Volume 16 — New York Supreme Court Reports

It was commenced in July, 1873, to recover the possession of a strip of land in the village of Oneida, Madison county, described in the complaint as “ bounded on the east by Market alley in said village, on the south by the now existing water line of the milL-race, on the west by the easterly line of lands belonging to the State of New York, and on the north by land of the said defendant; being a strip of land about five feet wide on the easterly end, and extending at about…

<p>Statute of limitations — what payment amoids — Practice — nonsuit — exception to— request to go to ju/ry.</p> <p>Where a payment, larger than any one item thereof, is made upon a claim for professional services with no directions for the special application thereof, and there are no circumstances from which such direction can be inferred, such payment is effectual to avoid the statute of limitations, and an action may be maintained upon such claim at any time within six years of such payment.</p> <p>Qucere, whether, when a nonsuit or a verdict is directed at the Circuit, the party excepting thereto should not ask that the case be submitted to the jury, if he desires to insist upon appeal, that the court erred in not making that disposition of the case?</p>

This was an action of ejectment originally commenced by one Stephen Canfield.

Eliza Elmendorf died in 1858, leaving a will by which she appointed John Van Vechten, one of the defendants, and another, her executors. By her will she left the rents, issues and profits of all her property, in trust to the defendant, Sarah E. Elmendorf and her husband, Nicholas Elmendorf (now dead), and to the survivor of them for life, with remainder over in fee to the defendants Julia and Nellie L. Elmendorf.

The plaintiff was a judgment creditor of the defendant’s devisor, with judgment liens on the premises on which it was alleged the defendants were committing waste.

<p>Water pi'imlege — acquisition of by user — License — by whom it must be proved, — EquitaXle actions — costs in— Oode, § 804</p> <p>A right to the use of water in a particular manner may he acquired by an uninterrupted adverse enjoyment thereof for a period of twenty years.</p> <p>In such a case it rests upon the party submitting to such user to show that it was by license or permission. It is not necessaryfor the party claiming it to prove ■ an express claim of right, in order to characterize the user as adverse.</p> <p>Where in an action in equity each party succeeds as to part of the matters in litigation between them, costs are not allowed to either as against the other.</p> <p>Where in an equitable action the complaint set forth two causes of action, as to one of which the plaintiff succeeded and as to the other of which he failed, held,, that it was error to award him the costs of the entire action, including those incurred in the trial of that cause of action as to which the defendant succeeded.</p> <p>The discretion vested in the trial court to award costs in equitable actions is subject to review at the General Term, when it has been exercised in manifest disregard of equity and right.</p> <p>Section 304 of the Oode, awarding costs to the successful party, as a matter of right, in cases where the title to real property is brought in question, applies only to actions at law as distinguished from actions in equity.</p>

<p>Appeal from an order referring this action to a referee to hear and determine the same.</p>

<p>An appeal by tbe defendant Sprague from a judgment entered on the direction of Mr. Justice James, before whom the action was tried without a jury.</p> <p>The action is in equity, and was brought for and in behalf of Helen Reid, a lunatic, by her committee, to protect her beneficial interest in a bond and mortgage given to the defendant Catharine Barber, and- by the latter assigned to the defendant Sprague. The facts of the case are as follows : In 1851, one Jane Chamberlain died seized of the premises described in the complaint.</p> <p>Her will, which was duly admitted to probate, contained this clause: “I, Jane Chamberlain, of Johnstown, devise and bequeath all my real and personal estate of which I am possessed, or which is held in trust for me, to my daughter Catharine Barber, the income of which is to be expended for the support of my daughter Helen during her life, and then the principal to belong to my daughter Catharine Barber, her heirs and assigns, and I direct my trustee to convey my real estate according to the above devise.”</p> <p>In 1852, said Catharine, under the direction to convey or power of sale contained in the will, sold and conveyed the premises to one Rodney Johnson, who gave back to her a bond and mortgage thereon to secure the purchase-price ($1,500), the interest on which is the subject of controversy in this suit. The bond was conditioned for the payment “of $1,500, in two equal annual payments, from and after the day of the death of Helen Reid * * * with annual interest.” The interest accruing upon the bond, from its date to March 3, 1872,was duly paid to Catharine, and applied to the support of Helen.</p> <p>In April, 1872, George J. J. Barber, the husband of Catharine, borrowed $1,500 of the defendant Sprague, and gave his note to the latter therefor, payable ten years from its date with annual interest, and Catharine then assigned the bond and mortgage to Sprague, as collateral security for the payment of such note. Sprague testified that he loaned the money to Barber on the faith of the assignment. The note remained unpaid, except the sum of $736.20, paid thereon in June, 1873 ; and the defendant Sprague claimed to hold the bond and mortgage, both principal and interest, under the assignment, and declined to allow the interest to be used or applied to the support of Helen. The learned judge held as conclusions of law: (1), that Catharine, under the will,' took an estate as trustee for the life of Helen, in the premises devised, with a power of sale and a vested remainder in fee; (2), that as such trustee she was to receive the property given and devised to her in trust, and apply it to' the support of Helen during her life; (3), that under the power of sale, Catharine was authorized to sell and convey the premises absolutely, and that the grantee took the entire estate, both present and future; (4), that the bond and mortgage received by her on the sale became a fund in her hands as trustee, so to remain and continue so long as Helen should live; and that Helen was the beneficiary of the trust fund to the extent of the interest accruing thereon during her life. Judgment was directed and entered in accordance with such conclusions of law, declaring the assignment of the bond and mortgage to Sprague void, as to the interest which should accrue thereon during the life of Helen; and it was further adjudged, that as between the defendants, after the death of Helen, the bond and mortgage should be the property of Sprague under the assignment, as security for what should remain due on the note given him, as also for such costs and interest thereon as he should be required to pay the plaintiff in this action; and costs of the action were awarded against him. Catharine was removed from the trusteeship and another' was appointed in her place, to collect the interest on the bond and mortgage, and to apply such interest to the support of Helen during her life. The defendant Sprague alone appealed from the judgment to the General Term.</p>

This action was brought to recover the amount of a policy of insurance, issued upon a saw-mill belonging to the plaintiff. The action was defended on the ground of a fraudulent overvaluation of the property, and on the further ground that it was forfeited by a violation of a. provision of the policy, to the effect that, if “ the aforementioned premises shall be occupied or used so as to increase the risk, or become vacant and unoccupied,” then the policy should be void.

<p>This is an action brought in a Justice’s Court by the plaintiffs, to recover possession of a lumber wagon, of the value of $100. The defendant was the purchaser of the wagon at sheriff’s sale, under execution against the plaintiffs, who now claim its return on the ground that it was exempt property.</p> <p>In the County Court the .facts were agreed upon, and are that the plaintiffs were partners under the firm name of Brown, Mow-ris & Co., and were engaged in the manufacture of paper, flour and feed; that as such partners they were the owners of the lumber wagon in question; that they used it in their said business; that it was the only lumber wagon they used, and was necessary to the successful carrying on of their said business, and the support of their respective families; that they were householders, and the wagon was worth $100; that the defendant purchased it at sheriff’s sale, under an execution issued on a valid and subsisting judgment against the plaintiffs ; that such judgment was regular, the execution regular, and regularly issued, and all the proceedings of the sheriff were regular.</p> <p>The justice rendered judgment for $110 damages, and five dollars and fifty cents costs, in favor of plaintiffs.</p> <p>The defendant appealed to the County Court of Ulster county, where judgment was given for defendant, and the plaintiffs bring appeal to this court.</p>

This action was brought upon a policy of insurance, issued by the defendant to Mrs. Emily Adams, upon certain premises owned by her. On the 5th of May, 1874, the dwelling-house so insured was destroyed by fire. On the twenty-fourth -of June Mrs. Adams assigned her interest to the plaintiff’s testator, by whom this action was commenced.

Tbe principal question presented upon the appeal related to the effect of an ante-nuptial agreement entered into between the appellant and her deceased husband, and to a claim made by her for moneys expended by her in her support and maintenance during a period of eight years while she was living apart from him, having left him, as she alleged, on account of his ill-treatment of her.

The action was brought to recover $10,000 for goods sold and delivered upon a credit, alleged to have been obtained by the false and fraudulent representations of the defendants as to their responsibility. The defendants were members of a firm known as Ainsworth, Tompkins & Perry. In December, 1873, the defendants applied to the plaintiff to sell the firm, on its credit, a large amount of goods.

Ahpeai. from an order directing tbe distribution of tbe surplus moneys, arising under a sale bad in pursuance of tbe judgment entered in tbis action. Tbe defendants, Catherine Mallery and John Ii. Gleason, were junior mortgagees. After tbe payment of tbe costs of tbe action there remained a surplus of $1,012.63.

<p>Hamilton county — publication of notices in — Ohap. 662 i/1870 — Power of comptroller to designate newspapers to publish notices of redemption.</p> <p>Chapter 662 of 1870, providing that all legal notices and advertisements, required hy law to he published in the county of Hamilton, shall he published in such newspaper or newspapers as shall be designated by the board of supervisors, was not intended to alter the nurnben' of papers in which notices should be published, but only to enable the board of supervisors to designate newspapers out of that county, until one should be published therein.</p> <p>The power conferred upon the comlproller, by chapter 427 of 1856, in case no newspapers were designated by the board of supervisors to print the session laws, to designate newspapers in which to publish notices for the redemption of lands sold for non-payment of taxes, is not taken away by chapter 662 of 1870, and if only one newspaper is designated under the latter act the comp-tioller may select an additional paper in which such notices of redemption are to he published.</p> <p>Nor was his power so to do affected by the passage of chapter 315 of 1870, providing that if there be only one paper printed in the county the session laws shall be published in that paper.</p>

The action was for injuries received by the plaintiff from being thrown from his wagon, on the north approach of the bridge crossing the defendant’s tracks at West Albany. The complaint alleged, and it was proved, that the roadway on this approach was out of order, and this was claimed to have been the cause of the accident.

This action was brought to recover certain moneys paid by the plaintiff under an agreement made by the defendant, by which the latter was to take a daughter of the plaintiff into his family and keep her as his own child until she became of age, for the consideration therein expressed.

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury.</p> <p>Tbe action was brought upon a promissory note given to tbe plaintiff by tbe defendant, a married woman. In March, 1871, tbe defendant’s husband purchased seven cows of tbe plaintiff and gave a chattel mortgage thereon as security for tbe purchase-price. Tbe mortgagee took possession of tbe cows and disposed of all but three prior to November 22, 1872. On that day tbe plaintiff came to defendant’s bouse and an arrangement was made, as it was claimed by tbe plaintiff, by which tbe defendant gave her promissory note for tbe purchase-price of all tbe cows, and the three cows then left on the place were transferred to her and became her property.</p> <p>Upon the trial the plaintiff was allowed to recover the value of the three cows so transferred to the defendant.</p>

This action was brought to recover for a breach of a contract, entered into between the parties, for services to be rendered by the plaintiff to the defendant.

In January, 1876, the plaintiff brought this action to recover the possession of real property, consisting of a dwelling-house and lot' in Norwich, New York. The defendant Deloss M. Powers is in possession under a contract of purchase from the plaintiff. The defendant Mead is a tenant to whom Powers let a portion of the premises.

Appeal by Jane Wright, a sister and heir at law of the above named deceased, from an order of the Special Term of this court, denying a motion made by her to set aside and vacate an ex parte order appointing an acting surrogate in this proceeding.

<p>Conspiracy — means employed, may he lawful — 2 B. 8., 692 — Declarations of conspirators — Intimate relations between witness and conspirator — Threatening letters — acts in apparent execution of— Ohmacter — evidence as to, when prisoner makes himself a witness.</p> <p>In the trial of an indictment under the provisions of 2 Revised Statutes, 692, declaring it a misdemeanor for two or more persons to conspire to cheat and defraud any person of any property hy any means, which, if executed would amount to a cheat, or to obtaining money or property by false pretenses, it is not necessary that they should be successful, nor that the means employed, so far as attempted, should be unlawful. It is sufficient if such means are part and parcel of those adopted by the conspirators and necessary to the final success of the fraud designed.</p> <p>Where two or more persons confederate together to accomplish an illegal purpose, the acts and declarations of either in regard to the common design are admissible against all. In such a case it is competent to show that the relations existing between the witness and the accused were of an intimate and confidential character, as tending, in some slight degree, to sustain the assertions of- the witness.</p> <p>Threatening letters written by the accused to the witness to prevent him from testifying in the case are admissible as tending to show his guilt, just as an escape or an attempt to escape from prison would be.</p> <p>The witness testified that after the receipt of the letters he was shot while walking in the jail yard by an unknown man who said, “see if you will tell now.” Held, that evidence of the shooting was admissible as the jury might find that it occurred in pursuance of the threats contained in the letters.</p> <p>Upon the trial the accused offered no evidence of good character to show his innocence. Having been examined as a witness in his own behalf the prosecution gave evidence to show his bad character, and he subsequently gave evidence to show it to be good. Held, that as the accused had not attempted to establish Ms innocence by proof of good character the jury could not consider the evidence of bad character given by The People, as bearing upon the question of his guilt or innocence, but only as tending to show that he was unworthy of credit and that his testimony should not be regarded by the jury.</p>

Upon the trial plaintiff produced a sealed note, of which the following is a copy: “For'value received I promise to pay unto Blandina Dewitt, daughter of Charles Dewitt, Junior, of Marbletown, or bearer, the sum of sis hundred dollars immediately after the decease of the said Charles Dewitt, Jr. “ In witness whereof I have hereunto set my hand and seal the twentieth of May, one thousand eight hundred and twenty-eight. [l.s.] “JOHNS. COLE. “ Witness: JNO.

<p>Bmb’oad company — talcing of land by — compensation for — determined by considering detriment to land owner, not benefit to railroad company.</p> <p>Where land is taken for railroad purposes under the statute, the proper inquiry for the commissioners is, what is the fair marketable value of the whole property, and what will be Are fair marketable value of the property not taken; the difference will be the true amount of compensation to be awarded.</p> <p>A railroad company, after expending over $5,000 in making a rock cutting and constructing embankments, abandoned the route. These proceedings were instituted to acquire title to this land from the appellant, who had purchased it from the old company. The commissioners allowed him only $525. Held, that he was not entitled to receive the amount expended by the old company, but only the fair market value of the land taken; that it was not the advantage to the company, but the detriment to the land owner, for which compensation was to be made.</p>

<p> Account stated. </p> <p>In this action, brought to recover the price of goods sold in the month of December, 1872, and February, 1878, it appeared that an account for the same was rendered in the summer of 1873, to the defendant, and by him retained without objection until the commencement of this action, in August, 1874. The defendant set up as a defense to the action that the goods were sold to his son, and that the latter was not defendant’s agent, or authorized to buy goods on his'credit. Held, that, by receiving the account, and retaining it without objec- . tion for so long a time, the defendant must be deemed to have acquiesced in its correctness, and could not now insist upon the defense attempted to be set up.</p>

<p>Conteoveest submitted without action, under section 372 of the Code.</p> <p>On the 20th day of October, 1875, the firm of Townsend & Hyde, being indebted to the above named plaintiffs, composing the firm of May & Co., in the sum of $2,743.78, made and delivered to said May & Co. their promissory note in writing for that amount.</p> <p>On the 23d day of February, 1876, said May & Co.’s note for $2,743.78 became due and payable at said National Bank of Malone, and was presented thereat by the National Hide and Leather Bank of Boston for payment on that day, which was refused ; whereupon the said note was protested and returned to said bank by George Hawkins, the cashier of the defendant, by mail, with notice of protest attached thereto.</p> <p>On the 6th of March, 1876, Townsend & Hyde wrote to said George Hawkins as follows:</p> <p>George Scmlcins, Esq.:</p> <p>“Dear Sib. — ¥e send by this mail our note to Mr. A. White, for him to indorse and hand to you, for $2,879.</p> <p>“ We want you to discount it for us to pay the May & Co. note, due February twenty-third, which amounts to $2,777.40, and interest from the twenty-third day of February, and hand Mr. White the notes we sent you, $8,000, for him to hold as collateral. ***** ****</p> <p>“ It will be a very great accommodation to us if you will discount this note and send draft to May & Co. for the note due them February 23, 1876.</p> <p>“ Yery truly yours.</p> <p>“ TOWNSEND & HYDE.”</p> <p>On the 8th day of March, 1876, said Abram S. White presented said note at said National Bank of Malone, and, after he had indorsed the same, delivered it to said George Hawkins, to be discounted by said bank to pay said May & Oo.’s note.</p> <p>That thereafter, on the 10th of March, 1876, a communication was forwarded by said George Hawkins to said May & Co., at Boston, as follows:</p> <p>“ Messrs. May & Oo.:</p> <p>“ Forward to me the past due note of Townsend & Hyde, and I will pay it.</p> <p>“ GEOBGE HAWKINS,</p> <p>“ Cashier.”</p> <p>That on the same day a communication was forwarded by said George Hawkins to said Townsend & Hyde, at Cortland, aforesaid, as follows:</p> <p>“ Messrs. Townsend, <& Hyde:</p> <p>“Dear Sirs. — Your favor of the-is received.</p> <p>* * *- * *****</p> <p>“ I have written to May & Co. to return your note to me for payment. We having done as requested in yours of the sixth.</p> <p>“Yours, etc.</p> <p>“ GEOKGE HAWKINS,</p> <p>“ Cashier.”</p> <p>In obedience to the directions contained in the said communications of said George Hawkins, on the 13th day of March, 1876, at 1 o’clock in the afternoon, that being the same day upon which said communication from said George Hawkins was received by said May & Co., they returned said protested note of $2.743.78 of said Townsend & Hyde to said National Bank of Malone, by depositing the same in the post-office at Boston, addressed to George Hawkins, cashier of said National Bank of Malone, postage paid, with the following letter of instructions:</p> <p>“BostoN, March 13, 1876.</p> <p>“ George Hawkins, Hsg., Cashier Wational Bank of Malone:</p> <p>“Dear Sir. — In obedience to your pc. of tenth March, we inclose note Townsend & Hyde, $2,743.78, and interest from 20th October, 1875. Protest fees $1.14, for which please send us check on New York or Boston, and oblige.</p> <p>“ Yours truly.</p> <p>“MAY & CO.”</p> <p>On the said 13th day of March, 1876, at seven and arhalf o’clock in the evening, and after the closing of said National Bank of Malone for that day, but before said protested note, sent by May & Co., as aforesaid, had reached said bank in return, a telegram, sent by said Townsend & Hyde, from Cortland, N. Y., at 5.16 o’clock of the afternoon of that day, was delivered to the said Hawkins, addressed to him, which read as follows :</p> <p>“CortlaNd, N. Y, Ma/rch 13, 1876.</p> <p>“ To George Hawkins, Cashier, Malone :</p> <p>“ Do not pay the May note. I will be at home to-morrow.</p> <p>(Signed.) “W. H. HYDE.”</p> <p>And on the 15th day of March, 1876,. said Townsend & Hyde personally instructed said Hawkins not to pay said May & Co.’s note.</p> <p>That thereafter, and on the 16th day of March, 1876, payment of said note was again refused at said National Bank of Malone, and the same was returned to said May & Co., and said note still remains unpaid, and is held and owned by said May & Co.</p> <p>That said note of $2,879, made by said Townsend & Hyde, and indorsed by said Abram S. White, and by him delivered to said National Bank of Malone to pay the aforesaid May & Co.’s note of $2,743.78, still remains in the possession of said bank, and that no entries in relation thereto have ever been made in the books thereof. And that on the 23d day of February, 1876, said Townsend & Hyde were and still are insolvent.</p>

Weit of error to the Court of Sessions of Tioga county, to review the conviction and sentence of the plaintiff in error for procuring an abortion.

<p>Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court.</p> <p>The action was brought to recover the amount of a policy of insurance issued by the defendant. The policy contained, among others, the following provisions:</p> <p>“ CONDITIONS OE INSURANCE.</p> <p>“ I. Applicants for insurance by this company must state * * * the position, construction and materials of all contiguous buildings, and the purposes for which they are occupied; the exact nature of the applicant’s title if less than fee simple or absolute ownership ; the nature and amount of all incumbrances upon the property; the cash value of the building or other property proposed to be insured, and such survey, description and representations shall be taken and deemed to be a part of this policy and a warranty on the part of the insured. * * * And a false description or representation by the assured or any concealment or omission to make known any fact or feature material to the risk, or an over-valuation of the property, shall render this policy absolutely void.”</p> <p>The defendant moved for a nonsuit on the ground that certain statements contained in what is insisted was a' survey and description of the premises, furnished by the plaintiff at the time of the issuing of the policy, were false. The motion was denied, and subsequently the court directed a verdict in favor of the plaintiff.</p>

<p>Vw'dict — damages—insufficiency of — when new trial granted.</p> <p>Wliere, in an action of slander in which the evidence would have justified a verdict for the defendant sustaining the justification set up in the answer, the jury found a verdict for the plaintiff for six cents, held, that as the damages to which the plaintiff was entitled were not fixed or certain, and were incapable of being rendered so, that the amount thereof was wholly in the discretion of the jury, and that an order granting a new trial, on the ground that the damages awarded were insufficient, should be reversed.</p>

<p>Appeal from or dm'— dismissed if pwrty takes advantage of leeme to renexo motion— ' Election,</p> <p>A party by appealing from an order denying a motion with leave to renew the same, is precluded from tailing advantage of the leave to renew granted thereby; and such appeal will be dismissed if, while the same is pending, the motion be renewed in the court below.</p>

The judgment was recovered September 23, 1870, against the defendants, who had purchased, as partners, certain timber of the plaintiff’s intestate. On February 24, 1870, Van Dusen took a mortgage of Ford for $1,500 upon land subject to the lien of the judgment. On the 14th of June, 1876, an execution was issued in Broome county against the defendant Cooley.

This action was brought to recover ¡¡¡>7,750, to which amount the plaintiff claims to have been damaged, by the failure of the defendant to effect an insurance to that amount upon a vessel belonging to the plaintiff. Upon the trial the plaintiff had a verdict of six cents.

<p>Appeal from an order denying a motion for a new trial, made upon the minutes of the justice before wbom the action was tried.</p>

<p>Contrast for boa/rd— breach of — when action mwy be brought for — measure of damages.</p> <p>Plaintiff and defendant entered into an agreement whereby the former was to furnish rooms and board for the defendant and his family for one year, from March 24, 1875. Defendant left the house on May 27, 1875, without sufficient reason therefor. Afterwards and before August twentieth plaintiff for a time had boarders in defendant’s rooms. August twentieth plaintiff gave up the house. Reid,, that the plaintiff was entitled to bring an action for the breach of the contract without waiting for the expiration of the year, and that in such action she could only recover the damages suffered at the time of the commencement thereof.</p> <p>The damages, in such an action, would he the profits that she would have made up to August twentieth, had the defendant performed the contract on his part, deducting the profits on the hoarders put in defendant’s rooms.</p> <p>The contract provided that in case of the absence of the defendant and his family-only half the price should he paid. Held, that this only applies in case he retained the rooms, and that he could not claim an allowance therefor after he had wholly abandoned the contract on his part.</p>

<p>Appeal from an order made at the Special Term allowing a writ of peremptory mandamus, directing the appellant to execute and deliver to the relator conveyances of lands sold to him under chapter 789 of 1873.</p>

<p>Appeal from an order denying a motion to vacate an order of arrest.</p>

Weit of certiorari to review the proceedings and judgment had before the police justice of the village of Port Jervis, in the case of the village of Port Jervis against the relator, William Dargin.

The action was brought to foreclose a mortgage for non-payment of interest within twenty days after it became payable. The defendant claimed that when the interest became due, plaintiff had received from him, and had then in his hands more than the amount of the interest.

M. Thompson, who purchased premises sold under a judgment of foreclosure entered in this action, to be relieved from his bid. The action was brought to foreclose a mortgage, executed by the defendant William B. Slocum to the plaintiff on lands in Rockland county, which were subsequently conveyed to Hiram Slocum subject thereto, and which were held by him at the time of his death.

The action was brought to restrain the village of Nyack, incorporated under chapter 291 of 1870, from taking steps to terminate its corporate existence, under chapter 628 of 1874, on the ground that the latter act is unconstitutional and void.

The action was brought upon a bond executed by the defendant Helen F. Taylor. The defendant demurred on the ground that .it appeared on the face of the complaint that the defendant was a married woman and not liable thereon.

This action was brought upon a bond given by the defendant Churchill, as executor of Henry Churchill, deceased, to recover from him, and from the sureties thereto, the amount of $583.75, which said executor had been ordered by the surrogate to pay over to the plaintiff herein, as one of the residuary legatees of the deceased.

This application was made to secure the payment of the amount due to the relator, under a contract entered into with the board of trustees of the defendant during the year ending April 6, 1816.

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

<p>Arbitration — submission— a/ward — rn/ast be as broad as — setting aside of awa/rd.</p> <p>One Abby Welwood, being tbe owner oí certain lots, a contract was entered into by her husband with one Schleier, by which he, Schleier, was to sell the same, and receive a iDorlion of the profits for his services in so doing. Disputes having arisen as to the amount due thereunder, a contract was entered into by all the parties in interest, on January 10,1873, to settle the same. Subsequently this was rescinded by mutual consent, and thereafter, to settle numerous actions instituted against each other by these parties, and by the assignee in bankruptcy of Schleier, it was submitted to arbitrators, “to settle without further litigation the many actions and causes of action existing between (the parties) * * * and all other actions or causes of actions now existing and unsettled.”</p> <p>The award of the arbitrators held that all matters in difference between the parties were settled by the contract of January 10, 1873, and then proceeded: “ This award is not intended to determine any of the rights of either of the said parties, arising- under ” said contract. Held, that the award should be set aside, on the ground that it did not specifically and finally terminate the rights of the parties thereto.</p>

<p>Cloud upon title — assessment sale — chapter 670 of 1871 — deed — presumptive evidence of regula/rity.</p> <p>Section. 12 of chapter 670 of 1871, authorizing the construction of an avenue in Rockland county, provides that, in case the assessments imposed thereunder remain unpaid for the time therein specified, the commissioners are authorized to sell the lands so assessed “ in the same manner as the comptroller of the State is authorized to sell lands for non-payment of taxes * * * convey said lands, and do each and every act and thing that said Comptroller is authorized by law to do on sales for non-payment of taxes.” Reid, that it was the intention of the legislature to create the same presumption in favor of the regularity of sales had under this act, as exists in the case of sales by the comptroller, and that the deeds given by the commissioners were presumptive evidence of the regularity of all the proceedings, prior to and including the sale, in pursuance of which they were given.</p> <p>Accordingly, where land was sold for an assessment, laid under the said act, held, that-a party alleging that such sale was void, on account of irregularities occurring prior thereto, might maintain an action to have the same set aside as a cloud upon his title, as such irregularity would not appear upon the face of the papers which the purchaser would be required to produce to obtain possession of the land.</p>

The action was brought to obtain a judicial construction of the last will and testament of Bernard B. Hagerty, deceased.

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon a case and exceptions.</p> <p>This action was brought to recover damages for a malicious prosecution for an alleged theft.</p>

In 1835, James B. Taylor and others, being the owners of certain lands in the village of Williamsburg, were authorized by chapter 128 of 1835 to construct bulk-heads and wharves on the same extending into the East river to a line designated in said act, and to receive wharfage .from persons using the same. The owners of the land constructed the bulk-head and filed a map showing the same, together with the streets proposed to be laid out and the lots fronting thereon.

<p>Judicial sales in county of Kings — -chap. 489 of 1876 — validity of — Oonsiitution, 'art. 3, § 16.</p> <p>Chapter 439 of 1876, providing that all judicial sales made in the county of Kings, except in actions of partition, and where the parties agree upon a referee, shall he made hy the sheriff of the said county, and prescribing the fees to be received by him upon sales on foreclosure, is a public and not a local act within the meaning of section 16 of article 3 of the Constitution.</p> <p>Even if such act were local it would not be obnoxious to the aforesaid provision of the Constitution, as it embraces but one subject which is expressed in the title, viz.: “An act relating to the expenses of judicial sales in the county of Kings.”</p> <p>Gaskin v. Meek (42 N. Y., 188) distinguished.</p>

<p>Judicial sale — bids at — duty of sheriff as to 'proceeds of sale — Estoppel.</p> <p>Upon a sale had under the foreclosure of a mortgage, the premises were hid in hy the attorney for the plaintiff, for an amount sufficient to pay the first mortgage, the fees of the sheriff on the sale, and a second mortgage owned hy the defendant Wood, The sheriff received the amount of his fees, hut not the amount of the Wood mortgage, she having agreed that said amount should lie secured upon, the premises by the purchaser. No security was ever given by him thereon, but he paid the interest to the defendant Wood for many years, until he finally sold the premises to a bona, fide purchaser, without notice. In an action brought by the defendant Wood, to charge the sheriff with so much of the bid as he had neglected to collect, held, that though it was the duty of the sheriff to have collected the whole bid, yet as he had neglected to do so at the instigation of the defendant Wood, the latter could not now insist that he erred in so doing.</p>

<p>Attachment — fees of sheriff on— Oode,% 243 — chap. 415 of 1871 — chap. 26 of 1872.</p> <p>Under section 243 of the Code, requiring the fees of the sheriff and the expenses incurred by him in preserving property held under an attachment to he settled by the officer issuing the same, an application for that purpose may he made before the justice issuing the attachment while holding a Special Term at chambers.</p> <p>Section 243 of the Code, entitling the sheriff .to poundage upon property seized by him under an attachment, in cases where the action is settled, to be estimated upon the amount at which such settlement is effected, is not repealed by chapter 415 of 1871, as amended by chapter 26 of 1872, prescribing the fees to be received by the sheriff for performing the services therein set forth.</p>

<p>Appeal from an order made at Special Term vacating an attachment, in an action in which the complaint contained several causes of action, only one of which justified the issuing of an attachment.</p>

Weit of certiorari to the court of Special Sessions of the Peace of the city of New York, to review the conviction of the relator as a disorderly person.

The injunction restrained two of the defendants and the admin-istratrix of a third person, deceased (formerly associated with them as a co-commissioner of estimate and assessment in a certain proceeding for the widening and straightening of Broadway from Thirty-fourth to Fifty-ninth streets, etc.), from prosecuting in any manner, until the further order of the court, an action at law which said two defendants bad previously commenced against the plaintiffs for the recovery…

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

<p>CERTIORARI to the board of police of the police department of the city of New York, to review the proceedings had before said board, by which the relator was adjudged disqualified by law to hold membership in the police force and guilty of conduct injurious to the public welfare, and therefore ordered to be removed from the said force.</p>

This action was brought by plaintiff, a resident of this State, against defendant, who is also a resident thereof. The action was brought to recover damages to the plaintiff’s lands, caused by a bone and offal boiling establishment erected by and belonging to defendant upon lands situated in the State of New Jersey.

<p>Appeal from an order overruling a demurrer interposed to the complaint herein. The action was brought t‘o recover the purchase-price of a promissory note, sold but not indorsed by the defendant to the plaintiff, and the expenses of a suit brought thereon against the makers, of which suit defendant had notice. The note was usurious.</p>

<p>Assessment — presumption as to payment of, ai'ising from lapse of time — ehap. 580 of 1872 — repa/oing—burden of proof as to.</p> <p>Upon an application to vacate an assessment for paving, the petitioner claimed to be relieved from the necessity of proving fraud, as required by chapter 580 of 1872, on the ground that an assessment upon the property for paving the same street had already been paid. Upon the trial an assessment list confirmed in 1838 was given in evidence, by which the property was assessed twenty-six dollars and sixty cents for paving tlie street. No evidence was given to show that the assessment had been paid. Held, that in a proceeding such as the present no presumption arose from the lapse of time that the former assessment had been paid, and that the petition was properly dismissed.</p> <p>Quc&re, whether, as the evidence of payment in such cases is a matter of public record, any presumption of payment arises in the absence of such records.</p>

<p>Order of arrest — Oode, § 179, subdivision 3 — wrongful conversion of personal property.</p> <p>In an action to recover the possession of- personal property, subdivision 3 of section 179 of the Code authorizes an order of arrest: (1), where the property has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff, with the intent that it should not be so found or taken; and (2), where it has been concealed, removed or disposed of, with the intent to deprive the plaintiff of the benefit thereof.</p> <p>An action to recover the possession of personal property may be maintained, and an order of arrest obtained, although before the action is brought the defendant has, in fact, disposed of and fully parted therewith.</p>

<p>Entries in books, and memoranda — made in the usual course of business — when admissible in evidence.</p> <p>Entries and memoranda made in the usual course of business by notaries, clerks and otter persons may be received in evidence after tbe death of tbe person making the same. In an action by a bank upon a promissory note, the discount book used by it at the time of the alleged discount was produced, and it was proved that the entries therein relating to the discount of the note were in the handwriting of the discount clerk, whose business it was to make such entries, and that he was then dead. Held, that the entries should be received in evidence.</p> <p>Ocean Bank v. Oa/rU (55 N. Y., 420) distinguished.</p>

<p>Attachment — seizure of property under— Oiieni, when liable for acts of attorney — ratification.</p> <p>In an action in the Marine Court of the city of Mew York, the attorney for the plaintiffs procured an attachment to be issued against the goods of the defendant therein, and delivered the same to a marshal with directions to seize and remove such goods as should be pointed out by one Walker, a clerk of the said plaintiffs. In accordance with the directions of Walker certain goods of the plaintiffs in this action were, against their objection and protest, taken and removed from their store as the goods of the defendants in the first action, and subsequently the said attorney refused to allow the plaintiffs herein to appraise the said goods.</p> <p>In an action against the plaintiffs in the former action to recover the value of the said goods the plaintiffs herein were nonsuited. Held, that this was error: (1), because the defendants (plaintiffs in the former action) were responsible for the acts of their attorney in directing the seizure of the goods, * and (3), because there was sufficient evidence of ratification on their part to require the case to be submitted to the jury.</p> <p>The principle that after the entry of a judgment in an action and the issue of an execution thereon, the attorney for the plaintiff cannot bind him -by directing the sheriff to make a levy upon the property of a third person, has no application to the case of an attorney procuring an attachment to be issued in the progress of an action and before the entry of judgment therein. (Per Davis, P. J., and Daniels, J.)</p> <p>Averül v. Williams (4 Denio, 895) distinguished.</p>

<p>Appeal from a judgment entered upon the trial of tbis action bj the court without a jury.</p> <p>The action was brought to obtain a judicial construction of the last will and testament of John McLean, deceased.</p>

This action was brought to recover the value of certain materials furnished to the department of public works under a contract, entered into between the plaintiff and the defendant. The case has already been before the General Term, where a new trial was granted on the ground that evidence offered on the part of defendant had been improperly rejected. (13 S. G. R. N. Y. [6 Hun], 241.)

The action was brought to have three promissory notes made by the plaintiff to his own order adjudged void, on the ground of usury, and to have certain shares of stock transferred by him as collateral thereto surrendered.

<p>Berpori of referee, on passing accounts of receiver — how reviewed — Bule 89.</p> <p>Under the old chancery practice, the report of a referee upon the passage of a receiver’s accounts would only he reviewed upon petition in an independent proceeding. This practice was, however, abrogated by the adoption in 1858 of rule 82, under which, and rule 89 of 1871 and 1874, exceptions to such a report are to be filed within eight days after service of the notice of filing of the report, and the same may be then brought to a hearing at any Special Term thereafter, on notice by any party interested therein.</p>

This action was brought to charge the defendant, as a trustee of the United States Submarine and Torpedo Boat Company, with individual responsibility for a debt of that company, on the ground that said company did not, within twenty days from the 1st day of January, 1870 and 1871, make, file and publish the report required to be so made, filed and published by section 12 of the general manufacturing act of 1848, under which the said company was organized.

<p>Foreclosure of mortgage — Heaevo&r of rents and profits — Assignee in bankruptcy of mortgagor — right of, to money in hands of receiver.</p> <p>The complaint and lis pendens in this action, brought to foreclose a mortgage, were filed September fourth, and one defendant served September sixth. On the eighth the mortgagor filed a petition to be, and on the twenty-third he was declared a bankrupt. On the eleventh the mortgagor was served with a copy of the complaint and notice of motion for appointment of a receiver to collect the rents and profits, pendente lite. On October first a receiver was appointed. The premises having been sold under a decree of foreclosure on the thirteenth of December, and a deficiency having arisen thereon, the plaintiff applied on the twenty-third of March to have the accounts of the receiver passed. TJpon the hearing the court directed the funds in the hands of the receiver, being the amount of the rents collected by him prior to the sale, to be paid over to the assignee in bankruptcy. Held, that this was error; that the assignee took only such interest in the premises as the bankrupt had, and that such interest was subject to the equity existing in favor of the plaintiff to have the receiver appointed.</p>

Tbe surplus, amounting to about $9,000, arose upon the foreclosure of a mortgage, given by John H. Griscom, deceased. The claimants were his widow, three children, and a grandchild.

<p>Code, § 179 — acceptance of draft by, consignee — failure to pay same out of proceeds of consignment — Arrest—fiduciary capacity.</p> <p>Defendant, having in his hands certain malt consigned to him for sale hy the plaintiff, accepted a draft in favor of a third person drawn on him hy the latter on account thereof. Subsequently he sold the malt, hut neglected to pay the draft, which the plaintiff was afterwards compelled to take up. In an action hy the latter to recover the proceeds received upon the sale of the malt, held, that the defendant did not cease to he a factor or agent of the plaintiff upon the acceptance of the draft, and that an order of arrest was properly granted, on the ground that he had received the money in a fiduciary capacity.</p> <p>V. and N. National Bank v. Sprague (52 N. T., 605); German Bernik v. Edwards (53 id., 541) distinguished.</p>

<p>Chap. 86, B. L. of 1813 — Commissioners for opening streets in tlw eity of New York — liability of for expenses and disbursements — Liability of personal representatives — joinder of, in action against city.</p> <p>Under chapter 87 of 1813, authorizing the appointment of commissioners to open and widen streets in the city of New York, such commissioners are jointly' liable for the expenses and disbursements incurred in such proceeding; and in an action by the commissioners against the city to recover the amount thereof, all the commissioners then living and the personal representatives of those who may be then dead must be made parties.</p>

This action was brought to recover damages for the publication in a newspaper, owned and published by the defendant, of certain false and defamatory matter concerning the plaintiff.

<p>8upplementa/ry proceeding — Code, § 292 — Bmmination of non-resident debtor.</p> <p>Under section 292 of the Code a non-resident of this State who had no place of business herein, can only be examined in proceedings supplementary to execution in the county in which the judgment roll was filed.</p> <p>Where, however, he has a place of business within this State he may be examined in the county in which such business is carried on, if a transcript of the judgment has been filed therein and an execution issued thereon.</p>

<p>Appeal by plaintiff from a judgment in favor of defendants, Livermore and Slattery, entered upon the trial of this action by the court at Special Term.</p> <p>Judgment was also given in favor of plaintiff against one. McNamara, another of the parties defendant in said action.</p> <p>The plaintiff was entitled to the undisturbed possession of his property, subject to the right of Livermore to enjoy his property in the usual way, and to dig a proper foundation for his building. This was a lawful act; but il in the exercise of this right he injured the property of the plaintiif, he must respond in damages. {Hay v. Oohoes Co., 2 N. Y., 159; Tremain v. Same, id., 163.) Irrespective of the question of negligence, the liability is absolute, it appearing that the work might have been done without damage to plaintiff’s property. If defendant could not do the work without inflicting the injury, he should have abandoned that mode of using his property, or pay the damages resulting therefrom. {Hay v. The Cohoes Co., 2 N. Y., 161; Lasala v. Holbrook, 4 Paige, 113; Lmribert v. Bessy, Sir T. Raym., 421; Tremaim v. Cohoes Co., 2 N. Y., 163; Panton v. Holland, 17 Johns., 92.)</p> <p>The defendant Liver-more having entered into a written contract with the defendant Slat-tery, is not liable for the negligence or carelessness of Slattery, or those employed by him to do the work. (O’ Rourke v. Hart, 7 Bosw., 511; Mg Camus v. The Citizens' Cas Co., 40 Barb., 380; RaddiffFx. v. Mayor, etc., 4 N. Y., 195; Seldenv. The Del. and Hud. Canal Co., 29 id., 642; Williams v. Kenney, 14 Barb., 629; Farrandir. Marshall, 19 id., 380.) Where the defendant, in the exercise of ordinary skill and care, in making an excavation for the improvement of his own lot, had dug so near the foundation of the plaintiff’s house as to cause it to crack and settle, it was held he was not liable for the injury, and that it is the duty of the plaintiff to shore or prop up his own ■ building so as to secure it in the mean time. {Panton v. Holland, 17 Johns., 92; Lasala v. Holbrook, 4 Paige, 169, approved; Lotman v. Milks, 21 N. Y., 514.) Where work is done under a contract, and an injury to the individual occurs from the acts or negligence of the servants of the contractor, the owner of the building is not responsible, unless the work itself is a nuisance or the necessary result of the contract itself. {Blalce v. Ferris, 5 N. Y., 48 ; Yanderjoool v. Husson, 28 Barb., 196; MoCamus v. Citizens Gas Co., 40 Barb., 280; Creed v. Hartman, 29 N. Y., 591; Osborn v. Union Ferry Co., 53 Barb., 629.) The evidence shows that the blasting was not a nuisance, but could have been done without injury to the plaintiff. In such cases defendant is not liable. (Marvin v. Brewster Iron Mining Oo., 55 N. Y., opin. by Mr. Justice Folgkeb, 556, 557, 561; Losee v. BucJuman et al., 51 N. Y.; opin. by Eabl, C., 479; Kelly v. Mayor, 11 N. Y., 432; Gardner v. Bermett, Gen. Term Superior Court.)</p> <p>The injury having been done by the carelessness of McNamara, and not necessarily resulting from the performance of the contract, and Slattery having no control over the work or its manner of performance while the injuries were sustained, is not liable. {Blake v. Ferris, 5 N. Y., 48; Stevens v. Armstrong, 2 Seld., 435; Pack v. The Mayor, etc., 4 id., 222; Blackwell v. Wiswall, 24 Barb., 355; Kelly v. The Mayor, 1 Kern., 432; Gourdier v. Oormaok, 2 E. D. S., 254; McCafferty v. Th-e Spuyten Duyvil It. It. Go., 61 N. Y., 178.)</p>

ApplicatioN by the Gilbert Elevated Railway Company to procure the appointment of commissioners to condemn certain parcels of property, alleged to be essential for the construction and operation of their road, situated in South Fifth avenue, between Amity street and Amity lane.

<p>Common carrier — limitation of liability — contract foi' — when given on demand for a receipt only — ineffectual.</p> <p>A daughter of the plaintiff, in company with another young girl, delivered a check for a trunk to the clerk of the transfer company at its office in New York, with directions to transport the same to her house at Brooklyn. She then turned away and was leaving the office, but upon the suggestion of her companion that she ought to have a receipt she returned to the desk and demanded a receipt of the clerk, who thereupon delivered to her a receipt by which it was, among otter things, stipulated that the company should not he liable to an amount exceeding $100 unless a special contract was made. She did not read the receipt or know its contents until alter the loss of the trunk. In an action to recover the value of the trunk, held, that she never assented to the terms of the contract limiting the liability of the company, and that she was entitled to recover the full value of the trunk.</p>

MotioN by tbe defendant for a new trial, under section 268 of the Code, after a decision made in this action directing an accounting preparatory to the entry of a final judgment. The action was brought by the administrators of Frances Grout, deceased, to recover the rents, issues and profits of certain premises which were alleged to have been wrongfully received by the defendant, who was the widow of one Joseph Marshall, the father of the said Frances Grout.

This action was brought to recover the costs and fees of the plaintiff, as one of the commissioners of estimate and assessment, “ in the matter of opening of Sixty-fifth street from Third avenue to the East river.” The only question brought up by the appeal was, whether the complaint should have alleged that the commissioners’ report was confirmed by the court.

<p>Contract — refusal to perform — when it constitutes a breach— Customary mode of payment — deportare from — notice of — Neglect to pay money into court, after tender — party changed with interest and costs.</p> <p>To entitle a party to maintain an action for a breach, of a contract on the ground that the other party has, before the arrival of the time therein designated for the performance of the acts therein provided for, refused to perform the same, it must be shown, unless the refusal has been actedjm. that such refusal was positive and was persisted in down to the time when the performance should have been made or tendered, or that the party had rendered himself unable to perforin the contract on his part.</p> <p>Where parties to a contract have modified or given a practical construction to its terms — e. g., as to the manner and place of making payments thereunder — such modification or construction continues binding upon them, until one or the other refuses to extend it further and communicates that conclusion to the other party.</p> <p>Where a party, after making a tender, neglects to pay the same into court, he is liable for interest thereon together with the costs of the action.</p>

<p>Sureties — extension of time — when liability not affected by.</p> <p>An. action having been commenced, to foreclose a mortgage upon premises in the possession of the mortgagor, a bond was, on the 28th of November, 1873,’ given by him with two sureties, conditioned for the payment by him of a monthly rent of $1,600, payable on the first of December and on the first of each succeeding month. On the 24th of January, 1874, an agreement was made by which he withdrew his answer in the foreclosure action and agreed that judgment might be taken on May 16, 1874.</p> <p>In an action to recover the installments falling due December first and January' first, the sureties claimed that the time of payment had been extended without their consent, and that they were thereby released. Held, that as the installments were due at the time the agreement was made, and as it related only to the mortgage debt itself, that then- liability was in no way affected thereby.</p>

The affidavit of the plaintiff, upon which the order was granted, sets forth “that she is the plaintiff in this action, which action has been -commenced to recover the sum of $3,800 damages, sustained by deponent from the false and fraudulent representations of the above named defendant, as hereafter set forth. “ That, on or before the 1st day of April, 18Tf, defendant proposed to this deponent an exchange of a mortgage of $3,500, which he held upon certain property in…

, thrown in the stream by defendant, a mill owner higher up on the same stream. The change of the plaintiff’s water mill to a steam mill, does not change the rule of law in reference to his right to throw the sawdust into the stream.

<p>Town bonds in aid of B. B. Go. — collection of tax for payment of— right of tax-payer to maintain action to restrain its being paid oner — chap. 161 of 1872.</p> <p>Where a hoard oí supervisors have directed a tax to be levied and collected, for the purpose of paying interest upon town bonds issued in aid of a railroad company, which bonds the Court of Appeals have declared to bo invalid and void, a tax-paver of the town may maintain an action under chapter 161 of 1872 — providing for the maintenance of actions by tax-payers to prevent waste or injury to the funds of the county— to restrain the collector of the town from paying over to the railroad commissioners the moneys in his hands, arising from the collection of the said illegal tax.</p> <p>Ayers v. Lawrence (59 N. y., 192) followed; Kitbourne v. St. John (59 id., 21) distinguished.</p>

<p>Bill of lacking — transfer of, as security for draft — title to goo As shipped — Faetcn's' act — chap. 179 of 1880— Usury — State Banks — chap. 168 <?/1870.</p> <p>G-. & H., commission merchants at Chicago, purchased certain Chicago wheat for one F., amerchant doing "business at Búllalo, and took a bill of lading therefor to their own order addressed to the care of F. or his assigns. Q-. & H. having no funds of F. in their hands, procured a bank in Chicago to discount a draft drawn by them on F. for the price of the wheat, and to secure the payment thereof annexed thereto the bill of lading indorsed by them in blank. The draft, with the bill of lading annexed, having been forwarded to the plaintiff for collection, an agreement was entered into between the plaintiff and 3ST. while the wheat was still in transit, by which the former discounted a note of the latter ,to enable him to pay the draft drawn against him, and N. to secure the payment thereof, transferred the bill of lading of the wheat to the plaintiff. Held, that the latter thereby acquired the legal title to the wheat.mentioned in the bill of lading.</p> <p>F. subsequently procured the master of two canal boats to execute and deliver to him two bills of lading, one for 7,600 and one for 7,400 bushels of Milwaukee wheat, stated to have been loaded on the boats consigned to the defendant in Few York, who thereafter in good faith, and relying upon the said bills of lading, discounted two drafts drawn by F. on account thereof. At the time of the making and discounting of the bill no such wheat had been delivered on the boats, nor was such in possession of N., nor were they made with reference to the Chicago wheat which had not yet arrived at Buffalo. After the arrival of the Chicago wheat, N., without the knowledge of the plaintiff, procured the same to be loaded upon thesaidcanal boats and sent to the' defendants, who thereafter sold the same with full notice of the claim of the plaintiff thereto.</p> <p>Held, (1) that the defendants were liable to the plaintiff for a conversion of the wheat; (3) that the case did not come within the “ factors’ act,” chapter 179 of 1830.</p> <p>Since the passage of chapter 163 of 1870 the only forfeiture imposed upon the banks of this State for the taking of usurious interest, is the loss of twice the amount of the excessive interest.</p>

The defendant was intermediate consignee or agent of Eish, Ellison & Co. to tranship the flour at Albany, and to see to collection of freight for said firm, and was under no obligation to pay plaintiff his freight. (Abbott on Shipping, 414, 415, 416, 421, 423; Adds, on Cont., 486; Oole-mamv.

<p>Marine insurance — actual as distinguished from constructive loss — Abandonment— Written prevails over printed matter in contract— '■‘Memorandum clause”</p> <p>In order to constitute an ‘ actual ” as distinguished from a ‘ constructive ” total loss of a ship, as those terms are used in marine insurance, it must have become a total wreck; the ship must have perished and have ceased to exist as a ship, although fragments of the wreck may remain and may reach the home port.</p> <p>In case of an actual total loss, a notice of abandonment is of no effect; such notice is only necessary when something still exists which is capable of abandonment, and when the insured seeks to convert a partial into a constructive total loss.</p> <p>Where the words “ against actual total loss only ” is written across the margin of a policy of marine insurance, such memorandum being in manuscript, will control such portion of the printed matter as may be in conflict with the limitation thereby imposed.</p> <p>Where a ship insured against “actual total loss only” arrives in port with portions of her cargo, her main-sail uninjured, her standing figging in place, her anchors, chains, masts and spars in place and uninjured, and with portions of her running rigging, held, that the insured could not recover from the underwriters under such policy, even though the ship was injured to more than three-fourths of her value.</p>

<p>Tenant in common — right of to sue co-tenant — 1 S. S., 750, § 9 — Sight of referee to allow amendments to pleadings— Oode, § 173.</p> <p>Under the provisions of 1 Revised Statutes, 750, section 9, authorizing one tenant to maintain an action of account, or for money had and received, against his co-tenant for receiving more than his share of the rents and profits of land, the right of recovery is limited to the proportionate share of the net amount actually received; and no recovery can be bad thereunder for what a co-tenant, who is himself in possession of the land, takes therefrom and applies to his own use.</p> <p>Where, in such a case, the co-tenant in possession of the land rents a portion thereof and occupies the remainder himself, it rests upon the party bringing the action to show the net amount of rent received by the defendant from his tenant; and in the absence of all proof on this subject there is no presumption that the amount thereof is equal to the whole annual value of the premises held in common.</p> <p>Where an action is brought by one tenant in common against his co-tenant, to recover for the use and occupation of an undivided one-third of a certain farm held in common by them, a referee has no power, under section 173 of the Code, to allow the complaint to be so amended upon the trial, as to convert the action into the action for an account or for money had and received authorized by the Bevised Statutes.</p>

The action was brought to recover upon an award of arbitrators, to whom the subject-matter of a suit pending in the Supreme Court was submitted. The award required the defendant to pay tbe plaintiff the sum of thirty-five dollars together with the costs which she had been subjected to in the action.

<p>Appeal from a judgment of the County Court of Monroe county in favor of the plaintiff, entered upon the report of a referee, and from an order denying a motion for a new trial, made upon a case and exceptions.</p>

<p>Removal cf cause to United States courts — act of Ma/rch 2, 1867 — affidcmt required — corporation ccmnot malee — Policy of insurance — limitation of time of bringing action on —when action accrues — Insurable int&rest — mortgage from husband to wife.</p> <p>An application to remove a cause into the United States court, under the act of 1867, on the ground of prejudice and local interest, cannot he made hy a corporation aggregate, for the reason that in such case no affidavit can he made “hy the defendant” as required hy the said act, an affidavit hy the president . of the defendant not being a sufficient compliance therewith.</p> <p>Ctoolce v. The State Rational Bank of Boston (82 2ST. Y., 96) followed.</p> <p>Where one clause of a policy of insurance provided that no action should he sustainable thereon in any court, unless it was commenced within the term of twelve months next after any loss or damage should have occurred, and another clause provided that the loss should not he deemed payable until proofs and declarations and certificates were produced and examination submitted to if required, and that payment of losses should he made sixty days after the loss had been ascertained and proved, held, that the twelve months within which the action must be brought, did not commence to run until the expiration of sixty days after the loss had been ascertained and proved.</p> <p>A bond and mortgage executed by a husband to his wife for a just and valuable consideration, may be enforced in equity, and the wife acquires an equitable interest in the property covered thereby, and may insure the same.</p>

<p>Municipal corporation — Police officers, not agents of — liability of city for acts of— cha/p. 720'o/1871— chap. 308 of 1872.</p> <p>The police officers of a municipal corporation are not to be deemed its servants or agents, in such a sense as to render it responsible foi the damages occasioned to third persons by a failure on their part, to duly and properly discharge the duties imposed upon them.</p> <p>Under chapter 720 of 1871, as amended by chapter 308 of 1872, providing for the ' establishment of a police department in the city of Buffalo, the policemen appointed thereunder are not officers of the city, but are wholly independent thereof and are in no sense its servants or agents.</p> <p>Accordingly Jidd, that where a policeman in the city of Buffalo, while shooting a dog supposed to be mad in one of the public streets of the city, in pursuance of the ordinances thereof, so negligently handled his pistol as to shoot and severely wound the plaintiff, that the city was not liable to the latter for the injuries thereby sustained.</p>

<p>Exoeptions ordered to be heard in the first instance at the General Term, after a nonsuit at the Monroe county Circuit.</p>

This action was brought to recover the value of certain personal property, alleged to have been converted by the defendants. The defendant Mosher justified the taking of the property by virtue of an assessment roll and warrant, issued to him as the collector of the village of Arcade.

The action was brought upon a policy of insurance. The defendant set up as a defense a violation of a condition of the policy, providing that “it be covenanted as a condition of this contract that this company shall not be liable for any loss caused by invasion, * * * nor for any loss arising from the use of open lights in barns or where shavings are made, nor occasioned by the use of kerosene oil, burning fluid or any chemical oil as a light in any barn or outbuilding, or…

<p>Joint owners of personal property — sale of by one to himself — Fraud.</p> <p>The defendant, one of several owners of a canal boat, sought to obtain from his co-owners permission to sell it to one Youngs for $2,500. All except the plaintiff consented, whereupon the defendant sold the boat and gave to each pwner, including the plaintiff, a checff for his share of the $2,500, all of which were paid. At the time of the sale it was agreed "between Youngs and the defendant that the latter should own one-half the boat on paying half the price. Subsequently the boat was sold to other parties for $4,000.</p> <p>The plaintifE having learned of the secret agreement between defendant and Youngs, brought this action to recover his share of the surplus realized by the defendant upon the second sale. Held, that the secret agreement rendered the first sale void, and that plaintifE was entitled to ratify the second sale and sue for his share of the price received thereon.</p> <p>Where one joint owner of personal property assumes, without authority, to sell the interest of other owners, they may repudiate such sale and sue for the conversion of the property, or they may ratify it and sue for their share of the money received.</p>

<p>Policy of insurance — indorsement of consent to violation of condition — power of general agent to waive condition.</p> <p>A policy of insurance issued to tlie plaintiff provided that if the insured premises became and remained vacant for fifteen days, without the consent of the company indorsed upon the policy, it should become void, and it also provided that no officer or agent of the company should be held to have waived any of the terms or conditions thereof, unless such consent were indorsed upon the policy.</p> <p>After the issuing of the policy the plaintiff’s son notified the general agent of the defendant that the house had become vacant, and, upon his consenting that it might remain so, asked if it were necessary that it should be indorsed upon the policy, to which the agent replied that it was not; that he had entered it upon the books of the company, which was all that was necessary. In an action upon the policy to recover for a loss occurring while the house was unoccupied, held, that the general agent of the company had power to, and that he did by his act waive the condition of the policy requiring his consent to be indorsed upon the policy, and that the plaintiff was entitled to recover.</p> <p>A general agent of an insurance company is one who is authorized to accept risks, to agree upon and settle terms of insurance, and to carry them into effect hy issuing and renewing policies.</p>

<p>Mechanic's lien — sale of property during performance of contract— liaM/ity of pw’-chaser — Notice of lien, under chap. 489 of 1873.</p> <p>In March, 1873, the plaintiff entered into a contract with the owners of a hotel to furnish and put therein all the gas and water pipes and all wash-bowls, etc., that might he needed, and in pursuance thereof he commenced to furnish materials and perform work in March, and continued so to do until the contract was fully performed on his part on July nineteenth. On the first of May the property was conveyed to the defendant. On the seventh of August the plaintiff filed a mechanic’s lien against the defendant. Held, that he was not entitled to a lien for so much of the materials and labor as were furnished and performed before the title was acquired by the defendant.</p> <p>Held, further, that the lien only extended to such materials as were furnished and to such labor as was performed within the sixty days, immediately preceding the filing of the notice of lien.</p> <p>Spencer v. Ba/rneit (35 N. Y., 94) followed.</p>

In April, 1866, Merritt C. Bigelow, the plaintiff’s intestate, commenced an action against the defendant to recover damages for a breach of the following contract, which he set out in his complaint: “Attioa, January 23, 1865. “ Know all men by these presents that I, Charles B. Benedict, for and in consideration of the sum of $250, good and lawful money of the United States, to me in hand paid, the receipt of which is hereby acknowledged, do agree to receive from M. C.…

This action was brought by the plaintiff as the indorsee of a promissory note made by the defendants’ testator, O. M. Benedict, and one Lewis Benedict, to Louisa D. Benedict (the wife of said Lewis Benedict), and by Louisa D. Benedict transferred to the plaintiff. The issue arose under a defense setting up the statute of limitations. i

The action was in ejectment to recover possession of certain lands in Elbridge, against the defendants in possession claiming title. After setting ont certain legal defenses to the action the defendants set up an equitable defense and counter-claim, alleging that although the legal title is in the plaintiff, they are entitled to a conveyance from one Squire M. Brown, his heirs and assigns, who took title originally as trustee of the defendants’ assignor, Henry W. Bond.

<p>Appeal from an order of Special Term, directing that a mandamus issue requiring the board of supervisbrs of Cayuga county to allow tbe amount of tbe bill of tbe relator, for services rendered by bim in taking charge of tbe armory at Auburn, New York.</p>

This action was brought to remove a cloud upon the title of land acquired by the plaintiff by descent from her father, and for a partition or. sale of the same. The defendant Lydia Barnhart, the mother of the plaintiff, denied the title of the plaintiff’s father to the land, and gave in evidence a certified copy of a deed of the premises from the plaintiff’s father ,to one Win. F. Hussey, dated March 27,1828, and also set up subsequent titles acquired by herself.

Wed? of error to the Court of Sessions of Jefferson county, to review the conviction of the plaintiff in error of a violation of the excise law.

This was an action of trover, brought for the conversion of certain personal property consisting of a boiler, machinery, brick, etc., put into the mill of one Converse, of which property the plaintiffs claimed to be the owners, and which defendant converted to his own use. On the trial before the referee to whom the issues in said cause were referred for trial, judgment was ordered for the defendant with costs, and from it the plaintiff appeals.

Tbe action was brought to recover damages for tbe alleged negligent killing of tbe plaintiff’s intestate who was an employe of tbe defendant. In pursuance of instructions given to him the plaintiff’s intestate crawled' under one of a train of cars standing on what were called tbe repair tracks at Suspension Bridge, in order to repair tbe same.

The action was in ejectment for the recovery of certain real estate in the counties of Ontario and Monroe.

This action was brought by the plaintiffs as judgment creditors of the defendant Clinton Eldredge, for the purpose of collecting their respective judgments, recovered in 1870, upon prior judgments recovered in 1856, out of property alleged to have been fraudulently transferred by the judgment debtor to the defendants Moyer, in 1858. The defendant Eldredge did not appear.

<p>Concealment of will by heir — 1 JR. 8., 749, § 8 — rights of bona fide purchaser from heirs, in ignoi'ance of will — •Bale of infants real estate — jurisdiction of Court of Chancery — execution of power.</p> <p>That portion of section 3 of 1 Revised Statutes, 749, which provides that where a will or codicil containing a devise shall have been concealed by the heirs of the testator, or some one of them, the limitation contained in that section shall not commence until after the expiration of one year from the time when such will or codicil shall have been delivered to the devisee, or his representatives, or to the proper surrogate, applies only to cases of concealment which leave the devisees in ignorance of the will and of their rights under it, and not to cases in which the will has come to the knowledge and possession of the devisees, or of those representing them, and is afterwards stolen or taken from them surreptitiously and secreted or destroyed.</p> <p>In 1886, the plaintiffs’ testator died leaving a last will and testament, by which he devised a life estate in certain premises to his wife, with remainder to his two sons, the plaintiffs herein. In the early part of 1841, one of the plaintiffs clandestinely removed the said will from his mother’s trunk and concealed the same until 1855, when it was presented to the surrogate for probate. In the year 1841, proceedings were instituted in the Court of Chancery for the sale of the interests of the four minor children of the testator in the said premises, no mention being made therein of said will, and, in pursuance of an order of that court, the same were conveyed by the guardian of the infants and by the widow to one Sherman, who was a bona fide purchaser without notice of the will. The widow having died, this action was brought by the plaintiffs as devisees under the will to recover the premises from the defendants, who claimed the same as grantees of Sherman. Held, that this was not a case of the concealment of a. will, provided for in the exception to said section 3, and that, as the will was not recorded within four years after the death of the testator, the title of the defendants was not defeated thereby.</p> <p>By the will, the testator appointed his wife executrix thereof, and authorized her to sell and dispose of the real estate, if necessary, for the support and maintenance of the children. Held, that her joining with the guardian of the minor children, in the deed of bargain and sale, delivered to the purchaser, must be deemed a valid execution of the power of sale conferred by the will. (Per Learned, P. J., and Boardman, J.)</p> <p>In proceedings instituted in the Court of Chancery, under the provisions of the Revised Statutes, relating to the sale of .the real estate of infants, it is not necessary that the infants themselves should join in the petition, it is sufficient if the application be made by their next friend or guardian.</p> <p>Where the order made in such proceedings requires the conveyance to be executed by the guardian in his own name and not in that oí the infants, and a deed is accordingly made in compliance with the terms of such order, such deed is valid and effectual to pass the title of the infants.</p>

This action is brought to recover for the alleged conversion of two notes, made by the defendant, payable to the order of the plaintiff, delivered to him and claimed to be his. There was no person liable on the notes other than the defendant. The recovery is for the full amount of the notes, $223.50.

The chamberlain of the city of Troy issued his warrant to the defendant, a constable, directing the collection of an assessment made against the plaintiff for the constraction of a sewer in said city. Under such warrant the defendant levied upon a span of horses belonging to the plaintiff, whereupon the latter replevied the property. The defendant justified his action under the assessment proceedings and warrant.

The action was brought for a partition of certain lands, and the only question disputed upon the trial and passed upon by the General Term, relates to the validity of a devise of certain real estate made by one Abraham Dawson, deceased, he being an alien resident of this State at the time of acquiring the land, and of making the will by which the same was devised to the plaintiff.

The action was brought by the plaintiff, a widow, to recover damage's for the seduction of her daughter by the defendant, while she was working as a servant in his house. The principal question considered at the General Term relates to that portion of the charge, which allowed the plaintiff to recover compensation for taking care of her daughter’s illegitimate child.

<p>Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.</p> <p>The action was brought by the plaintiff, who had been appointed the receiver of the defendant William Smith in proceedings supplementary to execution, to set aside, as fraudulent, a conveyance of certain land made by the defendant Smith to his wife.</p>

This was an action to recover damages caused by a nuisance. The plaintiff, in 1874, kept a boarding-house, near which ran a small natural stream. The defendant kept a boarding-house higher up on the same stream, and about a mile and a-half distant, and the sewer from his house ran into this stream. He had not more than forty guests. A large number of other hotels and'boarding-houses also discharged their sewers into this stream, before it reached, plaintiff’s land.

The action was brought in a Justice’s Court to recover damages occasioned by the negligence and carelessness of the defendant, in discharging the waste and surplus waters from his lot upon that of the plaintiff. The defendant interposed a general denial.

Akpeai from a judgment in favor of the defendant, entered upon the report of a referee. The action was brought upon two policies of insurance issued by the defendant. The only question passed upon by the General Term, related to the effect of a clause contained in each of the policies, providing that no action should be sustained thereon, unless commenced within twelve months next after the loss. This action was not commenced until nearly three years after the loss.

The action was brought to recover damages for an injury to the plaintiff’s horse, received while crossing over the tracks of the defendant’s railroad, where it crosses Second street, in the city of Troy.

This action was brought to recover the sum of $1,940.74 and interest, which the plaintiff claims the defendant unlawfully retained as late county treasurer of the county of Delaware. The defendant was county treasurer of said county for nine successive years, commencing January 1, 1861, and ending December 31, 1869.

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

The judgment was entered in the above entitled action in the Supreme Court for $132.01 damages and costs, on the second day of April, 1867; execution was issued tbereon to the sheriff of Albany county on the fifth day of July, 1867, and was on the same day delivered to the under-sheriff of the county.

The action was brought under the civil damage act, chapter 646 of 1873. The plaintiff was nonsuited, on the ground that the evidence failed to show that the plaintiff had been injured in his property, person or means of support by reason of the injury sustained by his wife.

This action was brought by the plaintiff to restrain the collection of an assessment, imposed upon a house and lot owned by him, for the repaving of Broadway, in the city of Troy, with granite block pavement.

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

This action was brought to set aside a statutory mortgage foreclosure and redeem the mortgaged premises, and also to set aside a contract for the sale of the same premises. It was commenced in 1858, and has been tried three times. The first time before Hon. A. Bocees, referee, on which trial the plaintiff was nonsuited. The judgment on his report was affirmed at General Term and reversed by a divided court in the Court of Appeals.

<p>Conditional sale —forfeiture — demcmd.</p> <p>This was an action of replevin to recover a machine for clipping horses, sold tc the defendant upon the condition that he should pay monthly a royalty of one dollar for each horse clipped with it, under penalty of forfeiting the machine. July first a demand for the royalties then due and for the machine was made. Subsequently plaintiff took defendant’s check, post-dated several days, for the amount due, which was never paid.</p> <p>This action was commenced without any return of the check and without any further demand. Held, that the complaint was properly dismissed; that after the taking of the check a new demand was necessary.</p>

Appeal by plaintiff from a judgment in his favor, entered on the report of a referee, for six dollars damages, it being claimed by the plaintiff that the damages should have been much greater.

The action was brought under chapter 646 of 1873, for damages sustained by the plaintiff in consequence of the intoxication of his minor son. The plaintiff is a farmer residing in St. Lawrence county. George B. Yolans, his only son, born in 1854, lived with his father and assisted him in carrying on the farm. On the 19th of September, 1874, the son went to Ogdensburgh, and went from one bar to another drinking intoxicating liquors, and drank twice at defendants’ bar.

This was an action to recover the amount of two bills of exchange, drawn by one Horace Loveland in his own name, on the defendant, who resided at Whitehall in the county of Washington, for $1,000 each, and discounted by the plaintiff, a banking corporation duly organized under the laws of the Dominion of Canada.

The action was brought to set aside as fraudulent a judgment obtained by the defendants Richardson, Carpenter and Topping against the defendant Gilbert, on the ground that Gilbert had admitted service of the summons in the action in which the judgment was entered, as of a date prior to the day of actual service thereof.

, and ordering that a fine. of $118.36 be imposed upon him, to be paid by him to the plaintiff or his attorney, to indemnify the said plaintiff for his loss and injury occasioned by the misconduct of the defendant, and that he pay the further sum of forty-four dollars to the plaintiff’s attorney for his costs and disbursements in the matter, and that he stand committed until the said fine be paid.

The action was brought to recover damages sustained in consequence of the wrongful act of the defendant, in cutting and carrying away certain logs and trees from the lands of the plaintiff.

Controversy submitted without action under section 372 of the Code.

Roue appeals from orders made at the Special Term, and four motions on the part of respondents to dismiss the said appeals. This action was originally commenced by the deceased, John L. Brown, on a claim, on which, after his death, William A. Sea ver, as his special administrator and successor in the action, recovered a judgment of $111,492.14.

A. Keteltas, deceased, to pay to the respondent $5,000, as a portion of her distributive share of the estate of the deceased, in proceedings instituted under sections 82 and 83 of 2 Revised Statutes (Edm. ed.), page 102.

Appeal on the part o± the defendant Donelly, from a judgment entered upon the trial of this action at the Special Term. The facts are stated in the opinion of the court.

<p>Illegal assessment — how corrected — review of, wpon certiora/ri.</p> <p>Where the commissioners of taxes and assessments of the county of New York return to a writ of certiorari, issued to review an illegal assessment, that the assessment rolls and papers relating thereto have passed out of their hands, and been filed in the office of the comptroller of the city, and are then under his charge, the writ should be quashed as to them.</p> <p>Nor can a judgment be pronounced in such a case, requiring the comptroller to correct the records in his office.</p> <p>The proper remedy in such a case is to bring an action against the city to have the assessment vacated, the tax declared illegal, and to restrain the enforcement thereof.</p>

<p>Appeal from an order of the Special Term vacating an assessment.</p>

The complaint alleged that the plaintiff, while traveling on the defendant’s railroad, alighted from the cars of the defendant at Medford station, upon the platform adjoining said station belonging to and in charge of defendant.

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

The action was brought to procure a divorce on the ground of adultery. The defendant, claiming to have been divorced from the plaintiff by a judgment duly obtained by him in the State of Louisiana, subsequently married again, whereupon his first wife brought this action to procure a divorce.

No judgment can be entered against a party until all issues raised by him have been decided. (McMahon v. Allen, 2Y Barb., 385; Y Abb., 1; Bellmcup v. McIntyre, 2 id., 366; Masters v. Barnard, 6 How., 113; Sutherland v. Tyler, 11 id., 251.) It is in pursuance of this rule that where one of several defendants is in default, the plaintiff is obliged to wait until a decision is rendered upon his claim against all the other defendants before he can enter any judgment.

Appeals from a judgment entered at the Special Term, decreeing that the trust created in and by the last will and testament of George Lesley, deceased, is valid and legal, as a trust of real and personal property.

The company were incorporated to mine and vend coal. This implies the acquisition of it. If the certificate does not imply a power to purchase, it does not prohibit it. The present doctrine in England is, that if it is not made out that the act of incorporation prohibits the contract, it must be enforced.

<p>Carrying on business, under na/me of person not interested in firm — illegality of— Contract — Tiow affected by — Dissolution of partnership— 3 S. S. (5th ed.), 978, § 43.</p> <p>In this action brought by tbe plaintiff to recover damages for injuries to a carriage, transported by defendant from Buffalo to New York, be was nonsuited on tbe ground that be carried on' business under tbe name of Wood Bros., although no other person was interested therein. By the bill of lading tbe carriage, which was marked “Wood Bros.,” was to be delivered in New York “to the party entitled to the same.”</p> <p>Held, that as the plaintiff was in fact the owner of the carriage, he was entitled to claim the same at New York, and that the fact that he was carrying on business in a manner forbidden by the laws of this State, did not relieve the defendant from fulfilling the contract of carriage it had entered into with him.</p> <p>Where, upon the dissolution of a partnership, one partner continues the business under the old name, the statutory prohibition (3 R. S. [5th ed.], 978, § 43) does not apply until such partnership has been dissolved as to third persons as well as between the partners themselves. In the absence of any evidence upon the subject, it cannot be presumed that the public, notice required to dissolve the firm as to persons having knowledge of its existence, was duly given.</p>

<p>Certiorari to review tbe proceedings of tbe respondents, in taxing tbe shares owned in the capital stock of tbe relator.</p>

<p>Memorandum of sale — when the real agreement ma/y he shown though at va/rianee with it.</p> <p>This action was brought to recover the possession of certain personal property, delivered to the defendant’s intestate upon the agreement that he should sell the same within sixty days for a certain price, and pay over to the plaintiffs the amount received therefor, and in case he failed to effect such sale, that he should return the property to them. Upon the trial the defendant produced an unsigned memorandum given by the plaintiff at the time of delivering the goods, by wliicli it appeared that the goods were sold to the intestate upon a credit of sixty days. Held, that the plaintiff was not thereby precluded from showing the tnie natwe of the transaction, even though it differed from the statement which they had made of it by their written admission.</p> <p>Burgin v. Ireland (14 N. Y., 822) and Bonesteel v. Flack (41 Barb., 485) distinguished.</p>

<p>Motion for a new trial by plaintiff, on exceptions ordered to be beard in tbe first instance at tbe General . Term, after a nonsuit ordered by tbe court.</p> <p>Tbe action was for money loaned by plaintiff to defendant.</p>

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

This was a reference under the statute, of a claim of Thomas P. Somerville against the estate of Charles J. Peterson, deceased, for professional services alleged to have been rendered to deceased as his attorney and counsel. The administrators having rejected the claim, it was by' agreement referred. The referee reported in favor of plaintiff in the sum of $322.75.

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

<p>Municipal corporation — liability of, for damages occasioned by defective awnings in street — its duty as to.</p> <p>Under the provisions of the Montgomerie charter and of chapter 8& of 1813, the common council of the city of New York were authorized to pass ordinances regulating the erection of awnings in the public streets, and an awning erected in pursuance of, and in compliance with the provision thereof, is not an unlawful structure.</p> <p>An ordinance required all awnings to he constructed in compliance with the provisions thereof, and under the direction of the street commissioner. An awning was constructed in substantial compliance with the ordinance, but without the permission of the street commissioner.' Held, that the fact that the awning was allowed to remain undisturbed for a period of nearly seven years, without any dissent on the part of that officer or of any of the other public authorities, dispensed with the necessity of procuring the permission of the street commissioner, and that the structure was a lawful one.</p> <p>Semble, that where knowledge of the existence of unlawful structures in the public streets is brought home to the corporate authorities, it is their duty to remove tile same, and in case of their failure so to do, the corporation is liable to a third person for the damages arising from an injury occasioned thereby.</p> <p>An awning was erected by the occupant of a store in the city of New York, resting upon rafters, one end of which was supported by a rail sustained by a row of posts at the curbstone, the other being nailed to a cleat on the face of the building. Nearly seven years after its erection a portion of the awning, owing to an accumulation of snow thereon, fell and struck the plaintiff, who was standing thereunder. Shortly before the accident the post which supported the portion of the awning which fell had been struck and injured by a fire engine, but had thereafter been thoroughly repaired. Upon the trial it was insisted that the construction of the awning was negligent and defective; in that the ends of the rafters should have been fastened to the beams of the building, or have rested upon the cleat, instead of being simply nailed thereto.</p> <p>Held (1), that the fact that the awning had proved itself capable of sustaining the burden to which it was subjected for nearly seven years, and had then yielded at a point where its strength had been impaired by an accident, was conclusive in favor of the security of its construction.</p> <p>Held, further, that even if there were any d.efect in the construction of the awning, it was not of such a character as that negligence or carelessness could be imputed to the officers of the defendant for their failure to detect the same.</p>

The action was brought against the defendants, coroners of the city of New York, to recover the value of certain cases of silverware. The property had been seized by the sheriff under an execution against one Olney. While it was in his hands one Hodges commenced an action of replevin to recover the same, in which the property was taken by the defendants.

<p>Insurance companies — preferences in contemplation of insolvency — 2 iB' S. \5t7i edi\, 526, § 54 — id., 519, §§ 9, 10' — Motive of directors immaterial — Damages.</p> <p>An insurance company, incorporated under the general laws of this State relating thereto, became involved in consequence of heavy losses sustained in the Chicago fire. Subsequently a resolution was adopted directing the reinsurance of all policies issued from its home office, not including agency policies, until such time as a satisfactory adjustment of its Chicago losses could be made, and such reinsurance was accordingly effected by the payment of $40,000 to the company reinsuring said policies. At the time of this agreement- the company was in fact insolvent, although this was not then known to the directors. Held, that such reinsurance was a violation of the provisions of the Revised Statutes (2 R. S. [5th ed.], 519, §§ 9,10) prohibiting the transfer of the effects of a corporation in contemplation of insolvency, with intent to give a preference to any particular creditor, and that the directors of the company were personally liable to the holders of policies not covered by such reinsurance, to the extent of the loss sustained by them in consequence thereof.</p> <p>The defendants insisted that the action could not be maintained for the reason that the contract for reinsurance was void, because made with a New Jersey corporation, which had not complied with the laws of this State so as to entitle it to transact business within it.</p> <p>Held, that as the New Jersey company had fully executed and performed the agreement on its part, by paying all losses arising on risks reinsured by it, this defense was properly overruled.</p> <p>Held, further, that the fact that the directors, in contemplation of the company’s insolvency, entered into the agreement in good faith, under the belief that they were acting for the best interests of the corporation, and that neither the policyholders nor creditors would be prejudiced thereby, did not relieve them from their statutory liability.</p> <p>In an action by the receiver of the insolvent corporation against the directors thereof to enforce the liability imposed upon them by the statute, held, that there should be deducted from the $40,000 paid for reinsurance, the sum which the receiver would have been obliged to pay to the holders of the reinsured policies under which losses had occurred.</p>

The action was commenced on the 21st of March, 1876, by the service of a summons for money. On the twenty-second of March an order of arrest was granted upon affidavit, and on the twenty-sixth of April the complaint was served.

The action was brought to recover the amount claimed to be due to the plaintiff, under a contract for lighting certain- streets in the city of New York. The defendants alleged that the plaintiff had presented its claim to the board of audit created by chapter 9 of 1872, and that the amount allowed by the said board had been tendered to and rejected by the plaintiff.