Volume 17 — New York Supreme Court Reports

<p>Appeal from an order made at tlie Special Term, setting aside a sale bad under a judgment of foreclosure and directing a resale.</p>

This action was brought by the plaintiffs as trustees of the second mortgage made by the Wallkill Valley Railway Company, dated January 1, 1872. The plaintiffs, as such trustees, claim to recover certain moneys collected by the defendant from the United States government for postal service on the Wallkill Valley Railway, under a contract between that company and the government. The moneys collected were for postal service between July 1, 1873, and January 1, 1874.

<p>Appeal from an order of tbe surrogate of Orange county, made in pursuance of chapter 394, of 1870, requiring tbe appellant to deliver to tbe defendant Ormsby as executor of ber deceased husband, certain articles of personal property, and in case of ber failure so to do ordering that a warrant issue.</p> <p>The defendant William Y. Tilton was a beneficiary in remainder under tbe will.</p>

Appear from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was brought to recover the amount of a debt alleged to be due to the plaintiff from the defendant, which was contracted in 1851. The defendant set up the statute of limitations.

<p>Appeal from an order made at tbe Special Term dissolving a temporary injunction granted in tbis action, and denying a motion to continue tbe same.</p> <p>Tbe action was brought by tbe plaintiff, a resident and tax-payer of tbe town of New TTtrecbt, in tbe county of Kings, to restrain tbe defendant Gubna, supervisor of said town, from issuing bonds in tbe name of tbe town to provide means for purchasing a site and erecting a town ball thereon, and to restrain tbe other officers of tbe town from co-operating with him.</p>

<p>Appeal from an order made at the Special Term, reversing an order directing the manner in which the mortgaged premises described in the complaint in this action should be sold. •</p>

Tbe action was brought by tbe plaintiff to recover tbe value of services rendered by ber in nursing and taking care of ber mother, tbe defendant’s testatrix.

The action was brought to foreclose a mechanic’s hen filed under chapter 418 of 1862 for services rendered by the plaintiff, as an architect, in preparing plans and specifications and superintending the erection of the building against which the hen was sought to be enforced.

Tbe action was brought to charge tbe defendants personally with tbe amount due under a contract entered into by them, as commissioners of tbe eastern boulevard of tbe town of Westchester, for tbe construction of an iron bridge.

This was an action in equity, to vacate an assessment Imposed upon real estate of the plaintiff, on the ground that the same was a cloud upon his title thereto. The assessment and lien thereof is void and should be vacated and set aside, because it was made, levied and confirmed without any notice to the plaintiff or other property holders affected thereby.

This action was brought to recover the amount of a policy of insurance issued by the defendant upon a house belonging to the plaintiff, which had been burned. The terms “ standing detached,” when applied to a building insured, having acquired in the insurance business a peculiar and technical meaning, different from their ordinary meaning, should be construed according to their sense in the insurance business.

<p>Appeajl from a judgment of tbe County Court of Suffolk county, affirming a judgment in favor of tbe plaintiff, recovered in a Justice’s Court.</p>

Appear from an order made at Special Term setting aside and vacating a judgment in this action, and granting a new trial.

Ajppeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee. Tbis action was brought by plaintiff, as assignee of Patrick Handibode, to recover a balance of $4,547.40, alleged to be due on a contract made November 6, 1872, between tbe trustees of tbe town of Morrisania and said Handibode, for grading One Hundred and Thirty-sixth street.

The action was brought by a judgment creditor of the defendant Louisa M. Baker, to set aside, as fraudulent, a conveyance of certain real estate from her to the defendant Emile Beneville.

This action was brought for the foreclosure of a mortgage upon real estate. The mortgage and the bond accompanying it were executed by the defendant William W. Goodrich on the 18th day of December, 1871, to the Knickerbocker Life Insurance Company, to seeuré the payment of $5,000 and interest and were assigned by that corporation to the plaintiffs, as executors, on the 17th day of September, 1873.

<p>Ferocious animals —■ liability of owner of.</p> <p>The plaintiff, who was employed in the defendants’ factory, while passing through the yard, early in the morning to admit the other operatives to the factory, was attached and severely injured by a large Siberian bloodhound, owned by the defendants, and of whose vicious habits and dangerous character they had full knowledge. The dog was kept chained during the day, and let loose at night; it being the duty of the defendants’ engineer to chain him up before the workmen were admitted.</p> <p>Upon the trial of this action, brought to recover damages for the injuries so sustained, it was insisted that, as the accident occurred through the negligence of a co-servant in omitting to chain up the dog, and as the plaintiff had knowledge of its vicious habits, he could not recover. Held, that the defense was properly overruled.</p> <p>Duties and liabilities of owners of ferocious and vicious animals considered.</p>

<p>Appeal from an order appointing commissioners to appraise damages for the taking of certain lands under chapter 888, of 1869, providing for the draining of certain swamp lands, in the town of Southfield and county of Richmond. .</p>

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial, made at tbe Special Term upon a case and exceptions.</p>

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon a verdict directed by tbe court.</p>

<p>Appeal from au order made at Special Term, setting aside a verdict of tbe jury in favor of tbe plaintiff,' and dismissing tbe complaint herein, and from tbe judgment entered in pursuance of tbe said order.</p>

<p>Appeal from an order made at Special Term, reversing on cerUora/ri an order of the county judge of Orange county, discharging one John O’Brien from the custody of the relator upon a habeas corpus issued by the said judge.</p>

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

The action was for partition of real property, the plaintiff claiming an interest therein, under a deed executed by a receiver, in proceedings supplementary to execution, -of a judgment debtor having a life estate in said property. The order appointing the receiver was duly recorded in the proper clerk’s office.

<p>Usury — substitution of new note for old one — rights of bona fide holder.</p> <p>One Treadwell held an over-due promissory note given by the defendants which was void for usury. Treadwell being indebted to the plaintiff to the amount of the said note, a note was given by the defendants, payable to the order of the paintiff, and the same was subsequently delivered to her, she being ignorant that Treadwell had received any usurious interest from the defendants.</p> <p>In an action by her upon the second note, held, that the plaintiff was entitled to recover; that the defendants, by making the note to her order, represented to her that the transaction in which it was given was a lawful one, and that they were estopped to deny the truth of this representation. (Dykman, J., dissenting.)</p>

<p>Powers — must be either beneficial 01' in trust — when invalid.</p> <p>One clause of a testator’s will was as follows, viz.: “I give full power and authority and control to sell my property in Brooklyn to my sister, Mrs. Conboy, and to receive the rent of it — house No. 865, Pacific street, Brooklyn.” PLeld, that the testator created, if anything, a power, but as such power was neither beneficial or in trust, it was not authorized by the Revised Statutes, and that as to such real estate he died intestate.</p>

<p>Divisible a/nd indivisible claims — how distinguished — Assigning'of portion of indivisible claim, — effect of.</p> <p>In an action brought against four defendants, an attorney appeared and put ii_ answers for all of them, and appeared for and defended their interests upon the trial. Subsequently, he having assigned to the plaintiff herein his claim against two of the said defendants, the assignee brought this action against the said two defendants and recovered the whole amount of the attorney’s claim.</p> <p>Held, (1) that the claim of the attorney against the four defendants was an indivisible one;</p> <p>(2) That the assignment to the plaintiff did not assign the whole claim to him, and, the claim being indivisible, did not invest him with any separate portion of it,</p>

<p>Appeal from an order made at Special Term denying a motion made by one Jacob Half, to compel tbe committee of a lunatic to amend proceedings heretofore instituted by them for tbe sale of real estate belonging to said lunatic.</p>

decree of the surrogate of the county of New York, confirming the report of the auditor appointed to settle the accounts of the appellant, as administrator of Elizabeth W. Sibell, deceased, and ordering the said administrator to pay certain distributive shares of the said estate to the respondent; and, also, an appeal from an order of the surrogate denying a motion to amend and correct the minutes of the auditor.

<p>Qe/rlwrairi — Bow'd of police commmiorw's of New York — trial befoi'e.</p> <p>On the return to a writ of certtoi'a/ri, issued to review an order of the defendant, removing the relator from the police force of New York, it appeared that the relator was tried, upon charges preferred by his captain and sergeant, for neglect of duty, in failing to arrest two men fighting in the street, and with using improper language to Police Commissioner Erhardt when reproved therefor. The relator was brought before Commissioner Erhardt for trial, and, having been sworn,- was asked what he had to say as to the charges, and testified in relation thereto. No other witnesses were examined. Erhardt made a report to the full board, and by the latter the relator was found guilty of a neglect of duty in failing to arrest the men, Erhardt not voting. Neld, that the proceedings were regular, and that, as Erhardt was not the complainant, and was not examined as a witness, he was clearly not incapacitated from taking and reporting the testimony of the relator. (Brady, J., dissenting.)</p>

<p>Amendment to ammw', setting up usury — allowance-of— Ohm-actor of defense not considered.</p> <p>In allowing amendments to answers, the court does not now regard the character of the defense sought to he interposed. Accordingly, held, that an order allowing an answer to he amended hy setting up the defense of usury was properly granted, and should he affirmed.</p>

<p>Off&i' of judgment — tidal of aetion before eeepiration of ten days— Oosts — Code, § 385.</p> <p>After issue had been joined in this action, and on the seventh of February, an offer to allow judgment to be taken against him was served by the defendant; on the ninth of February the cause was regularly called in its order on the calendar, an inquest taken therein, and the costs accruing subsequent to the offer taxed in plaintiff’s favor. Held,, that, as ten days had not elapsed from the service of the offer of judgment to the time of trial, the plaintiff was entitled to disregard the offer and to tax the costs thereafter accruing.</p>

Tbe assessments were imposed in 1869,1870,1872 and 1874 Tbe petitioners acquired title to tbe property upon wbicb tbe assessment was imposed, seventeen lots, in tbe year 1860, and erected thereon a building used as a bouse of industry. Tbe property was never valued by tbe ward commissioners as required by section 7 of chapter 326 of 1810, after its acquisition by tbe petitioners.

Appeal by defendants Bernard Amend and Joseph Koelble, executors of Joseph Mosbacb, from an order denying a motion to modify an order appointing a receiver. Tbe plaintiff, bolding a first mortgage on certain premises on tbe 21st of March, 1876, filed a complaint for foreclosure and sale, malting tbe holders of tbe second, third and fourth mortgages parties defendant. All tbe parties were served with tbe summons in tbe action without a complaint.

Appeals from an order made at tbe Special Term denying a motion to set aside a judgment, and from an order denying a motion for a readjustment of costs. This action was begun in 1870. On tbe 15th of February, 1876, tbe cause was called in its order on tbe calendar, and, tbe plaintiff not answering, tbe defendant’s attorney dismissed tbe complaint. Tbe defendant’s costs were thereupon taxed, and a judgment therefor entered in favor of defendant and against plaintiff.

<p>Gom/mon counoíl of city of JYm York — power of, to malee leases ■ — reasonable rent under — § 18, ehap. 385 of 1873.</p> <p>Under section 18 of chapter 335 of 1873, providing that the common council of the ' city of New York shall have no power to “make a lease of any real estate or franchise, save at a reasonable rent; ” the decision of the question as to whether or not the rent reserved is a reasonable one is left to the discretion of the common council, and, in the absence of fraud or collusion, its decision is conclusive.</p>

Appeal by tbe defendants Spaulding and W. L. Simmons from so much of a judgment entered upon tbe report of a referee, as directs judgment against them for $1,050.12, and appeal by tbe plaintiffs from so much of said judgment as awards costs to tbe defendants Z. E. Simmons and J. H. Adams.

<p>Appeal from a judgment, in favor of the plaintiff, entered on a verdict directed by the court.</p>

Writ of error to the Court of General Sessions of the city and county of New York, to review the conviction and sentence of the plaintiffs in error for keeping a disorderly house. A house in law to be “ disorderly ” must be what is termed a common nuisance.

Appear from a judgment in favor of the defendants, entered upon the trial of this action by tbe court, without a jury. Tbe filing of tbe petition in bankruptcy, followed by tbe adjudication of Yerkes as a bankrupt, dissolved tbe attachment issued in tbe suit of Bovwier v. Yerkes.

<p>Qorpwatwn — legal existence of — when party estopped from denying.</p> <p>In an action brought by the plaintiff against one Tigney to recover the possession of certain personal property; the defendants, to prevent the delivery thereof to it, gave a bond reciting the plaintiff’s claim and binding themselves for the delivery of the property to the plaintiff, if the delivery thereof should be adjudged in said action. In this action brought upon the said bond, after the recovery of a judgment by the plaintiff in the former action and the return unsatisfied of an execution issued thereon, the defendants sought to amend their answer by putting in issue the corporate existence of the plaintiff. Held,</p> <p>(1) That, in. the proper exercise of its discretion, the court should deny the application;</p> <p>(2) That by giving the bond and preventing the delivery of the property to the plaintiff in the former action, the defendants were estopped from denying its legal existence.</p>

<p>Appeal from au order made at the Special Term, denying an application of the relator for a memdemms compelling the defendant, as captain of a company in the national guard of the State, to grant to the relator a discharge therefrom on the ground that he had served the time required by law.</p>

<p>Appeal from an order made at the Special Term denying an application made by the receiver of the German Up-town Savings Bank, under section 48 of chapter 371 of 1875, to compel the receiver of the Manufacturers and Builders’ Bank to pay over to him the sum of $28,887.42, alleged to be the balance of a deposit made by the savings bank.</p>

<p>Lease — demised premises — alley-wa/y — when included in — Curtilage — meaning of— when it passes —■ Statement of landlord as to demised premises — when admissible— Implied covenant for quiet e/wjoyment in lease — Bmction — su/mma/i’y pyroceedings — Quamtiu/tp, meruit.</p> <p>The plaintiff’s assignor demised to the defendant “the house No. 324 East Fifty-eighth street, in the city of New York.” At the time of the demise an alleyway, some five feet in width, ran along the side of the house to a door opening thereon, and to the coal sheds in rear thereof; said alley-way being separated from the adjoining premises by a fence. At the time of the demise, the alleyway was pointed out by the lessor as a portion of the demised premises. The plaintiff, having acquired the rights of the lessor in said lease, erected a building upon the adjoining lot, of which he was the owner, which encroached upon the alley-way some forty-eight inches, thereby Injuriously affecting the approach to the door and sheds, and the light and ventilation of the house. Summary proceedings having been instituted to remove the tenant for nonpayment of rent; held,</p> <p>(1) That the plaintiff had no greater rights than had his assignor, and- that his right to maintain the action was not strengthened by the fact that he claimed to be the owner of the portion of the alley upon which the building was erected;</p> <p>(2) That the alley-way formed a portion of the demised premises;</p> <p>(3) That, by the erecting of the building thereon, the tenant was evicted from a portion of the said premises;</p> <p>(4) That the plaintiff could not maintain an action to. eject him for non-payment of rent.</p> <p>. Upon the grant or demise of a house the curtilage or garden thereof will pass, even though the words “with the appurtenances” are not contained in such grant or demise.</p> <p>By the curtilage of a house is meant the courtyard in the front or rear, or at the side thereof, or any piece of ground lying near and enclosed and used with the same and necessary for its convenient occupation.</p> <p>In an action to eject a tenant it is competent to prove the statements of the landlord made at the time of pointing out the demised premises, for the purpose of identifying the subject of the lease.</p> <p>Although a lease contains no covenant of quiet enjoyment, yet there is an implied covenant on the part of the lessor to do no act which will evict the tenant from any substantially valuable portion of the premises.</p> <p>Where a tenant has been evicted by the landlord from a portion of the demised premises of substantial value, he cannot be evicted in summary proceedings for non-payment of rent so long as such eviction continues.</p> <p>Quasre, as to the right of the lessor to bring an action upon a guamtmm meruit to recover the value of the premises still occupied by the tenant.</p>

This action was brought by the plaintiff to recover back money paid for lottery tickets, and for shares, interests and prizes, or rights to prizes dependent on the drawings of the Kentucky State Lottery. It appeared from the evidence, that the defendant kept an office on the corner of Pearl and Chatham streets, in the city of New York, where he acted as policy dealer, and dealt in lottery'tickets.

Certiorari, to review the conviction of the relator of petit larceny by the Special Sessions. The evidence on the part of the prosecution tended to show that, on the twentieth of January the jfiaintiff in error entered the complainant’s place of business and requested change for a ten dollar bill.

<p>Appeal from a judgment dismissing the complaint of the plaintiff, with costs.</p>

<p>Policy of insw'cmae —■ right of alamdonment — acceptance of.</p> <p>The plaintiff took out policies of insurance upon a ship and cargo owned by him, and also procured one to be issued to him by the defendant upon the freight. The latter policy provided that “ no claim for total loss shall be made * * * except in the case of * * * an actual or technical loss of the vessel under the policies of insurance on her.” The vessel was wrecked at a short distance from her port of destination, and both vessel and cargo abandoned to the underwriters, including defendant, who took possession of the ship and succeeded in transporting a portion of the cargo to the said port, where it was sold and the proceeds arising thereon distributed among them.</p> <p>An abandonment of the freight was also made, but the same was not accepted by the defendant. Reid, that the plaintiff had the right to abandon the freight, and that the defendant was liable under the policy for a total loss thereof, and that his right so to do was not affected by the fact that the underwriters succeeded in transporting a portion of the cargo to the port of destination and there disposing of the same.</p> <p>The Búfalo Gity Bcmh v. The Rm'th-western Ins. Go. (30 1ST. Y., 251) followed.</p> <p>Where an abandonment has been accepted, the question as to whether or not the loss was a total one is no longer an open one, but where it has not been accepted, the insured must establish by satisfactory proof a state of facts clearly showing his right to abandon.</p>

Tbis action was brought to recover tbe sum of $4,000 and interest, wbicb sum was deposited by Dominique Stromener with Henry Delafield. Tbe Abbe Stromener, a priest, at Jeremie, Hayti, in November, 1853, forwarded to Henry Delafield two drafts amounting to $4,000, upon wbicb Mr. Delafield, in February, 1854, realized that sum.

Appear from an order made by tbe surrogate of tbe county of New York, denying a motion made on behalf of the appellants herein, to set aside an order of reference made herein, and to dismiss the objections made by the respondent to the account rendered by the appellants, without hearing the same, on the ground that the said respondent had no standing in court.

<p>Venue — change of, for convenience of witnesses — when granted.</p> <p>Wien, upon a motion to change the place of trial, the defendant swears to nineteen witnesses residing in another county, all of whom are sworn to be material, and the plaintiff swears to no witnesses residing in the county where the venue is laid, but simply sets forth, in his affidavit, facts tending to show that the defense, sought to be established by defendant’s witnesses has no real existence, the motion should be granted.</p>

York, granting letters of administration, with the will annexed, upon the estate of Catharine Louise Scott, to Eleanor Heard, in her right as administratrix of the estate of Thomas Scott, deceased, and denying the application of Mary Louise Colt, formerly Mary Louise Ledyard, for such letters of administration. Thomas Scott took the entire fee simple by force of the word estate, and the subsequent limitation being repugnant thereto, is void.

A court of equity cannot, by its decrees, supply “ omissions ” or “ defects ” in positive legislation, and do wbat tbe law-making power bas left undone. (1 Story’s Eq. Jur., §§ 14, 15, 16, 18, 19, 20 [7th ed.]; 1 Fonb. Eq. B., 1, § 3, note h ; Burgess v. Wheate, 1W. Black., 123; Bond v. Moslems, S. & L., 428, 429; Mamvmg v. Mamvmg, 1 Johns. Ob., 530; 1 Mod., 307; Oowjper v. Oowper, 2 P. Will., 753; Seld. Table Talk, tit. “Equity;” 3 Black. Comm., 432; Mitf. Plead.

TMs action was brought to recover damages for a breach of a charter-party, entered into between “ John L. Robart, master and agent for the owners of the Br. brig Ottawa, of Parsboro, N. S., of the burden of one hundred and fifty-eight tons or thereabouts,” and the plaintiff.

Oeetioraei to review the proceedings of the commissioners of taxes and assessments of the city of New York, in assessing certain property belonging to the relator. The land upon which the pier is built belongs to the mayor, etc., being paid of one of their streets. The pier, though built by Smith, belongs to the mayor, etc., being attached to their realty. Being their own property, it is not taxable. (Dillon, Munic.

<p>Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.</p>

<p>ITswy — mortgage — sale of— O&riifieate of mortgagors — when it operates as cm estoppel.</p> <p>Where a bond and mortgage, executed without any consideration moving from the mortgagee, are sold to a third person or placed in his hands for negotiation, upon a usurious agreement, and the same are subsequently sold to one who purchases the same, relying upon a certificate given by the mortgagors, which states that they were executed upon a full lawful and valid consideration, and that there was .no defense thereto, or equities, latent or apparent, in any way affecting the same, the parties signing the said certificate are estopped thereby from setting up the invalidity of the bond and mortgage in an action brought by the purchaser to foreclose the same.</p> <p>Where such certificate is signed by the mortgagors, without knowledge of and by reason of misrepresentations made in regard to its contents, they are not thereby estopped from setting up the invalidity of the mortgage.</p> <p>Where the purchaser, at the time of the purchase, knows that the bond and mortgage are usurious and void, and that the statements contained in the certificate are untrue, he can derive no benefit or protection therefrom.</p>

The action was brought to recover the damages sustained by the plaintiffs by compromising a debt owing to them by the defendant, which compromise they were induced to enter into by reason of false and fraudulent representations made to them by the defendant.

<p> Oow'ts-mm'tial —pn'oceedings of, will not he enjoined, </p> <p>A court of equity will not restrain, by injunction, a court-martial from trying one, subject to its jurisdiction, where be alleges, as tbe only ground for sucb ■ injunction, that be bas already been tried upon tbe same charge, and that be apprehends that tbe second trial will be unfairly conducted.</p>

<p>Obscene Utw'ature — aha/p. 777 ofWIZ — age of prisoner — need not be stated in indict- ■ ment — how determined. ■</p> <p>Under chapter 777 of 1873, prohibiting the publication of obscene literature, and providing- that any person convicted thereof shall, if twenty-one years of age or upwards, be punished as therein provided, and prescribing a different punishment if he be under twenty-one years of age, it is not necessary to state the age of the prisoner in the indictment for a violation of the statute.</p> <p>It is not obligatory upon the court to call witnesses to determine the age of the prisoner,- but the court itself may determine his age from its own observation. Qurnre, whether the court may, under the Constitution, examine the prisoner as to his age for this purpose.</p>

Tbe action was brought to recover for ten bales of rags delivered by tbe plaintiff to tbe defendants, in pursuance of tbeir order in writing, for twenty bales. Tbe ten bales were shipped by tbe steamer Ansonia, addressed to tbe defendants at Saugerties, on tbe 18th day of July, 1812.

<p>Appeal from an order denying a motion for the continuance of an injunction.</p>

<p>Appeal from an order refusing to grant an injunction pendente Ute, to restrain the defendants, or either of them, from proceeding to collect a judgment which the plaintiff claimed the right to extinguish by setting off against it a judgment in his favor.</p>

The attorney for the defendant Titus, who made the application, set forth in his affidavit, among other things, “that on or about the eleventh day of January, inst., deponent was informed by the clerk and agent of the defendant, James M. Shaw, and verily believes that the claim alleged in the complaint in this action was compromised and settled by said defendant Shaw; that deponent has been informed and verily believes that the sum of $700 was paid by said Shaw to said…

<p>Attorney — liability of, for malqyi’aetice.</p> <p>On the 10th of March, 1873, the plaintiff employed defendants to procure a divorce for her from her husband, and agreed to and did pay $1,500, at once, to defray expenses to be incurred by them in proceeding to Berlin to ascertain facts upon which to frame a complaint, and agreed to pay the further sum of $2,000 in case the divorce was obtained in three -months from the date of the agreement. An order was procured in the action for the service of the summons by publication, on the ground of the non-residence of the plaintiff’s, husband. On the 2d of June, 1873, a final decree for divorce was obtained, and the plaintiff, on the 4th of June, paid to the defendants the $2,000j’and some few weeks thereafter she remarried.</p> <p>In August following, the husband applied to have the divorce vacated, and subsequently an order was made allowing him to come in and defend the action on account of gross irregularities committed by the defendants in obtaining the judgment. In this action, brought by the plaintiff to recover the moneys paid under the agreement and damages for malpractice, held, (1) that as the plaintiff had paid the money in ignorance of the fact that the judgment had been irregularly obtained, she was entitled to recover the same; (2) that as the judgment had been opened on account of the ignorance and negligence of the defendants, she was entitled to recover the damages sustained by her in consequence thereof.</p>

<p>Appeal from an order made at Special Term, overruling as frivolous a demurrer interposed to the complaint.</p>

This action was brought by the plaintiffs, non-residents of this State, to enforce a warrant of attachment, issued by this court, in an action wherein these plaintiffs were plaintiffs and one Yalleau was defendant, under which certain property in the hands of the present defendants, alleged to belong to Yalleau, had been levied upon.

<p>Certiorari to review assessment of certain real estate of tbe relators.</p> <p>Tbe relators own real estate in tbe Twenty-fourth ward of tbe city of New York, amounting to about 103 acres. Tbis real estate is divided by tbe boulevard, a public thoroughfare 100 feet wide, into two separate lots or parcels. Upon one of tbe lots all tbe buildings of tbe relators are situated, and tbis lot tbe respondents marked as exempt from taxation.</p> <p>Upon tbe other lot lying beyond tbe boulevard there are no buildings, and tbis lot tbe respondents have assessed for taxation.</p> <p>Tbe relators claim that tbe respondents erred in assessing tbis lot, and ask that it may be exempted from taxation, on tbe ground that it was used in connection with and devoted to tbe same purposes as tbe lot upon which tbe buildings were.</p>

This action was commenced to recover the sum of $5,380 for material furnished by plaintiff to defendant. The complaint contains two causes of action: The first for material furnished the department of docks; the second, for material famished the department of public works. No question arises on the second cause of action. It was not disputed that all the materials were furnished to, received and used by, the defendant, and were worth the prices charged.

Appear from an order denying the application of an insolvent debtor for a discharge under part 2, chapter 5, title 1, article 5 of the Revised Statutes. Act of 1854 (Laws of 1854, p. 592, chap. 270) provides for appeal to the General Term from any judgment or order in any special proceedings. (.Matter of Imimgston, 34 N. Y., 557.) Certiorari will issue to remove to the Supreme Court for examination and review.

<p>Certiorari to review an assessment of the relator’s personal property made by tbe respondent.</p>

<p>Injunction— damages — order of refen'ence to ascertain — right of pojrt/y enjoined, to.</p> <p>The plaintiff procured a temporary injunction restraining the defendant from proceeding with certain work. Upon the return of an order to show cause, the court refused to continue the injunction, and directed that the action he discontinued, without costs. Subsequently defendant moved for a reference to ascertain the damages sustained hy the injunction, which motion was denied. Held, that this was error, and that the reference should have been granted.</p>

Appeal by tbe defendant William R. Walker, as assignee in bankruptcy, from a judgment entered on the report of a referee in favor of tbe defendant John R. Davenport.

Appeal by tbe mayor, etc., of tbe city of New York from an order vacating an assessment for tbe expenses of repaving Thirty-third street with Belgian pavement, from Sixth to Tenth avenues.

A motion was made in this action, in J une, 1869, for an allowance for plaintiff’s support and tbe expenses of this action. Tbe matter was referred to a referee, and in August, 1875, a report was made that tbe application should be denied.

63, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. By the enactment of the Revised Statutes of the United States on June 22, 1874, the jurisdiction of the United States courts became “ exclusive ” over actions of this character.

Green, as comptroller of the city of New York, to receive from the relator herein the sum of $794.50 with interest thereon at the rate of seven per cent per annum, from the 17th day of September, 1869, to tbe time of tbe payment; and tbe further sum of $900, with interest tbereon at tbe rate of seven per cent per annum, from the 19th day of September, 1870, to the time of payment, and upon such payment to make and deliver to relator a receipt therefor and to forthwith cancel…

Tbe appellants petitioned for tbe probate of tbe last will of Eliza Hearsey, dated July 11, 1874. Tbe respondents, legatees under a former will, filed objections thereto. Tbe trial was commenced on March 5, 1875, and a large amount of testimony was taken. . Tbe surrogate entered bis decree, admitting tbe said will of 1874 to probate on December 30, 1875.

This action was brought by certain bondholders of the New York, Kingston and Syracuse Railroad Company against that corporation, its president and directors, and the Farmers’ Loan and Trust Company.

<p>Bwrrogate — jurisdiction of, over claim presented by executor — Agreement to lea/ve propwty by will — must be certain and definite — s&rvke rendered in expectation</p> <p>A surrogate has no jurisdiction or authority to pass upon the validity of a claim against an estate presented hy an executor in his own behalf, where the same is contested, nor can a reference be ordered in such a case to determine the same, though all the parties consent thereto.</p> <p>Where one person renders services to another in the expectation of receiving a legacy from him, relying solely upon the testator’s generosity, there being no contract, either express or implied, that compensation shall be made therefor by will, and the party for whom the services are rendered dies without making such provision, no action will lie in favor of the person rendering the same.</p> <p>Where, however, a certain and definite contract to leave property by will is clearly established, and the promisee has fully performed the contract on his part, a court of equity will, in a case free from all objection, either on account of inadequacy of consideration or of other circumstances rendering the claim inequitable, compel a specific performance thereof.</p> <p>Specific performance of such a contract refused in this case, for the reason that the terms and provisions thereof were not sufficiently certain and definite.</p> <p>Where the contract is too indefinite and uncertain to authorize a decree of specific performance, the remedy of the party who has rendered the services is to bring an action before some tribunal competent to pass upon a disputed claim, to recover the actual value of the services rendered, as upon a quantwm mm'uit.</p> <p>The measure of damages in a case in which the claimant seeks to recover on an agreement to support and maintain the testator during the term of his natural life, is the amount which the board of the testator, and his nursing during his last illness were reasonably worth, less the value of any services rendered by him.</p> <p>The expenses incurred by an executor in an unsuccessful attempt to enforce before the surrogate, a claim made by him against the estate, including the fees of an auditor and his own counsel fees therein, should not be allowed to him out of the estate.</p>

If, by the trust deed of May 24, 1808, the plaintiff became vested with a future or expectant estate in said lands, whether legal or equitable, then a title by adverse possession against such estate during the continuance of the life estates was impossible, for the law is well settled that no possession can be deemed adverse to a party who has not, at the time, the right of entry and possession.

<p>Statute of frauds — promise to answer fit■ the debt of amotherr — consideration must appear in note or memorandum.</p> <p>Where a promise is made to answer for the debt, default or miscarriage of another person, the consideration thereof must appear either expressly or hy necessary implication, in the note or memorandum in writing required hy the statute.</p> <p>Chapter 464 of 1863, hy repealing so much of the Revised Statutes as required a “note or memorandum expressing the consideration” to render such a promise valid, restored the law on this subject to the state in which it was prior to the adoption of the Revised Statutes.</p> <p>Spey&rs v. Lambert (1 Sweeny, 335) not followed.</p>

” Tbe affidavit of tbe respondent was as follows : “ Onondaga County, } gg . ’ ’ City oe Syracuse, ) ’ ’ “ Margaret Lamb, of Syracuse, in said county, being duly sworn, says, that she is the rightful owner of the premises hereinafter mentioned, and entitled to tbe possession thereof ; and that Edward Hughes is justly indebted unto said Margaret Lamb in tbe sum of fifteen dollars due tbe 1st day of August, 1876, for tbe rent of a bouse and premises known as No. 163, on East…

<p>Bes adjudieata — Mesne profits — allegation as to, in complaint — reeov&ry for</p> <p>In an action of ejectment the defendants set up in their answer that "the premises in question, together with others, were conveyed to the plaintiff hy their ancestor, Enos Burke, in pursuance of an agreement by which plaintiff was to advance to him $7,200; that Burke was to occupy and cultivate the same for his own benefit; that upon receipt of the said sum, with interest, plaintiff was to account and reconvey the premises to Burke; that such repayment had been made, and they therefore demanded an accpunting and a reconveyance.</p> <p>The plaintiff alleged in his reply and subsequently proved upon the trial, that a prior action had been commenced by the said defendants against the plaintiff, in which they claimed that the plaintiff made an arrangement with Burke, by which he was to advance money to the latter and take a conveyance of the premises in question, with others, as security for the repayment thereof; that Burke was to remain in possession; that he, until his death, and thereafter the defendants, had continued so to do; that the full amount due the plaintiff herein had been paid, whereupon they demanded an accounting and reconveyance; that judgment was entered therein in favor of the present plaintiff, holding that the conveyance was an absolute and unconditional deed, and not a mortgage or security for any loan made to Burke, and that the title to the premises was vested absolutely in the plaintiff herein.</p> <p>Upon the trial of this action, held, that the cause of action in the former suit and the defense set up in the answer in this case were in substance the same, and that the judgment in the former action was a bar to the defense set up in the answer herein.</p> <p>When, in an action of ejectment, it appears from the complaint that the plaintiff claims to recover the value of the rents and profits of the premises during the time they have been unlawfully withheld by the defendant, it is too late, on the trial, to object to the form and want of particularity and certainty with which the allegations relating thereto are made.</p>

<p>Appeal from a judgment in favor of tbe plaintiff,’ entered upon tbe verdict of a jury, and from an order denying a motion for a new trial made upton a case and exceptions.</p>

<p>Ba/nhrupt — application for discharge — within what time it must he made — sec. 29 of hanhrvpt act.</p> <p>Under section 29 of the original bankrupt act, providing that “ at any time after the expiration of six months from the adjudication of bankruptcy, or if no debts have been proved against the bankrupt, or if no assets have come to the hands of the assignee, at any time after the expiration of sixty days, and within one year from the adjudication of bankruptcy, the bankrupt may apply to the court for a discharge from his debts,” held, that the requirement that the aplication should be made within one year from the adjudication of bankruptcy, applied only to those cases in which no debts were proved, or no assets had come to the hands of the assignee.</p> <p>In re Greenfield, (2 3ST. B. B., 311) followed.</p>

Appeals from judgments iu favor of the defendant in the above entitled actions entered upon the reports of a referee. The agreement was founded upon, and recited a sufficient consideration, viz.: an intended marriage between the parties, and one dollar. The marriage was a valid and sufficient consideration for the contract.

' Tbe plaintiff brought bis action on a promissory note of $2,300, claimed by plaintiff to have been made by tbe deceased, James M. Miles. Tbe note was put in evidence by plaintiff, and tbe defendants produced and put in evidence a note, made by tbe plaintiff to tbe defendant bearing tbe same date as tbe note sued upon, the body of wbicb was proved to be tbe genuine bandwriting of James M. Miles, deceased; and also tbe last will and testament of said James M. Miles.

The action is brought to recover the sum of $2,500, which the complaint alleges was deposited by one Shaw, with the defendant, a banking corporation, organized under the act of congress passed 3d June, 1864, and which the defendant agreed to hold as security to the plaintiff, for the faithful performance, by Shaw, of a certain contract made by him with the plaintiff to buy and pay for 10,000 barrels of crude petroleum oñ.

Justice Noxon, denying the prayer of the appellant, Opdyke, to remove this cause, as to him, into the Circuit Court of the Hnited States for the northern district of New York. The plaintiff is a resident of the State of New York. There are three defendants, Stevens and Opdyke, residents of New Jersey, and Hewitt, who at the time of the commencement of the action resided in New York.

The action was brought against the defendants, as copartners under the firm name of Crossman, Reynolds & Co., on a promissory note made in the firm name. The defendant Crossman, alone, was served with the summons and complaint. He answered, denying the copartnership and the making of the note by the firm; and setting up a discharge from his debts, under the insolvent law of the State of New York.

Motion by defendant for a new trial on exceptions ordered to be beard at tbe General Term, in tbe first instance. Tbe action was brought upon a policy of insurance against loss by fire.

Tbe action was brought to recover tbe statute penalty for an alleged encroachment, by defendant’s fences, on what is known as the Two Mile Creek road, in Tonawanda. The County Court directed a verdict for the defendant. The principal controversy was, whether the road was three rods or four rods wide, on the defendant’s premises, it being conceded that if it was only three' rods wide the defendant had not encroached on it.

■ This action was brought to determine conflicting claims to real property and to remove a cloud from the plaintiff’s title.

Tbis action was brought to recover for tbe alleged conversion of a steam engine and boiler. On tbe 21th of November, 1869, tbe defendant Hibbard purchased of Lamberton & Macks, at Rochester, tbe engine and boiler in question, on credit. Tbe purchase was made for tbe purpose of furnishing power in tbe business of manufacturing staves and beading, which Hibbard was then carrying on, in tbe town of Barre.

• Action under the statute (Laws of 1847, chap. 450) to recover damages caused by the alleged negligence of defendant, resulting in the death of the plaintiff’s intestate. The injury occurred on the defendant’s railroad, at a street crossing in the city of Buffalo, on the 17th of September, 1864. The intestate died the same day. The action was brought in June, 1865, and has been tried four times.

<p>Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury.</p> <p>The action was on a policy of fire insurance, which insured separately, and in separate sums, the dwelling-house and barns of the plaintiff, and certain personal property in each of said buildings, for three years from the 12th of April, 1873.</p> <p>The answer set up, among other defenses, that, after the policy was issued, and during its continuance, mortgages on the real estate were given by the plaintiff without the consent of the defendant. The policy provided that if “ the property becomes incumbered by mortgage, judgment or otherwise, * * * then, and in every such case, * * * this policy shall be null and void until the written consent of the company at the home office is obtained.” It appeared, at the trial, that after the policy was issued the plaintiff executed two mortgages upon the real estate, one for $4,000, and the other, as security to the mortgagee, for his indorsement of the plaintiff’s paper, and there was no evidence that notice of either of said incumbrances was given to the company, or that its consent was obtained, in writing or otherwise. On this ground, among others, the defendant’s counsel moved for a nonsuit. The judge held that the facts stated constituted a defense as to the buildings, but that they did not avoid the policy as to the personal property, to which ruling the defendant excepted. The jury found in favor of the plaintiff, for the value of the personal property.</p> <p>The refusal of the court to nonsuit the plaintiff upon the ground, as requested, that the creating of the mortgages to Rowland and Head vitiated the policy, and the holding by the court that the plaintiff was entitled to recover for the personal property, was error. [Le Roy v. The Ma/rlcet F. Ins. Go., 39 N. Y., 90 ; Ripley v. TEt/na Ins. Go., 30 id., 136; Price v. The Em/pire Ins. Co., 62 Barb., 636; Shoemalcer v. Glen’s Falls Ins. Co., 60 id., 84; Sa/nsfield, v. The Met/ropolitam, Ins. Co., 42 How., 97; Phillips on Ins., 762; Wilson v. Herhimer Co. Mutual Ins. Go., 6 N. T. [2 Seld.], 23; Brown v. Peoples Mutual Ins. Go., 11 Cush., 280; Smith v. Empi/re Ins. Go., 25 Barb., 497; Fire Association v. Williamson, 26 Penn. St., 196; Gottsma/n v. Ins. Go., 56 id., 210; Loveyoy v. Augusta Mutual Fvre Ins. Go., 45 Me., 472; Gould v. York Oo. Mutual Fvre Ins. Go., 47 id., 403; Ba/y v. Oha/rter Oak Fi/re Ins. Go., 51 id., 91; Ba/rnes v. Union Mutual Fvre Ins. Go., id., 110; Associate Fvremam's Ins. Go. v. Assvm, 5 Md., 165; Bowma/n v. Framlctim Ins. Go., 40 id., 620; Hammam v. Hartford Fvre Ins. Go., 36 Wis., 150; Whitwell, as Pecei/oer, etc., v. The Putnam Fi/re Ins. Go., 6 Bans., 166.)</p>

The complaint claims damages for an alleged violation by defendant of a covenant not to carry on the business of cabinet-making in the county of Erie, and also demands an injunction. The demurrer is on the ground that the complaint does not state facts sufficient to constitute a cause of action.

The action was brought originally in a Justice’s Court to recover damages for unlawfully taking and detaining plaintiffs’ milk wagon horse and milk cans and destroying their milk in the city of Syracuse.

Oh the 17th of June, 1876, upon an affidavit showing the return of an execution, unsatisfied, issued upon a judgment in the Monroe County Court, in favor of the plaintiffs against the defendant herein, the special county judge granted an order in the usual form for the examination of the defendant before a referee, Mr. Sullivan, under section 292 of the Code.

This action was brought to recover from the defendant, as the assignee in bankruptcy of Hernán H. Prink, the amount of a judgment recovered by the plaintiff against said Prink on the 23d day of June, 1873, for the sum of $346.04. An execution on said judgment was issued to the sheriff of Jefferson county, and was by him levied on the 26th day of June, 1873, upon personal property of Frink sufficient to satisfy the execution.

Motion by defendants for a new trial on exceptions taken at the Erie Circuit, and ordered to be heard at the General Term in the first instance. This action is brought upon an undertaking executed by the defendants, under the following circumstances: The plaintiffs in this suit instituted an action to recover the possession of specific personal property, and claimed its immediate delivery.

Motion to strike this case from the calendar, on the ground that the court had no jurisdiction to hear and determine the same. This action was commenced to redeem certain lands conveyed by the plaintiffs to one Stephen G-. Austin, on the ground that the deed was a security for a loan. Austin died, and his wife was made a party defendant to this action. The action has been twice tried.

In March, 1871, Charles T. Ferris recovered a judgment in this court against Henry 0. Sutcliffe for the sum of $836.48, damages and costs.

Tbe action was brought to recover tbe amount of a policy of insurance, issued by tbe defendant upon tbe life of one Romeyn O. Higgins, which bad been assigned to tbe plaintiff.

<p>Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new trial made on the judge’s minutes.</p>

<p>Policy of inswrcmce — increase of rislc — when case should he left to the jury.</p> <p>This action was brought upon a policy of insurance which provided that “any • increase of hazard or material change shall avoid this policy, without consent indorsed hereon. ” The defense was that the premises became and were unoccupied at the time of the fire. Upon the trial, three witnesses, called by the defendant, testified that they were insurance agents, and the risk was increased by the non-occupancy of the premises. No witnesses were called by plaintiff on this point.</p> <p>Defendant’s counsel asked the court to direct a verdict on the ground that it was proved, without contradiction, that the risk had been increased. Held, that it was not error for the court to refuse so to do; that, although the evidence was competent and entitled to great weight, the jury had the right to decide the question of increase of risk upon their own views upon that question.</p>

The action is on a note made by Beach Brothers & Co., for $1,680, bearing date the 31st of August, 1874, payable three months after date to the order of William Baker at the National Bank of Auburn. The answer contains six defenses: The first is a denial of the delivery to the plaintiff of said note, or that he is indebted thereon. Second.

<p>Probate of will —admissions of devisees — when admissible — Improper rejection of evidence by surrogate — when his judgment reversed leccmse of</p> <p>The appellants contested before the surrogate the probate of the will of one Horn, on the ground of- incapacity and of fraud and undue influence. The testator devised the property to a granddaughter and her husband, jointly. Upon the hearing, the counsel for contestant proposed to prove statements of the granddaughter, made at or about the time of making the will, that the testator ought to leave all his property to herself and husband; that she had consulted a physician as to his mental capacity; that he would do whatever she asked him; that they meant to have the property; which evidence was, upon the objection of the counsel for the proponents, rejected. Held, that this was error.</p> <p>Where competent evidence has been rejected by the surrogate, his judgment or decree will not be reversed, unless, if such evidence had been received and a finding had been made in conformity thereupon, the court would have affirmed the decree.</p>

<p>Loan of articles for a specific pv/rpose — liability of borrower, if they a/i'e used for other purposes — bwrden of proof, as to cause of itvjwries.</p> <p>Plaintiff loaned a yoke of oxen to defendant to plow up a hedge. Defendant used them not only for this purpose, but also to draw stone and to load large stone upon a stone-boat. Reid, that drawing stone and rolling them on a boat were not the uses for which the oxen were loaned, and that defendant was lia ble for any injuries to the cattle occasioned thereby.</p> <p>Upon the trial of an action to recover for injuries sustained by one of the oxen, it appeared that the oxen were sound when taken by defendant; while in his control they were put to unauthorized uses; that when returned one of them was lame. Defendant gave no evidence as to how the injury was occasioned. Reid, that it was a reasonable inference that the injury occurred while they were improperly used.</p>

<p>Oity of Utica — liability of, for defects in highway —funds in treasury to malee repairs, not essential to — Bight of persons with defective sight to travel in streets — Notice to city — how proved.</p> <p>In an action against the city of Utica to recover for injuries sustained in consequence of a defect in a street therein, held, that as the common council was declared by the charter to be commissioners of highways, the city was bound to keep the streets and walks in repair, and in case it failed so to do, and injury resulted therefrom, it was liable to the person injured for such damages as he might sustain thereby.</p> <p>Such liability does not depend upon whether or not the city has funds in its treasury to pay for making or repairing streets, but upon the question whether or not it has the power to raise funds to defray such expenses.</p> <p>The fact that a person is old, and that his sight is defective, does not deprive him of the right to travel in the streets and upon the walks, provided he uses such reasonable care and caution as a person laboring under those infirmities would ordinarily exercise.</p> <p>Although notice to one of the aldermen of a defect in the highway is not enough to charge the city, with notice, yet guare, whether notice to a considerable number of the aldermen would not be sufficient.</p>

The committee in whose names, as plaintiffs, this action was brought are “trustees of an express trust,” and as such entitled to maintain it as brought by them. (Code of Procedure, § 113; Wait’s Practice, vol. 1, p. 105 ; Persons v. Warren, 14 Barb., 488, 491, 496; Damis v. Carpenter, 12 How., 287; Thomas v. Bermett, 56 Barb., 197.) The objection should have been taken by demurrer under section 148 of the Code, and not having been so taken, the same was waived.

The action was in ejectment, and the accompanying diagram, offered in evidence on the trial, shows the location of the premises in dispute.

The action was brought'upon a policy of insurance issued to one Yolney J. Warren, and by him assigned to the plaintiff.

Harriet S. Hutchins and Charles H. Hutchins, husband and wife, entered into negotiations with Gr.

This proceeding was instituted under the mechanic’s lien law, chapter 489 of the Laws of 1878. In the notice the plaintiff alleged that in the summer of 1878, he entered into an agreement with the defendant, to remove a house, bam and other buildings belonging to the defendant, and to build foundations under them, for which the defendant agreed to pay him a sum therein specified, but which sum he has failed to pay, although the work has been performed as agreed.

The action in which this judgment was entered was commenced upon a note made by the defendant Eckert to the order of the defendant Bishop for the sum of fifty-five dollars. The action was against Eckert, as maker, and Bishop, as indorser. Eckert defended and Bishop suffered default.

<p>Promissory note — action upon— Title of plaintiff— denial of.</p> <p>Upon the trial of this action, brought against the maker and payee of a promissory note, the plaintiff read in evidence the note signed by the maker and indorsed in blank by the payee. The defendants set up in their answer, and offered to prove upon the trial, that the note was never transferred to the plaintiff; that he was not the legal owner or holder thereof, and that he was not the real party in interest, hut that the Saratoga Bank was the real party in interest and the owner of the note. Held, that as these facts, if proven, would constitute no defense to the action proof thereof was properly rejected. (Learned, P. J., dissenting.)</p>

Submission of a controversy without action, pursuant to section 312 of tbe Code of Procedure, The plaintiffs being the publishers and proprietors of the Troy Daily Times presented to the city of Troy a bill for $266.25, properly made out and verified, for publishing in said newspaper the city chamberlain’s list or statement of unpaid taxes and assessments and notice of sale for non-payment once a week, for six weeks successively, commencing May 1, 1876.

Hopestill, Solomon, Farrand S., David M., Morrey W. and Charles H. Armstrong were the owners, as tenants in common, of a certain farm. Hopestill, Solomon and Farrand S. contracted, by parol, to convey their undivided half for $1,000 to Morrey W., David M. and Charles H., the vendees entering into possession.

<p>Action for professional services — unliquidated demand — allowance of intw'est upon.</p> <p>In an action by an attorney against bis client, to recover for professional services rendered by bim, no bill having been presented and tbe demand being unliquidated, interest cannot be allowed upon tbe amount of tbe recovery from tbe time of tbe rendition of tbe services.</p> <p>Tbe statute fee-bill, altbougb evidence bearing upon tbe question as to tbe value and amount of tbe services rendered, does not determine tbe question as between attorney and client.</p> <p>Van Bmsselaer v. Jewett (2 ÍT. Y., 135) and Adams v. Fort Plain Bank (36 N. Y., 261) distinguished.</p>

<p>Appeal from a judgment of the County Court of Albany county, in favor of the plaintiff, entered upon the verdict of a jury.</p> <p>The action was originally brought in a Justice’s Court, to recover damages for the breach of a contract in reference to gathering hay.</p> <p>The plaintiff claimed he had made an agreement with defendant to help to gather all his hay, of which plaintiff was to have one-fourth for his services, and that defendant refused to allow him to help gather a portion.</p> <p>Defendant claimed plaintiff was only to cut certain lots, which he did cut, except a part of one lot which defendant claims plaintiff refused to cut.</p>

There was not the slightest proof of actionable negligence on the part of the defendant, either causing or contributing to the injury. (Gorham v. Gooperstown, 59 N. T., 660; MoGinty v. Mayor of New York, 5 Duer, 674; Shear. & Red. on Neg., § 147.) The defendant, having caused proper and fit barricades to be put up sufficient to prevent attempts to pass, was not responsible for their removal or its consequences.

A party relying on the admission of his adversary in a pleading must take the whole admission or statement as it stands, or nothing. He cannot avail himself of such part only as makes in his favor, and reject the residue. {Stuart v. Kissam, 2 Barb., 494; Miller v. Avery, 2 Barb.' Ch., 583; Oraág v. Tarpjgin, 2 Sandf.

Tbe action was brought to recover tbe price of certain bops, alleged to bave been sold to tbe defendants by tbe.plaintiff.

A petition was presented to the court, upon due notice to the board of supervisors, alleging that the petitioners had been improperly and illegally assessed for $10,000 personal property, which they did not own or possess, and had been compelled to pay thereon a tax of $600.40.

On the 19th day of April, 1873, Lewis Head was the owner of 109 acres of land in the town of Danby, Tompkins county, and Francis N-ourse owned a mortgage of $1,180 covering the whole premises.

<p>Commissioner of highways — not agent of town.</p> <p>The relator, an overseer of highways, under the directions of the commissioner of highways of the town of Esopus, removed obstructions from what was claimed to be a highway. Subsequently, one Cole brought a suit against him for trespass, on the ground that the road was not a public highway but belonged to said Cole, and recovered a judgment for twenty-five dollars. From this judgment relator appealed to the General Term and Court of Appeals, where the judgment was affirmed. No notice of the action or the appeals was given to the town.</p> <p>Subsequently, this application was made for a mandamus to compel the town to • pay the relator $2,711.47, for the amount of the judgment, and the costs and expenses of the action. Held, that he was not entitled to a mandamus, (1) because he had failed to give notice to the town of the action or the appeals, and thereby prevented it from tailing charge thereof; and (2) because the commissioner of highways was not the agent of the town, and it was not liable for his acts.</p>

verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried. One Stearns, being in possession of a stock of goods in a store, mortgaged them, December 18,1875, to Campbell, who took immediate possession. On the twentieth of December, he executed another mortgage to the plaintiffs on the same property, to secure them as indorsers, and Campbell agreed to remain in possession as their agent.

<p>Motion for a new trial on exceptions ordered to be beard in tbe first instance at tbe General Term, after a verdict in favor of tbe plaintiff.</p> <p>Tbis action was brought upon a pohcy of insurance, issued for tbe benefit of tbe plaintiff upon tbe life of bis wife, by tbe Merchants’ Life Insurance Company of New York, tbe liability of that company having been subsequently assumed by tbe defendant.</p> <p>Tbe policy contained a clause avoiding it, in case tbe insured died “ by her own band.” Tbe wife was found in tbe garret of her bouse banging dead. Tbe plaintiff claimed that she was insane at tbe time.</p>

. Motion for a new trial on exceptions ordered to be beard in tbe first instance at tbe Greneral Term, after a verdict in favor of tbe plaintiff. The action was brought to recover damages for the breach of a warranty upon the sale of a horse, the warranty being alleged to have been false and fraudulent.

<p>Appeal from an order made at the Special Term denying a motion made by the defendant Brennan, to change the place of trial of this action to the county of New York, of which county he was sheriff.</p>

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

The complaint contained a count of malicious prosecution, and also one for false imprisonment. Held: upon consultation, that to set out a cause of action in two separate forms or counts, provided there is a fair and reasonable doubt of his ability to safely plead this in one mode only, was not a violation of this provision of section 142.

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

<p>Action against sheriff, for failure to return execution — return of, nulla Iona after commencement of action — effect of.</p> <p>After the commencement of an action, brought against the sheriff for a failure to return an execution within sixty days, he returned the same indorsed nulla tona. Upon the trial the plaintiff proved the issuing of the execution, and its return and indorsement after the commencement of the action. Held,</p> <p>That as the return was made by a public officer of an official act he was bound by law to make, it was evidence in favor of the officer making it.</p> <p>That its admissibility was not affected by the fact that it was made after the commencement of the action.</p> <p>That as the plaintiffs did not contradict the return, he was entitled to recover only nominal damages.</p>

<p>Misjoinder — one action upon two distinct undertakings — demurrer.</p> <p>Defendant Horwitz having been arrested in an action brought by the plaintiffs to recover the possession of certain personal property, an undertaking was given on the third of April by the defendants Horwitz, Freudenthal and Dodds, by which they bound themselves that the defendant should, at all times, render himself amenable to process, etc., and for the payment to the plaintiffs of such sum as might be recovered against him. On the twenty-seventh of May, another undertaking was given by the defendants Dodds and Jopha, in the form and to the effect required by section Sll of the Code.</p> <p>Plaintiffs having recovered judgment in the action, and an execution issued thereon having been returned unsatisfied, brought this action against all the sureties to both undertakings. Meld, that a demurrer, interposed by the defendant on the ground of an improper joinder of separate causes of action, was proper and should be'allowed.</p>

Appeal by the receiver and the plaintiffs in the above entitled action, from an order of the Special Term confirming the report of a referee. In 1873, Birchall was a manufacturer of goods at Philadelphia. Hoyt, Spragues & Co. were commission merchants at New York. Birchall made an arrangement with Hoyt, Spragues & Co. to consign goods to them for sale on commission. Hoyt, Spragues & Co. guaranteed sales, and had the right to sell on credit.

Tbe action was upon a promissory note. Tbe defendant demurred, on the ground that there was no allegation in the complaint showing any consideration for the note, and because it did not appear therefrom that the note contained any words expressing a consideration. If a written contract be defective in its specification, it must be declared on according to its legal effect, and the deficiency supplied by the proper averments.

This action was brought upon a policy of insurance issued by tbe defendant.

Tbe action was brought upon two promissory notes, made to tbe order of tbe plaintiffs’ testator.

The justice before whom the action was tried found, among others, the following facts: Tbat tbe defendant was a corporation duly organized and existing according to law; tbat tbe plaintiff was tbe owner of tbe lands and real estate described in tbe complaint, and tbat tbe defendant bas not made any compensation to tbe plaintiff for any portion of said land; tbat, under and in pursuance of chapter 670 of tbe Laws of 1869, and tbe acts amendatory thereof, and of chapter 531,…

<p>Appeal from a judgment of the Court of Sessions of Westchester county in favor of the defendants in error, entered on a motion to quash an indictment found against 'them in said court, as commissioners of excise of the town of Eastchester, for granting licenses contrary to the provisions of section 6 of chapter 628 of 1857.</p>

The draft of the Continental Life Insurance Company was on a particular fund in the United States Trust Company (not a banker, but a trustee), and the draft operated as an equitable assignment of $7,820.67 of those funds to the petitioner.

Tbe action was brought by tbe plaintiff to restrain tbe defendants from using a ditch, that they bad dug to carry off waste water from then’ bouses into a brook that fed tbe trout ponds of tbe plaintiff, and from fouling and corrupting tbe said stream; and also to recover damages for tbe loss of trout, occurring by the above acts.

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