Volume 17 — New York Reports

The plaintiffs brought their action, as judgment creditors of Waterman, to have set aside, as fraudulent and void, a judgment confessed August 25th, 1851, by Waterman to the defendants, J. & G-.

Action for the wrongful detention of personal property. The defendant justified, as sheriff of Albany county, under a judgment and execution against one William A. Allen. On the trial, at the Albany circuit, before Mr. Justice Wright and a jury, the plaintiff made title to the goods in question under a general assignment, made to him by Allen, of all the property of the latter, in trust for the payment of his debts.

The action was by-judgment creditors of Marquardt, to procure the setting aside, as fraudulent and void, of an assignment executed by Marquardt to the defendant Judson. The cause was tried before a justice of the Supreme Court, without a jury.

The defendants, who are the same in both actions, are the heirs of Nicholas W. Stuyvesant. They claimed title to a triangular piece of ground lying between the Bowery, Third-avenue and Seventh-street in the city of New-York, which had been laid out and opened as a public place, called Stuyvesant-square.

The action was against John Hollister as indorser of a promissory note, made by F. Hollister, April 6th, 1851, for the payment of $2750, one year after date, at the Bank of Utica. The trial was had at the Onondaga Circuit, before Mr. Justice Allen, without a jury.

In 1846 the Southern Life Insurance and Trust Company, a corporation created under the laws of Florida, filed a bill in the late Court of Chancery, for the purpose of procuring an account and restitution of the proceeds of certain securities which its president had assigned, in 1840 and 1841, to the defendants in the city of New-York, upon usurious loans' obtained from them for the benefit of the corporation.

The action was for slander, in charging that the plaintiff had been guilty of lewd and unchaste conduct, alleging special damage.

The action was in the nature of a quo warranto, brought by the attorney-general to test the conflicting claims of Charles Devlin, the relator, and Daniel D. Conover, the defendant, to the office of street commissioner under the charter of the city of New-York. The titles of both having been set forth in the complaint, the defendant demurred, and had judgment in his favor at the special term.

The complaint was for the wrongful taking and conversion of certain goods and chattels, the property of the plaintiff; and also certain other goods and chattels, the property of William S. Pendleton, which was afterwards transferred to the plaintiff, with the right of action for the taking and disposing thereof.

The action' was for the redemption of certain premises in the city of Syracuse, mortgaged to Philo D. Mickles. The trial was before a referee, who found that the mortgaged premises were, in 1840, conveyed to Philo D. Mickles by one Fitch. There was then outstanding a mortgage upon the premises, executed by Fitch to David Hall.

The plaintiff, as owner and holder of a promissory note made by a cotton manufacturing company incorporated under the general act (Laws of 1811, ch. 67), brought this action against the defendant, as a stockholder at the time of its dissolution, to enforce his individual liability under section seven of said act. The issue was upon the defendant’s being a stockholder at the time of dissolution, and it was tried at the Schenectady circuit, before Justice Cady, without a jury.

Action upon a promissory note against the maker and indorser. The indorser alone answered the complaint. The trial was at the New-York circuit, before Mr. Justice Mitchell, without a jury.

The complaint charged! that the defendant, having the care and control of the public streets within the limits of the city of Utica, caused a sewer ■ to be excavated in Genesee-street, and carelessly left and permitted the excavation to remain open in the night-time, ■ without any guard, barrier or protection to keep travelers from falling therein, and without any lamps or lights to enable passengers to discover the danger, by reason of which negligence the plaintiff drove a…

The action in the Supreme Court was brought to recover damages for the breach of a written contract by which the plaintiff undertook to grade and pave a portion of Onondaga-street in the city of Syracuse, to the distance of one hundred rods at certain prices per foot for excavation and pavement, which, the defendant agreed to pay.

Whit of error to the Supreme Court. The plaintiff in error was indicted, in November, 1856, for the larceny of pig iron. He was tried, at the Erie Oyer and Terminer, in December, 1856, and acquitted, on the ground that the offence was not larceny but embezzlement.

Action for a specific performance of a contract for the sale of land.

<p>Evidence of the arrest, by a policeman, of the driver of a car which had run against and injured a woman, is not admissible in an action against the driver’s employer for negligence in causing the injury.</p> <p>The declaration of the driver after the accident had occurred and the car had been stopped, but before he had left it, that he could not stop the car because the brakes were out of order, is mere hearsay, and not admissible in evidence against his employer.</p>

The action was to recover damages for an inj ury sustained by the plaintiff, while riding upon a gravel train, in consequence of the alleged negligence of the defendant’s engineer in running the train into Spuyten Duyvel creek. The answer alleged that the plaintiff, at the time of the accident, was a servant of the defendant and was upon the gravel train in the usual and regular course of his employment. Upon the trial it was proved that the plaintiff lived in New-York city.

<p>The act (ch. 405 of 1857) to reorganize the wardens’ office of the port of New-York is constitutional. The fact that the duties of the wardens involve the examination of vessels and cargoes does not bring their office within the meaning or policy of the constitutional prohibition against creating any offices for the inspection, weighing, &c., of merchandize. The prohibition is against public officers for testing the quantity and quality of articles with a view to the security of traffic in them.</p> <p>The object of the act is to provide competent and independent officers to collect and perpetuate testimony in respect to the condition, &c., of vessels and their cargoes, for the guidance of parties interested, so far as they may voluntarily act thereupon, or may be justified or required so to do by the law governing the-case; but the act does not give any effect to such testimony as evidence.</p> <p>It is a violation of the act for any other than the port wardens to perform any of the duties prescribed for them thereby, although the port wardens have not been requested to act in the case.</p> <p>The act does not prohibit any person interested in a vessel or cargo from procuring an examination thereof, for his own information or benefit, by any agent he may select. _</p> <p>Where, however, a firm, being the consignees and ship’s husbands of a vessel and cargo in a damaged condition, procured persons not port wardens to make surveys and issue certificates thereof, and it was admitted that the services were “ not exclusively for the information of the parties by whom they were procured, or of any one in particular for whom they acted as agents,” and that the certificates were intended to perform, as the certificates of private persons not professing to be port wardens, an office like to that which would have been performed by certificates issued by the port wardens; Süd, a violation of the law.</p> <p>It is only where the general language of a prohibition leaves it doubtful whether a particular thing is embraced, that the exception of another thing of a similar kind, is to be construed as showing that the first was intended to be included.</p>

The complaint, after stating that the plaintiff is the widow and personal representative of Sharon Sherman, deceased, the character of the plaintiff as administratrix, and the corporate character and business of the defendants, states that the deceased, at the time, &c., was in the employment of the defendants, for hire, as a brakeman, and was charged with the duty of applying the brakes as often as he should be signalled to do so by the engineer or conductor, and was bound…

Appeal by the plaintiff from an order of the Supreme court at a general term vacating a judgment. On the 15th of August, 1850, the defendant Stephen D. Dillaye executed to Freeman M. Edson a bond and mortgage to secure $1500 with interest, which mortgage was duly recorded the next day, and on the thirtieth of September following the bond and mortgage were assigned to the plaintiff.

The action was ejectment, brought in 1844 to recover a lot in the city of New-York. Upon the trial, the plaintiffs made title, as the heirs of John McGregor, under a conveyance from the commissioners of forfeiture, of the land in question, as having been forfeited to the people of this state, by the attainder of James De Lancey, to a purchaser who conveyed to their ancestor in 1795.

The complaint was for work done and materials furnished upon the land of the defendant, at his request, to the value of $2295. 60. The answer averred that the work done and materials furnished, with the exception of $295.60 charged for extra work and materials, were furnished and done under two agreements therefor, executed by the parties under seal. These were set out in the answer.

. Appeal from the Superior Court of New-York city. The complaint was for a libel upon the plaintiff an examiner and inspector of drugs for the port of New-York, under the appointment of the secretary of the treasury.

The action was upon a policy of insurance against damage by fire, issued by the defendant, upon the plaintiffs’ printing and book materials, stock, paper and stereotype plates and printed books, contained in certain buildings in the city of New-York, therein described, “ and privileged for a printing office, bindery and bookstore, also for a steam-boiler in the yard.” The policy contained provisions that “if the premises should at any time be altered, appropriated, applied…

The action was upon a policy whereby the defendant insured the plaintiff “ against loss or damage by fire, to the amount of $1,000 on his stock in trade, as a manufacturer of brass clock works.” The defence was that the plaintiff, in violation of the conditions of the policy, used and kept saltpetre, turpentine and other combustible fluids and materials in the building containing the goods and merchandise insured, without the special consent of the defendants or their agent,…

The plaintiff Hull brought his action against Carnley, sheriff of New-York, for levying upon and selling certain lithographic presses and stones.

The complaint was for the conversion by the defendant, a banking corporation doing business in the city of New-York, of a bill of exchange dated Oct., 38, 1854, drawn upon the defendant by H. J. Miner a banker at Fredonia, Chautauque county, for the sum of $242.78 payable to Charles F. Graves or order at sight. The trial was at the Chautauque Circuit before Mr. Justice Bowen, a trial by jury having been waived.

The plaintiff Mead, in 1843, was the owner in fee simple as tenant in common with Mrs. Ellen Tooker, a widow, of the real estate known as No. 20 South-street, in the city of New-York.

Matilda 0. Livingston, one of the defendants in the action, being an infant more than fourteen years of age, Schuyler Livingston, her father, was, upon her petition, appointed her guardian ad litem, by an order entered October 2, 1856. He appeared and put in the common answer. A judgment was rendered May 5, 1857, directing the sale of the real estate described in the complaint.

The complaint was: “ First. That the defendant is indebted to the plaintiff in the sum of fourteen hundred and twenty-nine and xa~a dollars, for work, labor and services done and performed for the defendant, at his special instance and request, at the city of Buffalo, by the plaintiff and his servants and agents, at divers times between the 8th day of March, 1852, and the commencement of this action, in and about quarrying, dressing, preparing, delivering, putting together…

The bill was drawn by an agent of the defendants for part of the price of a brig, purchased by him as such agent, at Norfolk in Virginia. At the time of the purchase the brig was undergoing repairs at Norfolk, and the vendors to whom the bill was given agreed as a part of the bargain that they would complete them and make the vessel tight, staunch and strong in every respect and perfectly seaworthy. The defence was that this agreement had not been performed.

<p>Appeal from the Supreme Court. The supervisors of the county of Orange having, at their annual meeting in November, 1855, neglected and refused to levy and cause to be collected the sum of $31,668.60, the proportion of said county of the state tax required to be levied by chap. 335 of 1855, the comptroller, in behalf of the people, sued out an alternative mandamus requiring them to reassemble and cause the amount before stated to be'raised, collected and paid into the treasury of the state, with costs of the application and writ, or to show cause why, &c. The supervisors made a return, setting .forth that the act under which the tax in question was required to be levied was in violation of section 13, article 7 of the constitution, which provides that “ every law which imposes, continues or revives a tax, shall distinctly state the tax, and the object to which it is to be applied, and -it shall not be sufficient to refer to any other law to fix such tax or object,” in this, vizthat the act does not distinctly state the object to which the said tax was to be applied, but provides that the money so to be raised and collected shall be paid into the treasury of the state to the credit of the general fund; that, by law, there is chargeable upon and payable out of the said general fund, all salaries and contingent expenses of the officers of.the State of New-York,. including the members and officers of the state legislature and of the court for the trial of impeachments; the moneys required for the support of the state prisons; the annuities payable to Indians, and all expenses relating to Indian affairs; the expenses of all printing done by the state, and also the payment of all moneys directed by law to be paid out of the treasury and not especially charged upon any other fund. They alleged that the act was, for the cause aforesaid, null and void, and therefore they refused to levy the tax. The People demurred to this return. The demurrer was sustained, and a peremptory mandamus awarded by the court at special term; and this judgment having, on appeal, been affirmed by the court .at general term in the second district, the defendants appealed to this court.</p>

The action was upon a bond, bearing date January 20, 1858, signed by the defendant as surety, and conditioned that one Sherry should faithfully pay and account for all moneys that should come to his hands as treasurer of the board of superintendents of the House of Industry of the county of Rensselaer.

Action for the recovery of personal property, tried before Woodkuff, J., in May, 1856. The plaintiffs were manufacturers, at Leicester, England. John and James Hall were copartners and merchants in the city of New-York, where they dealt in lace and hosiery, under the name of Hall Brothers. They had also a house in Nottingham, England, where they carried on business under the name of J. & J. Hall. John Hall resided at Nottingham, and James in New-York.

<p>In an action to recover the possession of land, the plaintiffs may attack a deed under which the defendant claims title, both upon legal grounds and upon such as before the Code were of purely equitable cognizance.</p> <p>The constitution doés not restrict the power of the legislature to provide for both legal and equitable relief in the same suit, and the Code authorizes the joinder of legal and equitable causes of action.</p>

The foreclosure was upon a mortgage executed by Cassidy to Cunningham, in 1846. There was a surplus of $1205.26, after paying the mortgage debt and the costs of the foreclosure suit, which was paid to the treasurer of Kings County.

The plaintiff brought his action to recover the value of a quantity of wheat, flour, barrels, &c., swept into the Genesee river during a flood and lost, in consequence of the undermining of his mill, on Brown’s race, in the city of Bochester, by which its floors fell and the contents of the mill were precipitated into the water.

The complaint averred these facts: In May, 1847, the plaintiffs recovered a judgment against one Taylor, upon his sole and individual indebtedness, for $8,650.65, which was duly docketed and became a lien upon his real estate. In 1848, Taylor died, seized of real estate in his own individual right, upon which said judgment was a lien.

The plaintiff sued the defendant in the New-York Common Pleas, and complained that shortly prior to the 5th' of March, 1852, the defendant being a carrier of passengers between New-York and California, undertook, in consideration of $250 paid by the plaintiff, to carry him from New-York to San Francisco, by the route across the Isthmus of Nicaragua, and that such passage, on the Pacific coast of the continent, should be in the second cabin of the steamship Independence, on…

The complaint set forth that prior to March 1, 1849, the defendant, Randall James, was insolvent, and in-. debted to various persons, and among others, to James Simpson, who, in April of that year, recovered a judgment against him, Randall James, in the Supreme Court for $522-66; that after the return of an execution unsatisfied, Simpson commenced proceedings supplementary to the execution before the recorder of Troy, under which the plaintiff was appointed receiver of the…

The action was to recover land. Both parties claimed under Henry De Witt, who was horn in January 1761, made and published his last will and testament May 2, 1837, which devised the premises in question to the plaintiff: executed a deed of the premises June 18, 1849 to John Henry De Witt from whom the defendants derived title, and died May 7, 1850.

The plaintiffs brought their action against the surviving members of the firm of Baxter, Brady, Lent & Co., and against the respondent as surviving executor of Heman W. Childs, a deceased member of said firm.

/ Appeal from the Superior Court of New-York city. The /’ action was brought by husband and wife to recover damages for breach of duty by the defendant as a carrier of passengers, whereby the wife was injured in her health. On the trial before Mr. Justice Oakley and a jury, it was proved that in August, 1854, the plaintiffs were passengers on a train of cars of the defendant from Obispo to Aspin'wall, about thirty miles distant.

The attorney-general, in May, 1856, commenced an action in the name of the people, in the nature of an information, and by the complaint charged the defendant with having usurped and intruded into the office of justice of the peace of the town of Kortright, in the county of Delaware. The defendant put in an answer to which the plaintiffs demurred, and the Supreme Court overruled the derñurrer and gave judgment for the defendant, with costs.

The action was in the nature of trespass, for taking and carrying away a quantity of bank notes, the property of the plaintiff, of the value of $4,824.65. The defendant justified the taking of the notes, by a collector of taxes of the city, for the nonpayment of an assessment for benefit against the real estate of the plaintiff, which, as the defendant contended, was a charge upon the plaintiff personally.

<p>Where a fire policy names the owner of the property as the person insured, and declares the damages in case of loss to be payable to another person therein named as mortgagee, the latter cannot recover in case of a breach of the conditions of the policy by the mojjjgagor.</p> <p>In such case, the contract is with the mortgagor, and for the insurance of his interest, and the mortgagee can recover only where the mortgagor could have done so, had the money been payable to himself instead of being payable for his benefit to the mortgagee.</p> <p>The cases of The Traders' Insurance Company v. Robert (9 Wend., 404), and Tillou v.' The Kingston Mutual Insurance Company (1 Seld., 406), so far as it follows the former, overruled.</p>

<p>Where a policy of insurance is assigned with the consent of the underwriter to a mortgagee of the subject insured, the assignee takes subject to the conditions imposed by the terms of the contract upon the person insured and his right to recover in case of a loss is barred by a breach of such conditions by the assignor subsequent to the assignment.</p> <p>So Held, where the owner of a vessel procured a marine policy upon her, the underwriter knowing at the time that the owner was indebted to the plaintiff for an engine furnished the vessel; that he was to mortgage the vessel to secure such debt, and that his object in obtaining the policy was to assign it as security for the debt. The policy contained permission to insure $40,000 and to assign the policies. After assigning the policy the mortgagor effected an overinsurance, and it was fatal to a recovery by the assignee.</p>

<p>The plaintiff obtained a fire policy to himself as agent of the owners, upon property on which he held a mortgage, notifying the insurers of his interest. He afterwards obtained title by foreclosure, and agreed to convey the property to a third person. Upon being notified of these facts, the insurers consented that the policy should remain valid until title should be perfected in the vendee; Held, that this was equivalent to issuing a new policy to the plaintiff as owner.</p> <p>Such consent having been given by the insurers, with notice that the vendee had agreed to pay to the vendor the premiums for continuing the insurance, the insurers, on paying a loss to the vendor, have no right of subrogation in respect to his securities for the unpaid purchase money.</p> <p>The policy being conditioned that, in case of further insurance, the insurers should be liable only for such proportion of any loss as the amount insured by him should bear to the total amount of insurance, and that the policy should become void upon any further insurance without notice to them, the policy is not avoided by a subsequent insurance with notice to the insurers of its amount, but with an erroneous statement as to the companies from which it had been obtained.</p>

The action was upon a policy of insurance against fire, which the complaint alleged that the defendant, by its agent, delivered to the plaintiff on the 26th of February, 1848, and bearing date that day.

The defendant insured Hooper & Brother against damage by fire, to the amount of $2,500, on their stock of looking-glasses, looking-glass plates, frames, machines, tools and materials. The policy contained a provision that in case of any transfer or termination of the interest of the insured, either by sale or otherwise, without the written consent of the insurer, the policy should from thenceforth be void and of no effect.

The action was on a policy of fire insurance, made to the plaintiff as mortgagee. The answer, among other things, denied notice and proof of loss, according to the condition of the policy, and alleged that the mortgage was ample security for what remained unpaid of the mortgage debt, wherefore the plaintiff was not injured by the fire.

The plaintiff sued the defendant for alleged slanderous words spoken of his wife, imputing to her an act of incontinence, by which, as the plaintiff alleged, she was injured in her good name, See., and was made sick and diseased in her mind and body, and was unable to attend to her ordinary affairs and business, by which the plaintiff, for a time, lost her services, and was obliged to employ other assistance in his household affairs.

On the 8th of January, 1851, certain real estate of William Ren wick, deceased, was sold under an order of the surrogate, for the payment of debts.

The action was brought to recover for th¿ labor and service of the plaintiff in preparing certain plans, specifications and working drawings for the erection of a new edifice for the Washington market, in that city. The defendant put in issue all the material allegations in the complaint.

<p>The stockholder of a manufacturing corporation organized under the general act (ch. 40, of 1848) may defeat an action brought to enforce his individual liability for its debts incurred before the capital stock was paid up, by showing that he had already paid, on account of the debts of the corporation, a sum equal to the amount of his stock.</p> <p>To charge the trustees with individual liability for a debt of the corporation by reason of the failure to file and publish the annual report required by law, such debt must have been contracted during a default, or have existed at the time of a subsequent default.</p> <p>Under a contract between the plaintiff and the corporation, that the former should deliver and the latter receive and pay for personal property at a future day, a debt does not arise within the meaning of the statute until the delivery of the property.</p> <p>It seems that a stockholder sued to enforce his individual liability, in a case where an account and the enforcing of all such liabilities would relieve him from the whole or a part of the debt claimed, may himself institute a suit for such account and for distribution. Per Denio, J.</p>

<p>Goods in the charge of a common carrier having been damaged, were sold by him. The consignor assigned “ all his interest in the goods ” to the plaintiff; 5eZd, a valid assignment of the right of action against the common carrier for non-delivery under his-contract.</p>

<p>The entry in the book of mortgages to the commissioners for loaning the United States deposit fund, of a mortgage out of the order due to its date, and upon a page which should have contained a mortgage several years antecedent in execution, is not notice to a subsequent mortgagee in good faith.</p>

The plaintiff filed a bill in the late Court of Chancery, for the specific performance of an agreement to convey land. On March 31, 1846, the Vice-Chancellor of the second circuit made a decree requiring the defendant to execute and deliver to the plaintiff a good and sufficient conveyance of all right, title, interest or claim he might have in or to the premises mentioned in the agreement.

<p>An assignment, in trust for the benefit of creditors, of all a debtor’s property, which was therein stated to be “ more fully and particularly enumerated and described in a schedule annexed,” passes property not mentioned in the schedule.</p> <p>The case of Willces v. Ferris (5 John., 335), examined and distinguished.</p>

<p>Where, on the examination of a judgment debtor, under proceedings supple- ’ mental to execution, it appears that he is in possession, avowedly as the agent of a third person, of property claimed by such person under a paper title apparently good, it is improper to order a delivery of the property to ' the receiver.</p> <p>The proper remedy is for the receiver to bring an action against the claimant to test the question of ownership.</p>

Mandamus to compel the board of supervisors of Livingston county to assemble and cause to be raised the sum of $28,444.92 upon the taxable property of that county, to make up an alleged loss to the state treasury to that amount, sustained by the default of the county treasurer. The alternative writ was issued in May, 1857.

The action was brought against the defendants, under section 237, sub. 3 of the Code, for willfully withholding from the sheriff certain bonds alleged to have been liable to sale on execution, issued upon a judgment recovered by the plaintiff in a suit commenced by attachment against a foreign corporation.

The prayer of the complaint was that the defendants be decreed specifically to perform the covenants in a certain lease of land in the city of New-York, for a renewal thereof, or for paying the value of the buildings thereon, in case of a failure to renew.

The defendants were sued as directors of the Bank of Utica at the time of the expiration of its charter, and becoming, as such, trustees for its creditors and stockholders, to recover $3,000, being one-half of one per cent upon the capital of the bank, which became due, as its contribution to the Safety Fund, on the 1st day of January, 1850. The charter of the bank was granted in 1812, and expired, by its terms, in 1832.

<p>In the absence of prohibition by statute, a corporation may purchase its own stock, hold it nnextinguished and reissue the same.</p> <p>Whether such purchase operates to diminish the capital stock, is a question of intention. It may have that effect at the option of the corporation, and this may be inferred from, circumstances.</p> <p>A foreign moneyed corporation, with a capital limited by charter and fully paid up, received its own stock, to the amount of $133,000, in payment of debts. It subsequently resolved to increase the capital stock $90,000, and to receive subscriptions for that amount. The defendant gave his note on a subscription for stock; Held, that the corporation intended a reissue and sale of old stock and not the creation of nqw, and hence that the note was not affected by certain provisions of the charter relative to original subscriptions which would otherwise have rendered it void.</p> <p>In an action upon contract a defendant offered as a witness for his co-defendant may bo rejected without being sworn, if he is' only to be examined as to a matter in which he is jointly interested with the party calling him.</p> <p>So held, where a defendant was offered to prove that the signature of his co-defendant to their joint and several promissory note, given for a joint subscription to the stock of a corporation, was obtained by fraudulent representations as to the solvency of the corporation.</p>

Behan was indicted and convicted, at the Onondaga G-eneral Sessions, of the offence of selling strong and spiritous liquors and wines, without having any license therefor, under section thirteen of chapter six hundred and twenty-eight of the Laws of 1857,. being the act to suppress intemperance, and to regulate the sale of intoxicating liquors.

The action was commenced May 6, 1843, in the late Court of Chancery, by David Leavitt, receiver of the North American Trust and Banking Company, an association organized under the general law of 1838 to authorize the business of banking. The general history of that association is stated in Curtis v. Leavitt (15 N. Y., 16-42).

This was an amicable suit, brought to obtain a judicial construction of.the last will and testament of Michael Burnham, deceased. It was tried at a special term, in the city o^ New-York, before Mr, Justice Mitchell, in January, 1854, when these facts were proved: .Michael Burnham, the testator, died January 19th, 1836, leaving his last will duly executed and in full force, bearing date June 15, 1825.

Action for money had and received to the plaintiffs’ use. The answer was a general denial. The facts were these: In 1854, Eliza Lamb and others demised to Wm. Griffin, Jr., a hotel in Albany, called the Mansion House, for five years from the first of May, at an annual rent of $3,000, payable quarterly, at the usual quarter days.

Alternative mandamus requiring the comptroller of the city of New-York to draw his warrant for the payment to the relator of $1,250 as directed by a resolution of the boards of councilmen and aldermen returned by the mayor without approval or objection and thereby becoming a law, June 26, 1856.

The complaint was filed in January, 1855. Three hundred and twenty-six persons are joined as defendants. One of them, William Cross, demurred to the complaint upon several grounds, which, so far as material, appear from the opinion which follows this statement. The facts set forth in the complaint are as follows: The plaintiff is a corporation, owning and operating a railroad extending from New Haven to New-York.

Action upon a policy of insurance against fire for $2,000, issued by the defendant to one Mark O’Brien. The answer set up that O’Brien, without the knowledge or assent of the defendant, had procured further insurance upon the same property covered by this policy, and that the insurance upon said property thereby became in excess of the real value thereof.

The complaint alleged that, on the 11th day of November, 1822, one Richard Morrison was seized of the following real estate: “All that certain piece or parcel of land situate and being in the town of Hamburgh, county of Erie, known as a part of lot number two, in the ninth township, and eighth range of the Holland Land Company’s land, and bounded as follows : Beginning at the western extremity of the highway, thirteen chains ninety-five links south of the north line of said…