Volume 18 — New York Reports

Writ op Error to the Supreme Court, sitting in the first district, brought by the district attorney pursuant to the statute of 1852 (ch. 82), to review a judgment of that court in favor of James Rogers, the present defendant in error. Rogers was indicted in the Court of General Sessions of the Peace, of the city and county of New York, for the murder of John Swanston, in that city, on the 17th of October, 1857.

The action was for the foreclosure of a mortgage upon certain real property-known as the Owasco Woolen Factory, in the city of Auburn. The description of the property, as contained in the mortgage, is stated in the following opinion. Gifford, Sherman and Innis, who were made defendants as claiming some lien on or interest in the mortgaged premises, answered the complaint.

The defendants were sued as the sureties of one Ramsdell, in a replevin bond, dated June 17, 1847, conditioned to pay such sum of money as might be recovered against Ramsdell, and in the penalty of $2,000. Judgment was rendered against Ramsdell in the replevin suit, for $1,826.75, June 6, 1851. A demurrer was interposed to the complaint, which having been overruled, and the defendants not answering, the plaintiff’s damages were assessed by the clerk of Erie county.

<p>Appeal from the Supreme Court. The complaint stated that by chapter 283 of 1853, the president and trustees of the village of Rome, a body politic and corporate, were authorized, in behalf of the corporation, to subscribe for and hold stock in a railroad corporation, organized or to be organized for the construction of a railroad from some point on the River St. Lawrence to and terminating within the village of Rome, to an amount not exceeding $150,000. That the trustees were empowered, by said act, to provide for the payment of such stock by corporation bonds for not less than $100 each, to be payable not more than twenty years from their date, and to bear interest not exceeding seven per cent per annum, payable annually or semi-annually, and at such times or places as should be expressed therein. The provisions of the act for the appointment of commissioners to represent the village corporation in respect to the negotiation of the bonds, and that requiring the trustees of the village to collect, in addition to the amount which they might then raise in one year, an annual tax sufficient to pay the interest on all bonds which might be issued, were set out in the complaint. The act further provided:</p> <p>8. The board of trustees shall have no power to make such subscription as is authorized in the first section of this act, nor to issue bonds or create any liability under this act, until it has been previously approved by two-thirds of all electors who shall have paid a tax on personal or real estate in said village, whose names shall appear regularly in the last village assessment roll for the year next preceding the one in which the vote is taken.”</p> <p>The ninth section prescribes how the election shall be held, and the votes—“For railroad stock” and “Against railroad ctock”—returned. The tenth directs the president and trustees to canvass the vote and file a certificate in- the clerk’s office of Oneida county, stating the result: “And if it shall appear from such certificate that this act has been approved and the issue of stock authorized, the president and trustees of said village shall proceed to make subscription and to issue bonds as authorized by this act.” The twelfth and last section is: “§ 12. This act shall take effect immediately.”</p> <p>The complaint then spts forth the holding of a special election in the village of Rome, in full compliance with the act, and a canvass of the votes, whereby it appeared that more than two-thirds of the electors specified in the act had cast their votes in favor of approving the same, and of subscribing for railroad stock, and that the trustees made and filed their certificate, showing the approval of the act as required therein. The Ogdensburgh, Clayton and Rome Railroad Company was organized, for the construction of a railroad from within the village of Rome to the River St. Lawrence in the village of Ogdensburgh. The president and trustees of Rome subscribed, in behalf of the village corporation, for $150,000 of its capital stock, and for the purpose of providing for the payment of the subscription, issued its bonds and delivered them to the railroad corporation, who transferred three of them, for $500 each, to the plaintiff. The sum of $105 for the annual interest, due January 1,1856, remains unpaid, and for this sum was judgment demanded.</p> <p>The defendant demurred to the complaint on the grounds that the act of 1853, authorizing the subscription and issue of bonds is unconstitutional, first, because it delegates the power of legislation to the voters of the village of Rome ; second, because it is not within the power of the legislature to confer upon the officers of a municipal, corporation authority to tax the property of its inhabitants for the purpose of building a railroad, a purpose which is not a public one, and is foreign to the nature and attributes of a municipal corporation.</p> <p>The demurrer was overruled at special term, and upon appeal, this judgment was affirmed at general term in the fifth district. Final judgment having been perfected for the plaintiff, the defendant appealed to this court.</p>

<p>In an action for the seduction of the plaintiff’s daughter, proof that the defendant procured her to he indentured to him as a servant, as a means of effecting the seduction, is an answer to the objection that the plaintiff was not entitled to her services.</p> <p>In such an action, evidence of the bad moral character of the plaintiff, especially in respect to chastity, is inadmissible in reduction of damages or otherwise.</p>

This was an action in the nature of a writ of nuisance, brought to compel the defendant to remove a building by which he. obstructed an alley-way in which the plaintiff claimed an easement, and for damages for such obstruction. The trial was before Mr. Justice Bosworth, a jury having been waived.

Action on a promissory note by an indorsee against the makers. 'The note was payable to the order of N. P. Rust, who had indorsed it in blank. It had been discounted by the Bank of Salina. One Quick paid the amount to the bank, and received themote before maturity, and afterwards transferred it in writing to the plaintiffs in payment of a debt.

The action was for the rent of premises, in the city of Brooklyn, occupied by the defendant under a lease in writing.

<p>Appeal from the Supreme Court. The action was brought by David D. Cole and Lemuel C. Holmes. The complaint averred that the plaintiffs, and Wightman J. Cole, one of the defendants, were copartners under the firm of Coles & Holmes; that the defendants were also copartners, doing business as commission merchants, in' the city of New York, under the firm of Cole, Stevens & Co.; that there were large dealings between .the two firms; that the defendants became and were indebted to the-plaintiffs and Wightman J. Cole, upon an account which had accrued in favor of the firm of Coles & Holmes, and against the firm of Cole, Stevens & Co., arising, among other things, from the receipt by the latter of the proceeds of property, to the amount and value of $18,005.33, transmitted to them for sale, on commission, by the former, and that the defendants were indebted to the firm of Coles & Holmes, upon said account, in the sum of $2,316.45, with interest from February 4, 1853, over and above all discounts, payments and set-offs on the part of the defendants. It further stated that Wight-man J. Cole, one of the partners in both firms, had refused to be joined as a plaintiff in the action, and therefore he had been made defendant only. The answer averred, among other things, that there was “ sufficient or nearly sufficient in the hands of the said Wightman J. Cole [who did not answer], belonging to the defendants, to pay any balance due the plaintiffs from the defendants, and that the same is applicable to and ought to be applied in payment of any such balance, if such exists, but the state of said accounts these defendants are unable to ascertain, as the said Wight-man J. Cole has the books and vouchers in his possession.” The cause was referred to Luther J. Howe, who reported as facts substantially those above stated and contained in the complaint. He also found that in the winter of 1853 the firm of Cole, Stevens & Co. delivered an account current of their business with Cole & Holmes to the latter, and that in April, 1853, the parties met and corrected the account current, showing a balance due from Cole, Stevens & Co. to Coles & Holmes of $2,298.20. This balance was reduced by a payment shortly afterwards, leaving due and unpaid $2,193.20, with interest from February 4, 1853, which sum he reported the plaintiffs were entitled to recover, “to be received and to be accounted for by them as so much of the assets of the firm of Coles & Holmes.” Judgment, "containing the declaratory words just quoted, was entered upon the report. Upon appeal, this judgment was reversed at general term in the fourth district, and a new trial ordered on the ground that, “in actions between partners, relief can only be granted when it is ex aequo et bona necessary and proper, and to determine this, the situation of the partners must be determined by an. accounting,” which it was held was not proposed or contemplated by the complaint. Upon the second trial before the same referee, the plaintiffs offered to prove precisely the same facts above stated as found by the referee in his first report. The referee, in conformity with the decision at general term, excluded the evidence and nonsuited the plaintiffs. Judgment was entered for the defendants upon his report, and having been affirmed at general term, the plaintiffs appealed to this court. The case was submitted upon printed arguments.</p>

<p>A person who, without special authority, makes or continues a covered exea, vation in a public street or highway, for a private purpose, is, in the absence of negligence in the party ■imiired, responsible for all injuries resulting from the way being thereby rendere&dess safe, irrespective of any degree of care and skill in the party who makes or continues the excavation.</p>

This action was brought to recover damages for a personal injury, arising in the same manner and at the same time as the injury in the case preceding, of David Congreve, against the same defendants. The facts proved at the trial were substantially the same as in that case, with some few omissions and additions not necessaiy to be here noticed.

The action was upon a judgment alleged to have been recovered against the defendant in the Circuit Court of Mississippi for the county of Adams. The defendant’s answer was equivalent to a plea of mil tid record. The case was tried before the late Mr. Justice Duer and a jury.

Affe>' 1j from the Supreme Court. The action was Brough in July, 1853, to recover the possession of a parcel of land situate in GHoversville, Fulton county, and was tried before the court, without a jury, in September, 1853, when the following facts were found: The plaintiff, Susan Leonard, is the wife of the plaintiff, Abner Leonard, and the mother and only heir at law of Sidney S. Mills Mills was, in his lifetime, and at his death, seized in fee and possessed of the…

The action was commenced in January, 1853, for damages from the flooding of the plaintiff’s land by means of a dam maintained by the defendants in the Twelve Mile creek, in the county of Niagara; for the removal of the dam, or such alterations as would prevent the flooding of the plaintiff’s land, and for injunction against future obstruction to the natural flow of the water.

The action was upon ..a bond executed by the defendants to the plaintiff as sheriff of Monroe. It recited that Beller had obtained and delivered to the plaintiff ,-a warrant of attachment against the goods of one Victor Charroin, and that' certain property, attached by the sheriff under the warrant, was claimed by one Barron and others. The condition was to indemnify the plaintiff and all persons aiding and assisting him in the execution of the warrant.

Action to recover damages for an injury sustained by the plaintiff, by falling into an excavation made by the defendant, in a street in Buffalo, in putting down their water pipes. The complaint alleged that the ditch was very negligently left open by the defendant, and it stated the injury to the plaintiff as follows: “ That on or about, &c., and about the hour of ten o’clock in the evening of that day, the plaintiff fell into said ditch or trench..

The plaintiffs sued the defendant in a Justices’ Court of Montgomery county, for opening a gate on the plaintiffs’ land, and leaving it open, by means of which their crops, &c., were injured by cattle entering through the gateway. The defendant answered, among other matters, that the gate was erected across his, the defendant’s, private road, and that the-title thereto was in him, and he gave an undertaking with sureties as prescribed by §§ 55, 56, &c., of the Code.

The appellant was indicted upon a charge of murder. After some progress had been made in the trial, a juror was withdrawn in pursuance of a stipulation, signed in open court, by the prisoner, his counsel and the counsel for the people, which provided, in terms, “that the verdict in this cause be rendered by and taken from the remaining eleven jurors, and that the twelve names now appearing of record as the jury in this cause may remain, so that by the record this cause shall…

Action to recover possession of a lot of land in Williamsburgh, commenced in February, 1854, and tried before the late Mr. Justice Rockwell, without a jury.

This was an action against Jacob McCormick, to recover a small piece of land in the village of Ithaca, lying between what was formerly the north bank of Six Mile creek and the present centre of that creek.

In 1846 the plaintiff recovered judgment in that court against Spencer, Thomas and Burnet, who resided in different counties, and execution was immediately issued to the sheriffs of each of the counties, and was by them respectively returned unsatisfied.

The object of this suit was to obtain a judgment declaring null and void a certain act of the board of supervisors of Broome county, by which that board divided the former town of Chenango into three towns, to be called respectively Binghamton, Chenango and Port Crane.

Upon the trial, before Mr. Justice Brown and a jury, at the Orange Circuit, it appeared that the plaintiffs’ application for insurance was .accompanied by a survey, in the form of questions propounded by the defendant and answered by the plaintiffs; one of these was: “Is there a good forcing pump in the factory, designed expressly for protection against fires, and at all times in condition for use?” This was answered in the affirmative, and the pump was described as situated…

Writ of Error to the Supreme Court. The appellant was indicted in Tompkins county for the murder of his infant child by various means—stabbing, choking, drowning, poisoning, &c., set forth in different counts. The indictmen was brought by certiorari into the Supreme Court, and, the venue having been changed, was tried at the Tioga Circuit in October, 1856, before Mr. Justice Mason.

<p>An order declaring a banking association insolvent, and appointing a receiver in pursuance of the act to enforce the responsibility of stockholders, &c. (ch. 226 of 1849), appeared by its terms to have been founded upon applications made by several creditors, which were filed. Upon appeal the only application returned with the order contained no averment that the association had issued bills to circulate as money; Held, that it was error in the appellate court to reverse the order for this omission without having before it the other applications, in which that averment might have appeared.</p> <p>Conceding such averment to be a jurisdictional one, its absence will not defeat the subsequent proceeding against stockholders before the Supreme Court at special term, which has general jurisdiction of the subject; such proceeding commencing, so far as the stockholders are concerned, after the appointment of a receiver, by notice to them to appear before a referee, and ending in a determination establishing their several liabilities. This is a judgment conclusive in respect to a particular jurisdictional fact, as in other cases where a court has general jurisdiction of the subject and has brought the parties within its process.</p> <p>The provision charging stockholders with personal liability, by the constitution and the act of 1849, is within the power reserved by the legislature in the tenoral banking law to alter it; is to be deemed voluntarily assumed by the stockholders of asso nations organized since the act, and is not a law impairing the obligation ®f contracts.</p> <p>The act of 1849 is not unconstitutional on the ground that it deprives stockholders of the right of trial by jury. The settling the affairs of insolvent corporations and compelling contribution by their members was, before the constitution, within the jurisdiction of courts of equity, and no right to trial by jury existed in such cases.</p> <p>The proceeding of the receiver, under the act of 1849, to ascertain the debts and liabilities of the association is ex parte, and his report thereof is not conclusive upon the stockholders or other parties; but the whole question is open to litigation before the referee, who is to make the apportionment of the unsatisfied debts of the bank, and ascertain the persons liable therefor.</p> <p>The proceeding before the referee and on the appeal from his report, where all parties interested have the right to be heard, though summary, is due process of law within the meaning of the constitution.</p> <p>Personal service is not required to constitute due process of law. The legislature has the discretion to provide for bringing in parties by the publication of notice, in cases where actual personal service would be impracticable or dilatory.</p> <p>. The provision of the constitution subjecting corporations to be sued like natural persons is an. enabling and not a restrictive one. It does not require that</p> <p>• they should be proceeded against only by regular action, but leaves them to summary proceedings at the discretion of the legislature.</p> <p>The liability of a stockholder is not limited to the amount of capital stock which he has agreed to pay in, but extends to an amount equal to the stock held by him and additional thereto.</p> <p>The provisions of the act limiting the time for the referee to report, &c., are merely directory. An extension of the period beyond one year and ninety days after his appointment does not work a discontinuance, of the proceeding.</p> <p>The referee is not authorized, without proof, to apportion among the stockholders alleged liabilities of the bank reported by the receiver as not admitted by him nor established by the determination of a competent tribunal. It is incumbent upon the creditors claiming such debts to appear before the referee and establish them by affirmative proof.</p> <p>Persons to whom stock has been transferred by way of hypothecation for debts, and in whose names it stands registered at the time of default, are stockholders within the meaning of the act and the constitution, and, as such, liable to an equal additional amount for the unsatisfied debts of the bank.</p> <p>It seems that the provision for charging the equitable owner of stock is to be limited to cases where the party who is registered as the owner is merely a nominal holder, e. g., a trustee authorized to invest the funds of another in such stock and without any personal interest.</p> <p>A stockholder who is also a creditor of the bank cannot set off its indebtedness to him against his liability for its debts.</p>

Motion by the plaintiff to dismiss an appeal from a judgment of the New York Common Pleas. It was made on the ground that there had not been a determination of the case at a general term. The action was tried by jury, and there was a verdict for the plaintiff for $6,000. In the entry of the verdict in the minutes, it is added, that judgment therefor, with costs, is ordered.

Action against the defendant as the drawer of two bills of exchange, drawn on Duncan, Sherman & Co., of New York, and protested for non-payment. The plaintiff was an incorporated (safety fund) bank, located at Buffalo, and the defendant an individual banker under the general banking law, carrying on the business at the same place under the name of the Exchange Bank of Buffalo.

Action by the administratrix and widow of Thomas Button for damages for the death of her husband, who was run over and killed by the horse cars of the defendant passing down West-street, in the city of New .York, at 11 o’clock of the night of November 13, 1853.

<p>Appeal from an order of the general term of the Supreme Court, in the sixth district, affirming an order at special term granting the defendant double costa, on the ground that the action was brought for acts done by him as a public officer. The case was submitted on printed points.</p>

Action to charge the separate estate of Mrs. Dederer, a married woman, with the payment of a promissory note which she had signed with her husband, N. A. Dederer, who was a party defendant, On the trial at special term in Chenango county, before Mr. Justice Mason, it was proved that the consideration of the note was the price of thirty-eight cows, purchased bj Mrs. Dederer’s husband of the plaintiff.

In March, 1844, the plaintiffs, who were tanners, in Ulster county, made a contract with the defendants, leather merchants, in the city of New York, to receive from them hides to be tanned at a stipulated compensation, and agreed that the hides should be made to gain in weight as much as good tanners make from the same description of hides.” Under this contract the plaintiffs received and tanned a large quantity of hides, which were returned from time to time, the contract…

The action was for the recovery of the possession of personal property, consisting of goods and merchandise purchased by the defendant Pinner of the plaintiffs, upon the allegation that he purchased the same fraudulently, with the design not to pay for them. The complaint was for the wrongful detention of the property.

' The complaint states that on the 18th of April, 1857, “ The Chemung County Bank,” located at Horseheads, was designated by the canal board, according to the statute, to receive the deposits of canal tolls collected at that place; that on the 27th of April, 1857, the said bank, by its president, William T. Hastings, and its cashier, entered into a contract with the plaintiff, a copy of which is annexed to the complaint; that on the day last aforesaid, the defendant, in…

Action against the defendant as indorser of a promissory note, tried at the Oneida circuit, before Mr. Justice W. F. Allen, without a jury in October, 1853. The note was made by F. Hollister, for $1,398.71, dated May 22d, 1852, and payable three months-thereafter, to the order of George C. Tallman, at the Oneida Bank, with interest, and was indorsed by Tallman and by the defendant.

<p>Appeal from the Superior Court of New York city. The complaint stated that on April 27th, 1854, the defendant was indebted to the plaintiff in the sum of $2,000, for land before that time sold and conveyed to him by the plaintiff, and that for the said indebtedness the defendant made and delivered to the plaintiff a promissory note in these words :</p> <p>“ Due to William J. Buck, or order, two thousand dollars mdze. out of my store, 44 Maiden Lane, on demand, for value rec’d; said mdze. to be sold and delivered at not above 25 per cent of the cost price. N. Y., April 27, ’54.</p> <p>“James Burk, Jr.”</p> <p>The cause was tried before a referee, who found that after the giving of the note, and prior to March 9, 1855. the plaintiff authorized and directed different persons to receive merchandise from the defendant in payment of the note, and that such persons did receive goods at the defendant’s store, 44 Maiden Lane, to the amount of $1231.55; that the defendant charged for the goods so delivered from thirty to forty per cent above the cost at wholesale market price for such goods, but not more than twenty-five per cent above the cost price of the goods to the defendant. Some of the persons thus authorized refused to receive them because the defendant charged as aforesaid. Most of the defendant’s stock of goods had been purchased by hint in and prior to 1850, and the greater part had depreciated in value and were unsaleable, owing to their having become unfashionable and out of style; the defendant not replenishing with fashionable goods so as to keep up a full stock. In the spring of 1855, and just before the defendant removed his goods from No. 44 Maiden Lane, the plaintiff sent to said store for goods amounting in value to from $15 to $20, which the defendant then had on hand. The person sent designated the goods he wanted, and requested the delivery of them upon the note. The defendant declined on the ground that he had boxed the goods up to move, and said he could not •get them out. The defendant removed the balance of his stock then on hand, from No. 44 Maiden Lane to No. 2 Astor House, Barclay-street, where the goods remained two or three months. The defendant, before such removal, notified the plaintiff to come and take goods in payment of the note. On the 13th of December, 1855, long after the removal, the plaintiff demanded payment of the note in. goods, at the store No. 44 Maiden Lane; and on January 2, ■1856, he demanded of the defendant, at No. 2 Astor House, Barclay-street, that he should pay the note in goods at No. 44 Maiden Lane.</p> <p>The defendant, in answer, said that he had the goods at his house, and that if the plaintiff would come to his house when he was there, or fix a time when they could meet at his house, he would pay the note in goods. The plaintiff did not select any specific goods to be delivered in payment, nor did the defendant tender any specific goods, nor make a selection of goods to pay the plaintiff, and notify him of such selection. The referee reported in favor of the plaintiff, who had judgment for $849.13, besides costs, which having*’ been affirmed at a general term, the defendant appealed to this court. The cause was submitted on printed arguments.</p>

The action was to recover surplus money received by the defendants upon a mortgage sale. The facts are sufficiently stated in the following opinion. The cause was' tried before Mr. Justice Harris without a jury, and he ordered judgment dismissing the complaint. The judgment having been affirmed upon appeal at general term in the third district, the plaintiff appealed to this court. The case was submitted on printed arguments.

The defendant was convicted, at a special term of the Supreme Court, of a contempt in disobeying a subpoena by which he was required to give testimony in behalf of the complainants, in proceedings supplementary to execution upon a judgment which they had recovered against one Judah; by which contempt, as it was considered, the rights of the plaintiffs in the judgment had been defeated or impaired; and a fine was imposed upon him therefor of $730.30, and he was ordered to…

<p>Upon an application to a justice of the peace for an attachment, slight evidence was presented of an intent on the part of the defendant to defraud his creditors : Held, although the evidence was so insufficient that the action of the justice would he reversed upon a direct proceeding to review it, the process is to be deemed valid when attacked in a collateral action.</p> <p>In such cases the process is not to be held void if the magistrate had before him evidence legally tending to establish the jurisdictional fact, and requiring the exercise of his judicial judgment as to its cogency.</p>

The complaint was for money lent and advanced to the defendants, and laid out and expended for their benefit, and at their request, for the purpose of promoting the use and sale of a machine for carving wood and metal, and of patent rights under a patent for said machine, of which the defendants were proprietors.

<p>Appeal from the Supreme Court. Action for an alleged unlawful detention of beer barrels. The appeal was brought on for argument at a former term of this court, when it was ordered by the court that the appeal be dismissed, unless the appellant procure the return to be amended in respect to the finding of facts by the referee. A report of the case, stating briefly the object of the action and the proceedings therein, both in the Supreme Court and in this court, may be found in 16 N. Y. R., 613. The appellant procured, under an order of the Supreme Court, a further report from the referee, which, by the direction of that court, was annexed to the judgment roll and incorporated in the return to this court. This further report states, as facts found by the referee: 1. That the plaintiff was a manufacturer and seller of ale in the city of New York; 2. That the plaintiff was the ‘owner of the sixty-seven barrels mentioned in the complaint and which were filled with ale manufactured and owned by the plaintiff; that he sold said ale to one Ham, it being agreed between them that said Ham might retain said barrels until the ale was drawn therefrom, and then said barrels should be returned to the plaintiff, but if any were not returned said Ham should pay two dollars a piece for them, which latter'part of said agreement, as understood by the parties, had reference only to any barrels that, during their possession by said Ham, might be lost or destroyed or ' rendered incapable of return by accident or necessity; 3. That said agreement was in accordance with the prevailing general usage of trade in the manufacture and vending of ale, and that the defendants were, before receiving said barrels, aware of such usage and were purchasers of ale and retailed it, and their course of business was to collect the empty barrels when the ale was out and return them to the manufacturers and vendors of the ale; 4. That said barrels first mentioned bore the plaintiff’s brand and were so marked as to be distinguished from other ban-els, in which condition they subsequently, after the ale had been drawn therefrom, came to the possession of the defendants, who removed some of the marks thereon in order to destroy that evidence of ownership 5 5. That while the barrels were so in the possession of the defendants the plaintiff demanded them of the said defendants, who refused to give them up and retained the same, claiming to be owners thereof, the said defendants having previously purchased the same of said Ham or of other persons who had made such purchase of him; that some of such purchases by the defendants were made at about half the fair value of the barrels. It is also stated that upon these facts the referee adjudged, as matter of law, that the defendants were owners of said barrels and were entitled to retain the possession of the same. The appeal having been again brought on for argument, was argued by</p>

17, the amount of the taxed costs included in the judgment, with $10 costs of the motion. The facts are sufficiently stated in the following opinion. The case was submitted on printed points by the attorney for the plaintiff who was respondent, and was argued by

Action upon a bond to the plaintiff, sheriff of Oswego, reciting the issuing of an execution directed to the plaintiff against one Eri D. Harrington, and that certain goods and chattels which appeared to belong to the latter were claimed by William H. Harrington and conditioned to indemnify the plaintiff and all persons aiding or assisting him in the premises, from all damages for levying upon and selling the property.

The action was on a policy of insurance, issued by the defendants to the plaintiffs. The subject of insurance was described in the body of the policy as follows : “ On their store in the village of Gro wanda,:...... $000 “ On their goods, wares and merchandise therein,.. 1,400 “$2,000 “ Reference being had to the application of the said Amasa S. and others for a more particular description, and forming a part of this policy The application was signed by the insured.

<p>Appeal from the Supreme Court. Action upon two policies of insurance against loss by fire, issued by the defendant to the plaintiff; one on two stores for $400 each, and the other on a store for $100, and a storehouse, woodshed and hoghouse, all in one building, for $50. Each policy contained a reference to the application of the plaintiff for a more particular description and as forming part of the policy; and there was a provision in each, making the policy void if the insured had any other insurance against loss by fire on the property, not notified to the defendant, and declaring that if he should make any such insurance, and should not with all reasonable diligence give notice to the secretary and have it indorsed, &c., the policy should cease. The applications were designated therein, “ Application of David N. Brown,” &c., and were partly printed and partly written. Each contained an interrogatory, printed :</p> <p>“Relative situation as to other buildings, distance from each within ten rods.”</p> <p>The answers are in writing, and that in the application relating to the stores specifies several buildings, with the distance of each from the stores. The answer in the other application is:</p> <p>“ The storehouse is situated in the rear of the store, the barn in the rear of the dwelling occupied by John Pierce both of which are contiguous to other buildings. There is a block opposite the store.”</p> <p>At the end of each.application are the words, in print •</p> <p>“ All of the exposures within ten rods are mentioned.”</p> <p>Then follows the signature, at the right hand of the paper:</p> <p>“ D. N. Brown, Applicant ”</p> <p>And on the left hand side :</p> <p>“ George Ide, Agent"</p> <p>The plaintiff proved that Ide was the agent and surveyor of the defendant, and that he resided at Gowanda, where the buildings were situate; and further proved, under objection and exception, that it was Ide’s business, as such agent, to solicit insurances; to sign applications, and to forward them to the office of the defendant at •Ellicottville; receive policies from the defendant and deliver them to the applicants, and take their premium notes and the, cash per cent thereon; and as such surveyor to survey the property and premises proposed to be insured, to take the measurement of the distances from all other buildings contiguous and within ten rods therefrom ; to take the size of the buildings proposed to be insured, the number of chimneys, See., and ascertain the relative situation of the buildings insured to any other buildings, for what purpose occupied, and generally to ascertain all about the property to be insured, material to the risk; that said Ide procured the policy first mentioned; that he signed the application, and signed it as agent for the defendant, and that the application was drawn by Ide, who made the survey of the stores mentioned in the application, and made all the measurements of the distances of the stores from other buildings at the time; that when the application was made and signed, Ide stated to the plaintiff, in substance, that the application was correct, and contained all that the company required; that the plaintiff had nothing to do or say about making or preparing the application or making the measurement or survey in reference to the property insured; that Ide had lived at Growanda seven or eight years, and was well acquainted with the buildings insured, and also the other buildings about them ; that the printed blank applications, one of which was filled up for the plaintiff by Ide, were furnished by Ide to the defendant; that when the application was presented to the plaintiff to sign he stated to Ide that he did not know anything about the rules and regulations of the company, to which Ide replied that he was agent and surveyor of the defendant; that the application as prepared was all the defendant required; that the plaintiff then stated to Ide that relying upon the correctness of Ide’s statements as to the sufficiency of the application, he would sign it; that the plaintiff signed the application, which Ide forwarded to the defendant’s office and the policy was issued on it, which Ide delivered to the plaintiff; that the plaintiff was not present when the application was prepared by the surveyor ; that the plaintiff signed the premium note, which was forwarded with the application ; that five per cent premium, and $1.50 for survey and policy, was paid to Ide; that Ide’s authority to act for the defendant was in writing, but had been lost. The plaintiff also proved, under objection and exception, the same facts in regard to the other application.</p> <p>The defendant proved that there were several buildings within ten rods of the buildings insured, not mentioned in the applications, and gave evidence tending to prove that each of those buildings exposed the insured buildings to loss by fire. The defendant also proved that several buildings mentioned in the application for the policy on the stores were nearer the stores than stated in the application.</p> <p>There was nothing in any of the papers expressing that the company would be responsible for surveys by their agent, or declaring him in that business the agent of the insured. In the application for insurance on the stores was an interrogatory, “ Is there any other insurance on this property ? what amount and by what company ? ” and the answer was, “ $600 on large building, in Ontario and Livingston Mutual.” The defendant proved that, on the 9th of July, 1855, the plaintiff obtained another insurance from that company on one of the stores. The plaintiff proved that this was in renewal of the previous insurance, which expired June 20, 1855. The other facts essential to the cause of action are admitted by the pleadings.</p> <p>The evidence being closed, the defendant asked the court to submit the case to the jury and to charge that the statement of the plaintiff in each of the applications, in answer to the first mentioned interrogatories, was a warranty that the several distances therein mentioned from the several buildings therein mentioned, were the true distances of the insured building from each building within ten rods therefrom. The court refused, and the defendant excepted. The defendant then asked the court to submit the case to the jury and charge them that the answers of the plaintiff, in the applications, to those interrogatories were warranties that there were no buildings, other than those named in such answers, within ten rods of the insured buildings. The court refused, and the defendant excepted. The defendant then asked the court to submit the case to the jury and instruct them that the statements in the applications, that all exposures within ten rods were mentioned, were warranties that there were no exposures within ten rods of the insured buildings other than those mentioned in the applications. The court refused, and the defendant excepted. The defendant asked the court to submit to the jury and instruct them that the omission by the plaintiff to give notice of the subsequent insurance, &c., on one of the stores rendered the policy void as to the amount for which that store was insured. • The court refused, and the defendant excepted. The court directed the jury to find a verdict for the plaintiff for the amount of the policies and interest. to which the defendant excepted. The jury found for the plaintiff accordingly.</p> <p>Judgment having been entered for the plaintiff, the defendant appealed. The judgment was affirmed at general term in the eighth district, and the defendant appealed to this court. The case was submitted on printed points.</p>

The action in this case was like that in the preceding one of Brown v. The same defendant {ante, p. 385). The plaintiff was the assignee of one Henry, to whom a policy had been issued upon an application filled out by Ide, the surveyor and agent mentioned in the two preceding cases, and in the same form there described.

The general object of the action was to obtain a judgment declaring null and void a certain order of the County Court of Onondaga county, purporting to authorize the sale and conveyance of the church… Held: at which it was resolved by a divided vote, several persons declining to vote, to disband the church.

The action was for damages sustained by the plaintiff in consequence of the negligence of the defendant and its servants in the construction of its railroad and machinery, failure to maintain fences and careless running of a train of cars in which he was a passenger. Upon the trial at the Genesee circuit, before Mr. Justice Bowen, the plaintiff had a verdict and-judgment, which having been affirmed at general term in the eighth district, the defendant appealed to this court.

Action to recover two-thirds of lot No. 56, in the town of Champlain and county of Clinton. The trial was before Mr. Justice James, a jury having been waived.- The judge found the following facts. Joseph Bindon, Sr., was, on the 15th of October, 1819, seised in fee of the land in controversy. On that day he made and published his last will, of which these are the material words: “ First.

Action for damages from alleged negligence of the defendant in running a train of cars against the wagon in which the plaintiff was crossing the defendant’s track. The trial was at the Onondaga Circuit, before Mr. Justice Bacon. Upon the conclusion of the plaintiff’s evidence, which is sufficiently stated in the following opinion, he was nonsuited by the court and took an exception.

Action for the conversion of one thousand bushels of wheat. The trial was before a referee, who found that the defendant was, in 1854, part owner of the schooner Raleigh, navigating the great lakes, one Tyler being master, and also part owner. In November, 1854, Tyler, being at Toledo, made a contract with Reed & Co., of that port, by which they were to load the vessel with a full cargo of wheat for Oswego, at 10£ cents a bushel.

<p>A laborer employed to gravel a new and unfinished railroad track, upon which no train had run, and who was walking upon it towards the place where he was to commence his day’s work, was overtaken and injured by a passenger train using the new track in consequence of a temporary obstruction upon the old track of the same corporation, which was parallel and about six feet distant: Held, that he could maintain no action against the common employer for the injury received from the negligence of those engaged in running the train.</p>

Action to recover possession of land in Oneida county. The answer set up a lease of the premises, “ executed February 3, 1791, by George and Edward Clark, under whom only said plaintiff claims, to Mathias Houcke for the period of thirty-one years certain, and further for and during the term and period of the natural life of the lessee, of John Lake and Henry Houcke, and for and during the natural life of the longest liver of them, which said lease is still subsisting, and…

The action was brought to recover an amount claimed to be due from the defendant for grading and paving one of its streets, by one Cossleman, who had assigned his demand therefor to the plaintiff: and was brought to trial before Justice Bacon at the Oneida Circuit, in November, 1856.

Action to charge certain real estate known as the Utica Museum, the title of which was in the defendant, Nelson Roth, with a specific lien in favor of the plaintiff for ¿61,500, with interest.

<p>Appeal from the Supreme Court. Action on the case for damages sustained by the erection of a dam below the plaintiff’s saw-mill, by means of which the water was set back upon his wheel. The defendant justified as a superintendent of repairs on the Erie canal, alleging that the acts complained of were committed by him in making a temporary appropriation of the water by turning it into the Erie canal, in pursuance of directions of the canal commissioners. There were four trials, the last of which was at the Madison Circuit, before Mr. Justice Shankland, in October, 1854. The plaintiff gave in evidence, as a part of his title, a lease dated May 7, 1829, by John B. Yates to Abram and Daniel Walrath, of" the premises on which the saw-mill described in the pleadings was afterwards erected A clause therein, which was insisted upon as an admission on the part of the plaintiff of a right in the State to the permanent use of the water for feeding the Erie canal, is stated in the following opinion. There was evidence that shortly after the defendant had erected the dam complained of, he declared to a person, not the plaintiff or his agent, that he had done so on purpose to bring up the question of the right of the State to the permanent use of the water. In respect to this the judge charged the jury that the defendant had a right to take the water in question as a temporary appropriation, upon his showing that the navigation of the Erie canal required it, but that if he took the water, as he said he did, for the purpose of testing the right of the State to the water as a permanent appropriation, then the defendant could not now defend himself upon the ground of a temporary appropriation. The defendant took an exception.</p> <p>The judge submitted to the jury certain items of damage as proper for their consideration separately, and also “ what is the interest on the sum total of the above damages from the commencement of this action in June, 1846, up to the date of the trial?” The defendant took an exception. The fury found a verdict for the plaintiff, assessing his damages at $3,800, of which $1,400 was composed of interest on the other items. The judgment entered on the verdict was affirmed at general term in the sixth district, and the defendant appealed to this court.</p>

<p>Appeal from the Supreme Court. On the 19th January, 1854, one Smith Hicks applied for an injunction restraining five Methodist churches, in the city of New York, from removing the dead bodies interred in a certain cemetery. An order was thereupon made, ' by Mr. Justice Mitchell, requiring such churches to show cause, nine days thereafter, why an injunction order should not be made restraining them according to the prayer of the complaint, and in the meantime enjoining them according to such prayer. This order stated that an undertaking had then been given in $200, but that on the defendants’ motion and two days’ notice the amount might be increased.</p> <p>On the 7th February, 1854, the defendants in this action executed an undertaking in the sum of $2,500, entitled in the action by Hicks, reciting that Hicks had applied for an injunction and undertaking that he should “ pay to the defendants so enjoined such damages, not exceeding the before mentioned sum, as they may sustain by reason of the said injunction, if the court shall finally decide that the plaintiff was not entitled thereto ; such damages to be ascertained by a reference or otherwise, as the court shall direct.” It was averred in the complaint, and not denied by the answer, that this undertaking was made in pursuance of an order requiring the security to be increased to that amount. On the 7th March, 1855, judgment was entered in Hicks’ action dismissing his complaint. On the seventeenth of the same month an order was made, upon notice to Hicks only, for a reference to ascertain the damages sustained by the defendants in his action in consequence of the injunction. The referee proceeded to execute the order, without notice to the sureties in the undertaking. His report having been made and confirmed, this action was brought to recover the damages assessed by him. The defendants took several exceptions upon the trial, which sufficiently appear in the following opinion. The judgment perfected against them having been affirmed at general term in the first district the defendants appealed to this court.</p>

The action was for money paid by the plaintiffs upon two bills of exchange drawn on them by the defendants, who were partners under the firm of Barber, Girty & Doran, the plaintiffs having no funds of the defendants in their hands to pay the same.

<p>Motion to dismiss the appeal. The facts are stated in the opinion of the court.</p>

<p>Motion to dismiss appeal from Supreme Court.</p>

<p>The determination of the Supreme Court in mandamus or prohibition is to be brought to this court for review by writ of error, as before the Code, and not by appeal.</p>

<p>After the recovery of judgment for a penalty, and pending an appeal to this court, the statute imposing the penalty was repealed and a settlement was made between the appellant, who was insolvent, and his sureties—they paying the respondent’s costs—and the respondent, who remitted the penalty recovered. On motion to dismiss the appeal: Held,</p> <p>No objection to the settlement that the respondent did not communicate the fact that the statute had been repealed.</p> <p>Nor that it prejudiced the attorney for the appellant, there being no judgment on which he had a lien for his costs.</p>

<p>Motion to dismiss an appeal from the Supreme Court.</p>

<p>Motion on the part of the appellants for leave to dismiss their appeal on payment of costs.</p>

Motion by the iespondents to strike out from the Appeal Book a demurrer and order overruling the same, with leave to the defendants to withdraw it and out in an answer.

<p>The builders and owners of an unfinished barge, on which the sheriff had levied executions, transferred it to the plaintiffs, by an assignment void upon its face as against creditors. The defendants, claiming that the barge had been theii own from its commencement, brought replevin against the sheriff and ob • tained possession. The plaintiffs having discharged the sheriff’s levy, demanded the barge of the defendants and brought trover: Held, that the replevin suit and the possession obtained through it by the defendants, in no way affected the rights of the plaintiffs.</p> <p>The defendants cannot, as mere creditors at large, defend their possession by reason of the invalidity of the assignment as against creditors having judgments and executions.</p> <p>Possession not derived from the original owner, but in hostility to him, does not give a creditor at large the right to resist a fraudulent transfer.</p> <p>The plaintiffs were entitled to recover the actual value of the barge at the time of conversion, with interest thereon, irrespective of the price at which the builders had contracted to sell it to the defendants, and without any deduction for partial payments made by them to the builders.</p>

<p>Where the makers of a note, signed by them for the accommodation of others, deliver it to the latter, it is an inference of law, in the absence of any further evidence of authority or restriction, that they for whose accommodation it was made may put it to any use for their benefit of which it is capable.</p> <p>A note thus made, payable to a bank on demand, may be pledged by the principals as a continuing guaranty for future loans, to be made to them by the bank, until the sureties terminate their responsibility by notice.</p> <p>Where, in such a case, the principals, D. & H., delivered the note to the bank with a written memorandum thereon that it was “ left as collateral security for all liability incurred by D. & H.,” evidence is admissible, fm the purpose of arriving at the intent of the parties in the hypothecation, that 1>. & H. were, at the time, under no liability to the bank.</p> <p>The words “ all liability ” in the contract of hypothecation import a continuing guaranty, and not a security for a single sum or exhausted when the loans equal the amount of the note.</p>

Action to remove a cloud upon title. The complaint stated that the sheriff of Westchester had sold the plaintiff’s land to the defendant, Joshua Purdy, upon execution on judgments against one Clements Quereau, the brother of the plaintiff, and had delivered to Purdy his certificate of sale, under which Purdy claimed an interest in the premises in hostility to the plaintiff The sale was stated to have been within a year previous to the time of commencing the action; the…

The complaint averred that the defendant was justly indebted to the plaintiff, on an account for goods, wares- and merchandise sold and delivered to said defendant by said plaintiff, and for work and labor done and performed by the plaintiff and his servants for the defendant, and at his request, and for cash paid, laid out and expended by the plaintiff for the defendant, and at his request. Judgment was claimed for $197.85.

<p>A lease granting land and an easement upon other land of the grantor, with covenant for quiet enjoyment of the whole, the tenant on a partial eviction from the easement, under title paramount, is entitled to an abatement of the rent.</p> <p>In an action (under 2 R. 8., 505, § 30) to recover possession of the land for nonpayment of the rent reserved, the tenant may plead and show a partial eviction from the easement by way of counter-claim and equitable defence; and is not driven to a cross action.</p>

Action for damages received by a passenger on the defendant’s railroad from the negligence of its servants. On the trial, before Mr. Justice Johnson, at the Cayuga Circuit, the evidence was that the train containing the plaintiff ran off the track at Waterloo, at a switch. The proof left it uncertain whether the switch was deranged, or the accident resulted from the spreading and breaking of the rails.

The action was against the defendant as administrator of one Bennett.

Appeal-from the Supreme Court. The action, which was brought before the Code, was assumpsit for goods sold and delivered. Plea, the general issue. On the trial before M~. Justice Bacon, at the Herkimer Circuit, the plaintiff proved that he was the owner of two boat loads of oats at the city of Hew York.

Action on a joint and several promissory note, made by Bowman, Hicks, Kilmer and Tanner, commenced September 6, 1854. The note became due May 2, 1847. The answer set up the statute of limitations. Bowman died after is^ue joined and before trial. At the trial, before Mr. Justice Rockwell, at the Dutchess Circuit, it was admitted that the note was given for money loaned to Bowman, and that he was principal and the other defendants sureties.

Action commenced in September, 1851, against the defendants as joint makers of a promissory note for $337.50, which became payable January 14, 1842. Smith alone was served with the complaint. The complaint alleges that the defendants were residents of this State at the making of the note, and that Smith departed from this State about the year 1842, and has resided out of the State more than six years.

The action was tried before a referee who, in his finding of facts, stated that the defendants executed and delivered to one Van Bushirk (who had assigned his cause of action to the plaintiffs) an agreement in writing, in these words: “We do agree, for value received, to pay all claims against the house and lot that you bought of E. E. Lewis,” &c. The rest is immaterial, to the only question discussed in this court.

The action was brought to procure a judgment declaring a certain mortgage, which would otherwise be a lien upon the plaintiff’s premises, extinguished; or, in case it should be held to be on foot, that the plaintiff should be allowed to redeem. The mortgage was executed by George S. Fitch to David Hall on the 4th day of February, 1836, upon a lot at Syracuse, to secure $4,000, purchase money of the premises, and was recorded the next day.

The trial was before Mr. Justice T. R. Strong, a jury being waived, and several exceptions were taken, which were abandoned on the argument in this court. He decided that the plaintiff was entitled to judgment, and made no order suspending the entry thereof, or directing the exceptions to be heard in the first instance at general term.

Action to recover the possession of merchandise, sold by the plaintiff to A. Kerr & Co., and by them assigned to the defendant, with their other property, in trust for creditors. At the trial, before Mr. Justice Slossoh, it was proved that Kerr & Co. purchased the goods in question on the 31st March, 1854, on a credit of eight months. They failed, and made a general assignment to the defendant, on the 14th April, 1854.

The action was brought to recover the amount of a premium note made by the defendant to the Genesee Mutual Insurance Company, a corporation created by chapter 241 of 1836, with the powers and subject to the restrictions given to the Jefferson” County Mutual Insurance Company by chapter 41 of 1836.