. The damages were assessed by a sheriff’s jury, and judgment thereon was perfected in the usual form.

(Reported below, 1 N. Y. S. C. [T. & C.], 415.) This action was brought to recover damages for taking oysters from the Great South bay which extends along the south side of Long Island, separated from the ocean by the Great South beach, and to establish the exclusive right of the town of Brookhaven to the oyster fisheries in that portion of said bay lying between Huntington, East Gut and Long Point.

This was an action to recover possession of 4,055 bushels of barley. The barley was shipped November 11, 1871, by Brown & Smith for plaintiffs, at Aurora, N. Y., for New York city, on board a canal boat, in bulk, with other barley shipped by Brown & Smith for other owners and consigned to other consignees.

<p>Proof of a want or failure of consideration between a maker and payee of a promissory note does not change the presumption that one to whom, the latter has indorsed and delivered the note is a bona fide holder for value, but the burden of proof is upon the maker.</p> <p>Where a bank discounts a note before maturity, paying part of the proceeds in money and applying the residue in payment of a past due note of the payee which is surrendered, the bank is a holder for value.</p>

(Reported below, 2 Hun, 523; 4 N. Y. S. C. [T. & C], 614.) This action was brought to set aside, on the ground of fraud, a sale made by Robert Yelverton, receiver, etc., of a judgment against one Simeon Draper, and to cancel and set aside the assignment of the judgment by the receiver, and a satisfaction thereof executed by the purchaser.

This action was brought against defendants as trustees of the “American and European Crystallized Egg Company,” a eorppration organized under the general law of 1848 (chap. 40, Laws of 1848), to recover a debt alleged to be due from, the company, upon the ground of' the failure to file, in 1871, the annual report required by law.

The action was ejectment to recover the possession of a lot of land in Brooklyn. The plaintiff derived title, through one A. Wilkie.

Plaintiff presented a claim for services against the estate of Joseph W. Velie, defendant’s intestate, which was disputed, and was referred, by agreement of the parties, pursuant to the Revised Statutes (2 E. S., 89, § 36). The referee found the following facts: “ First. That the plaintiff performed work for J. W. Yelie defendant’s intestate, from June 8, 1851, until the 30th day of May, 1872, as housekeeper, and in general household service. Second.

The lands sought to be acquired by the company were situated in the county of Cayuga. The motion for the appointment of commissioners was made at the Monroe Special Term, and was there granted by an order dated October 30, 1873. The appeal from this order to the General Term was taken by the land owner on the 14th of May, 1874.

(Reported below, 2 Hun, 482; 5 N. Y. S. C. [T. & G], 84.) These were proceedings instituted under the general railroad act (chap. 140, Laws of 1850), to acquire title to lands situate in Cayuga county. The owner appeared and contested the confirmation of the report of the commissioners of appraisal. The report was confirmed.

(Reported below, 2 Hun, 609.) : This was an action for the admeasurement of dower in certain premises in Brooklyn which plaintiff claimed, as widow of John Carroll. Certain issues were ordered tried by a jury, among others, the following: “ Is the said John Carroll dead ? ” To prove the death of her husband plaintiff offered the record of the probate of his will by and before the surrogate of Kings county. This was objected to and received under objection.

(Reported below, 1 Hun, 171; 3 N.Y. S. C. [T. & C.], 704.) The referee directed judgment for $100.23, besides costs, which was entered accordingly. The appeal to this court was taken May 22d, 1874. Further facts appear in the opinion. This appeal was made too late. (Laws 1874, chap. 322; amending Laws 1848, chap. 379, § 11; 1 N. Y. Stat. at Large, 156.)

Appeal by defendant Simonson from judgment of the General Term of the Court of Common Pleas for the city and county of Hew York, affirming a judgment in favor of defendant Genin, entered on the report of a referee. These were proceedings to foreclose a mechanic’s lien on property of defendant Genin, in the city of Hew York. Defendant Simonson had filed a lien and ¿claimed under it.

This action was brought to recover damages for the killing of plaintiff’s horse and breaking of his wagon occasioned by a collision with an engine on defendant’s road at a street crossing in the city of Rochester. The horse and wagon were being driven by a servant of plaintiff. He and a person riding with him testified that they heard no bell. Defendant proved by two persons on the engine that the bell was rung, and by two others that they heard it.

(Reported below, 3 N. Y. S. C. [T. & C.], 399.) This action was brought to recover damages for the loss of a quantity of cider alleged to have been delivered to defendant as common carrier for transportation. The complaint contained two counts, one for the loss of 646 gallons of cider alleged to have belonged to, and to have been delivered by one Hill to defendant for transportation, the claim therefor having been assigned by Hill to plaintiff.

<p>An order reviving an action against the representatives of a deceased defendant, sued jointly with others, is not reviewable here.</p> <p>If the cause of action does not survive against said representatives that objection is available on the trial; if it survive, but a joint judgment cannot be rendered against them and' the surviving defendants, a separate judgment may be rendered, or the court may direct plaintiff to proceed separately against each class of defendants. The order, therefore, does not affect a substantial right.</p>

Appeal by defendant Jayne from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of plaintiffs entered upon a verdict. (Reported below, 3 N. Y. S. C. [T. & C.], 397.) This was an action upon a promissory note made by defendant Glenny for $4,000, payable in three months, and indorsed by defendant Jayne. Glenny did not answer.

This action was brought to recover back $1,000, alleged to have been paid by plaintiffs by mistake. The complaint alleged, in substance, that an attachment was issued, in favor of defendants, against the members of the firm of H. Blagge & Co., which was duly levied upon a balance of a deposit account in the hands of plaintiffs, as bankers.

(Reported below, 1 Hun, 683; N. Y. S. C. [T. & C.], 185.) This was an action upon an assignee’s bond, given pursuant to the statute. (Chap. 348, Laws of 1860.) It appeared upon the trial that in October, 1865, the firm of Halsey & Northum made a general assignment for the benefit of their creditors to defendant De Camp, who joined in the' assignment.

This action was brought against defendant, as sheriff of the county of Chemung, for a failure to collect an execution. The complaint alleged, in substance, that, on the fifth day of January, an execution was issued to defendant, as such sheriff, upon a judgment in favor of plaintiffs, against one Jabez R. Ward ; that Ward had property liable to a levy, but that defendant neglected to levy, and, although sixty days have elapsed, has not returned the same.

Said assessments were for filling the lots. The objection was that there was no petition for the work as required by the act chapter 35, section 1, Laws of 1858, as amended by chapter 213, section 1, Laws of 1859. The act of 1859 (chap. 213, Laws of 1859) has been repealed. (Chap. 169, Laws of 1861; chap. 635, Laws of 1868.) The common council were authorized to direct the filling in of the lots. (2 S. L. 1871, p. 1951.) The act of 1859 has not been repealed.

(Reported below, 1 Hun, 460 ; 3 N. Y. S. C. [T. & C.], 487.) This was an action upon a policy of life insurance, issued by defendant, upon the lives of plaintiff and her husband, Michael O’Reilly. The policy contained a clause providing for payment of the amount insured in sixty days after due notice and proof of death.

This action was brought against defendants, as executor and executrix of James B. Taylor, deceased, upon certain promissory notes executed by said Taylor. Defendants refused to pay or to refer. Taylor died in August, 1870, leaving an instrument purporting to be his last will and testament. This was presented for probate to the surrogate of the county of Mew York. Its validity was contested. It was admitted to probate March 16th, 1871.

The nature of the action and the facts are set forth sufficiently in the opinion. At the close of the evidence defendants’ counsel moved for a nonsuit on the ground, among others, that defendants were not liable for the debts of the firm of F. A. Drullard & Co., not mentioned and set forth in the schedule annexed to the bond in suit. The motion was granted and plaintiffs’ counsel duly excepted. Exceptions were ordered to be heard at first instance at General Term.

(Reported below, 3 N. Y. S. C. [T. & C.], 350.) This action was brought to recover for the board of defendant’s wife, who was plaintiff’s daughter, and for necessaries furnished to her. Plaintiff’s evidence tended to show that in January, 1870, defendant’s wife having become an invalid and partially insane, it was agreed that she should return to her father’s house, defendant agreeing to pay a reasonable compensation for her support.

<p>A submission is not within the purview of section 372 of the Code, which propounds certain legal interrogatories to the court, not decisive of the proper judgment to be rendered on the facts stated, and then fixes the judgment to be rendered as they shall be answered; and the court is not required to answer such questions, particularly where the effect of the answers would be to foreclose the rights of other parties who cannot be heard, although it may lead to a settlement of the controversy between the parties to the submission.</p> <p>Under said section the facts are to be stated and the court is to render ‘ ‘ judgment thereon. ”</p>

<p>This was a motion to dismiss an appeal. The facts are sufficiently stated in the opinion.</p>

This action was brought to recover damages for a loss alleged to have resulted from defendant’s negligence. One D. A. Brown delivered at defendant’s office at Chicago, a message to be sent to plaintiff at Rochester, requesting the latter to send to him $500.

The order was granted under the authority of section 4 of the “ act in relation to the Marine Court of the city of New York” (chap. 545, Laws of 1874), which reads as follows: “ Any other court of record may, in its discretion, by an order to be entered on its minutes after the joining of issue, send any action pending therein, or that may hereafter be brought therein, to the said Marine Court for trial; and a certified copy of such order shall be delivered to and filed with…

This action was for the dissolution of a copartnership and for an accounting. The facts are sufficiently stated in the opinion. The court erred in rejecting evidence offered by defendants to prove their counter-claims, and in holding that they could not be tried or adjudicated in this action.

This was an action to recover possession of certain personal property. On the 4th January, 1867, Edward M. Hawkins executed to Catharine Hawkins a chattel mortgage upon the property, which recited an indebtedness of the mortgagor to the mortgagee in the sum of $1,000 for money borrowed, and was conditioned for the payment of that sum on the first July, then next, according to a promissory note that day given by the mortgagor.

(Reported below, 1 N. Y. S. C. [T. & C.], 333.) The defendant in error had been for several years in the employ of Isaac Son, who was operating a paper-mill at Chatham, Columbia county. He had lived in a dwelling-house belonging to the mill property.

<p>A landlord who lets premises, knowing they are infected by a contagious disease, without notifying the tenant thereof, is liable to the latter, in. case the disease is communicated, for the damages sustained.</p>

This action was brought for the foreclosure of a mortgage executed by defendant Patton to plaintiff upon certain premises in the city of Troy. The mortgage was given to secure a bond for the sum of $4,000, dated October 15th, 1870, payable January 1st, 1876, interest payable semi-annually, January first and July first of each year.

(Reported below, 3 N. Y. S. C. [T. & C.], 378.) This was an action to foreclose defendant’s equity of redemption in certain railroad bonds alleged to have been pledged by defendant for the sale thereof, and for judgment against defendant for any deficiency.

This was an action of ejectment for a strip of land fifty feet wide, forming the southerly portion of Atlantic avenue, Brooklyn. The land was formerly owned by John Cowenhoven, who conveyed the same to trustees, and the latter conveyed to plaintiffs.

<p>In the provision of the pilotage act (§ 39, chap. 469, Laws of 1853, as amended by chap. 243, Laws of 1857), which requires the masters of vessels sailing under register to or from the port of New York, by way of Sandy Hook, to take a “licensed pilot,” or in case of refusal to pay pilotage, the words “ licensed pilot ” include only those deriving their authority from the appointment of the board of commissioners established by the act, and no others are entitled to claim the benefit of said provision.</p> <p>Accordingly held, that a pilot, licensed under the laws of New Jersey, who first spoke a vessel off Sandy Hook, and whose offered services were refused, could not maintain an action under said provision.</p> <p>It seems, that in view of the act of Congress of 1837 (5 U. S. Stat. at Large, 153), providing that the master of a vessel coming in or going out of a port situate upon waters which are the boundary between two States may employ any pilot licensed by the laws of either, a vessel in charge of a New Jersey pilot is not required to take a New York pilot, and is exempted from the penalty imposed by said provision.</p>

(Reported below, 5 J. & S., 486.) This was an action under the statute. (2 R. S., 516, § 49.) On the 16th of July, 1868, one John Milhan conveyed to defendants certain premises, situate in the city of Hew York. At that time, one Morrison had a lease of the premises, with an unexpired term of about one year. The lease contained a clause providing for the termination of the lease, at the option of the landlord, after two months’ notice.

This was an action of slander. The words proved charged the plaintiff with having committed the act of self-pollution.

This action was against defendant, upon his indorsement of a certificate of deposit made by the “ People’s Safe Deposit Company of the City of New York,” chartered by chapter 816, Laws of 1868. On the 11th of May, 1872, defendant deposited with said incorporation $601, receiving therefor a certificate of deposit, in the usual form, payable to his order, in current bank notes, on the return of the certificate, with interest.

(Reported below, 1 Hun, 438; 3 N. Y. S. C. [T. & C.], 768.) This action was brought to recover the value of fourteen United States bonds which the complaint alleged the defendants received and sold as agents for plaintiff, they promising to pay to him the amount received, but failed so to do when it was demanded. Defendants pleaded a former judgment in bar.

This action was brought to recover the valué of certain United States bonds alleged to have been delivered by plain: tiff to defendant for safe keeping, and to have been lost through the negligence of the latter. Both parties were banking corporations organized under “ the national currency act,” so called, of 1864. Plaintiff was located and doing business at Lyons, Iowa, defendant in the city of New York.

This action was brought to reform certain deeds on the ground of mutual mistake, and for other purposes hereinafter stated. The complaint alleged, and the court found, in substance, that, on the l7th July, 1866, plaintiff Charles Y. Bush was the owner of two parcels of land situate in Yates county, being part of lot number thirty-nine. That on that day he contracted to sell the same to defendant James E. Hicks and to George Mattice.

(Reported below, 1 Hun, 29.) This action was brought to recover the amount alleged to be due plaintiff upon two contracts executed by him and the defendant, by the commissioner of public works.

(Reported below, 2 Hun, 374.) Under the act “ to alter the map or .plan of the city of New York by laying out thereon a public place for a parade ground and to authorize the taking of the same” (chap. 628, Laws of 1871), the officers therein named laid out a public square, or place, in the northern part of the city and made and filed a map showing the location and extent thereof.

This action was brought to recover damages for injuries alleged to have been sustained by plaintiff, through defendant’s negligence. On the 17th October, 1871, the plaintiff, a boy nine years of age, was on his way to school which he had attended for about a year. In going he had to cross the “ Boston road,” Third avenue, Morrisania, through which ran defendant’s tracks. He was in company with two other lads; all were running rapidly, plaintiff a little behind.

This was an action for slander. The words charged and proved were, in substance, that plaintiff had stolen defendant’s hay. Upon the trial plaintiff was allowed to prove statements made by defendant subsequent to the commencement of the suit, in substance, that plaintiff was a thief. These were objected to on the ground that they were spoken after the commencement of the action.

This was an action for the foreclosure of a mortgage. Byron Maxon, one of the appellants, and Esther M. Maxon, one of the respondents, were joint owners of the mortgaged premises. Judgment of foreclosure was duly perfected. One John C. Simpson thereafter purchased and took an assignment of the judgment.

(Reported below, 2 Hun, 215.) The petition stated that the street had been previously paved and an assessment upon said lot paid, and claimed the assessment to be irregular and void because the resolution and report of the committees of the common council were not published in all the newspapers employed by the corporation before such resolution was passed and adopted by the respective boards as required by section 7 of the amended charter of 1857.

Wandell revoked. (Reported below, 2 Hun, 552; 5 N. Y. S. C. [T. & C.], 98.) Andrew Alexander died on the 13th day of June, 1873, leaving a last will and testament by which, after the payment of his debts, all of his estate, real arid personal, was given to his wife, Mary C. Alexander.

(Reported below, 1 Hun, 615; 4 N. Y. S. C. [T. & C.], 104.) This action was brought for the specific performance of a contract, and to restrain defendants from enforcing a judgment against plaintiff in alleged violation of said contract. The court found substantially the following facts: On the 25th day of May, 1869, plaintiff sold a certain patent-right to the defendant Wilson, and one J. Goodrich Scott, for $12,000, each agreeing to pay one-half.

(Reported below, 1 Hun, 521; 3 N. Y. S. C. [T. & C.], 626.) The facts stated are, in substance, these: Plaintiff brought an action, in the Supreme Court, against one John P. Hathorn, which resulted in a verdict for the latter. A motion for a new trial upon a case was made at Special Term and denied. On appeal, the General Term reversed the Special Term order, and granted a new trial.

(Reported below, 2 Hun, 102.) The relator resides in the town of Delhi. The rents in question were payable in money, and were assessed at principal sums the legal interest upon which would equal the rents, as prescribed by the statute.

The petition upon which the writ was issued stated, in substance, that the petitioner is the father of Ella Wehle, an infant of the age of seven years, who is detained by defendants, they having named her Maimi Weissenbach; that in November, 1869, the petitioner placed her out to board with the board of commissioners of charities and corrections of the city and county of New York, paying the amount required for her hoard; that in March, 1870, defendants obtained the child…

(Reported below, 1 Hun, 113; 3 N. Y. S. C. [T. & C.], 185.) This action was brought to recover moneys alleged to be in the hands of defendant, the proceeds of goods sold by him as agent.

<p>No authority is given by any of the acts of the legislature relating to Prospect park in the city of Brooklyn, to assess lands outside of the city for any portion of the expense of acquiring title to lands for said park, or of constructing the same.</p> <p>The act of 1868, providing for the further extension of said park (chap. 814, Laws of' 1868), and the act of 1873, amendatory thereof (chap. 715, Laws of 1873), conferred no additional power upon the commissioners of assessment from what they had under former acts, and in no way changed the territorial limits within which "assessments could be made.</p> <p>As the apportionment and assessment directed to be made, under and by said acts, are not only for lands to be taken thereunder, but to pay debts incurred by the city for lands taken under prior acts and paid for, if the provisions thereof authorize the assessing of lands outside the city, they are unconstitutional and void.</p> <p>It is not within the legislative authority to compel an adjoining town to be taxed for the payment of debts previously contracted by a city.</p> <p>It seems, that the “ act to provide for the collection of assessments against Prospect park,” etc. (chap. 711, Laws of 1873), is in'violation of the provision of the State Constitution (art. 3, § 16), prohibiting a local bill from embracing more than one subject, and that to be expressed in the title.</p>

This action was brought for the breach of an agreement between the parties for an exchange of lands, containing this clause: “And the parties to these presents each agree to give a good and sufficient deed for their respective pieces of property, on or about the 1st day of April, 1873, or forfeit the sum of five hundred dollars.” Plaintiff proved an offer to perform, and a refusal on the part of defendant.

(Reported below, 1 Hun, 411.) This action was brought for the breach of an alleged contract for the sale, by defendant to plaintiff, of a quantity of wool.

(Reported below 1 N. Y. S. C. [T. & C.], 209). This was an action upon the official bond of defendant Marcus C. Walworth as supervisor of the town of Sullivan, Madison county. He was elected supervisor in March, 1868, and gave a bond with the other defendants 'as sureties.

<p>The provisions of the Code requiring different causes of action joined in a complaint to be separately stated (§ 140), and the rule (25) requiring them to be separately numbered relate simply to questions of practice over which the court below has control, the right is merely formal not substantial.</p> <p>An order, therefore, denying the right is not reviewable here.</p>

- Appeal from a judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of defendant, entered upon a verdict. (Reported below, 2 N. Y. S. C. [T. & C.], 664.) This was an action of ejectment.

This action was brought to recover the amount of an order accepted by defendant. The evidence showed that the defendant was owner of ten lots of land, situate on Fulton, near Classon avenue, city of Brooklyn.

This action was brought to recover pilotage. Plaintiff was a pilot, duly licensed under the laws of this State. On the 25th day of May, 1873, he first spoke and offered his services, at sea, off Sandy Hook, to the master of the brig “ Sarah E. Kennedy,” sailing from a foreign port, under register, to the port of Hew York. The master refused to take him as pilot.

This was an action of trespass quare clausum fregit. The complaint alleged that defendant broke and entered plaintiff’s close in thetown of Boonville, Oneida county, tore down fences, etc. The answer alleged that the locus in quo was a public highway, and that the alleged acts of trespass were in removing obstructions placed thereon by plaintiff.

(Reported below, 2 Hun, 377.) The resolution authorizing the improvement was adopted by the common council in December, 1868. The defect alleged in the proceedings was, that neither the resolution nor the report of either of the committees was published in all newspapers employed by the corporation.

' This action was brought by plaintiff as receiver of the “ Buffalo Fruit Preserving Company,” to recover an alleged subscription to the stock of the company.

This action was brought against defendant as survivor of the firm of Smyth & Lynch, to recover the value of a quantity of wool consigned by plaintiff to that firm for sale. The evidence tended to show that, on the 24th October, 1864, plaintiff had in the hands of said firm twenty-one bales of wool; on that day he sent them an order to sell forthwith. Defendants did not obey the order and plaintiff abandoned the wool.

<p>Appeal from a judgment of the General Term of the Supreme Court in the first judicial department affirming a judgment in favor of plaintiffs, entered upon an order denying a motion for a new trial, and directing judgment upon a verdict. (Reported below, 1 Hun, 167.)</p> <p>This action was brought by plaintiffs, as receivers of the Columbian Insurance Company, upon two promissory notes, called security notes, given by defendant under article 3 of the charter of said company, which reads as follows:</p> <p>“ When $200,000 of the capital stock shall be subscribed for and paid in, the company, as an additional security to its dealers, may, from time to time, receive notes for premiums, in advance, of persons intending to receive its policies. Such notes shall be received under the following regulation and agreement, to wit, They shall be drawn to the order of the company, and made payable within twelve months from date. As to third parties, they shall be deemed the absolute property of the company, and may be used for the payment of losses and liabilities, and for any other- purpose connected with the business of the company; and when negotiated and in the hands of such third parties shall not be subject to any equitable claim or offset, as between the makers and the company, whether existing at the time of their negotiation or accruing afterward. As between the makers, and the company, they shall be liable merely to the extent of the premiums written upon them, and for losses and liabilities of the company after the cash capital and other resources of the company shall have been first exhausted. At the maturity of any such note (or note given in renewal thereof), the company shall protect and pay the same upon receiving from the maker thereof, in cash, the amount due from such maker for premiums written upon such note up to that time, together with a new note for the difference between the amount so written and the amount of the note so maturing ; interest at the rate of seven per cent per annum being allowed for premiums not due. Such new note shall be'for the same time as the original note, and be subject to the same provisions, terms and conditions. All return premiums made upon such notes, after the renewal thereof, shall be made in cash, and a new note of like character taken for the amount. If any such return of premium shall be made, after a dividend made upon the same, an equivalent for such dividend shall be retained by the company out of the money returned.”</p> <p>By article 8, the “security notes”wereentitled to a portion of the profits. . Article 9 provided for the dividend of profits among the insurers, payable in scrip, and liable for future losses. In August, 1861, a new arrangement was made by the company which, in effect, increased premiums ten per cent, but entitled the insurers, at their option, to fifteen-per cent reduction, in cash, in lieu of a scrip dividend. The notes in suit were dated respectively, December 11, 1861, and July .11, 1861, both at seven months. Defendants pleaded .the statute of limitations. The question does not appear to have been raised in any manner upon the trial. The summons and the jwat to the complaint weré dated January II, 1869. The company failed in January, 1866, its debts far exceeding its assets, the former amounting to $3,000,000, the latter to $1,500,000, including “Alabama claims” of $1,000,000. The “security notes” then outstanding were above $50,000.</p> <p>Defendants’ counsel moved for a nonsuit, among other things, on the ground that the defendants and others, makers of notes to the company, under the provisions of articles 3, 8 and 9 of the said charter, were sureties, and were entitled to all the right and privilege of sureties. That hy the new arangement of August 16, 1861, the rights and remedies of the defendants, as such sureties, were changed and affected injuriously. That by that arrangement especially, the fund provided for by article 9 of the charter, which was to be exhausted before recourse was to be had to these notes, was diminished without the consent of the defendants; and the company gave up and deprived itself of the benefit of that fund, which they otherwise would have held for the payment of the losses and debts of the company. That there is no proof that the assets of the company have been exhausted, which is necessary by article 3 of the charter, before recourse can be had to these notes.</p> <p>The motion was denied, and defendants’ counsel excepted. The court charged that if the jury found that the resources of the company had been substantially exhausted plaintiffs were entitled to a verdict. Defendants’ counsel excepted, insisting that there was no evidence authorizing the submission of this question to the jury.</p> <p>There is no force in the objection that defendants cannot raise upon appeal the point that the notes were barred by the statute of limitations. (Coon v. Syr., etc., R. R. Co., 5 N. Y., 495; Meaking v. Cromwell, id., 136; 34 id., 383.; 21 id., 186; Tucker v. Tucker, 5 id., 408, 415 ; 12 Barb., 9 ; 10 id., 409; 40 id., 89; 42 id., 36; 1 Hilt., 161; 24 How. Pr., 324; 2 Wend., 146 ; 4 Sandf., 109 ; 14 J. R, 527 ; 16 id., 348; 18 id., 544.) The judge erred in denying the motion for a nonsuit. (Osgood v. Toplitz, 3 Lans., 184; 46 N. Y., 93; 16 id., 336; 7 Hill, 250 ; Ludlow v. Simond, 2 Cai. Cas., 1; 7 Paige, 451, 459; 44 N. Y., 453 ; 2 Comst., 352 ; Blydenburgh v. Bingham, 38 N. Y., 371.)</p> <p>The statute of limitations cannot be considered. (Code, §§ 74, 150; Rule 19 ; Benedict v. Seymour, 6 How. Pr., 298 ; Lippincott v. Goodwin, 8 id., 242.) Defendants’ rights and remedies, as sureties, were not changed or injured by the new arrangement. (Schroeppel v. Shaw, 3 N. Y., 446 ; Ogden v. Rowe, 3 E. D. S., 312; Vartie v. Underwood, 18 Barb., 561; Gahn v. Niemceweig, 11 Wend., 312; 3 Paige, 614.)</p>

This was an action upon a policy of insurance issued by defendant to one Davis, and b.y him assigned, after loss, to plaintiff’s testator. The substance of the policy and the circumstances of the loss are sufficiently stated in the opinion. Defendant’s counsel asked the court to direct a verdict for defendant. This was denied and exception taken. The court directed a verdict for plaintiff. ' Exceptions were ordered to be heard at first instance at General Term.

(Reported below, 3 1ST. Y. S. C. [T. & 0.], 368.) This action was brought to recover damages for the nonperformance of a contract on the part of defendant, by which defendant agreed to make and deliver at their mill, on the Spuyten Duyvil creek, Westchester county, 100 tons of steel caps for rails, the same to be completed and delivered on or before April 1, 1868, with the privilege to deliver the whole or any part (not less than twenty tons at a time) during the months of…

This action was brought to recover back moneys paid under the following circumstances: The plaintiff and George H. Mumford were executors of the will of Elizabeth Scholey. Mr. Mumford died having'in' his possession certain United States bonds, to the amount of $85,000, belonging to the estate of Mrs. Scholey. These came to the hands of defendants, who were Mr. Mumford’s executors.

<p>T. devised certain real estate to his executors in trust to receive and apply the rents and profits to the use of his son W. during his life, then to sell and to divide the proceeds among the living children of W. and the issue of those deceased. If W. died without issue surviving, then to divide the same among the testator’s “ surviving children and the issue of such of them as may have died leaving issue.” At the time of making the will and of the testator’s death there were five children, and the issue of five deceased children, living. W. died without issue. Held, that the gift over was not to the .children of the testator surviving Mm, and to their issue exclusively, but thatothe issue of his deceased children also took without distinction between those whose parents died before and those who died after the making of the will.</p> <p>As the gift was in money the general rule of construction applies, that words of survivorship, m bequests, are to be referred to the period of division and enjoyment, unless there is a special intent to the contrary; and legacies to a class vest in those who answer the description and are capable of taking at the time of distribution.</p>

The papers showed that the petitioners were the commissioners appointed under said acts for the purposes thereof; that they determined it to be necessary that the lands described should be drained, and duly determined how much of the expense should be paid by the towns in which the lands were situated; that they determined that the sum of §9,099.20 should be paid by and assessed to the town of Greenburgh; that the assessments were made and the said commissioners made demand…

This was an action brought by the plaintiffs, as joint owners of the steam towboat W. E. Cheney, to recover damages, caused by said boat running foul of a telegraph cable belonging to the defendant, at the draw in the upper Albany bridge, on the 14th day of September, 1869.

This action was brought against defendant as indorser of a promissory note made by the firm of Bassett, Beecher & Co. The note was for $800, dated May 31, 1870, payable two years from date.

<p>If at the time of the sale of a promissory note the vendor expressly declines to warrant the genuineness thereof, no such warranty can he implied.</p> <p>It seems, however, that a general refusal to guarantee does not, of itself, exclude an implied warranty of genuineness; the refusal will he presumed to have been understood as confined to the question of the responsibility of the maker, and that the genuineness of the instrument was not within the contemplation of the parties.</p> <p>It seems that, where there is an implied warranty of genuineness, the vendor is estopped by a judgment in favor of the maker in an action brought against him by the vendee upon the note, in which the genuineness thereof was put at issue, in case the vendor had notice of the action and defence and an opportunity to he heard.</p>

<p>The provision of the general manufacturing act (§ 12 chap. 40, Laws of 1848), making the trustees of a corporation organized thereunder liable for its debts, in case of a failure to file the annual report required by the act, does not include an indebtedness imposed upon the corporation by fraud or improper practices of the creditor.</p> <p>A., the husband of plaintiff and acting as her agent, under an arrangement with the treasurer of the H. & A. M. Co., of which corporation A. was secretary and trustee, loaned to that company money of the plaintiff at twelve per cent interest. The loan was without authority of, and was not brought to the knowledge of the board of trustees, but was fraudulently concealed by A. and the treasurer, who acted in complicity in deceiving the other trustees by false statements of the prosperity of the corporation. The secretary and treasurer had no authority to make loans, and it did not appear that any exigency existed at the time which required it. In an action against a trustee, under the provision above mentioned, held, that plaintiff was not entitled to recover; that the loan was illegal, and, although the corporation itself could not plead usury, this did not prevent an innocent party, who had not assented to it, from availing himself of the illegality; but that, independent of this, there was no implied authority in the secretary and treasurer to make such a loan; that plaintiff could not rely upon an apparent authority, as from the fact that her agent had full knowledge, she was chargeable with constructive notice of, and was bound by their actual authority.</p>

This was an action to recover possession of personal property. The evidence was substantially as follows: On the 1st day of October, lSYS, the parties entered into a contract by which plaintiffs contracted to sell and defendants to purchase An implied warranty existed without reference to the broker’s note, and might have been proved and enforced even if no broker’s note had been made.

(Reported below, 1 H. Y.'S. C. [T. & C.], 82.) This action was brought by the executors to obtain a judicial construction of the will of Hathan Brundage, late of the town of Hopewell, Ontario county, deceased. By the’ first clause of his will the testator bequeathed toll is wife, the defendant Eliza Brundage^ among other things, “ twent_y shares of Hew York Central Railroad stock of $100 each,” for her sole use and benefit during her life.

<p>Appeal from an order of the General Term of the Court of Common Pleas for the city and county of Hew York, reversing a judgment in favor of plaintiff, entered upon a decision of the court at Special Term, and dismissing plaintiff’s complaint.</p> <p>This action was brought to recover the value of 100 tons of coal alleged to have been purchased by plaintiff of defendant, and which it refused to deliver.</p> <p>On the 29th September, 1870, at a regular monthly auction sale of coal, held by defendant in Hew York, plaintiff bid off 100 tons. The notice of sale stated that 90,000 tons were to be sold, deliverable at the company’s depot during the month of October, 1870. Upon these terms, among others — “ Fifty cents per ton, in city bankable funds, to be deposited on the day of sale, as a security for the fulfillment of the contract by the purchaser, and the balance to be paid within ten days thereafter, at the office of the company, when the order for the delivery of the coal will be given on their agent at Elizabethport, The coal to be taken away during the month of October, lS'TO. Should the purchaser fail to take it away within the month, the company may, at their option, at any time thereafter, discontinue further deliveries, and retain the fifty cents per ton deposited on the day of sale; or should the company elect so to do, they may resell the coal, either at public sale or otherwise, for account of such defaulting purchaser, who shall pay to the company any deficiency caused by the coal being sold at a price less than that agreed originally to be paid.”</p> <p>“ The company may deliver at Hoboken, N. J., all or any portion of the coal now sold, and the purchaser shall accept the same as being delivered on the contract made by this sale, and shall pay therefor ten cents per ton .in addition to the price agreed to be paid for.the coal delivered at Elizabethport.”</p> <p>“ Every effort will be made by the company for the fulfillment of its contracts for the delivery of coal; but if at any time the business of the company is so interrupted by storms, floods, breaks, accidents, combinations, turn-outs, strikes among minei's or other employes, or by any other occurrence whatsoever, as to materially decrease the quantity of coal which the company would otherwise have been able to obtain and deliver during the month in which the coal now sold is deliverable, the company will not hold itself liable for, or pay, any damages sustained by reason of the non-delivery of the coal now sold, or of any portion thereof, although a portion of the coal that is received during said month may, in the usual course of the company’s coal sales and business, be disposed of otherwise than in the fulfillment of the contracts made by this sale. Nor will the company, in case the coal now sold is not delivered, undertake a pro rata distribution among the respective purchasers of what is delivered ; but in all cases of non-delivery from any of the above causes, the money paid on coal will be promptly refunded.”</p> <p>Plaintiff paid for the coal, as required by the terms of sale, and received an order therefor, but did not demand a delivery of the same until February 24th, 1871; when, as the court found, defendant’s stock of coal was exhausted, in consequence of a strike of its miners, which began in December, 1870, and continued until the May following, during which time the production of coal by defendant was almost entirely suspended.</p> <p>An intention between the parties to sell and to buy an unseparated part of a mass is all that is required to make a sale. (Kimberly v. Patchin, 19 N. Y., 330; Russel v. Carrington, 42 id., 118; Lobdell v. Stowell, 51 id., 70.)</p> <p>There was no sale of the coal to plaintiff. (White v. Wilks, 5 Taunt., 176 ; 19 N. Y., 337; Foot v. Marsh, 51 id., 288.) It could not be assumed that the coal sold plaintiff was at any time on hand or ready for delivery. (Bronson v. Wiman, 10 Barb., 406.) The court erred in holding that the sale was a completed sale. (Foot v. Marsh, 51 N. Y., 288 ; Field v. Moore, H. & D. Supp., 418 ; Olyphant v. Baker, 5 Den., 379 ; Crofoot v. Bennett, 2 N. Y., 259; Gardiner v. Suydam, 7 id., 357; Joyce v. Adams, 8 id., 291 ; Logan v. Le Mesaurier, 6 Moore, 116; Benj. on Sales, 241; Story on Cont., § 800 ; Chit, on Cont., 338 [m. p.] ; Cushing v. Breed, 14 Al., 376 ; Roper v. Lane, 9 id., 502; Rapelye v. Mackie, 6 Cow., 250.) The complaint was properly dismissed. (Edmonston v. McLoud, 16 N. Y., 545; Lewis v. Mott, 36 id., 305; Hone v. Julien, 9 Abb., 195; Newell v. Wheeler, 4 Robt., 248; affirmed, 36 N. Y., 244; Brookman v. Hamill, 43 id., 565 ; Muldoon v. Pitt, 54 id., 274.</p>

(Eeported below, 3 Hun, 760; 6 H. Y. S. C. [T. & G], 258.) It appeared by the papers that the relator, William M. Tweed, was confined in the Hew York… Held: is not warranted by the judgment, or if the second and subsequent sentences are beyond the jurisdiction of the court, then the relator’s imprisonment is illegal, and he has a right to be discharged on the writ of habeas corpus. (2 R. S., 563, §§ 21, 22, 48, 52; People v. McLeod, 3 Hill, 665; Edymoin's Case, 8 How.