Volume 15 — New York Supreme Court Reports

• The plaintiff was a stockholder in the Burlington Cotton Mills, a manufacturing corporation organized under the general laws of this State about August 14, 1866, whose principal office and place of business was in the city of New York. The corporation about the time of its organization purchased real estate, mills thereon, machinery and water privileges at Burlington, in the State of Yer-mont.

The demurrer was interposed by the defendant Elizabeth E. B. King, on the grounds of defect of parties, pendency of another action, misjoinder of parties and causes of action, and that the complaint did not state facts sufficient to constitute a cause of action. The action was brought to recover for legal professional services rendered to, and moneys expended for an estate.

<p>Appeal from a judgment entered in favor of the defendant, on the decision by the court, a jury trial having been waived.</p> <p>On the 29th of April, 1811, Maria C. Hood and John M. Hood, her husband, duly executed, acknowledged and delivered to Edwin K. Dillingham a bond and mortgage on the separate property of said Maria 0. Hood, who was the owner thereof in fee simple, which bond and mortgage were duly assigned to the plaintiff September 16, 1871, and such assignment recorded October 20th, 1871, on which there is due and unpaid $3,000 and interest from, September 3d, 1874.</p> <p>A shoi’t time prior to June 25th, 1872, said Maria 0. Hood and John M. Hood agreed with one N. "W. Burtis to sell to him the said premises, subject to the incumbrances upon it, for $2,000, in the notes of said Burtis, and that said mortgage, then a lien thereon, together with other incumbrances, should be assumed.</p> <p>The said Maria C. and John M. Hood, on the 25th day of June, 1872, duly executed, acknowledged and delivered to said Burtis a deed of said premises, without the name of any grantee (i. e., party of the second part thereto) therein, but with a blank space left for the insertion thereof; said deed then contained full covenants for title and a clause, subsequent to the “ habendum,” in the following words (after enumerating certain other mortgages): “Subject to the payment of another certain indenture of mortgage, now upon the within described premises, amounting to $3,000” (meaning the mortgage in question), “ which said mortgage the said party of the second part hereto agrees to assume, pay off and discharge, the same having been allowed out of the consideration or purchase money hereinbefore expressed.”</p> <p>Burtis then paid the grantors in said deed $2,000 in his, Burtis’, notes, tad they, by parol, authorized said Burtis to fill into the blank left therefor in said deed the name of any person he chose as grantee, and to deliver the same to such grantee.</p> <p>Burtis was then indebted to a firm, of which the.defendant was a member, and shortly thereafter agreed with said defendant, by parol, that he, said Burtis, should insert the defendant’s name as grantee in the said deed, and that the defendant should take the title, and that the profits therefrom should be applied on account of the said indebtedness to the defendant’s firm; and thereupon said Burtis, in pursuance of his said authority and said agreement, inserted the name of the defendant as grantee in said deed, and had the same recorded with the knowledge and assent of said defendant.</p> <p>Thereafter said Burtis procured a purchaser for said property and in his own name contracted for the sale thereof, and the defendant, in pursuance thereof and at the request of said Burtis, granted and conveyed the same to such purchaser in fee simple, by deed, with the usual full covenants, including covenant of seizin, subject to the said mortgage and other incumbrances; and the deed contained a clause, similar to that quoted above, providing for the assumption and payment of said mortgage by such purchaser.</p> <p>The plaintiff subsequently foreclosed said mortgage without making said defendant a party thereto, and the amount above found due is the amount due thereon after deducting the amount realized thereon from the sale under the judgment in said action. The grantee of the defendant was made a party to said action, but no judgment for deficiency was demanded or taken against him.</p> <p>The plaintiff purchased the premises at the foreclosure sale, and upon the trial of this case offered, upon being made whole, to convey the same to the defendant.</p>

Appeal by Isabel Godfrey Ward, an infant, from a judgment entered on the decision of the Special Term, allowing to the widow, Harriet Isabel Ward, one-half of a fund not paid over to her deceased father under the will of her grandfather, James O. Ward. This action was brought by the plaintiff as executor and trustee under the will of James O. Ward for a construction of the fourth clause thereof, viz.: “ Fourthly.

The action was tried in a Justice’s Oourt of Newtown, Queens county, on the 22d of October, 1875, and judgment rendered in favor of the plaintiff for the sum of fifty-two dollars and sixty-two cents damages, and four dollars costs. The defendant thereupon served a notice of appeal for a new trial in the County Oourt, as a matter of right, the plaintiff having claimed more than fifty dollars in his complaint.

<p>Appeal from an order denying a motion for a new trial, made upon the minutes of the judge at the Circuit.</p> <p>The action was brought under chapter 646, Laws of 1873, to recover damages alleged to have been sustained by the plaintiff, as the owner of a horse of the value of $200, which was taken from his place, in Orange county, in good condition, on a Sunday, by his son, and returned after midnight, so used up that death resulted therefrom. The son became intoxicated from liquor obtained of the defendant Firnhaber, the keeper of a restaurant, of which the defendant O’Reilly was the landlord, and in this condition drove the horse so furiously as to cause the injury complained of. The son, who was known to be of intemperate habits, borrowed the horse to go to a neighbor’s, but instead went to Firnhaber’s.</p>

The complaint sets forth that the plaintiff performed labor and furnished materials for certain houses on the land of the defendant Matilda Moore, and that he filed and served on the 16th November, 1875, the notice required under chapter 478 of the Laws of 1862, under and by which he acquired a lien thereon.

The action was brought for the foreclosure of four bonds and mortgages, amounting to $70,000, executed by George W. Nelson and wife to the plaintiff.

This action was brought in the City Court of Yonkers by Thomas Drew, plaintiff, against Alfred Andrews, defendant, to recover a balance of $382.60 alleged to be due from the defendant to the plaintiff for work, labor and services performed in the building of a foundation .wall and a stone retaining wall and walls thereto, trenching for said retaining wall and extra work on the grounds of defendant, in the city of Yonkers, and in the grading of said grounds.

Ceoss appeals by plaintiff and defendant from a judgment entered upon the report of a referee. On the 20th day of June, 1872, one Hugh McElroen was the owner in fee of certain real estate in the city of Yonkers, West-chester county, at which time he gave a mortgage on said premises, his wife Eliza uniting with him, to the defendant for the sum of $4,000 and interest, which mortgage was recorded.

Appeals from orders made at a Special Term, in twenty-two cases, appointing commissioners to ascertain and appraise the compensation to be niade to each of the respondents respectively, for real estate proposed to be taken, and on which the applicant’s road was constructed.

The complaint set forth certain proceedings taken by the former board of water and sewerage commissioners of the city of Brooklyn, under chapter 652, Laws of 1870, for the repavement of Atlantic avenue which, subject to the provisions of chapter 387 of the Laws of 1874, resulted in an assessment upon plaintiff’s land, which she sought to remove as a cloud upon her title, and alleged, in substance, that upon the proceedings for repaving Atlantic avenue, which appear regular…

That in case of their omission to pay or deposit said amount for ten days after service of the order on their attorney a precept issue for the collection of said amount.

The plaintiff is the owner of lands adjacent to the Gfowanus canal, in the city of Brooklyn, which canal is a short inlet of Gfowa-nus bay lying in a cul de sao, and fronted upon either side by private property, except where it is crossed by the numerous streets of said city. It is not a source of any public revenue, nor is it a highway for any purpose other than those of the private dock-holders upon its sides.

The village was incorporated under a special act passed in 1868 (chap. 818). Proceedings in relation to regulating and’ grading streets and assessments therefor are provided for by sections 22 to 28, inclusive, of title 5 of said act. The provisions of said act as to sales for unpaid assessments were amended by chapter 245 of the Laws of 1875.

In January, 1871, the plaintiff brought an action against Clem-entina T. Richardson and others, the said Clementina then carrying on the business of selling carpets and furniture at the corner of Hudson and Canal streets, New York city, and on the 2d day of February, 1871, an order was obtained in the action appointing a receiver of the property, the order containing an injunction against the said Clementina and others, forbidding them to interfere or dispose of their…

Appeal' from an .order made at Special Term, overruling a demurrer to tbe complaint.

Application was made August, 1875, to review and set aside an assessment for grading and paving Orchard street, in the city of Brooklyn. The ordinance or resolution directing the improvement to be made was passed August 28, 1871. Advertisement of the proposed district of assessment and for remonstrances was duly made in June and July, 1871, and no remonstrances were presented.

The action was brought to recover of the defendant a penalty of fifty dollars, imposed by an ordinance of the plaintiff, because of the failure of the defendant to station a flagman at a certain crossing as directed by said ordinance. The ordinance being passed under the power claimed to be vested in them by section 14, subdivision 5, title 3 of their charter, chapter 461, Laws of 1871.

CeRtioeaRI on a bill of exceptions, to review the conviction of the defendant for selling strong and spirituous liquors. The defendant was indicted for selling spirituous liquors without a license. Admitted the sales at the time alleged (June 1, 1875), but claimed on the trial that, as the license was granted December 7, 1874, although by its terms it expired May 1, 1875, it did not expire until the end of the year.

The complaint alleged, in substance, that the plaintiff was the owner of 1,000 shares of the capital stock of the Smith and Parmelee Gold Company, a corporation organized under the general laws of the State of New York, having five trustees and its principal place of business in the city of New York, and that he brought the action in behalf of himself and of all the other stockholders who should join therein.

<p>Married, woman — collection of debt, charged on 1m separate estate — should he by common law action — not by action for foreclosure — Judgment by default — Belief greater than that ashed for in complaint — irregular.</p> <p>Tlie defendant, a married woman, made her promissory note, in and by which she in express terms charged her separate estate. An.action was brought (by service of summons for relief) to enforce the lien upon and' payment of the amount thereof out of the defendant’s property. Defendant did not appear, and on default plaintiff obtained an order of reference to compute the amount due, and upon the report of the referee judgment was entered, adjudging and directing that the defendant’s property so charged and described in the complaint be sold by a referee therein named, and that the defendant be barred of and from all equity of redemption in said premises, etc. The said premises were sold by such referee in pursuance of said judgment.</p> <p>Held, that sections 274 and 287 of the Code provide the same remedy by judgment and execution against a married woman as the law affords against other persons, with the single qualification that the execution can be levied and collected only of her separate property.</p> <p>That the statute having given a legal remedy which was adequate, there was no occasion for administering equitable relief.</p> <p>That although formerly such a contract was treated as an appointment of or charge upon the separate estate of a married woman, and the only remedy for its enforcement was by bill in equity, yet that mode of proceeding had been entirely superseded by section 7 of chapter 172 of the Laws of 1862, which enacted that “ a married woman may be sued in any of the courts of this State, and whenever a judgment shall be recovered against a married woman, the same may be enforced by execution against her sole and separate estate in the same manner as if she were sole,”</p> <p>That such enactments were in pari materia with the special statutes for the protection of married women, and should be so construed as to insure to them the same protection against the sacrifice of their property-which the law gives to a feme sole, viz., levy, advertisement, right of redemption, etc.</p> <p>That the more summary and expensive remedy pursued in this case of foreclosing a lien or charge, and thereby cutting off the right of redemption, was in contravention thereof.</p> <p>A judgment, taken by default, giving greater relief than that demanded in the complaint, should be set aside.</p>

Singer, denying the application of Mrs. Mary A. Foster to be allowed to intervene in the proceedings and contest the probate of his will on the ground that she was his widow. In 1830, Isaac M. Singer married, at Palmyra, New York, Cath-arine Maria Haley. They had two children born to them and lived together until 1836. While Singer was on one of his theatrical rounds he met, at Baltimore, in 1836, Mary Ann Sponsler (the plaintiff).

The plaintiffs were assignees of a claim for freight and demurrage, claimed to be due to the owners of the brig Harry Yirden. The defendants were assignees of a bill of lading (held for advances) and also assignees of the consignees, of the cargo brought by said brig from Cardenas to New York.

Appeal by the defendant Harriet B. Turner, wife of Thomas 0. Turner, from so much of a judgment of foreclosure and sale, entered with the clerk of Kangs county, January 29, 1876, as directed that she should pay any deficiency. The action was brought for the foreclosure of a mortgage made by Charles E. Evans to John W. Eddy for $5,500 on property in Brooklyn. Eddy assigned the mortgage to Robert R. Rhodes, guardian, who assigned it to this plaintiff.

Wurr of error to tbe Court of Sessions of Kings county, to review tbe conviction of the defendant as a common gambler.! The defendant was convicted of being a common gambler in selling or vending what are commonly known as lottery policies, under chapter 504, Laws of 1851, as amended by chapter 214, Laws of 1855, and was sentenced to imprisonment for the term of three months in the Kings county penitentiary.

The summons was issued in a civil action by James H. Spencer, justice of the peace, in the town of New Lots, Kings county, and was served by a constable on the defendant, in the city of Brooklyn, in said county, where defendant resided. Judgment was entered by default, a transcript thereof filed and the judgment docketed against the defendant in the Kings county clerk’s office, and execution issued thereon.

This was an action to recover the value of services alleged to have been rendered by the plaintiff, in talcing care of the defendant’s sick son, performed between October, 1868, and October, 1878.

Appeal by the boarcl'of supervisors of Westchester county from an order in the above entitled matter, made by the County Court of Westchester county, on the 9th day of December, 1874, directing-said board to refund the sum of $788.46, the amount of tax assessed and levied upon the property of said corporation in the town of Westchester, in said county, in the year 1873, and collected from said corporation by the receiver of taxes of the town of Westches-ter, under the…

James P. Haskin, of the city of Syracuse, died on or about January 30, 1873, possessed of a large real and personal estate, leaving a will dated January 16, 1871, and a codicil thereto dated April 5, 1872, which latter was in these words: “I, James P. Haskin, of the city of Syracuse, N. Y., do make this codicil to my last will as follows, viz.: Desiring to cancel and revoke the bequests made in the eleventh (11), twelfth (12) and thirteenth (13) items of my last will and…

The action was brought to recover a balance due on a lease of a certain farm in Phelps, Ontario county, being the balance of rent due on the lease from April 1, 1874, to April 1, 1875. -The lease is dated April 1, 1873, and was for one year, but contained this clause: “ This contract is to be renewed for three consecutive years if it is fulfilled to the satisfaction of both parties; ” it was signed by Arethusa Decker, the plaintiff, and then by the defendant, Frederick S.…

The defendants were husband and wife, and the wife was the owner of the premises upon which the husband had kept a hotel for two years and over, prior to the 21st of September, 1874.

50. The plaintiff, Hannah Stephens, on October 21st, 1871, conveyed to John Hoffman an acre or thereabouts of land, in the town of Leyden, in the county of Lewis, on which were buildings occupied as a tavern stand.

The defendants were creditors of the estate, which was insolvent. The appellant is the widow of one A. Cornwell and was appointed the administratrix of his estate, April 16, 1872. Deceased was a merchant at Woodhull. The estate consisted of a stock of goods in the store there, besides accounts and notes. The administratrix, who was an old lady, employed her son to sell the goods at retail and collect the accounts.

On the 11th day of December, 1871, the defendant, Ebenezer Keeler, recovered a judgment, before a justice of the peace, against the plaintiff, William Aliger, and one Clarissa Yan Yorhis for twenty-nine dollars. On the 12th day of December, 1871, an execution was issued upon said judgment against the property of the defendants Aliger and Yan Yorhis, and on the 26th day of the same month it was levied on the cattle for the conversion of which this action was brought.

On the bearing before the referee, he admitted the testimony of one Benjamin Sherwood, a son of intestate’s brother, called as a witness on the part of the plaintiff to testify to a personal transaction with the intestate. The interest of the witness was against the plaintiff as he was entitled, as next of kin, to a share of the personal property, and if the claim of the plaintiff was defeated his share would be increased.

The defendants were the landlords and proprietors of a hotel at Hinsdale, in the county of Cattaraugus, known as the Glade House. Henry Smith, the plaintiff’s husband, who had for several years been in the habit of frequent intoxication, drank at the defendants’ bar several times on the evening of July 8, 1874, and left the hotel at a late hour that evening in an intoxicated state, and started toward home.

Motion by plaintiff for a new trial, made on exceptions ordered to be heard in the first instance at the General Term. The plaintiff was the owner of a farm of forty-five acres, through which the defendant’s road passed. He raised small fruits, and was interested in the defendant’s keeping open a station at Portland, about half a mile from his residence.

<p>Attorney and dient— agreement to prosecute action for one-half the dmiages— Vremd-ulent settlement by dient— Belief of attorney — Evidence — defense not pleaded— to controvert matter set up in answer — ad/missible.</p> <p>Attorneys agreed with, a party who had been injured by a collision on a railroad, to prosecute an action for him, without expense to him, against the company for the damages sustained, in consideration of one-half of the damages to be recovered. On the service of the summons in the action on a director of the company, he . was informed that the attorneys had an interest in the suit for their services, and the company must not settle without their consent. Afterward the company obtained, in consideration of $1,000, a release from the plaintiff (without the knowledge or consent of his attorneys) from all claim for damages.</p> <p>Held, that it would be unnecessary and unjust to set aside the release, as that would take from the defendant the protection which it afforded it against the plaintiff; but it was the duty of the referee before whom the cause was tried, having found the release to be fraudulent, to have held it void as against the attorneys, and complied with their request and ascertained the damages sustained by the plaintiff, and given judgment against the defendant for one-half the amount thereof.</p> <p>The defendant having insisted that the referee could not try the question whether the release was obtained fraudulently, as that was not one of the issues referred to him:</p> <p>Held, that as the release was set up as a defense in the answer, and by the Code all allegations in the answer are to be deemed denied, unless they constitute a counter-claim, in which case a reply must be put in, the plaintiff had a right to prove on the trial any matter that constituted an answer to the matter set up by the defendant as a defense, and the evidence that the release was obtained by fraud was a perfect answer to that instrument as a defense, if it was established by the evidence.</p>

05 damages and costs. The action was upon a promissory note made by the defendant, a married woman, containing this clause: And for value received, I hereby agree that the above sum shall be paid out of my separate estate, and make the same a charge thereon,” and delivered to the plaintiffs to secure an extension of time on a judgment by them against the husband of the defendant.

Appeal by the defendant Swinerton from a judgment in favor of the plaintiff, entered upon the report of a referee, and from an order confirming the report and an order denying a motion for'a new trial. The action was brought in the Monroe County Court for the foreclosure of a mechanic’s lien under chapter 489, Laws of 1873, and was referred.

This action was brought by the plaintiff, who was the wife of Charles Mead, against the defendants, to recover damages sustained by the plaintiff in her means of support by the death of said Charles Mead while intoxicated, and in consequence of such intoxication, produced by liquor sold to said Charles Mead by the defendant Isaac J. Stratton.

In the year 1873 William Gifford, as collector of the town of Chautauqua, collected and deposited with the defendants, who were bankers, the sum of $3,500, which had been raised to pay the interest to become due on its bonds in August following. The defendants received the money with full knowledge that the same was the money of said town raised by tax to pay the interest on its bonds, to become due and payable the following August.

In tbe year 18T0 Eunice Rowen, wife of Adna Eowen, was tbe owner of a vacant lot on tbe east side of Sbelby street, in the village of Medina. Tbe defendant was at tbe same time, and is now, tbe owner of a vacant lot adjoining the lot of said Eunice Bowen on the north. In the year 1810 said Adna Bowen erected a stone building on the lot owned by Eunice Bowen.

This action was commenced in June, 1874, and came to trial before Judge HardiN and a jury, at Jefferson Circuit, November, 1875, when the evidence disclosed the following facts : In June, 1873, the plaintiff issued to the defendant an execution against the property of one Hernán H. Frink, and under it the defendant levied upon property of Frink sufficient to satisfy the execution, on the 26 th day of June, 1873.

<p>Appeal from an order made at a Special Term sustaining a demurrer to a complaint, interposed on the ground that it did not state facts sufficient to constitute a cause of action.</p>

<p>Appeal from an order made at Special Term overruling a demurrer to the complaint, setting up that it did not state facts sufficient to constitute a cause of action. The complaint set forth that May 2, 1872, the plaintiff and defendant entered into a copartnership and continued the same until July 23, 1873, when it was dissolved by mutual consent of the parties ; that on said last mentioned day they had an accounting of all matters of said copartnership, and an account therefor was duly stated between them, and that thereupon it appeared, and tbe fact was tbe defendant stood and was indebted to tbe plaintiff in tbe snm of $1,032.89, and said sum was on said day due and payable from tbe defendant to the plaintiff, and alleged the neglect and refusal of tbe defendant to pay said sum, though often requested, and demanded judgment for said sum, with interest and costs.</p> <p>The complaint does not state an express, or any promise on tbe part of tbe defendant to pay tbe demand. Tbe rule is well settled in this State, that no suit can be brought at law for any thing relating to partnership concerns, unless there has been a final accounting, a balance struck, and an express promise. (Casey v. Brush, 2 Caines, 293 ; Murra/y v. Bogert, 14 Johns., 318; Halstead v. Sohwetzel, 17 id., 80 ; West-erlo v. Fvertson, 1 Wend., 532 ; Ciarle v. Dibble, 16 Wend., 601 ; Townsend v. Goewey, 19 id., 424; Graham v. Common, 13 How. Pr., 360; At/water v. Fowler, 1 Hall, 180; Koehler v. Brown, 31 How., 235; Pattison v. Bkmchard, 6 Barb., 537; affirmed in 1 Selden, 186 ; Cummings v. Morris, 25 N. Y., 629; Howard v. France, 43 id., 593; Grater v. Bininger, 45 id., 545; Gage v. Angelí, 8 How. Pr., 335, 336.)</p> <p>Where a partnership has been dissolved and an account stated, an action at law will lie without an express promise to pay. (Rachstraw v. Imber, 1 Holt’s N. P., 368; Wetmore v. Baker, 9 Johns., 307; Bond v. Hays, 12 Mass., 34; Crosby v. Nichols, 3 Bosw., 450 ; At/water v. Fowler, 1 Hall, 180; Hobson v. Curtiss, 1 Starlde’s N. P., 78; Veeney v. Leekie, 13 East, 7; Halderman v. Halderman, 1 Hemp. [Ark.], 559 ; Van Ness v. Forrest, 8 Cranch, 30; Pole v. Phillips, 5 id., 154, opin. of CeaNoh, Oh. J.; Lamalere v. Gaze, 1 Wash. C. Ct., 433 ; Beach y. Hotchkiss, 2 Conn., 428 ; Fanning y. Chad/uoick, 3 Pick., 420, and all the Mass, cases; Ozeas v. Johnson, 1 Binney, 191, and other Pehn, cases; Qrisby v. Nance, 3 Ala., 347; 13 id., 214 and the Ala. cases; Fromont v. Copeland, 2 Bing., 170; Collyer on Part. [3d ed.], § 280; Pars, on Conts., 165.) To sustain the demurrer amounts to a summary dismissal of the complaint. But the complaint cannot bo dismissed if it states any cause of action legal or equitable. The demand for judgment and the form of complaint is immaterial.</p>

The complaint alleged that, on the 17th of October, 1867, the plaintiff purchased of one George W. Smith sixteen lots of ground, for the sum of $2,100, and for certain reasons deemed it prudent and judicious to have the deed therefor made to Sarah Wood as grantee. That plaintiff paid $1,500 on the purchase, and procured the said Sarah Wood to execute a bond and mortgage to Smith, for the balance of the purchase money.

Appeals from an order made at Special Term in suit No. 1, on the part of the plaintiffs, from so mucli thereof as sustained a demurrer to the second cause of action set forth in the complaint on the part of the defendant, from so much thereof as overruled the demurrer to the first cause of action set forth in the complaint. Appeal by the defendant from an order made at the same Special Term in the second suit overruling a demurrer to the complaint.

Freeman Brown, a colored man, died in 1853, possessed of a house and lot in Brooklyn, leaving two children, Martha Celina Brown and Alice Brown, infants. In the spring of 1857, Edmund Terry, an attorney, was appointed special guardian in proceedings to sell this their real estate.

The facts set out in the return were briefly as follows : In 1873 the relator was a member of the Cotton Exchange. John H. Valentine, also a member, was in default upon a contract, by reason of which default the by-laws provided a proceeding to dispose of his right of membership to make good the amount due upon his contracts.

The action was to foreclose a mortgage on real property, executed March 8, 1869, by tbe defendant Thomas A. Davies to one Augustus F. Smith for $9,750, made payable March 8, 1872, in accordance with the terms and conditions of a bond accompanying it made by said Davies. The mortgage is now held by tbe plaintiff by virtue of a certain assignment of tbe same.

<p>Appeal by the plaintiff from a judgment in favor of the defendants, entered upon the verdict of a jury.</p>

<p>Practice — - Counter-claim— Separate action brought therefor.</p> <p>A party, except in. cases commenced in a Justice’s Court, having a demand against another can maintain an action therefor, although at the time a.n action is pending against him by the same party, wherein he could have set up such demand as a counter-claim.</p>

<p>Appeals from orders made at Special Term, changing the place of trial.</p> <p>The actions were both brought in the city and county of .New York (in both the defendants were, some of them, public officers in the county of Kings, and the others certain contractors for what is known as the Hempstead reservoir), to recover from them certain moneys, alleged to have been obtained by such contractors by the corrupt collusion and confederation of such officers, with the said contractors.</p> <p>The following is the opinion of Barrett, J., referred to in the opinion of Brady, J., below :</p> <p>Barrett, J. 1. The question is not whether the defendants Fowler, Lowber and Bliss were public officers within the meaning of the Constitution, but whether they were such as are contemplated by section 124 of the Code. That they were public officers in the latter sense there can be no doubt. Their duties were essentially public, and they were even required by law to take an oath of office, and to furnish bonds for the faithful performance of their duties, as permanent water and sewerage commissioners. (Laws of 1869, chap. 97, § 2.)</p> <p>2. The acts complained of were clearly done by these defendants in virtue of their offices. It was wholly from such offices that they derived the authority to do what is charged against them — and that is the test. It is not a question of good or bad faith, and the proposition that the statute covers cases of neglect or inefficiency alone, is not sustained either upon principle or authority. On the contrary, it-is well settled that even where, in doing an act within the limits or scope of his authority, the officer exercises such authority improperly or abuses the confidence which the law reposes in him, he is still entitled to the protection of the statute. (Brown v. Smith, 24 Barb., 419; The People v. Hayes, 7 How., 248; Seely v. Bvrdsall, 15 Johns., 268; The People v. Tweed, 13 Abb. [N. S.], 419, which is directly in point, and is decisive of this motion.) Even allegations of malice and “ wicked combination ” will not deprive a public officer of the protection of such statutes. (Bow v. Sherwood, 6 Johns., 109.) And upon principle this is the just rule, for otherwise the statute would always be evaded by a mere averment of bad faith, e. g., that a sheriff levied on A.’s goods under execution against B., and did it in bad faith, well knowing them to be A.’s goods.</p> <p>3. In one of the cases under consideration, the cause of action arose in Kings county; in the other, some part thereof, indeed the substantial part thereof, arose there.</p> <p>4. The defendants cannot be deprived of their statutory right by joining other parties as defendants. The right is absolute, and not a matter of judicial discretion. If, therefore, a public officer be impleaded for acts done virtute officii, the suit — so far as he is. concerned — must be tried in the county where the cause of action, or some part thereof, arose. Any other rule would tend to nullify the statute ; for it would be as easy to join other parties defendant as to plead bad faith, and that, too, without intending to evade; as,, for instance, to join with a sheriff defendant, the plaintiffs in the execution, who directed, or the indemnitors, who upheld the levy.</p> <p>5. Lastly, we are asked to retain these cases, because it is claimed that a fair jury trial cannot be had in Kings county. But that is no answer to the motion. Issue has not been joined, and we cannot tell whether there will be a jury trial. For aught we know, the defendants may demur. The first thing to be done is to place the causes in the county where, by law, the defendants have a right to have them. When an issue of fact is there joined, it wfill be time enough to invoke subdivision 2 of section 126 of the Code. Mason v. Brown (6 How., 481), is not in point, for the reason that issue had there been joined ; but it is an authority for the rule that motions to change the place of trial for the convenience o.f witnesses can only be made after issue joined. The same principle applies to motions to change the venue, because there is reason to believe that an impartial trial cannot be had. The motion to change the place of trial to the county of Kings must be granted.</p>

<p>Signature — on margin — disputed effect of — liability thereon to be submitted on proof to the jury.</p> <p>P., not mentioned in the body, signed Ms name upon the margin of an agreement, executed at its foot by H. Held, that such signature did not express what participation in the obligation P. meant to take, whether as surety, guarantee or original contractor, but it might, perhaps, with propriety be said, that it was evident from his in no way expressing any other obligation or intention, that he intended to bind himself as a joint contractor.</p> <p>Where the complaint was originally in form on guarantee, but an amendment allowed on the trial charged P. as an original joint contractor, rendering it necessary for the plaintiff to establish by competent proof that such was his relation, because his signature was by indorsement and not by subscription to any expressed obligation of any kind,- and evidence having been given to show why P. signed the paper where he did, and in that way to show what he meant to assume, or what, in other words, was his relation to the contract, held, error, to decide that the action turned upon a question of law and to dismiss the complaint as to P. on the ground of misjoinder, holding the contract to have been made by P. as guarantor.</p> <p>That the plaintiff was entitled to have the issue whether or not P. was a joint contractor with H., created by the amendment allowed upon the trial, passed upon by the jury.</p>

Submission of ease under section 372 of the Code. The plaintiff, Stewart, owned lot No. 60é, and one John N. Hayward owned lot No. 602, on Broadway, and the lots adjoined. In June, 1853, Hayward and Stewart, when Stewart was about to rebuild, made a contract that the new wall should be a party wall between said lots.

Appeal by the plaintiff from a judgment of nonsuit, and also from an order denying a motion for a new trial, made on the judge’s minutes. In actions brought by a servant against his master for negligence, the burden of proof, as to tbe master’s knowledge or culpability in lacking knowledge, rests upon the plaintiff. {Kunz v. Stewart, 1 Daly, 431; McMilland v. Saratoga, etc'., JR. JR. Co., 20 Barb., 449; Shearman & Bedfield on Negligence, § 99; Buzzell v. Laconia Mfg.

Appeal by the defendant from an order denying a motion for a new trial made on the judge’s minutes, and also from a judgment in favor of the plaintiff, entered on the verdict of the jury. The action was brought to recover for a quantity of sawed lumber, alleged to have been sold and delivered by the plaintiff to the defendant. The answer was a general denial and payment.

Appeal by the defendant from an order- denying a motion for a new trial, made on a case and exceptions. The action was trespass for unlawfully entering upon the plaintiff’s land and cutting and carrying away a quantity of wood. The defense set up was a general denial, title and possession in the defendant, and adverse possession. The case was tried by jury, and a verdict of five dollars damages was rendered .against the defendant.

<p>Appeal by the defendant from a judgment in favor of the plaintiff, directed by a justice of this court, before whom the action was tried without a jury. The action was an action of waste, and for an accounting in regard to personal property. The plaintiff demanded judgment for damages; also for forfeiture of the defendant’s estate, and for protection of his rights in the personal property. By the judgment, the plaintiff was awarded ah injunction to stay waste, and an accounting was ordered as to the personal property, with costs of the action against the defendant. From this judgment the defendant appeals to the General Term.</p>

His claim of $2,548.75 was made up of items for fees in receiving and discharging, and for board of prisoners committed to jail by the police justice of the city of Hudson in cases not felonies, but principally in cases of intoxication in public places; of vagrancy and of violations of ordinances of the common council of the city. All the charges related to proceedings in which the offenses punished or investigated occurred in the city of Hudson.

The action was assault and battery, brought in the County Court of Cortland county. The defense interposed by the answer was: (1) general denial; (2) son assault demesne; (3) justification in defense of defendant’s possession of his real property. On the trial the plaintiff had a verdict of six cents.

The person prosecuting in the name of the overseer of the poor has no interest in the action. He receives no part of the penalty or costs. (Laws 1857, chap. 628, § 22; as amended, Laws 1873, chap. 820.) A third person prosecuting in the name of the overseer, does so as his agent. The overseer is still plaintiff, and is responsible for costs. He can release or discharge a judgment recovered in his name by such third person without payment.

<p>Motion for a new trial upon exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff, and appeal from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.</p> <p>The action was brought to recover damages alleged to have been sustained by the plaintiff, in consequence of his haying been forcibly removed from one of defendant’s cars. Hpon the first trial the plaintiff had a verdict for $5,000. Hpon appeal to the General Term, the verdict was set aside, on the ground that the' damages awarded were excessive, the case being reported in 11 N. Y. S. O. R. (4 Hun), 236. Hpon the second trial the jury rendered a verdict in his favor for $4,000. A motion to set aside this verdict having been denied, this appeal was taken.</p>

This action was brought to recover the damages sustained in consequence of the unlawful taking of a wagon belonging to the plaintiff. The defendants justified under an execution issued against plaintiff, in favor of one Sands. The defendant Heath is the deputy sheriff who levied and sold, and Hathaway aided him in so doing, and purchased the wagon. Plaintiff claimed that the wagon was exempt, under the exemption law. (Sess.

This action was brought to recover for damages occasioned by the erection of a bridge across the Chenango river at Binghamton, by the Binghamton Bridge Company. The plaintiff was incorporated by chapter 89, Laws of 1805, and authorized to build a bridge across the Chenango river at Binghamton. The act declared “ that it shall not be lawful for any person or persons to erect any bridge * * * within two miles either above or below ” plaintiff ’s bridge.

The written contract and receipt, with the conditions and rules forming a part thereof, is the actual agreement between the parties, and being in the nature of a contract, limiting the common-law liability of common carriers, cannot be altered, changed or modified in its legal effect, by parol evidence of any talk between the plaintiff and the freight agent of defendants, preceding its execution.

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

Writ of error to review the conviction and sentence of plaintiff in error, by the Albany County Sessions. The plaintiff in error was indicted and convicted for a violation of 2 Revised Statutes (Edm. ed.), 710, section 11, in marrying one Conrad L. Simons, who was at the time a married man.

<p>Ma/t'ried women aot — chapter 90 of 1860 — when sepa/rate estate of married woman ohargeaMe under— debt cowtn'aeted by tier as Ms agent.</p> <p>TJnder section 1 of chapter 90 of 1860, providing that the property of any married woman shall not he liable for the debts of her husband, “ except such debts as may have been contracted for the support of herself or her children, by her as his agent, ” her estate is liable for the price of goods purchased by her as his agent, which were necessary for and used in the support of herself and her children.</p>

<p>Appeal from a judgment of a county judge, reversing a judgment of a justice of the peace in favor .of the plaintiff.</p>

The complaint alleged “that in September, 1810, said defendants received of plaintiff his promissory note in writing, dated August 1st, 1810, whereby he promised to pay to the order of J. K. Sanborn, four months after date, $534, at the First National Bank of Waterbury, and which said note was indorsed by said J. K. Sanborn. That said defendants received said note upon the agreement, that same should be returned to plain tiff before the maturity of said note.

The .defendants were copartners, doing business under the firm name of Blackwell, Gross & Co. The action was brought by the plaintiff against the firm, to recover $450, claimed to be due him from the firm, for rent of a house and lot, alleged to have been leased to said firm. The summons was served on all the defendants. Blackwell and Gross did not answer. The defendant Buddington put in a separate answer.

In 1866 the plaintiff commenced an action against the defendant for a divorce, on the ground of his adultery.

Controversy submitted without action, under section 372 of the Code. At the annual town meeting of the town of Sanford in 1875, three commissioners of excise were elected. They granted certain licenses to persons within that part of the village of Deposit which lies within the town of Sanford, and received therefor $340. This money they paid to the defendant, the supervisor of that town, on the first day of March, 1876.

The exceptions were ordered heard in the first instance at the General Term.

<p>Appeal from an order overruling the defendants’ demurrer to plaintiff’s complaint in this action.</p>

<p>Inquisition — ptima fame evidence of unsound mind — Promissory note made by lunatic— action upon — burden of pn'oof in.</p> <p>This action was brought by the plaintiffs against the mater of a promissory note, which they had purchased, before maturity, in good faith, and for full value. Upon the trial the proceedings upon an inquisition, had after the making of the note 'and the commencement of this action, were given in evidence, by which the defendant was declared to be of unsound mind at the tirne he made the same. Held, that the inquisition established, prima facie, the insanity of the defendant at the time of the making of the note, and that, in order to recover, the plaintiffs must show either that he was sane at that time, or that he had received such a consideration for the note as that justice and equity required it to be paid out of his estate.</p>

This is a motion for a peremptory writ of mandamus, to compel the respondent, as attorney-general, to institute and prosecute to final judgment an action in the nature of a quo warranto, in the name of The People, on behalf of the relators, to determine the title of Samuel A. Lewis and others to the office of alderman for the city of New York, and to determine their right, as a board of aldermen, to exercise the powers and discharge the duties of the common council, and to…

<p>Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.</p> <p>This was an action to recover the rent secured by a lease given by the plaintiffs to the defendant. The referee found that in May, 1870, the defendant and one Devereux entered into an agreement with reference to a coal yard owned by Devereux. By this agreement defendant was to have the use of the yard, and was to furnish coal for him to sell and share the profits with him, defendant to have the right to employ a man to remain on the premises to look after his interests. In pursuance of this agreement defendant delivered large quantities of coal, and had in the yard on October 14th, 1870, about 2,200 tons of coal belonging to him. On that day the yard was sold upon the foreclosure of a mortgage given by Devereux and purchased by the plaintiffs, who, on the same day, leased the same to the defendant until April 1st, 1871. On the same day defendant assigned the lease and sold all the coal to one Gilmore, who sold and disposed of all the coal to his customers. Devereux objected to the sale of the coal to Gilmore and refused to give up possession of the office and certain portions of the yard, upon the ground that he was entitled to sell the coal and remain in the yard under his agreement with the defendant. The referee found, as conclusions of law, that upon the sale under the mortgage the plaintiffs became the owners in fee, and entitled to the immediate possession of the yard.</p> <p><£ That upon said sale and purchase being perfected, the defendant had a lawful right to surrender and deliver up to the purchasers all his right to, and possession of said coal yard.</p> <p>That by taking a lease of said premises from the purchasers while he was in possession of some part thereof, the defendant is deemed to have held under them from the date of the lease, and cannot claim to have been in possession from that time in hostility to their title.</p> <p>In giving the lease in question, there was an implied obligation on the part of the lessors, that the lessee and his assigns should have possession of the entire premises leased.</p> <p>That the lessors did not give, nor did the defendant or his assignee acquire possession of the entire premises leased, but only of a part thereof, and there was a breach on the part of the lessors of their obligation.</p> <p>That by reason of such breach of the obligation of the lessors, the defendant or his assignees had the right to surrender to them said lease and the possession held thereunder, and the defendant would be exempt from all liability to pay rent to the plaintiffs, but by retaining during the term of the said lease, the possession acquired under the same by the defendant or his assignee, the defendant is liable to the plaintiffs in this action.</p> <p>That the plaintiffs are entitled to a judgment in their favor against the defendant for the sum of $457.64, being the amount of the stipulated rent, less the damages sustained by reason of the breach of the obligation of the lessors before mentioned, with interest upon the difference, besides costs.”</p>

<p>Tillage of Fort Edward, — Town, bonds ■— majority of tamable inhabitants — rote of —r what constitutes— Ohap. 953 C/T867— chap. 317 of 1868.</p> <p>Chapter 953 of 1867 as amended by chapter 317 of 1868, authorizing the village of Fort Edward to issue bonds, requires that notice of the special election, provided for in said acts, should he published for at least two weeks previous to the time appointed for such election.</p> <p>No bonds can he issued under the provisions of said acts unless a majority of all the taxable inhabitants of the village shall vote so to do. The consent of a majority of all those who attend the meeting is not sufficient.</p>

This is an action by the indorsee of a promissory note, made in Pennsylvania by the defendant. It is in the usual form, with the words “ without defalcation ” added.

The plaintiff, one of the firm of E. & G. Phillips, was, previous to July 30, 1874, sued by the defendants before a justice of the peace of Montgomery county. The summons was personally served, and upon his failure to appear, a guardian ad 1/item was appointed for him and judgment was afterward entered against him. No appeal was taken from the judgment.

■ Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was ejectment, brought by the plaintiff as heir at law of Richard Everett, deceased, to recover the possession of certain premises which the defendant occupied under a written contract of purchase from the deceased. The complaint set up the contract, possession under it and a failure to pay installments.

<p>Unlawful imprisonment — action for, against judge — when not maintainable, although sentence is -unauthorized.</p> <p>Tile plaintiff was convicted of a crime punishable by fine OR imprisonment. The United States District Court, over which the defendant presided as judge, imposed both. The plaintiff paid the fine and applied to he released, because he had suffered one of the alternative punishments provided for the offense. The application was denied and the court directed the sentence pronounced to be vacated, and then sentenced the plaintiff to one year’s imprisonment under his conviction (authority to so change the punishment having been previously held by the Supreme Court of the United States to exist). On return to a writ of habeas corpus and a writ of cen'tiorari issued by the United States Supreme Court, the plaintiff was discharged from custody, the court holding that-he could not lawfully be sentenced to imprisonment after what had transpired in the case. The plaintiff thereupon brought this action for unlawful imprisonment. Reid, that it could not be maintained.</p> <p>Where, in the course of a judicial proceeding, a judge is required to pass upon a question, the law as to which is in such a condition as to afford ostensible support to each side of the proposition presented, so that different minds might well, and naturally would, be lead to different conclusions as to the proper course to be pursued in disposing of the case, a judge cannot be held personally liable for a decision made by him in good faith, and without malice, even though an appellate court should subsequently reverse such decision, and hold that the judge had no power to render or enforce the same.</p> <p>Especially is the judge exempt from personal liability, when his action is founded upon a decision of an appellate tribunal to which, he is hound to conform, affirming the existence of the authority exercised by him in passing the sentence in question.</p>

<p>Wm York charter — $ 96, eJiap. 885 of 1873 — Attorney for collection of pet'sonal taaxs — right of, to costs.</p> <p>Under section 96 of Die charter of the city of New York (chap. 335 of 1873), providing that no officer of the city government shall receive any fees, perquisites or commissions, or any per centage, hut that every such officer shall he paid a fixed salary, the attorney for the collection of personal taxes is not entitled to retain the costs recovered in actions brought hy him, hut must pay the same over to the city.</p> <p>The provision of the said section, that every officer who shall receive any money which should he paid over to the city shall, before he shall he entitled to receive any salary, make a return to the comptroller showing the amount thereof, applies only to the officers themselves and not to their assistants or subordinates.</p> <p>Accordingly, in an action brought hy the assistant to the attorney for the collection of taxes to recover his salary, held, that the fact that he had received and still held costs, which belonged to the city, did not constitute a full defense to the action, hut only authorized the deduction by the city of such amount from what was due to the plaintiff.</p>

MotioN by defendant for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict directed in favor of the plaintiff.

<p>Promissory note — Garnishment process — effect of on rights of hona fide purchaser:</p> <p>The laws of Florida provide that in any action commenced therein a notice of garnishment may be issued to any person indebted to the defendant in said action, requiring him to state the amount of his indebtedness at the time of the issuing of the summons, and authorize a judgment to be entered in favor of the plaintiff for the amount of such indebtedness, if it be admitted, and an execution to be issued thereon. Reld, that these provisions included all debts without regard to the form in which they were contracted, and that they were applicable to negotiable paper.</p> <p>Accordingly where, in an action upon a promissory note, made and payable in that State, brought by one who had purchased the same in this State, without notice and for full value, it appeared that while the payee still owned the note an action had been commenced against him, in which, after due service of notice of garnishment on the makers, judgment had been entered against them for the amount thereof, and their property had been seized under an execution issued thereon, held, that the court erred in directing a verdict for the plaintiff.</p>

<p>Costs — Conflicting dawns to real, property — Code, § 449.</p> <p>Where, in an action brought in pursuance of section 449 of the Code, to determine conflicting- claims to real property, the plaintiffs’ complaint is dismissed, the defendant is entitled to costs, as a matter of right, and the court cannot prevent his recovering the same.</p>

Tbis action was brought by tbe plaintiff to recover damages for injuries caused by tbe sliding of a quantity of snow from the roof of 91 South street, in the city of New York, on tbe 27th day of January, 1871. The action was based on tbe negligence of tbe defendant as tbe owner of tbe premises.

<p>Appeal from a judgment in favor of the plaintiff, entered on the trial of this action at the Special Term.</p>

<p>Appeal from a judgment in favor of the defendants, entered on the dismissal of the plaintiffs’ complaint on the trial at the Circuit.</p>

This action was brought to recover $4,873, with interest, for work, labor and services performed on, and materials furnished in the building of the Harlem court-house. It appeared by the evidence that the plaintiffs, who were partners in the carpenter trade, furnished materials and performed labor as alleged in the complaint, in pursuance of directions given by a Mr. Scallon, who was claimed by them to be an agent of the commissioners appointed to erect the court-house.

The action was brought to recover the amount of an assessment paid to the defendant.

<p>Title — condition subsequent — Sti’cmger to title.</p> <p>■ Hogan contracted to sell certain land to Mark upon condition, that no part thereof or buildings thereon “ should ever he used or occupied as a tavern.” Subsequently he conveyed the same land to trustees, subject to the said agreement. Thereafter he and the trustees conveyed the land to Mark by a tripartite deed, (reciting the agreement and subsequent conveyance to the trustees), “ subject to and upon the condition hereinbefore expressed, unto the said Mark, his heirs and assigns.” The deed contained a covenant by Hogan and the trustees that some or one of them were or was lawfully seized, etc., and full covenant of warranty by Hogan. Subsequently the trustees reconveyed to Hogan all the property undisposed of by them. Reid (1), that the condition was reserved to Hogan and not to the trustees; (2), that he was not a stranger to the title, and that the reservation to him was valid; (8), that the existence of the condition was such a defect as justified a purchaser in refusing to accept the title.</p>

<p>Witness — oredit due to uncontradicted statements of— how affected try intei'est in suit.</p> <p>The rule, that where a disinterested witness testifies to the existence of a fact within his own knowledge, and nothing appears to discredit his statement, which is not inherently improbable, neither 'the court nor the jury can arbitrarily reject it, does not apply to the evidence of a person whose interest it is to establish the truth of what he swears to, as where he is to receive the fruits of the litigation, either partially or wholly, in case it may prove successful. (Brady, X, dissenting.)</p> <p>The uncontradicted evidence of a party, or other interested witness, is not necessarily conclusive upon either the court or the jury. (Brady, J., dissenting.)</p>

This action was commenced by the plaintiff to set aside as fraudulent an assignment of a mortgage executed by the defendant Dakin to the defendant Jewell, and to subject the same to the lien of an attachment obtained by the plaintiff in another action against the defendant Dakin, in which he had recovered a judgment on which an execution had been issued.

Appeals by two opposing judgment creditors from the order of the Special Term granting to the petitioner a discharge from imprisonment, under chapter 5, title 1, article 6 of part 2 of the Revised Statutes.

<p>MotioN for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict directed in favor of the plaintiff.</p>

This action was brought to recover the amount of certain balances claimed to be due on account of the monthly wages of the plaintiff, as sweeper in the public markets of the city of New York. The rate of wages originally fixed by ordinance or resolution of defendants was sixty dollars per month.

■Appeal from a judgment in favor of the plaintiff entered upon the report of a referee. A vendee, in an executory contract of sale, with an express warranty as to the quality of the article contracted for, upon receipt of the article and subsequent discovery of a defect covered by the warranty, is not bound to return or offer to return the article, but may retain and use it, and have his remedy on the warranty.

<p>Examination of pa/rty before trial — Attorney — entitled, to notice— Code, § 391.</p> <p>Where a party, required to attend before a judge or referee to be examined as a witness, in pursuance of section 391 of the Code, has appeared in the action by an attorney, notice of the examination should be served upon the attorney as well as upon the party.</p>

<p>Appeal from an order of the Special Term dismissing a petition to vacate an assessment.</p>

The action involves the question of title to a dividend declared on stock under the following resolution, adopted by the directors of defendant, a manufacturing corporation in Maine, on the 25th day of January, 1873 : “At a meeting of the board of directors held this day: “Yoted, to pay a dividend of four per cent this day, and another of like amount, at option of agent, from earnings of last year.” On that day, the plaintiff was the owner of 275 shares of stock, held by the…

This action was brought to obtain a construction of the will of Samuel Nicholson, deceased, and to have the accounts of the plaintiffs, as trustees thereunder, passed, and the funds in their hands distributed among the persons entitled to receive the same.

<p>Married woman — sepa/rate estate — Oontraats — benefit of sepwate estate —presumption of lana.</p> <p>Where a married woman, who has a separate estate and carries on business in relation thereto, keeping a hank account in her own name, draws a check upon such account payable at a future day on which she borrows money, the law presumes, in the absence of evidence to the contrary, that such money was borrowed for the benefit of her separate estate, and holds her liable therefor.</p>

Appeal by Frederick EL Cossitt, from an order of the Special Term requiring him to complete his purchase of certain lots. TJnder the decree of tbis court in the main cause, the lands whereof Dr. Yalentine Mott died seized were sold, at public auction, in April and May, 1874, by Henry A. Mott and John Chet-wood, executors of his will, and James McQuade, united with them as referee, sales being made by city lot numbers as shown upon maps, published and circulated at the sale.

<p>Board of supervisors of New York — power to appoint deputy clerk — appropriation for payment of.</p> <p>The hoard oí supervisors of the county of New York appointed, in 1860, a deputy to their clerk, and in 1864 fixed his salary at $4,000 per year, appropriations for the payment of which were made by the legislature in each year from 1860 to 1870. Chapter 190 of 1870, creating a new board of supervisors, provided that all officers and subordinates of the existing board holding office or place therein, should continue in their respective offices and places, subject to removal for misconduct and authorized the new board to fill vacancies. Held, that although there was no statute authorizing the old board to appoint a deputy clerk, yet the acts of the legislature annually appropriating money for the payment of his salary, and the act of 1870, conferred such authority upon the new board.</p> <p>The plaintiff was appointed first deputy clerk of the board in January, 1872, and continued to perform the duties of his office until May, 1878. No appropriation for the payment of his salary was made by the board of apportionment, created by chapter 583 of 1871, for the year 1872 and the first four months of 1873. In this action, brought by the plaintiff to recover the amount of his salary for this period, the defendant insisted that the absence of an appropriation for its payment relieved it from all liability under section 5 of chapter 583 of 1871, providing that no liability should be incurred by the officers of the county, for any purpose whatsoever, exceeding the amount of the appropriation made for that purpose. Held, that as the duration of the plaintiff’s office was not prescribed by law, and as the board had power to terminate the same, its action in continuing to employ him, after it was known that no appropriation had been made wherewith to pay his salary, was a violation of section 5' of chapter 583 of 1871, and that the defendant was not liable for the debt so incurred. (Brady, X, dissenting.)</p>

<p>Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, in an action brought by the plaintiff to recover a balance alleged to be due him for his salary as assistant district attorney for the county of New York.</p>

Appbai 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 upon the minutes of the justice before whom the action was tried. The plaintiff’s intestate was guilty of negligence that contributed to the injury he received, and the complaint should have been dismissed.

to vacate an order of arrest. The action was brought by the plaintiff against the defendants, copartners carrying on a business as bankers in the city of New York, under the firm name of Duncan, Sherman & Go., upon a bill of exchange, drawn by the defendants, Jnly 21, 1875, upon the Union Bank, of London, for £296 3s. 2d. sterling. An order of arrest was obtained therein against the defendants.

Appeal by Joseph I. West from an order directing the receiver of the property of the Woven Tape Skirt Company to sell at public auction, after due notice, as required by law, the interest of the corporation in letters patent, and an agreement concerning the use of the invention made with the assignors of such interest.

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

<p>Assessments■ — purchase erf property subsequent to eonfn'mation — presumed, to ham been made subject to — Pan'ty aggrieved, — who is under chap. 888 of 1858.</p> <p>Where a person moves, under chapter 338 of 1858, to vacate an assessment upon property purchased hy him subsequent to the confirmation of the assessment, it rests upon him to show that he is aggrieved thereby. In the absence of any evidence on this point, it will be presumed that he purchased subject to the assessment, and that the same formed part of the consideration given by him for the property.</p>

<p>Appeal from an order denying a motion made at chambers, to confirm a report of a referee in an equity case tried at Special Term.</p>

The facts are as follows: On the 23d day of November, 1875, the defendant Buchstein made to Elkus a general assignment, without preferences, for the benefit of creditors, under the laws of the State of New York.

<p>Appeal from an order requiring the plaintiff to file security for costs as a non-resident.</p>

The plaintiffs in these cases having recovered judgment herein, defendant, upon an affidavit setting forth the fact of the recovery of the judgment, the giving of undertakings upon appeals therefrom and the justification of the sureties thereto, and the intention of the defendant to obtain a loan from an insurance company, moved to have the premises upon which the loan was to be made relieved from the lien of the judgment.

The case was twice tried, resulting in a judgment each time in favor of the plaintiff. . Hpon an appeal from the first judgment a new trial was granted “ with costs to the defendant to abide the event.” Hpon the taxation of costs after the second trial, plaintiff was allowed to include the bill of costs taxed upon the first trial.

<p>Appeal from an order of the Special Term allowing certain costs and disbursements, and directing the same to be paid to the appellant.</p>

<p>Writ of error to the Court of General Sessions of the city and county of New York, to review the conviction and sentence of the plaintiff in error of an assault with an intent to commit a rape.</p>

<p>Inquests — Mule 86 — Chancery practice.</p> <p>Rule 36, authorizing inquests to be taken in cases in which no sufficient affidavit of merits has been made and served, does not apply to actions in equity.</p> <p>In an action to foreclose a mortgage, an inquest taken by the plaintiff upon defendants’ failure to file an affidavit of merits, is irregular, and a judgment entered thereon will he set aside.</p>

<p>Sheriff’s hond —action upon — when permitted — Statute — mandatoi'y—permissive.</p> <p>The provision contained in section 8 oí title 5, chapter 8, part 8 of the Bevised Statutes, that upon due proof of any default or misconduct of the sheriff in his office “ the court shall order” his official hond to beprosecuted, is not mandatory but permissive, and the court will not allow such action to be brought unless it believes it to be just and proper so to do.</p> <p>Where, upon an appeal to the Court of Appeals from a judgment of the General Term, affirming a judgment recovered against a sheriff for a failure to return an execution within the time allowed by law, the sheriff gives the bond required by the Code to stay all proceedings upon the judgment pending such appeal, the court will not allow an action to be brought upon the official bond of the sheriff until such appeal be decided.</p>

Weit of certiorari to inquire into tbe validity of a tax imposed on shares of tbe Gallatin National Bank. Tbe Gallatin Bank is a national banking association organized in conformity with tbe act of congress passed 3d June, 1864, and pursuant to an act of tlie legislature of this State passed 9th March, 1865.

<p>Appeal from an order denying a motion for a new trial, made upon a ease and exceptions, after a verdict and judgment in favor of the plaintiff.</p>

<p>Appeal from a judgment in favor of the defendant, entered upon the report of a referee.</p> <p>This action was brought to secure an accounting between the parties hereto, the plaintiffs claiming that they and the defendant were copartners. The referee found “ that on or about the 10th of May, 1866, the plaintiffs and defendant entered into business relations as follows : The plaintiffs, who owned certain real estate in Chicago, Illinois, suitable for the manufacture of wooden-ware, agreed to furnish the same and necessary stock to carry on the manufacture and sale of wooden-ware, and the defendant agreed to take charge of the said business and superintend the same, and it was agreed between the parties that the plaintiffs should have two-thirds of the profits, and the defendant should have one-third of the profits.</p> <p>Pursuant to such arrangement, the parties aforesaid soon thereafter commenced the manufacture and sale of wooden-ware in Chicago, Illinois. The plaintiffs, from time to time, as requested by defendant, furnished capital for said business, until in or about the month of April, 1868, in all to the amount of about $11,154.68 more than they drew out, and the' defendant during that time continued to labor and superintend the business.</p> <p>About the time of entering upon said enterprise the parties issued a card as follows: “ Chicago Tub and Pail Manufacturing Company, Munro, Whitman & Co., proprietors; manufactures of wooden-ware, pails, tubs, churns, half-bushels, etc., North pier, Chicago. P. O. box 2794. D. C. Munro, J. Munro, J. M. Whitman.” This was used by the parties in advertising said business.</p> <p>When the contract for engaging in the business was entered into, nothing was said about losses, and none of the parties contemplated such a contingency.</p> <p>No profits were made, but there was a loss of nearly all the stock thus put into the business.</p> <p>The defendant received while thus at work about the sum of $638.88 from the avails of such business, which he used for his own support.”</p> <p>He also found, as matter of law, that the plaintiffs and defendant were not partners, and that the plaintiffs were not entitled to an accounting, and accordingly dismissed the complaint.</p>

The count was as follows : “And for a second and further cause of action the plaintiff alleges that on the 7th day of January, 1875, the said defendant, by J. S. McClure, her said agent, made and delivered to this plaintiff her promissory note in writing, of which the following is a copy : Canandai&ua, January 1th, 1874.

<p>Surrender and cancellation — of note, not paid in full — no right of action exists thereafter' for amount unpadd.</p> <p>Where a creditor surrenders to his debtor an obligation for the purpose of cancellation, and the latter, in pursuance of such agreement, cancels and destroys the same, no action can thereafter be maintained thereon by the creditor, in the absence of any fraud, mistake or illegality in the transaction, even though the amount paid by the debtor was less than the amount due upon the obligation surrendered.</p>

Writ of error to the Court of General Sessions of Ontario county, to review the conviction of the plaintiff in error of forgery. The indictment upon which the plaintiff in error was convicted contained two counts' — one for feloniously forging a promissory note, signed by Edwin Brown, Lucretia Brown (father and mother of plaintiff in error), and Albert Bennett; and the other for uttering and publishing the same with intent to defraud one Joseph C, Shelton,

<p>M’eeholder— Title to real estate — Trilwritanee siibjeet to power of sale.</p> <p>One who has a title to real estate is a freeholder, irrespective of the amount or value of his interest therein.</p> <p>A testator, hy his will, directed the sale of certain real estate, and the distribution of the proceeds among the children of his present wife, the will naming no executor and containing no power of sale. R'eld, that the title to the real estate vested, upon his death, in his heirs at law, and that a child by a former wife was, until a sale should be made in pursuance of the will, a freeholder, and, as such, authorized to sign a certificate as to the necessity and propriety of opening a highway.</p>

<p>Appeal from a judgment of the County Court of Cattaraugus county in favor of the plaintiff, entered upon the verdict of a jury.</p>

The action was brought to recover the amount of a judgment which the plaintiff had been compelled to pay to one Benrath, for injuries sustained by him on account of obstructions placed by the defendant in Fall street, in the village of Seneca Falls. The obstructions consisted of building materials, deposited in the street by the defendant, while engaged in erecting buildings upon the adjoining lots, which were owned by him.

This is an action of qxto warranto, the relators alleging that they had been duly appointed commissioners of excise of the city of Loekport, and that the defendants have unlawfully usurped the same. The action has already been before the General Term, the decision being reported in 12 S. 0. N. Y. (5 Hun), at page 42.

The action was brought to recover damages occasioned by the ejection of the plaintiff from the defendant’s cars, upon his refusal to pay the fare demanded of him by the conductor. The plaintiff, on the 5th day of July, 1874, was in Olean wishing to go to Salamanca. The defendant’s road connects these places, and the defendant has a depot and ticket office at Olean.

The action was brought to recover the amount due upon two promissory notes given by the defendant. The plaintiff had previously commenced an action against the defendant to recover the amount due upon these notes ($2,000), and had also commenced an action against the defendant’s wife, Clementine M. Wood.

This action was brought to recover damages sustained by the plaintiff, by reason of the wrongful diversion of surface water by the defendant in grading certain streets and making other improvements in the city of Syracuse, whereby such water was conducted to and turned upon certain premises of the plaintiff.

The action was originally brought against the Connecticut Mutual JLife Insurance Company to recover $2,500, the amount of a policy of life insurance upon the life of John Gr. Wilson, who was husband of respondent.

<p>Baib’oad company —fire occasioned by spcvrJcs — Negligence —• bwrden of proof.</p> <p>The mere fact that a Are is occasioned by sparks emitted from the smoke-stacks of locomotives used by a railroad company does not, of itself, establish negligence on its part, nor would it be sufficient to authorize a jury to infer negligence, unless the emission of the sparks was unusual in degree or character, or the sparks were of an extraordinary size and such as would not he emitted from' perfectly constructed locomotives.</p> <p>In a case not within such exception, the burden of proving that the railroad company did not exercise due precaution rests on the plaintiff.</p> <p>Upon the trial of an action to recover damages sustained by a fire started by sparks from a locomotive owned by the defendant, the judge charged the jury ‘ ‘ if all the evidence satisfied them that there had been negligence on the part of the defendants, although they might not be able to satisfy themselves in what that negligence consisted, they would be authorized to find a verdict for the plaintiff.” NeM, that this was error; that if the jury could not find in the evidence any rational ground upon which to impute negligence to the defendant, they should give a verdict in their favor. ,</p>

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

On the 25th day of June, 1875, Nelson Arrowsmith, as administrator of Margaret Arrowsmith, petitioned the surrogate of Monroe county for leave to mortgage, lease or sell the real estate of which Margaret Arrowsmith died seized, for the purpose of paying her debts.

The action was brought to foreclose a mechanic’s lien; at the time of serving the notice provided for by the statute, a bill of particulars was served, to which was attached the following verification : Steuben Countt, ss. : Elliott L. Grey, ss., above named claimant, being duly sworn, says that the bill of particulars above mentioned is in all respects true, to the best of his knowledge and belief. E. L. GREY.

<p>Bailee — lien of — not lost, because of not being expressed in receipt.</p> <p>One Briggs, the owner of certain barley, which he had transferred to the plaintiff as collateral to a loan, being desirous of having the same malted, an agreement was entered into between Briggs, the president of the plaintiff, and the defendant, by which the latter agreed to malt the barley and receive twenty cents per bushel for so doing. At that time he delivered to the plaintiff a paper, by which he agreed to hold the malt subject to the written order of the plaintiff, nothing being stated therein as to the charges for malting or any lien therefor. The defendant having received and malted the barley, refused to deliver the same until his charges for so doing were paid. Held, that the law gave him a lien upon the mall for the amount agreed to be paid, and that the mere absence of a reservation of such lien in the receipt, by which he agreed to hold it subject to plaintiff’s order, did not deprive him thereof.</p>

<p>Justice's Court — objections as to jurisdiction, regularity, etc., toteen in — duty of County Court to pass upon.</p> <p>Upon an appeal to the County Court from a judgment rendered in a Justice’s Court, it is the duty of the former, when a new trial is to he had before it, to pass upon all questions raised in the court below as to the jurisdiction of the justice, the regularity of the process, its service and return, and whether all the proper parties are before the court; and in case it refuse so to do and compels the appellant to proceed with a new trial, upon which a judgment is rendered against him, the General Term will, upon an appeal from such judgment, reverse the same and direct a new trial, even though such objections were frivolous and devoid of merit.</p>

Writ of error to the Court of G-eneral Sessions of the county of Genesee. The prisoner was indicted by the grand jury of the county of Genesee for forgery in signing the names of Harvey Parmelee, his father, and of Myron Parmelee, his brother, as makers, to a note for $600, payable six months from date to Windsor Arnold, or bearer, with intent to defraud said Harvey and Myron and Arnold, the payee of said note.

<p>/Statute of frauds— Oontn'actin consideration of marriage — pa/rtial pmformam.ce — Ghap. 375 of\849 — Practice — when exceptions may he ordered tohehea/rd in the first instance at the General Term.</p> <p>Where a man agrees by parol to give a woman certain property in consideration of her marrying him, the subsequent marriage is not such a partial performance of the contract as will induce a court of equity to compel a specific performance thereof, notwithstanding the provisions of the statute of frauds.</p> <p>The third section of chapter 375 of 1849, providing that all contracts made between persons in contemplation of marriage shall remain in fqll force after such marriage, was not intended to repeal the provisions of the statute of frauds, declaring that every agreement made upon consideration of marriage shall be void, unless it he in writing.</p> <p>Where the complaint is dismissed at the Circuit, the court may direct the plaintiffs exception to such disposition of the case to he heard in the first instance at the General Term, and that judgment he suspended in the mean time.</p> <p>Hoagland v. Miller (16 Ahh. Pr., 103) not followed.</p>

The plaintiffs could not have maintained an action against both Paddock and Andrus upon the judgment they recovered, so long as Andrus remained imprisoned on an execution issued upon such judgment. (Chapman v. Hyatt, 11 Wend., 41.) And if both Paddock and Andrus had been imprisoned on such execution, the plaintiffs could not have maintained an action against the defendants as bail for them, so long as such imprisonment continued.

<p>Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term, after a verdict directed in favor of the plaintiff.</p>

<p>Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee in an action of replevin.</p>

■Appeal from a judgment dismissing the proceedings herein entered upon the report of a referee. The action was brought to foreclose a mechanic’s lien filed under chapter 402 of the Laws of 1854.