Volume 16 — Barbour's New York Supreme Court Reports

This was an appeal by the plaintiff from a judgment rendered at a special term, in favor of the defendants, upon the report of á referee. The action was brought to recover possession of a lot of land in Syracuse. The facts necessary to be known are, stated in the opinion of the court,

This was an appeal by the defendant from a judgment of the Jefferson county court. The action was commenced before a justice of the peace.

Demurrer to complaint. The plaintiff, being the owner of a farm, in Herkimer county, on the 20th day of October, 1843, executed a mortgage on the same to Lucinda Wood, to secure the payment of eight hundred dollars.

This cause came before the court by an appeal from a judgment of the county court of Herkimer county. The action was trespass, originally commenced by Sheldon in a justice’s court, and the plaintiff recovered in that court a judgment against Van Slyke. The defendant appealed to the county court, where the judgment was affirmed; and the defendant then appealed to this court. The action was commenced January 22,1851. The facts are as follows.

This was an action brought on a promissory note, of which the following is a copy : “$2300. One year, after date, we jointly and severally promise to pay Chauncey Parker or bearer, at our office, twenty-three hundred dollars, and interest, for value received. Cazenovia, January 23d. 1842. It. Jackson & Co. E. S. Jackson. Wm. Burton, surety. Benja. T. Clark, security.” Rensselaer Jackson and Elijah G. Atwood, who constituted the firm of R. Jackson &.

This was an appeal by the plaintiffs from a judgment rendered at a special term, upon the verdict of a jury, and upon questions of law and fact reserved by the judge. The action was brought to recover the possession of a canal boat.

This was an appeal by the defendant from a judgment rendered against him at a special term, upon the verdict of a jury. The action was brought by the plaintiffs, as administrators of Ashbel S. Baker, deceased, to recover damages of the defendant for causing the death of their intestate by a wrongful assault upon him. The verdict was for $500. The substance of the pleadings, and of the material facts, is set forth in the opinion of the court.

This was an appeal by the defendant from a decision made at a special term, upon demurrer to the complaint. The justice, at the special term, allowed the demurrer as to the first two counts of the complaint, and overruled it as to the last two. The following opinion was given, on deciding the cause at the special term.

<p>Upon a hearing before commissioners of appraisal, appointed pursuant to the 15th section of the general railroad act, the commissioners have the right to .hear the-.proofs-and allegations in such order, as they may deem most conducive to justice, between the parties, and to decide which party shall open and close the ¡argument.</p> <p>The intention of the legislature was, by that act, to confine the commissioners to an estimate of'the price to he paid-by the railroad company, to the owner of land proposed toibe taken, regafdless.of the benefits or injuries which might result, to him as-the o.wner.qf adjoining, land, in consequence of the contemplated improvement.</p> <p>It. is a proper, rule for the commissioners to adopt, that they will allow full compensation for the land taken, including therein the damages to the adjacent land by reason of such taking; hut that they-will-not allow conseqnential-.and prospective damages.</p> <p>The commissioners are-not required to confine themselves to the-aetual, ah-, straot value of the.land to be taken,.as though, the owner would-have no. other lands left, to be affected by the improvement.</p> <p>They are to consider how the taking oft the land; not how tlwiise of’it.in any particular mode, will affect the residue of-the owner’s, land, and- award-compensation accordingly.</p> <p>It is therefore correct foy.them to reject conjectural evidence, offered, for the purpose of, showing that the owner, might he injuriously affected,. should a. railroad be constructed and used upon the land to he taken.</p>

This action was brought to recover the possession of 2565 bushels of corn. It was tried at the Albany circuit, in October, 1849, before Mr. Justice Hand. The plaintiffs were commission merchants, doing business in the city of New-York. One of them, being in Rochester, early in August, 1848, agreed with one Mack to advance to him upon certain corn which Mack represented he was about purchasing in Buffalo, 38 cents per bushel.

This action was brought upon a note in the words and figures following, to wit. “$4000. Kinderhook, September 23,1847. On demand for value received, we jointly and severally promise to pay F. S. Bailey, Cashier, or order four thousand dollars at the Agawam Bank, Springfield, Mass. Signed. Isaac S. Doane. William Strever. Henry Hoysradt. John Hoysradt.

Demurrer. The complaint stated that on the 18th of October, 1842, one Arthur C. Southwick, assignee of Jacob L. Winne, made and executed to the plaintiff an instrument under seal, of which the following is a copy: “ In consideration of the sum of $4050 to me to be paid on the first day of November next, I hereby agree to convey to John Van Schaick, of the city of Albany, the premises in Jackson-street lately occupied by Jacob L. Winne as a soap and candle manufactory, as…

This cause was commenced in a justice’s court, where the plaintiff obtained a judgment. The defendant appealed to the county court of Franklin county, and the county judge having been counsel for one of the parties, certified the cause to this court. The opinion states the material facts.

Appeal, from the appraisal and report of commissioners. The track of the Troy and Boston railroad crosses the Northern Turnpike four times. Once near the village of Lansingburgh, at a place called Oil Mill Hill, and three times in the town of Pittstown. At the Oil Mill Hill, it crosses at a grade seven inches lower than the turnpike. The second crossing is about 17 miles from Troy. There, the railroad company have changed the line of the turnpike for the distance of 754 feet.

Case submitted, without action, pursuant to the 312d'section of. the code. The material facts in the case.are as follows:. Abraham J. Lansing was the original proprietor of that part of the village of Lansingburgh known as the first division thereof. In 1790, he caused it to be surveyed and laid out into lots, streets, alleys, and a public square.

The action was brought to recover damages for an injury sustained by Mrs. Holbrook, while a passenger upon the defendants’ cars.

This action was brought upon a policy of insurance. On the 10th day of June, 1848, the defendants insured the plaintiffs for $1500 on their flouring mill and machinery, and $500 on-their carding machine and machinery, situate in the town of Seward, in-the county of Schoharie.

This action was originally commenced in a justice’s court. The defendant, in his answer to the complaint, set forth matter showing that the title to land would come in question on the trial before the justice. The defendant having given the proper undertaking and complied with the statute in such case made and provided, the action was discontinued before the justice and commenced in this court by the deposit of a summons and complaint with the justice.

In Equity. This suit was commenced in the late court of chancery, before the vice chancellor of the fourth circuit, by bill filed in June, 1846, in behalf of the complainant as the then late widow of James Halladay, deceased, and the wife of Martin I. Borst, one of the defendants.

The testatrix died March 23,1852, leaving a will, which the executor therein named (Hiram Whitmarsh) propounded for proof before the surrogate, on the 6th day of April, 1852. The testatrix left thirteen children, three of whom were minors and unmarried. Hiram Whitmarsh was their general guardian. Six of the children were married females. The others were adult males or adult unmarried females.

This action was brought against the defendants as the maker and indorser of a promissory note, of which the following is a copy: “ Ninety days after date I promise to pay to the order of William Foster, eighty-eight dollars and seventy-eight cents, value received, with interest from date, payable at the house of 'Cyrus Marble in the village of Cleveland. Wesley S. Wells. Cleveland, April 11,1850.” (Indorsed) William Foster.

This suit was commenced before a justice of the peace in the county of Jefferson, and was removed to the supreme court by a plea of title, pursuant to § 55, &c. of the code, on'the 28th day of December, 1849, The action was first brought to trial at a circuit court held in the county of Jefferson, on the 17th day of April, 1850, before his honor Frederick W. Hubbard, one of the justices of this court, and a verdict was rendered therein for the plaintiffs, for six cents…

This action was brought to recover an undivided fourteenth part of so much of the land covered by the Devereux block in the city of Utica, as lies within the original lines of Hotel-street. On the trial, at the Oneida circuit, in October, 1851, before Justice Oridley, the defendant’s counsel, at the close of the testimony on both sides, moved for a nonsuit.

<p>Appeal, by the plaintiff, from a. decision made at a special term, allowing a demurrer to the complaint.</p>

This was an action upon a policy of insurance against fire, which the defendants had issued to the plaintiffs, to re-insure them, on a risk which the plaintiffs had previously taken upon the property… Held: that by this resolution the defendants acknowledged them liability and promised to pay the said loss in sixty days after the 13th day of January, 1852.

On the 22d of October, 1842, Aaron Hackley made his promissory note, dated that day, whereby he promised, nine months from date, to pay to the order of Patrick Cassidy, at the Onondaga County Bank, $460. The note was indorsed by the defendants Cassidy and Higbie, for the accommodation of the maker, and also by Andrew J. Hackley and Cephas C. Barker, and was then delivered by the maker to Charles Leonard. Before the note became due, Leonard indorsed it to one Orcut.

This was an action brought to recover possession of a private highway, or road, running through the lands of the plaintiff; and was brought to trial at the Herkimer circuit, in May, 1852, before Justice Pratt, without a jury; a trial by jury having been waived.

This was an action brought against the defendant as the indorser of a promissory note, which had been discounted by the plaintiff. The cause was tried at the Onondaga circuit, in October, 1852, before Justice Pratt, when a verdict was taken in favor of the plaintiff, for the amount of the note, and interest, subject to the opinion of the court. The facts are stated in the following opinion.

This was an appeal from a judgment entered upon the report of a referee. The action was brought for entering the plaintiff’s premises, and cutting and carrying away a quantity of rye. It appeared upon the trial, that Simon Grote died, in September, 1848, seised of a valuable farm, and possessed of personal property to a very small amount; that he left a will, by which, after directing the payment of his debts, he devised his farm to his son Henry Grote.

This was an. appeal from the decree of the surrogate of Rensselaer, refusing to admit to probate the will of Abigail Clapp. Mrs. Clapp died on the 19th of June, 1850, leaving an instrument purporting to be her last will and testament, bearing date the 30th day of March, in the same year.

This action was brought to restrain the defendant from diverting a stream of water running near what is called the Hollow road, in the sixth wtyd of the city of Troy, so as to prevent its running in its natural channel to a building lately erected by the plaintiff for an India rubber factory.

Noah Worrall, on the 11th day of April, 1844, filed his bill of complaint before the vice chancellor of the second circuit, against David M. Prall and David Munn, to obtain the specific performance of a sealed written agreement, under date of November 27th, 1843, for the sale by the defendant Prall, to and purchase by the plaintiff, Worrall, of certain real estate, situated in the town of Haverstraw, Rockland county, and for a conveyance of the interest of the defendant…

The petitioners stated in their petition that they were incorporated in 1826, pursuant to the act to provide for the incorporation of religious societies; that two several lots of ground were conveyed to the corporation about the same time, upon which they erected a house of worship, which they continued to occupy up to the time of presenting the petition; that, in 1841, the corporation purchased another lot, and erected thereon a lecture room for the use.of their…

Motion to dissolve injunction. The complaint stated that the plaintiffs were the owners of a railroad running from the Hudson river to the westerly line of the state of Massachusetts, through the towns of Greenbush, Schodack, Kinderhook, Ghent, Chatham and.

Motion to dissolve injunction. The complaint stated that the plaintiff was the owner of, and had in possession a lot in the village of West Tr.oy, extending from Rochester-street westerly to the east bounds óf a piece of land which had been laid out on the map or plan of the village, made by the original proprietors, as an alley; that the plaintiff had erected a mansion house on the front of the lot, and in the rear a valuable barn and other outhouses; that the defendants,…

This was an action to recover for the loss of property insured by the defendants. On the first day of March, 1845, Southwick, Cannon and Warren, sold a lot in the village of Plattsburgh, on which was a building divided into two stores, to the plaintiff Boynton, for $1600, and took from him a bond and mortgage for the purchase money, payable in eight annual installments.

This was an appeal from a decree of the surrogate of Herkimer county, admitting to probate the will of William Feeter, deceased. The will bore date the 21st of August, 1849. Feeter committed suicide in April, 1852. He left him surviving five daughters by his first wife, all married, and four children by his second wife—two daughters and two sons.

<p>The date of a conveyance is only presumptive evidence of the time of delivery.</p> <p>That presumption does not arise when there is no proof, or acknowledgment, or subscribing witness; and it is utterly repelled when it appears'in the proofs that the instrument continued in the hands of the grantor, after its date.</p> <p>On the 11th of August, 1843, P. and wife executed a mortgage to the plaintiff, dated and acknowledged on that day and recorded on the 17th of the same month. On the 12th day of the same month, P. and wife executed a mortgage on the same land, to N. bearing date the tenth day of August, 1843, acknowledged on the 12th, and recorded on the 14th of that month. N. at the time of taking his mortgage, had notice of the prior mortgage of the plaintiff. In 1847, N. foreclosed his mortgage, under the statute, and on the sale of the premises became the purchaser thereof. He afterwards sold and conveyed them by a quitclaim deed, to L. who gave back a bond and mortgage. Held,, that N. having notice of the prior mortgage, must be •deemed to have purchased the premises mala fide, so far as the plaintiff’s rights wore concerned, and that by snch purchase he acquired no greater right, as against the plaintiff, than he possessed before the foreclosure and sale.</p> <p>Held also, that L. could not be considered a bona fide purchaser, or as acquiring any better title than N. possessed; he purchasing with notice of the plaintiff’s prior mortgage, at a reduced price, and without paying any thing down; and that the plaintiff was entitled to a decree for a foreclosure, and a sale of the mortgaged premises in the hands of L.’s representatives.</p> <p>To entitle a person to be adjudged a bona fide purchaser, he must aver and prove that he paid the purchase money before notice.</p>

This was an appeal by the plaintiff from a judgment of nonsuit directed by the court to be entered against him, on a trial at the circuit. The action was for an assault and battery, and the defendant justified under a warrant issued by J. F. Sabine, Esq., a commissioner of the United States court, for the apprehension of the plaintiff, alleged to be a fugitive slave ; the defendants claiming to act in aid of the marshal charged with the execution of the warrant.

On the 11th of April, 1853, The Niagara Falls and Lake Ontario Railroad Company presented their petition to the court, praying for the appointment of commissioners of -appraisal, for the purpose of taking the lands of Calvin Hotchkiss and others, situate in the town of Lewiston, for the purposes of their road. Commissioners were appointed pursuant to the prayer of the petition.

The respondent was the owner of four village lots in the village of Tonawanda, two of which were intersected by the line of the appellants’ road. One of these lots fronted northerly on Tremont-street in said village, and in the rear was bounded by an alley. The track of the road passed diagonally through this lot, leaving only a small triangular piece at the northeast and southwest corners of the lot.

Appeal by the defendant from a judgment rendered at a special term, on the report of a referee. The facts appear sufficiently in the opinion of the court.

Demurrer. The complaint stated that the defendant and other persons, in all to the number of thirteen, in December, 1849, associated together to form an incorporated company by the name of “ The Merchants’ Mutual Insurance Company of Buffalo,” in pursuance of the provisions of the act entitled an act for the incorporation of insurance companies,” passed April 10, 1849.

The plaintiff, as executor of Morehouse, complained “ that the above named Rensselaer Ballou and one Dutee Ballou, in his lifetime, made and executed them joint and several promissory note in writing, whereby, for value received, they promised to pay Daniel Morehouse or bearer, two hundred dollars with interest one day from date, and that they have nbt paid the same or any part thereof except the sum of fifteen dollars paid November 17th, 1850, but are justly indebted to the…

This* was an appeal by the defendants from a judgment entered upon the report of a referee. Conrad Cramer, on the 15th of March, 1850, recovered a judgment in this court against Ansel C.' Durkee, for $67,12, damages and costs, upon a debt contracted the 1st of April, 1849. The summons was served on the 22d day of February, 1850, in the afternoon.

Demurrer to amended complaint.- The complaint alleged that prior to the 1st of March, 1849, the defendant, Randall James, being wholly insolvent and indebted to divers individuals in large amounts, and particularly to one John Simpson, in and about the sum of five hundred dollars ; Simpson, on or about the 28th of April, 1849, recovered a judgment in this court, against the said Randall James, for the sum of five hundred and twenty-two dollars and sixty-six cents; that said…

This was an appeal by the defendants from a judgment entered against them at a special term, upon the verdict of a jury. The complaint alleged that on the 24th day of February, 1849, the defendants assaulted and unlawfully arrested the plaintiff and carried him to jail without right or authority, and kept him there from Saturday night till Monday.

This action was brought to recover possession of a quantity of brushes and other personal property, and also a promissory note, and certain sums of money. The complaint contained two counts.

This was an appeal from a judgment rendered by a justice of the peace of Saratoga county. The county judge being disqualified, certified the appeal to this court. The action was brought to recover the value of a*cow, killed on the defendant’s railroad, in the village of Saratoga Springs, about the 1st of March, 1851.

Appeal by the defendant from a judgment entered against him, at a special term.

Appeal dv tne defendants, from a judgment rendered at special term, on demurrer to the complaint.

Appeal by the defendant from a judgment rendered against Mm at a special term, upon the verdict of a jury. The cause was tried at the Onondaga circuit in February, 1853, before W. F. Allen, justice.

This action was commenced before a justice of the peace, on the 30th day of April, 1851; and tried by a jury on the 9th day of June, 1851. The jury found a verdict in favor of the plaintiff, for $25, and the justice entered a judgment on the same for $25 damages, and $5 costs. The defendant appealed to the county court, of Herkimer county, where the judgment was affirmed. The defendant then appealed to this court, from the judgment of affirmance.

This action was brought to recover the sum of $160 and interest from November 19,1849, upon the defendant’s guaranty of a promissory note made by one Joseph Yale, payable to the defendant or bearer and sold by the defendant to the plaintiff. The guaranty was as follows : “Sold Woodbury K. Cooke one note signed Joseph Yale, for $160 dollars and the interest, and received payment in full for the same, and agree tljat it is good. February 14th, 1850.

Ejectment, tried at the Essex circuit in July, 1853, before Mr. Justice Hand.

This action was brought to recover damages for a personal injury received by the plaintiff while a passenger upon the defendants’ railroad. It was tried at the Rensselaer circuit, in October, 1852, before the Hon. W. F. Allen, one of the justices of this court.

This was an action for breach of promise of marriage, tried at the Ulster circuit, in April, 1852, before Mr. Justice Wright. The plaintiff proved various facts and circumstances tending to show a promise. Among other things, it was proved that the defendant paid his addresses to the plaintiff, as a suitor, in the spring and summer of 1850. In February, 1851, the plaintiff was delivered of a child.

The defendant, on the 2d day of July, 1853, was arrested upon a charge of petit larceny and brought before a police magistrate of the city of Albany. An examination was had on the same day, and he ivas committed for trial. After the expiration of twenty-four hours from the commitment, the defendant demanded of the committing magistrate that he should be tried. This was refused, and the defendant was brought to trial before the Albany special sessions.

This action was commenced by attachment, before a justice of the peace of the county of Fulton.

Demurrer to complaint. The action was brought by the people on the relation of “ Azor B. Crane, a person having an interest in such action, and the said Azor B. Crane.” The complaint alleged that the… Held: used and exercised said office and the franchises and privileges thereto belonging, and continues so to do, to the exclusion and against the rights and privileges of said Azor B. Crane, and the rights and privileges of said people.

-This was an appeal by the defendant from a decision made at a special term. The case at special term is reported :in 11 tk Barb. 490, where the facts are fully stated. 1.

This was an appeal by the defendants from a judgment entered at a special term, upon the report of a referee.

The complaint alleged the making of a contract between the plaintiffs and the defendants, by which, among other things, it was agreed that the plaintiffs should furnish to the defendants steam power from their steam engine in the Sing Sing prison, sufficient to drive six grindstones,- and other machinery therein specified, to do certain specified work for the defendants, for one year from the first day-of May, 1851, for $100 per month, payable at the end of each month; and…

This was an appeal by the defendants from an order made at a special term, denying the plaintiffs’ motion for a permanent injunction, discharging the order to show cause, and dissolving the temporary injunction.

This was an appeal by the plaintiffs from a judgment .rendered at a special term. The action was brought against the defendants as the executors of John Jacob Astor, deceased, to compel the payment of a legacy of $100,000 claimed to have been given to the plaintiff, Mrs. De Nottbeck, by the' second codicil of the testator’s will.

Appeal by the plaintiff, from a judgment of nonsuit. The action was brought against the defendant, as sheriff of the city and county of New-York, for the escape of one Daniel A. Van Namee, who had been arrested by the defendant, under a warrant issued by Judge Edmonds, in favor of the plaintiff against Said Van Namee, by virtue of the provisions of the non-imprisonment act.

The action was brought to recover the possession of land situated in the city of New-York, of which each of the seven plaintiffs claimed to be entitled to one-seventh in fee. Plea the general issue. The cause was tried at the New-York’ circuit in March, 1851, before Justice Edwards.

This was an appeal by the defendant from orders made at a special term, granting and continuing an injunction. The facts are set forth in the opinion of the court.

Appeal by the defendant from a judgment rendered against Mm, upon the verdict of a jury. The plaintiff alleged in his complaint, that he lent and,advanced to the defendant, on the 29th day of May, 1849, the sum of $200, and on the 2d day of June, 1849, the further sum of $300 ; that the defendant promised to pay the same with interest on the 1st day of July, 1849, and that he had not paid the same, and the plaintiff claimed judgment for the sum of $500 with interest.

This was an appeal by the plaintiffs from an order made at a special term, denying their motion to set aside the report of a referee and for a new trial.

On the 18th of June, 1845, E. J. Moore owned two vacant lots of land adjoining ®ach other each 25 by 92 feet, pn the; south side of Seventeenth-street west of the fifth avenue. At the same time E. S. Mesier owned the vacant lots on each side of Moore’s two lots.

<p>This was a certiorari to remove summary proceedings taken before the recorder of the city of New-York, to' recover the possession of lands. The affidavit upon which the proceedings were instituted was as follows :</p> <p>“ City and county of New-York, ss: Augustus Wiggin, of said city, being duly sworn, deposes and says, that he is the agent and attorney in fact of Timothy Wiggin, of the city of London, kingdom of Great Britain. That said Timothy Wiggin is landlord of the premises hereinafter described. That said Timothy Wiggin, as such landlord, on the twenty-sixth of February, a. d 1849, demised to Sarah H. Woodruff, for the term of one year, from the first day of May, a. d. 1849, at the yearly rent of six hundred dollars, the following described premises, to wit: All that certain lot of land, with the three story brick dwelling thereon, situate, lying and being in the sixteenth (late twelfth) ward of the city of New-York, known and distinguished on a map of certain lands belonging to Clement C. Moore, at Greenwich, in the city of New-York, recorded in the office of the register of the city and county of New-York, in Liber 235 of Conveyances, pages 556 and 557, by the number 185, and bounded as follows: Southwesterly, by lot 184 on said map; northwesterly, by said ninth avenue; northeasterly, by lot numbered on said map 186; and southeasterly, by lot numbered on said map 181: the said lot hereby granted, or intended so to be, containing in front and rear, 24 feet 8 inches, and in length, on each side 100 feet. That thereupon, said Sarah H. Wood-ruff entered into possession of said premises, under said demise, and has continued in such possession from that time to the present time, and has kept and continued in such possession, without the assent or permission, and against the will of the said landlord, at all times from and after the first day of May, a. d. 1850, and without the knowledge of the said landlord, from the said 1st day of May, a. d. 1850, to the 1st day of May, 1852. That on the 2d day of April, a. d. 1850, the said Timothy Wiggin, as such landlord, again demised the said premises to Caroline F. Woodruff, the sister of the said Sarah H. Woodruff, at the request of the said Sarah H. Woodruff, for the term of one year, to wit, from the- 1st day of May, a. d. 1850, until the 1st day of May, a. d. 1851, and on the 12th day of March, a. d. 1851, the said Timothy Wiggin, as such landlord, at the like request of the said Sarah H. Woodruff, again demised the said premises to said Caroline F. Woodruff, for the further term of one year, to wit, from the 1st day of May, a. d. 1851, until the 1st day of May, A. d. 1852. That under the first of said demises, the said Caroline F. Woodruff entered into possession of said premises, on the 1st day of May, a. d. 1850, and has continued in such possession from that time to the present time, and has kept and continued in such possession, without the assent or permission, and against the will of the said landlord, at all times from and after the 1st day of May, a. d. 1852. That said-Sarah H. Woodruff, from and after the 1st day of May, a. d. 1850, to the present time, has taken, and kept, and continued in such possession of said premises, hy the consent and permission of, and by collusion with, said Caroline F. Woodruff: either as holding over by herself, after the expiration of the said term of her, the said Sarah H. Woodruff, as aforesaid, or under the said Caroline F. Woodruff, under and subject to the said demises to her, the said Caroline F. Woodruff, as agent or subtenant of the said Caroline F. Woodruff, or in some other manner. That sometime before the 1st day of May, a. d. 1852, Oliver Woodruff, the father of said Caroline F. and Sarah H. Woodruff, and Edward Franks, and John B. Franks, the brothers-in-law of. said Sarah H. Woodruff, have also come into possession of said premises, by the,consent and permission of, and by collusion with, and under the said Sarah H. Woodruff and Caroline F. Woodruff, or one of them: and under and subject to the said demises to them, as agents or sub-tenants of them, or in some other manner; and have also kept, and still keep, such possession of said premises, together with said Sarah H. Woodruff and Caroline F. Woodruff, at all times from and after the said 1st day of May, a. d. 1852, to the present time, without the assent or permission, and against the will of the said landlord. That since the first day of May, a. d. 1852, and from that time to the 3d day of January, a. d. 1853, the said Sarah H. Woodruff, and Oliver Woodruff, and Caroline F. Woodruff, and Edward Franks, and John B. Franks, who have come into possession of said premises under and by collusion with said Sarah H. Woodruff, and with each other, as aforesaid, have been in possession and occupation of said premises, as tenants at will, or at sufferance, of the said Timothy Wiggin, landlord, as aforesaid, and that such tenancy at will, or by sufferance, of said several persons, has.been created by the said several persons, as such tenants, holding over their said terms, or otherwise in the manner hereinbefore set forth. That on the 2d day of December, a. d. 1852, notice was given to all of said several persons, in writing, pursuant to statute, on behalf of said landlord, by delivering the same at the said premises, to said Oliver Woodruff, who then resided, and now resides, upon the said premises, for himself and for the. other persons above named, requiring them, and each of them, to remove from said premises, and to surrender and give up the same, on or before the 3d day of January, a. d. 1853, as by reference to such notice will more fully appear. That on the said 3d day of January, a. d. 1853, deponent, as agent of the landlord, aforesaid, went to said premises, and then and there demanded of said Oliver Woodruff, possession of said premises, and said Oliver Woodruff refused to deliver possession thereof to deponent, and excluded deponent therefrom, and refused to permit him to make demand of the same, of said several other persons, in and upon said premises, or either of them. That the said Oliver Woodruff, Sarah H. Woodruff, Caroline F. Wood-ruff, Edward Franks, and John B. Franks, are tenants at will, or at sufferance, of the said Timothy Wiggin, as hereinbefore mentioned, and as such tenants at will, each and every of them still hold over and continue in possession of the said premises, after the expiration of their time, as aforesaid, without the permission of the said landlord, although the said tenancy had expired, as aforesaid.”</p> <p>The recorder denied the application-for a warrant to remove the defendants and to put the applicant into possession, for the reasons stated in the following opinion:</p> <p>“F. R. Tillou, Recorder. Application is made on the accompanying affidavit to recover, by summary proceedings, possession of the premises in question, upon the ground that the defendants are tenants at will or at sufferance of the applicant, and as such, hold over and continue in possession after the expiration of their term, without the permission of the landlord, although the tenancy has expired. The counsel for the defendants ask for the dismissal of the application, on the ground that the affidavit is not sufficient to confer jurisdiction.</p> <p>The application is made under the provision of the revised statutes, relating to cases where any tenant or lessee at will, or at sufferance, or for part of a year, or for one or more years, shall hold over and continue in possession of the demised premises, or any part thereof, after the expiration of the term, without the permission of the landlord. (2 R. iS. 512, § 28.)</p> <p>At common law, a tenant at sufferance is one that comes into the possession of land, and holds over wrongfully, after the termination of his interest by the laches of the landlord. (4 Kent, 116.) An estate at will is where one man lets land to another, to hold at the will of the lessor. (Id. 110.) In the latter tenancy the tenant did not hold wrongfully as in the former. The revised statutes, in reference to these proceedings, have removed the distinction. They declare that, where there is a tenancy at will or by sufferance, “created by the tenant’s holding over his term or otherwise” it may be terminated by the landlord giving one month’s notice in writing to the tenant, requiring him to remove therefrom. (1 R. iS. 745, § 7.) And they allow the proceedings now applied for, in the case of “ any tenant or lessee, at will or at sufferance, holding over after the expiration of the term, without the permission of the landlord.” (2 R. (S'. 512, § 28.) What term it means is not expressed, but taken in connection with the provision as to notice, it is fair to consider that it means a term by conventional agreement. The statutes therefore treat the estates at will and at sufferance, thus created, as one and the same kind of estate.</p> <p>To give jurisdiction the affidavit should substantially establish the fact of conventional relationship of landlord and tenant for a specified term, (5 Wend. 281; 9 Id. 230; 17 Id. 473 ;) the expiration of the term, the holding over and continuing in the possession without the permission of the landlord, after the expiration and the termination of the tenancy at sufferance thus created, by the month’s notice to quit, in writing, having been given, a» required by the statute. The affidavit must substantially make a plain, direct and fall case. (19 Wend. —; 23 Id. 96; 6 Hill, 317; 1 Barb. 67.) It is in the nature of a plaint or declaration, must be construed as well as the statute with substantial strictness, most against the complainant, and all its facts considered, for the purpose of decision; its statements, when material, must be consistent, not contradictory or repugnant to each other; for it is a document verified by oath, made by the party himself, who is supposed to make the case as favorable as he can, and the basis of an important proceeding.</p> <p>The affidavit in this case sets forth three several demises by the landlord, who is the applicant, one for a year, viz: from 1st May, 1849, to 1st May, 1850, to Sarah H. Woodruff, the other two successively to Caroline F. Woodruff; one from 1st May, 1850, to 1st May, 1851, and the other from 1st May, 1851, to May 1st, 1852. It avers the entry into possession by Sarah under the first demise, and the entry of Caroline into possession at the expiration thereof under the second demise on 1st May, 1850, being the first of the two several demises to her. Thus far it established the conventional relationship of landlord and tenant, first, between the applicant and Sarah; 2d, at the expiration of her term between him and Caroline; and 3d, at the expiration of Caroline’s first term, the renewal or continuance of that relationship between him and her. It, in addition, avers Sarah’s continuance in possession from 1st May, 1849, to the present time, and avers her continuance in possession from 1st May, 1850, to May 1st, 1852, without his assent or permission, against his will, and without his knowledge. These two averments are contradictory to those above mentioned, in this, that the one abovementioned states the second demise to Caroline, and her entry into possession on the 1st day of May, 1850, by which the possession on that day and afterwards of Sarah ceased, unless by the permission, or in opposition to the rights of Caroline. If by her permission, it was lawful, and was binding on the landlord, whether with or without his permission or knowledge. Such permission is admitted to have been given by Caroline, by the other averments in the affidavit. It avers Caroline’s continuance in possession from May 1st, 1850, to the present time; and that from the 1st May, 1852, she has continued in such possession without the assent or permission, and against the will of the landlord. This is contradictory to the previous averment that Sarah continued in possession from 1st May, 1849, to the present time, for two several possessions at the same time cannot exist; it must be a joint possession, if at all. It avers also, that Sarah, from May 1,1850, to the present time, has tar ken, kept, and continued in possession by the consent and permission of, and by collusion with, Caroline: either, 1st. As holding over by herself after the expiration of her term ; or 2d. Under Caroline under and subject to the demises to her, as 1st agent, or 2d subtenant of Caroline, or 3d, in some other manner.</p> <p>This averment is inconsistent with previous averments, in this, that it is previously alleged, that on that day Caroline, under the first demise, entered into possession, and that she continued in possession from that day to the present time. The two possessions at the same time, in severalty, could not exist; but had Sarah, by the consent and permission of Caroline during the term of the demises to the latter, been in exclusive possession, such possession would have been lawful, and collusion could not be inferred; the possession after the expiration of the demises to her, the holding over, with her, Caroline’s, consent or permission, whether with or without collusion, would be unlawful and create the tenancy at sufferance contemplated by the statute. The allegation as to the relationship or manner under which she is alleged to continue in possession, is so variously and ambiguously stated as to be too uncertain for any basis of decision. It further avers, that before May 1st, 1852, Oliver Woodruff and the Messrs. Franks came into possession of the premises by the consent or permission of, and by collusion with, and under Sarah and Caroline, or one of them, and under and subject to the demises to them, as agents, subtenants of them, or in some other manner, and with Sarah and Caroline, have kept and still keep possession from May 1st, 1852, to the present time, without the assent or permission, and against the will of the landlord. This allegation is defective, in this, that it already has been alleged that previous to 1st May, 1852, Caroline was in possession, and Sarah was in possession, severally, both possessions being at the same time, and to, and after that day. . This allegation now puts the three additional defendants in possession before, at, and after that day; thus three distinct possessions of the same premises at the same time are alleged. It also states that these three defendants have come into possession under and subject to the-demises to Sarah and Caroline. This cannot be, unless they came into possession at or before the 1st May, 1850, when the lease to Sarah expired, and under the subsequent leases to Caroline ; and this would conflict with the previous allegations that Sarah continued in possession from May 1st, 1849, and Caroline from 1st May, 1850, to the present time. The affidavit then has the averment, that since and from May 1st, 1852, to 3d January, 1853, all the defendants have been in the possession of the premises, as tenants at will or at sufferance of the landlord ; that such tenancy has been created by their holding over their terms or otherwise in the manner therein set forth. This averment is erroneous; there is but one term shown by the affidavit to be held over, that is the last term to Caroline; the tenancy at sufferance by the affidavit appears to be created only by the holding* over by her and by those in possession with and under her, after the expiration of her term, and not otherwise, in the manner therein set forth. What manner otherwise is therein set forth % It is contended for the defendants, that under the statute, she only can be proceeded against, and that to include those who are subtenants or in possession under her, or jointly with her, is erroneous. This is a position which I deem untenable. The intent of the statute is to put the landlord in full possession; the warrant directs the officer so to do, and to remove all persons from the premises. (2 R. S. 515, § 39.) They who hold possession jointly with or under the tenant, may have cause to show against the proceeding. It is from a regard te their rights that they should be made parties.</p> <p>The holding over can be not only by the tenant’s own act personally, but may be by his agent, servant or tenant; the design of the statute is to suppress a mischief: it is not tied up to the original parties; a landlord by purchase from the lessor may resort to the remedyj the sub-tenants or those claiming under the lessee, with or without such lessee holding possession, may be made parties; otherwise the statute may be evaded by a change from the lessee to others. (Birdsall v. Phillips, 17 Wend. 474.) The proceeding is to redress a wrong, and as in other procóedings in tort, some of the defendants may be found guilty and others acquitted. The fact that the other defendants under the tenant Caroline, do jointly with her, hold over possession, should plainly appear.</p> <p>The position that the affidavit, if bad in part, is bad in the "whole, is met by the assertion that the statements may, like the counts in a declaration, be made in different .aspects, and that one allegation being bad, will not vitiate the parts which are good. Both these views may in this case, to the extent expressed be incorrect. ' The defects must be material, and though the affidavit may be shaped in different aspects, the averments must not be materially inconsistent or contradictory to each other; the affidavit is verified by oath; the whole of it must be taken together. Contradictory averments of material facts cannot be reconciled, and usually are fatal.</p> <p>The last demise to Caroline is the only one of the three demises necessary to be stated; her possession under it extinguished all other possessions, unless under her; a wrongful possession by the other defendants or any of them during or within the term demised to her, with her consent, and simultaneous with her possession, could not be. It would have been sufficient to state the demise to her to 1st May, 1852, and the fact of the other defendants, within the term of that demise, coming into possession, and on its expiration, being jointly with her, and under her, in possession and after the expiration of the term without the permission, &c. of the landlord, holding over. Thus a tenancy at sufferance would have been established, and then the fact that the tenancy thus.created had terminated, by the service of notice in writing to quit, pursuant to the statute, might have been shown.</p> <p>The introduction of averments of the various possessions above mentioned, contradictory as they are to each other, and to the other averments in the affidavit, and the uncertainty of the allegations of facts (and not conclusions) showing how, in what capacity, and in what manner, the several defendants really hold over, are positive defects, and seem to me to amount to such materiality, as to render the affidavit insufficient to confer jurisdiction of the proceedings asked for.”</p>

This was an appeal by the plaintiffs from a judgment entered at a special term, dismissing the complaint, as to the defendants Backus and Osborne, frith costs. The action, which was in the nature of replevin, was brought against Carnley, sheriff of the city and county of New-York, and Backus and Osborne, the plaintiffs in the attachment upon which the property in question was seized.

This case came before the court on a motion by the plaintiff’s counsel, for the defendant to show cause why an injunction previously granted to restrain him from prosecuting a certain sentence of an ecclesiastical tribunal against the Rev. Mr. Walker, by pronouncing judgment of displacement from the ministry of the church, &c. should not be made absolute.

Case agreed upon by the parties, pursuant to the code, § 372. It was stated that the Orleans Insurance Company was a body corporate, created under the general act to provide for the incorporation of insurance companies, passed April 10,1849. Copies of the charter and by-laws were annexed to the case. It was further alleged that the company was duly organized and qualified to transact business. That it divided all its risks into two classes, first and second.

The indictment charged, in the first- count, that the defendants well knowing that a certain bill of indictment for felony was intended and was about to be preferred against one J eróme J. Chase before the grand jury, and that Hannah Shipple was a material witness in support of such bill of indictment, on &e. at &c. did unlawfully and wickedly conspire, combine, confederate and agree together, to induce the said Hannah Shipple to' suppress the evidence she knew and which was…

<p>Motion for new trial upon MU of exceptions.</p>

In each of these cases a motion was made for a mandamus againét A. C„ Elagg, comptroller of the city of New-York, commanding him to draw his warrant upon the chamberlain of the city, in the one case in favor of the relator Pueynolds, for $11,051,50; and in the other, in favor of the relators Russ &.

<p>Appeal from an order made at a special term, denying a motion to set aside a previous order for the examination of the defendant, as to his property, under the 292d section of the code of 1849.</p>

<p>Where an insurance is effected upon goods belonging to a copartnership, a transfer of interest in the partnership property, and in the policy of insurance, from one partner to the other, will not prevent a recovery, in case of loss ; notwithstanding a clause in the policy declaring that the interest of the assured therein is not assignable, without the written consent of the insurers.</p> <p>An assignment from one partner to another is not within the principle on which the prohibition is founded.</p> <p>Where a policy requires that in case any other insurance shall be made, upon the same property, notice shall be given to the insurers and indorsed upon the policy, a notice given to an agent and surveyor of the insurers, regularly appointed, and having' authority to receive applications for insurance, is sufficient.</p>

This was a motion by the plaintiffs for a new trial, on a bill of exceptions. In October, 1838, the plaintiff, B. W. Rogers, conveyed a large tract of • land to the Farmers’ Loan and Trust Company, in trust for his creditors. In October, 1842, with the assent of the company, he contracted with the defendant Hunt to convey to him a part of the tract, supposed to contain 82-t acres, at $100 per acre.

This was a petition by Christopher Robinson and others, children and heirs at law of Thomas Robinson, deceased, praying that certain moneys arising from the sale of the real estate of the said Thomas Rohinson, under a decree in partition, made since his death, and which moneys were alleged to be in the hands of the defendants Claiborne Ferris, James Ferris and Watson Ferris, might be paid to the petitioners, by them, with interest; the share of each of the petitioners in the…

This was an appeal by the defendant Dwight, from an order made at a special term, denying a motion to dissolve an injunction and to vacate a stay of'proceedings.

<p>The plaintiff in this case had recovered a judgment against the defendant for $8000 and upwards, which he was seeking to enforce by execution and proceedings supplementary thereto; although he had received payment in full of a mortgage alleged to have been held as collateral to the same demand. On the part, of;the defendant, a motion was accordingly made- at special term, to cancel the judgment; which the plaintiff resisted on his own affidavit. Being in doubt, on the affidavits of the parties, as to the true state of the case, the court made an order directing the parties to attend, with any witnesses they might see fit to produce, and give further explanations under oath. On the day assigned the plaintiff attended, but refused to make any further statement, or to answer any questions. Considering this refusal as a virtual admission, the court made a special order reciting what had occurred, and directing satisfaction to be entered on the judgment record. From that order the plaintiff appealed; insisting that the court on motion had no power to compel the party to attend and be examined.</p>

This was an appeal by the defendants from an order made by Justice Pratt at a special term, overruling their demurrer to the complaint. The action was brought by a simple contract creditor of Eleazer Loomis, deceased, to set aside a certain conveyance of real estate made by the decedent in his lifetime, with intent to defraud creditors. The defendants demurred, assigning as a ground of demurrer that the complaint did not state facts sufficient to constitute a cause of action.

Action against the defendant as maker of a promissory note ■for $120, dated April 1,1851, and payable on the 1st day of April thereafter, to L. Upson or bearer. The note was made for the purpose of taking up another note of the same amount, made by the defendant and held by the payee Upson, but was never delivered.

. Appeal from the decree of the surrogate of Onondaga county, pmissing the petition of Shumway and wife, that the respond-pit, Cooper, should account as administrator of his wife, Eliza /Jane Cooper. The deceased was the daughter of Mrs. Shumway, one of the petitioners, by a former husband, and died under the age of 21 years.

This was an appeal by the defendant from a judgment of the Onondaga county court, affirming that of a justice of the peace. The action was brought by the plaintiff, as administrator of Thomas 0. Bigelow, deceased, for money had and received by the defendant to and for the use of the intestate.

Demurrer to complaint. The plaintiff alleged in his complaint that on the 30th of June, 1846, he was seised of a farm known as letter IC. in lot lío. 2 of lot lío. 6 in the 24th allotment of the ELayaderosseras patent, containing 100 acres, commonly called the old steam lot.

This action was tried at the Washington circuit in October, 1852, without a jury. It was brought to recover the undivided tenth part of certain premises described in the complaint. The plaintiff claimed as one of the heirs at law of Jonathan Brown, deceased.

The plaintiff, about the middle of June, 1848, commenced an action in this court against the defendant, to recover damages for erecting a dam in a stream, and thereby causing the water to set back upon and flow the lands of the plaintiff. The defendant pleaded the general issue.

This action was brought upon three promissory notes, made by the defendant and transferred by the payee to the plaintiff; and was tried before the court without a jury. At-the-trial the plaintiff produced the notes, the signatures of the defendant to which were admitted by him, and the notes were read in evidence. They were as follows: “ $200. Rochester, June 29,1839.

This action was brought in a justice’s court, to recover the value of a marc, taken from the possession of the plaintiff by the defendant. On the trial, the following facts appeared: the plaintiff bought the mare of one Ashley, a few days prior to the 28th of October, 1850, and on that day gave his note for the price, payable to Ashley or bearer, four months after date. The mare was in the plaintiff’s possession, when the note was given, and had been for about three weeks.

The respondent, by an order of the surrogate of Monroe county, made in December, 1851, was appointed administrator, &c. of one Hiel Brockway, deceased. In the proceeding for his appointment, the citation required by the statute was served upon the appellants, one of whom was a son of the deceased, and the other a grandson, whose parent, a child of the deceased, was dead, and upon several other persons, kindred of the deceased.

This action was eommencea before a justice of the peace of Monroe county. The plaintiff complained against the defendant for breaking and entering the plaintiff’s close and carrying away a cow in the plaintiff’s keeping. The defendant put in an answer denying the allegations in the complaint, and asserting a right to the cow, by virtue of a chattel mortgage.

This action was brought to recover the amount of two promissory notes, made by the defendant and payable to the order of the plaintiff and of one Wilmerding, but of which the plaintiff was the owner at the time of the suit.

This was an appeal from a judgment rendered at a special term.

This was an appeal by the defendant from a judgment entered at a special term. The complaint stated that on the 1st of April, 1846, a limited partnership was formed, at Rochester, between Alexander Kelsey, as general partner, and James McCall and Samuel D. Bradford, as special partners, the business to be conducted in the name of Kelsey.

<p>Where the owner of property stands by and sees another sell it as his own, to a bona fide purchaser, and makes no objection, and gives no notice of his rights, he will be held to have sanctioned the sale, and will not be permitted afterwards to assert his title, as against such purchaser.</p> <p>The same rule prevails where the owner is informed of a sale of his property by another, upon credit, and does not object to it, or give the purchaser notice of his rights, but lies by and permits such purchaser to pay the purchase money as it becomes due, to the vendor, and receives the whole, ora portion of it, from the vendor.</p> <p>By a written contract entered into between N. T. and S. P. T., the latter agreed to pay the former $1300 in installments, at different times, and in consideration thereof N. T. agreed that S. P. T. might have the possession and use of a certain canal boat, her tackle and furniture, unless default should be made in the payment of the said sum of $1300, or some part thereof, or unless S. P. T. should do, or attempt to do, any of the acts by such agreement prohibited 5 in either of which cases N. T. or his assigns might take possession of such boat, &c. On the full payment of the said sum of $1300 N. T. was to execute and deliver to S. P. T. or his assigns, a bill of sale of said boat, &c. and put him or them in possession. S. P. T. agreed not to transfer or attempt to transfer, the boat, without the consent of N. T. -or to do any thing to prejudice his title. In case default should be made in the payment of the said sum of $1300, or any part thereof, N. T. was to have the right to take, and sell, the boat, &c. It was further provided that nothing contained in said contract should he so construed as to give S. P. T. any right or title to the boat, until such payment should he fully made; except the right to possess and use the same, in the manner and upon the conditions in such contract mentioned. Held that this instrument was in effect a chattel mortgage, and not a mere executory contract to sell the boat and give title upon the performance of a condition.</p>

This was a certiorari to review the decision of the county judge ofi Ontario county upon proceedings instituted by Scribner as landlord, against Burnett as tenant, to recover the possession of a farm, under the statute authorizing summary proceedings to recover the possession of land. The proceedings were commenced by the issuing of a summons by the judge on the 18th of October, 1852, returnable on the 23d of the same month, which was personally served.

This action was brought to recover the possession of land. The action being at issue, was referred to Chauncey Tucker, Esq. sole referee, and was tried and submitted to the referee on the 20th December, 1852. On the trial the plaintiff offered as a witness, Peter A. Smith.

<p>This was an appeal by the plaintiff from a judgment rendered at a special term. The complaint alledged, that on the first day of January, 1850, at the town of Mt. Morris, a promissory note dated on or about the 13th day of Juno, 1849, made by James Parsons, by his agent Thomas Parsons, was delivered to the defendant by one Daniel Aylesworth, to be by him collected and the avails thereof applied by the said Bond in payment of-a promissory note, made and delivered by said Aylesworth to Bond; that afterwards and on the first day of April, 1850, Aylesworth paid the said last mentioned note, and on the 2d day of April, 1850, sold to the plaintiff the note first mentioned, for a valuable consideration, and thereupon made his order in writing, directed to the defendant, and requesting him to deliver to the plaintiff the said promissory note, and the defendant agreed to deliver the same to the plaintiff. That afterwards and on the 20th day of September, 1850, the plaintiff demanded of the defendant the said note, and the defendant refused to deliver the same, and had converted it to his own use. The plaintiff therefore demanded judgment for his damages, to be assessed by the court, and that he have execution therefor against the body of the said defendant. The defendant by his answer put in issue all the allegations in the complaint. The action was brought to trial at the circuit court in the county of Livingston, on the 6th day of September, 1851, and was tried before the presiding justice without a jury. The plaintiff introduced as evidence an order with the acceptance written thereon, of which order and acceptance the following is a copy; the signature of the defendant to said acceptance being admitted, viz: “ James R. Bond—Sir : Please to deliver to Lansing Andrew's a note made by James Parsons, by his agent Thomas Parsons, for two hundred and twenty-five dollars, dated about June 13th, 1849, payable at the Commercial Bank of Rochester, to my order, and indorsed by me and delivered to you in June or July last, payable ninety days from date. And oblige yours, Daniel Aylesworth. April 2, 1850. Accepted, April 2,1850. J. R. Bond.” The defendant objected to the introduction of the order as evidence, -on the ground that there was no evidence that the plaintiff had any title to the note, which objection was overruled by the justice, and the counsel for the defendant excepted. George Hastings, a witness on the part of the plaintiff, testified that shortly before the commencement of this action, in the month of September, 1851, at the request of the plaintiff, he called on the defendant and demanded the note described in the order, and that the defendant refused to deliver it; also that he had computed interest on said note and that the whole amount of the note and interest thereon was $256,24. On his cross-examination, the witness said this action was commenced in the month of October, 1850 ; that when he called on Bond for the note, Bond did not state where the note was, and did not claim to own it. The plaintiff here rested. The defendant moved for a nonsuit on the grounds, First. That the plaintiff had shown no title in himself. Second. That it did not appear but that Andrews was acting as the servant of Aylesworth. Which motion was denied by the court. The defendant offered as evidence the following certificate. “ I certify that the note mentioned in the annexed draft or order marked A. was negotiated at the Bank of Dansville, on the 6th day of July, 1849, brought by James R. Bond, the defendant in the above described action, and the money paid to amount of said note. That the same note has since been collected of the maker and the money received by the Bank of Dansville. The above facts are all personally known to me. I am, and was on the 6th day of July, 1849, cashier of said bank. May 28,1851. L. C. Woodruff.” This was received under a stipulation of the plaintiff’s attorney, that such statement should be read to the jury on the trial as evidence, if the court should decide that the testimony of Wood-ruff as to the matters therein stated, would be competent and proper evidence in this action; the right of objection to the testimony being reserved. The draft or order mentioned in this certificate was the one above set forth. The plaintiff objected to the introduction of this testimony, for the following reasons: 1st. That the answer of the defendant did not present gv set.forth any such defense as was sought to be establisted by said testimony. 2d. That the defendant was estopped by his own acts from setting up such a defense. The objection was overruled by the court and the evidence admitted. To this decision the counsel for the plaintiff excepted. The evidence being submitted, the court rendered judgment for the defendant for costs.</p> <p>I. The acceptance of the order by Bond, admits the genuineness of the signature of the drawer. (Story on Bills, §§ 113, 262,263, 264.) II. The order accepted by Bond is an assignment of the demand described therein. This is true as to bills of exchange, and the same reason applies to this case. (Adams v. Robinson, 1 Pick. 461. Gibson v. Cook, 20 Id. 15. Griffith v. Reed, 21 Wend. 502. Burrall v. Jacot, 1 Barb. S. C. Rep. 165.) III. Although the common words, “ value received,” are not contained in the order, a sufficient consideration is expressed. The consideration to bind the acceptor must move from the drawer to him. The drawer says in effect to the acceptor, “ for value received by you and it is enough if the consideration is expressed in any other terms. In this case the order is for a note which had been previously delivered by the drawer to the acceptor, and the reception of the note, acknowledged as it is by the acceptance, is a sufficient consideration. What may be the consideration between the drawer and payee, in no way concerns the acceptor. IV. The defendant having accepted the order, is estopped from setting up that the note mentioned in the order had no existence, or had been previously converted by him. The transaction was a sale of the note by Aylesworth to Andrews, to which Bond was privy. (Cowen & Hill’s Notes, 202 to 205. Foster v. Newland, 21 Wend. 94. Watson v. McLaren, 19 Id. 557. Petrie v. Feeter, 21 Id. 172. Dezell v. Odell, 3 Hill, 215. Kennedy v. Strong, 14 John. 128.) V. The defense attempted is not admissible under the answer. The answer is a general denial, and simply puts in issue the reception of the note by the defendant, its purchase by the plaintiff, and the defendant’s refusal to deliver it. If it had been converted by the defendant before the sale, that is new matter, and should have been alleged. VI. The justice at the circuit erred in giving judgment generally for the defendant. The judgment at most should have been a judgment of nonsuit.</p> <p>I. The plaintiff failed on the trial of this action to make out a case that would entitle him to recover for the conversion of the note in question, unless he established the fact that the general or special property in the note was in him; that the plaintiff was the owner of the same, or that he was entitled to the possession of the same. (Hotchkiss v. McVickar, 12 John. 403. Sheldon v. Soper, 14 Id. 352.) II. It did not appear on the trial of this action but that Aylesworth was yet the owner of the note in question; it did not appear but that the note was delivered to the appellant as the servant of Aylesworth. The presumption from the papers is that he was so acting; if so, the possession of the note by the appellant would be nothing more than the possession by Aylesworth. The possession by the servant, is possession by the principal or master. The servant cannot maintain an action for conversion of property; he has no separate interest and can have none. (1 Chitty's Pl. 5th Am. ed. 139. 7 Cowen, 194.) III. The appellant has alleged in his complaint that this note was delivered to Bond (the respondent) by Aylesworth, to secure an indebtedness held by Bond against Aylesworth. Bond was then the legal holder and possessor of the note, and as such it could not be obtained from him, even by the lawful owner himself, until the principal indebtedness had been paid; nor was the respondent bound to deliver the note until the same had been paid; and the undertaking by Bond to give up the note was merely gratuitous on his part. It was necessary for the appellant to show that this indebtedness had been paid and that he was the transferree of the note; and the promise by Bond to deliver the note to Andrews was void, and was not binding until this was shown. IV. The acceptance by Bond amounted to nothing; it was void for want of consideration; it was a gratuitous undertaking. In fact there is no evidence that there was any such note in existence. If the appellant was the real owner of the note, it was necessary for him to show that the same was in possession of and under the control of the respondent; and the acceptance was void until this fact was shown. (Atkinson v. Manks, 1 Cowen, 708. Mason v. Munger, 5 Hill, 613.) V. The order by Aylesworth on the respondent is not a bill of exchange, and cannot in any manner be treated as such. It does not import a consideration, and by the acceptance it cannot be presumed that the note was in the possession of the respondent. Bills of exchange are payable always in money; the rules applicable to such paper cannot be applied to the present case. It can only be called a contract, an undertaking of Bond, and it was necessary that the appellant should both aver and prove a consideration. (Story on Bills. 1 Cowen's Tr. 160. Cook v. Satterlee, 6 Cowen, 108. Atkinson v. Manks, 1 Id. 707,8.) YI. The appellant could not in any case recover against the respondent in this form of action, for a conversion of the note. It came into the possession of Bond legally and as collateral security for the payment of an indebtedness by Aylesworth to Bond; while in the possession of Bond it was transferred by him arid discounted at the Bank of Dansville, before the time of drawing this order on Bond and before his acceptance thereof. Under such circumstances a demand of the note on the part of the appellant and a refusal to deliver the same on the part of the respondent does not constitute a conversion, and the appellant cannot maintain that form of action. (Kelsey v. Griswold, 6 Barb. 436. Aldmer v. Jarmain, Har. Dig. 6398. Hallenbake v. Fish, 8 Wend. 547. Packard v. Getman, 4 Id. 613. Stierneld v. Holden, 6 Dow. & Ry. 17. 4 B. & C. 5. Ry. & Moo. 219.) VII. The appellant insists that by the acceptance of this order the respondent was estopped from showing that there had been a previous disposal of the same. The doctrine of estoppel does not apply to this case. There have been no representations on the part of the respondent on which the appellant has acted. Taking the statement as set forth in the complaint, the fact there set up is that the note was sold by Aylesworth to the appellant, and that after the sale he made the.order on the respondent. The only act put forth by the appellant after the sale of the note was to demand the note from Boyd. And the only act done by the respondent after the alleged sale was a promise to deliver the same to appellant at the request of Aylesworth. The complaint sets up, 1st, a sale of the note to Andrews, and 2d, afterwards the making of the order on Bond. They were not contemporaneous acts. "VIII. The appellant also insists that as the respondent has denied all matters set forth in the complaint he cannot now come forward and take advantage of the same. The rule of pleading is that the matters set forth by the party are to be construed against him and in favor of the opposite party. (1 Chit. Pl. 195.) The allegations of the plaintiff in the complaint may, if necessary, be taken as so many admissions by him. IX. The respondent could not be estopped in any way from proving his defense. The transaction, as proved on the trial, did not amount to a sale, and no property was transferred by this order. Bond merely agreed to deliver the order at some future time. The remedy of the appellant should have been upon the special undertaking. (Burrall v. Jacot, 1 Barb. 165.) As to whether this was a sale or not of the property, was it not a question of fact passed on at the trial ? X. The appellant insists also that the defense was inadmissible under the pleadings. The action was for a conversion of property. Any matter tending to show that the property was not converted was admissible under the general denial: and also matters going to show that it was impossible for the defendant to have converted them to his own use is equally admissible.</p>

This action was commenced in a justice’s court, to recover the amount due upon an agreement, of which the following is a copy: “ For value received I promise to pay Palmer Cheesebrough or bearer, twenty-five dollars by the first day of January next. I am to insure one span of colts from my horse to Mr. Cheesebrough’s sorrel mares this season, for ten dollars and fifty cents. The mares is to be brought to my house. Bated Aurelius, June the 27th, 1850.

This action was brought for moneys alleged to have been paid by the plaintiff for the use of the defendant and at his request, and was tried at a circuit court in Wayne county, held by Justice Welles, in January, 1853. The following facts were proved on the trial.

This action was brought to recover damages of the defendant for seizing and selling two freight cars of the plaintiffs, upon their railroad track in the town of Bedford, in the county of Westchester. The defendant justified the taking, as collector of the town of Bedford, under a tax-warrant duly issued to Mm by the board of supervisors of said county.

This was an appeal from an order made at a special term, setting aside the adjustment of costs under § 311 of the code, also the judgment, execution, and all subsequent proceedings, for irregularity, with qosts of motion.