Volume 18 — New York Supreme Court Reports

This was an application for a mandamus to compel tbe respondents to exhibit to the relators the transfer-book and list of stockholders of the Lake Shore and Michigan Southern Railroad Company.

<p> Liability of company, for stolen bonds —Forgery. </p> <p>Nine bonds were stolen from the T. and N. R. R. Co. At the time they were taken they were incomplete; the seal of the company, and the certificate of the Union Trust Company requisite to their validity, not having been affixed. Subsequently these were forged and affixed to the bonds, and the same were purchased by the plaintiff for value, and in good faith. In an action brought by him upon the bonds, held, that the company was not liable thereon.</p> <p>This action was brought against the first-named defendant, which had agreed to replace the bonds of the T. and N. R. R. Co. by its own. The referee decided that it should issue new bonds for those held by plaintiff, and pay to him $3,780, the difference between the value of its bonds, when a demand for them was made, and the value at the time of the trial. 22eld, that this was error; that, if entitled to recover at all, the plaintiff might have either the new bonds, or their market value with damages for the diminution of value from the time of the demand to the time of the decision, but that he could not have both the bonds and the damages.</p>

<p>Appeal from an order of tbe Special Term, denying a motion for judgment for want of reply to a counter-claim.</p>

Tbe action was brought to recover tbe salary alleged to be due to tbe plaintiff as an assistant alderman of tbe city of New York. He claimed that chapter 835 of 1873, abolishing tbe board of assistant aldermen of New York, and chapter 757 of 18Y3, providing for tbe election of a single board, were unconstitutional. That at tbe election held on November 3,1874, be received a large number of votes cast at that election for assistant alderman.

Appeax from an order confirming tbe report of a referee. Tbe reference was ordered to determine tbe extent of tbe lien of tbe attorneys of tbe plaintiffs’ testator upon a judgment recovered in tbis action. A number of other motions relating to tbis reference and tbe appeal from tbe order confirming tbe report, were considered and decided at tbe January term, tbe decision being reported in 16 Supreme Court Reports (9 Hun), 587.

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

Motion on behalf of the defendants for judgment upon a verdict directed by the court, the exceptions taken on the trial having been ordered to be heard at the General Term in the first instance. The defendants, C. B. Perry and Richard W. Lester, were, prior to February 20, 1874, copartners in business, and were indebted to the plaintiffs at that time. On the 20th February, 1874, the defendants, by a written agreement, dissolved said copartnership.

<p>Injury to file prn'son — Ord&r of a/rrest — when granted— Code, § 179.</p> <p>An action by a wiie for a limited divorce, on account of cruel and inhuman treatment by her husband, is an action for an injury to the person, and an order of arrest can be procured therein under section 179 of the Code.</p>

<p>Appeal from an order of the Special Term denying a motion to confirm a referee’s report, and for the aj)pointment of a general guardian.</p>

Tbe comt erred in charging that negligence on tbe part of tbe defendants could not be presumed or inferred from the circumstances of tbe case. (Byrne v. Boodle, 2 H. & C., 721; Scott v. London Boole Go., 3 id., 596; Briggs v. Otimer, 4 id., 403; Glcure.v. Oily Fat. Ble., 1 Swee., 539; Multin v. Si. Jolvn, 57 N. Y., 567; Roberts v. Jolmson, 58 id., 613 ; Yineett v. Ooole, 6 Sup.

<p>Appeal from an order of the Special Term, denying a motion for leave to file a supplemental complaint, and to amend the summons by bringing in new parties defendant.</p>

The action was brought on an undertaking given on appeal from a judgment, executed by the defendant Mary A. Brown as surety for J ohn W. Brown, her son.

In October, 1813, the commissioner of public works advertised for proposals for regulating, etc., Madison avenue, from Ninety-ninth to One Hundred and Fifth streets. The relator was the lowest bidder, and tbe contract was awarded to him ; tbe contract price being about $120,410. Tbe original sureties proposed by tbe relator were William Gilfoyle and Robert Prior.

<p>Action for legal services — when referable.</p> <p>An action by an attorney upon a retainer in a single action, for a gross sum in compensation of bis services, is not referable from tbe mere fact that the steps and proceedings in tbe prosecution of tbe action have been numerous, and that their value may, if be chooses, be proven either separately or in gross.</p>

<p>Mutual mistake — refoi'maMon of contract.</p> <p>The plaintiff brought this action to have an assignment of a mortgage, executed by him, reformed by having a guarantee of the mortgage contained in such assignment stricken therefrom, upon the ground of mutual mistake. Upon the trial evidence was given tending to show that the clause was in the assignment when it was executed; that plaintiff read portions of the assignment, and had an opportunity to read it all; that it was dictated and written in his presence and with his consent. Plaintiff denied all knowledge of the existence of the guarantee prior to the time of the commencement of an action brought to enforce it. Meld, that a mutual mistake was not so clearly shown as to authorize a judgment directing a reformation of the assignment.</p>

The action was brought to recover damages for the breach of a contract alleged to have been made by the defendant for the purchase of a steamboat. The answer denied any agreement and alleged that the defendants had only made an offer to purchase provided they were satisfied with the soundness of the machinery, boilers, etc., of the boat; that they were not satisfied; that the vessel was not sound.

The petitioner, Ellen S. Anchmnty, in this case, among other things, alleged: “ That at the times hereinafter mentioned she was, and still is, the owner of the lots hereinafter described, and is the person aggrieved by the assessment hereinafter mentioned. “That, on the 20th of February, 1873, an assessment list was confirmed, whereby an assessment for setting curb and gutter stones, and flagging First avenue from Sixty-fifth to Eighty-sixth street, in the city of New York,…

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 plaintiff for the abduction of one Selma Betham.

Oeetioeaei to the Court of Oyer and Terminer of the city and county of New York, to review an order dismissing a writ of habeas corpus suéd out by the relator. The relator was arrested and held by the sheriff by virtue of a mandate issued by the Governor of this State, upon the requisition of the Governor of Massachusetts. The crime with which he was charged was that of being accessory after the fact to a burglary in Massachusetts.

Appeal by Rebecca L. Miller, petitioner, from an order denying an application for tbe payment of a loss arising upon a policy of life insurance. The petition of Rebecca L. Miller stated, among other things, that she was insured in the said Security Life Insurance and Annuity Company in the sum of $6,000 upon the life of her late husband, James L. Miller. That the said James L. Miller died in the city of New York on the 26th day of November, 1876.

<p>Contributory negligence — question for the jury.</p> <p>The plaintiff’s wife on the 21st of August, 1871, and for several years prior thereto, resided on the north-east corner of Thames and Greenwich streets, New York. On the south-east corner of said streets a hole had existed in the sidewalk for several years. About seven o’clock in the evening of that day she left her home on business, fell into the hole, and received injuries from which she died soon after. In an action to recover damages therefor, the defendant claimed that her mind was engrossed by business, and that she fell into the hole from her failure to give her attention to it. Held,, that whether or not her failure to direct her attention to the existence of the hole on account of her mind being engrossed in business was such contributory negligence as prevented a recovery, was properly left to the jury.</p> <p>Burkin v. City of Troy (61 Barb., 437) distinguished.</p>

The action was brought to recover two bonds and mortgages assigned November 4, 1810, by Henry Nicoll to himself and the defendants, as executors of Isaac Townsend, deceased. It was alleged that the bonds and mortgages were the property of plaintiff, and stood in Mr. Nicoll’s name, as his attorney. The power of attorney was a joint and several power of attorney to Henry Nicoll, David Thurston and William Gr.

Appeal by defendant from a judgment recovered on trial at tbe New York Circuit, and from an order denying a motion for a new trial made upon tbe minutes of tbe court. It was conceded on the trial, and cannot be denied, that carrying or storing “ hay and straw pressed in bales,” or baled hay and straw, is an extra-hazardous business. ( Wall v. The East Rimen Ins. Go., 3 Duer, 261; 3 Seld., 3Y0; Lee v. Howard Fine Ins. Go., 3 Gray [Mass.], 583; lemmings y. Ghenungo Mut. Ins.

<p>Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action at Special Term.</p>

<p>Accommodation indorsee — payment by, of note usuriously discounted — right to recover against malcer.</p> <p>One Buhl indorsed a note made by one Kaibfleisch for the accommodation of the latter, by whom the same was discounted at a usurious rate of interest. Upon the maturity of the note Buhl paid the same in ignorance of its invalidity, and subsequently Kaibfleisch made and delivered to him another note in place thereof. In an action upon the latter note, held, that the usurious discount of the first note constituted no defense thereto.</p> <p>An accommodation indorser of a note wiio takes up tte same at maturity, in ignorance of the fact that it has keen discounted at a usurious rate of interest, may maintain an action thereon against the maker thereof.</p>

Appeal by John D. Buckalew from an order made reviving an action, and allowing the service of a supplemental complaint. Foreign executors cannot be held liable in this State as such in a court of law; this has been expressly held by the Supreme Court of the United States and by the courts of this State. ( YanghnY. Northrwp, 15 Peters, 7; Yerrwilya v. Beatty, 6 Barb., 429; Story’s Confl. of Laws, § 513; Parsons v. Lyman, 20 N. Y., 103 ; Morrell v. Diekey, 1 Johns.

Controversy submitted without action pursuant to section 372 of the Code.

Cross appeals from part of au order made at Special Term granting an injunction, and from a part refusing an injunction. The defendant Hughes appealed from the order because it restrained him from acting as a trustee, and the plaintiff because it did not restrain the defendant Hughes from proceeding with an action commenced by him as trustee.

The plaintiff’s intestate, in 1865, commenced an action against the New Jersey Steam Navigation Company and recovered judgment therein in 1811. During the pendency of the action, and in 1869, the company was dissolved by the expiration of the time limited for its existence by its charter.

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

This action was brought on October 1, 1874, against the defendants, stockholders of the American Tunnel Machine Company, to compel the payment of a debt alleged to be due from the corporation, it being claimed that the capital stock had not been paid up in full, as required by the act of 1848. The corporation was formed on June 15, 1865.

<p>Action upon promissory note— demurrer — when frivolous.</p> <p>In an action by the payee against the indorser of a promissory note, the complaint alleged the making of the note by the maker and “ that the defendant then and there, and before the delivery of said note to the plaintiff, indorsed the same to the plaintiff for value, and that said note was afterwards, and before the commencement of this action, delivered to the plaintiff herein for value,” etc., and then alleged the failure to pay the note and due notice thereof to the defendant. The defendant demurred on the ground that the complaint did not state facts constituting a cause of action. Seld, that the demurrer was frivolous.</p> <p>Wood/ruff v. Leona/rd (1 Hun, 632) distinguished.</p>

Appeals by the defendants, Mary Brewer and Caroline Abigail Brewer, as executrix of, and trustee under, the will of Gardner Brewer, deceased, from a decree of distribution made after a sale in an action for partition.

Appeal by plaintiffs, sub-contractors, from an order directing a reference, in an action for tbe foreclosure of a mecbanic’s lien. Tbe defendant Rinaldo, tbe owner of tbe premises, moved for a reference on tbe pleadings and bis own affidavit, on tbe ground tbat tbe trial of tbe issues would require' tbe examination of a long account.

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

The action was brought to recover damages for an alleged partial unfnlfillmeut of an executory contract to deliver 1,200 drums of caustic soda.

<p>Condition — when legacy vests notwithstanding— Condition subsequent — what complicmce with sufficient.</p> <p>A testator gave $500 to tlie plaintiff “ to be applied to tbe uses of th.e farm in Westchester county,” subject, however, to the right of his sister while a widow to receive the income thereof. After the testator’s death and before that of the sister the plaintiff disposed of the farm in Westchester county. Held, That the gift vested in the plaintiff in remainder on the death of the testator. That it was not a condition precedent that it should be applied to the uses of the farm.</p> <p>That, if a condition at all, it was a condition subsequent and the gift was not defeated, because for a time the plaintiff had no farm to the uses of which the fund could be applied.</p>

Ajppeal from a judgment in favor of the plaintiff, entered on the report of a referee. The action was brought to recover 425 one thousand dollar bonds of the plaiptiff. The answer alleges that the defendants have a lien on the bonds for money advanced.

<p>New York city — employes of — appointment of, how limited — payment of — prerequisite to § 32 chap. 137 of 1870.</p> <p>The charter of New York provided that the number of employes in every department and their compensation should be such as the head of each department should designate. The plaintiff received from the superintendent of public works the employment of water policeman, but never, though ready to act, was employed as such, nor was there any employment for him. In an action to recover his salary, held, that the intention of the law was that the power given should not be exercised beyond the limits of reasonable necessity, and plaintiff was not entitled to recover.</p> <p>The charter further provided that “No expenditure for work or supplies, involving an amount for which no contract is required, shall be made except the necessity therefor be certified to by the head of the appropriate department.” Reid, that his employment came within this provision, and that no certificate of the necessity of his employment having been given, he could not recover.</p>

Arpead from an order made at Special Term denying tbe petition of appellants, to come in and be made parties to tbe above-entitled action.

Appeal by the defendant from a judgment in favor of plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial.

<p>Appeal by plaintiff and her attorney from an order directing a discontinuance of this action, without costs.</p>

There was a surplus arising from a sale on foreclosure of a mortgage, given by defendant to tbe plaintiff, of $1,946.69. Claims to this surplus were made by Morgan Yan Burén, Harlow C. Le Roy, and by defendant Jacob Yan Burén. Morgan Yan Burén claimed to be entitled to tbe surplus as bolder and owner of a mortgage given to him by the defendant Jacob Yan Burén and wife for the sum of $4,000, dated the 20th April, 1874.

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

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

The action was brought to recover money had and received by the defendant, which was alleged to belong to the plaintiffs, and also for money alleged to have been paid by the plaintiffs to the defendant by mistake. The defense set up was an accord and satisfaction. The amount claimed by the plaintiffs was over $160.

Motion by plaintiff for a new trial on exceptions taken at tbe Circuit, and ordered to be beard at tbe General Term in tbe first instance, after a verdict in favor of tbe defendant. Tbe action was brought to recover tbe value of certain shares of bank stock of tbe value of $1,000, and a gold watch of tbe value of $100, claimed to have been tbe property of tbe plaintiff’s testator, David Howell, at tbe time of bis death.

The action was brought to recover damages because of injuries to plaintiff’s person, caused by the alleged neglect of the defendant to keep one of its sidewalks in a safe and proper condition.

Tbe action was brought to obtain a decree of this court adjudging that tbe defendant Emma Baker bold certain lands described in the complaint in trust for the plaintiff as a judgment creditor of the defendant George, and that the conveyance thereof to her was void as against the plaintiff.

Appear from a judgment entered on a verdict, rendered in favor of the plaintiff at the HerMmer Circuit in November, 1875. The action was brought to recover the sum of $180.42 alleged to, be due to the plaintff as the residue of moneys deposited by him with the defendant. The defendant is a banking corporation organized under the national bank act of congress.

Tbe defendant appealed to tbe County Court from a judgment rendered by a justice of tbe peace for $200, stating in bis notice, as one of tbe grounds of appeal, that tbe judgment should bave been more favorable to bim in that it should bave been for five different smaller amounts specified. Tbe plaintiff made no offer to modify tbe judgment. In tbe County Court tbe plaintiff recovered $100 damages.

The complaint alleged that Thomas. Gleason, a minor son of the plaintiff, was indentured in writing, with her consent, to the defendants, who are copartners, to learn the trade of a tinsmith; that the defendants broke the conditions of the indenture and neglected to teach him the art of said trade, whereby the plaintiff was damaged in the sum of $500, and the plaintiff asked judgment that the indenture be delivered up and canceled; that the plaintiff recover of the…

The action is on a bill of exchange drawn by George R. Mills on N. F. Mills, care Morgan, Stoddard & Oo., No. lié South Main street, St. Louis, Mo., payable to the order of the defendant Chapman, and indorsed by Mm and the defendant Higby, and accepted by the drawee. The defendants Higby and Chapman answered, and denied that the draft was duly presented for payment or protested, and alleged that the draft was usurious.

Controversy submitted without action. The case submitted for adjudication states that the defendant’s testator executed a will dated the 21th of September, 1870, and died soon after; which will contained the following, among other bequests, to wit: “ After all my lawful debts are paid and discharged, I give and bequeath to my nephew, James M. Fair, the sum Of $1,000, to be placed on interest by my executor and paid, both principal and interest, to the said James M. Fair when…

The action was brought to recover damages for the alleged conversion of certain personal property described in the complaint. On the 27th July, 1872, John W. Weaver, being the owner of a double harness, and also of the undivided half of a buggy wagon, the property of himself and Theodore S. Green, as tenants in common, mortgaged the harness and his half of the buggy to the plaintiff and William A. Green.

The charter of the city of Rochester, passed April 8, 1861 (Laws 1861, ch. 143), provided that there should be three justices of the peace of said city (§ 6), one of whom should be elected in each year, for a term of three years.- (§ 7.) By chapter 196 of the Laws of 1876, the legislature established a local court of civil jurisdiction in said city, called the Municipal Court of the city of Rochester, and conferred upon its judges the jurisdiction theretofore vested in the…

The action is ejectment. The plaintiffs assert title as the heirs at law of Simon Matteson, deceased. The defendants claim under a grant executed by the surviving executor of the last will of said deceased, insisting that said executor had power under the will to convey. The plaintiffs contend that the alleged power is void, and that the premises descended to them.

A judgment for $2,JO8.35 was recovered by Lorenzo Sherwood and John BE. Yought against Lorenzo J. Bovee, October 26, 1866, and duly docketed. An execution thereon was issued to the deputy sheriff of Genesee county, who levied upon certain wheat, for the recovery of which this action of replevin was brought.

<p>Appeal from a judgment in favor of tbe defendant, entered upon an order dismissing tbe plaintiff’s complaint at Circiiit.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court. The ease has already been reported in 4 Lansing, 301; 50 New York, 396; 65 Barbour, 457; 1 Thompson & Cook [Sup. Ct. Rep.], 45.</p>

<p>Motion for a new trial on a case and exceptions ordered to be beard in tbe first instance at tbe General Term, after a verdict in favor of tbe plaintiff directed by tbe court.</p>

<p>Contempt — order for delivery of property — demand tlm'efoi' must be made.</p> <p>To bring a party into contempt for disobedience of an order or judgment requiring tbe payment of money or the delivery of property, it is not sufficient that the order or judgment be served upon him, and he be made fully acquainted with its effect; but, in addition thereto, a compliance with the order or judgment must be explicitly demanded by a party who has a right to mate such demand; and when the order is to deliver property over to a receiver, the prop erty must be demanded by the receiver personally.</p>

B. Matteson for expenses incurred by Mm, as indorser and surety, upon notes of one James B. Taylor, deceased. This action was brought to marshall and distribute the assets of the estate of the deceased. James B. Taylor, of New York city, died in August, 1870, leaving commercial paper outstanding indorsed by Orsamus B. Matteson, to the amount of $76,000.

The policyholders are creditors within the meaning of section 35, article 2, title 4, chapter 8, part 3 of the Revised Statutes, and, as such, have a standing to invoke the power of a court of equity to restrain waste and misappropriation of the company’s funds by the officers and others. (1 Bouvier Law Diet., 409, tit. “ Creditor.”) The term “ creditor ” is used in our statutes in its broad and popular sense.

The plaintiff’s dominion on this kind of proceeding is not absolute. It is qualified by tbe right of others to come in and participate, and when they do come in the plaintiff cannot abandon the action except for himself. (Brownson v. Lacrosse R. R., 2 Wall., 283, 302; Reck v. If. Y. and L. Steam Oo., 3 Bos., 622; Thayer v. Tool Oo., 4 Gray, 75; Adair v. JVewRimer Oo., 11 Yes., 429; Story Eq. Pleading, § 116; id., § 99; 2 Daniels, chap. 1213; 2 Smith’s Oh.

Writ of certiorcvri to review tbe conviction and sentence of tbe relator by tbe city judge of Yonkers, for selling intoxicating liquors on Sunday, in violation of law.

<p>Certioeari to review the conviction of the relator on a charge of abandoning his wife, under chapter 395 of 1871.</p>

<p>Damages — verdict in excess of the amiount claimed in the complaint.</p> <p>Where a jury awards damages exceeding the amount demanded in the complaint, the plaintiff cannot amend the complaint unless he abandons the verdict, pays costs and consents to a new trial.</p> <p>The same rule applies to an action tried before a judge without a jury, by consent.</p>

This was an application by the president ' of the village of New Rochelle to enforce by mcmdcunvus a resolution of the board of trustees of New Rochelle, requiring the respondent to construct a passenger platform with stairway attachment bn the southerly side of its depot in said village, in addition to the one already existing on the north side thereof and upon land not belonging to the respondent.

<p>Appeal from an order made at the Special Term, denying a motion to revive the action and to substitute the personal representatives of the deceased defendant in his place.</p> <p>The action did not abate by the death of the defendant. (Bondv. Smith, 4 Hun, 48,49; Smith v. Hew York, etc., 28 Barb., 608 ; Haight v. Haight, 19 N. Y., 468; Fried v. Hew York, eto., 25 How., 2, 86 ; Graves v. Spier, 58 Barb., 385 ; Hvnimrvy v. Fay, 38 id., 20 ; Bank v. Oollms, 5 Hun, 211; State v. Starkweather, 8 Jones & S., 462; Zabrislde v. Smith, 13 N. Y., 322; Arthur v. Griswald, 5 T. & C., 696; Moore v. Bermett, 65 Barb., 339 ; HemmuUer v. Gray, 44 How., 260.)</p> <p>The provisions of the Revised Statutes (2 R. S., 448, §§ 1, 2) only allow the continuance of those actions for wrongs which injuriously affect the estate of the party injured, and not for any of those which fall within the excepted cases enumerated in the second section. Hence such causes of action as erim. eon., seduction, breach of promise of marriage, and all injuries to the person, personal feelings or character, do not survive or continue, nor are such causes of action assignable. (Wade v. Kalbfleisoh, 58 N. Y., 282; People v. Tioga O. P., 19 Wend., 73; Butler v. H Y. and E. R. R., 22 Barb., 110; Meeeh v. Stoner, 19 N. Y., 29 ; Ohornberlai/n v. Williamson, 2 Maulé. & Selw., 408; Hodgman v. Western R. R. Go., 7 How. Pr., 492; Fried v. H. Y. G. R. R. Go., 25 id., 285; Pwrple v. Hudson R. JR. R. (Jo., 4 Duei’, 74; 29 G-a., 61; 5 Abb. [N. S.], 331; 2 Bosw., 277.) Tbe following cases were for deceit, and no specific property or property rights were affected by the fraud, and it was held the causes of' action did not survive, and were not assignable. (ZaJbrishie v. Smith, 3 Kern., 332-336; JBJyslop v. Bcmdall, 4 Duer, 660; Lamphvre v. Bail, 26 How. Pr., 509; Read v. Hatch, 19 Pick., 47.) “ It is a general rule that a right of action which upon the death of a party would pass to his executors, as a part of his assets, is assignable, and that the power to assign and transmit to personal representatives are convertible propositions.” This is the test. (3 Kern., 322; 22 Barb., 110; 25 How., Pr., 285 ; 14 Abb., 178.)</p>

This action was brought by the plaintiff as assignee of one Woolven, for the conversion of two cows taken by the defendant under an execution issued against the property of the assignor. The defendant claimed that the assignment was void.

Appear from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee. Tbis action was brought to foreclose a mortgage given to tbe plaintiff’s assignor by tbe defendant Pabner.

The county treasurer made bis report of moneys received and disbursed, and charged against tbe county bis fees, in excess of $2,000, upon tbe amount of tbe State tax, viz., one per cent on $66,857.38, and one per cent on tbe school tax, $70,225.62. Tbe board allowed tbe treasurer tbe amount claimed, $1,370.02, claiming to be entitled so to do by chapter 346 of 1855.

It is a general rule, both of equity and of common-law courts, to permit a discontinuance of actions, as a matter of course, but only on the payment of costs. The cases where courts of law and equity have relieved plaintiffs from the payment of costs on discontinuance have been: 1. Where the plaintiff would be finally exempt from costs, as in cases against executors. (Arrumo v. Steinbrermer, 1 Paige, 82.) 2.

On the 22d of January, 1870, the defendants signed the following instrument: “This agreement, made this day, January 22d, 1870, between John Laughran, of Brooklyn, of the first part, and A. G. Smith and J. IT.

Tbe action was brought to recover tbe damages sustained by tbe plaintiff by reason of tbe breach of a contract made with tbe defendants Brown and Seligman.

Tbe action was commenced and tried in tbe City Court of Brooklyn, and the appeal was removed to this court, because two of the judges of that court were incompetent to sit. The action was brought to recover certain lands, plaintiff’s title to which depended upon that of one Crombie, who had purchased the same, August 5, 1856, at a sale upon an execution, issued upon a judgment recovered against one Tunis T. Cowenhoven, July 12, 1853.

<p>Appeal by defendant Justus Palmer from an order made upon a motion by defendant Palmer, to strike out so much of a judgment entered on a remittitur from the Court of Appeals in this action as authorized, and directed a personal judgment against the said Palmer, and from the judgment entered in the City Court of Brooklyn, in pursuance thereof.</p> <p>The action was brought for the foreclosure of a mechanic’s lien.</p>

Tbe defendants and Thomas W. Chrystie, on tbe 1st day of April, 1810, entered Into an agreement by which tbe defendants agreed to carry on, and did carry on, the business of manufacturing brick, on shares, on the premises of Thomas W. Chrystie, for the term of five years from April 1, 1870. By this agreement the defendants were to sell the brick and receive the receipts therefor, and to pay over one-half of the net proceeds thereof to said Thomas W. Chrystie.

The action was brought to recover damages sustained by reason of the death of the plaintiff’s intestate, alleged to have .been caused by the negligence of the defendant. On the 20th day of April, 1815, the intestate, a farmer, residing near Otisville, took passage for that place on a westward-bound train of defendant.

Writ of error to the Court of General Sessions of the county, of Richmond, to review the conviction and sentence of the plaintiff in error of the crime of burglary in the first degree.

Appeal by tbe administratrix from a decree of the surrogate of Kings county, directing the appellant to pay the amount of a judgment against her intestate to the respondent.

The rermtbitm' from the Court of Appeals directed “that the said order be in all things affirmed, with costs.” The order appealed from provided that, “ on reading the remittitur from the Court of Appeals in this action, filed in the office of the clerk of the county of Kings, on the 16th day of December, 18Y6, it is ordered, that the decision of the Court of Appeals affirming, with costs, the order of the General Term of this court, which was made and entered on the 9th day…

<p>Appeal from the decree of the surrogate of Dutchess county, directing a distribution of the estate of Rutsen Suckley, deceased.</p>

On tbe 4th of February, 1876, plaintiff, in company with George Grau, was driving three horses attached to a beer wagon up Second avenue, in New York city, upon tbe up or rigbt-band track of defendant’s railroad, tbe rigbt-band or off wheels of tbe wagon running in tbe groove of tbe eastern rail, and tbe left-hand wheels running just outside of tbe left-hand rail of tbe up-track, between tbe up-track and tbe down-track, which, at this point were about seven feet apart.

<p>Beal estate of inf amt — sale thereof — possession Try the imfamt in fact or la/w — necessary to authorize.</p> <p>Under tlie statute providing for the sale of the interest of an infant in real estate, a sale can only he ordered in those cases in which the infant is in the actual possession of the land, or entitled to the immediate possession thereof. Expectant estates and estates in remainder cannot he sold thereunder.</p>

<p>•Apreal from a judgment in favor of the defendant, entered upon ' a verdict directed by the court.</p>

<p>Action agwinst ma/rried women —• is an action at law — Jwry trial.</p> <p>The complaint herein alleged that defendant was a married woman and possessed of a separate estate; that plaintiff sold to her building materials; that the same were used for the benefit of her separate estate in the erection of buildings thereon, and judgment was demanded for the amount due, and that her separate estate be applied to the payment of the same, and that for that purpose a receiver thereof be appointed. Eeld, that the action was an action at law, and defendant was entitled to a trial by jury.</p>

Appeal by plaintiff from so much of an order at Special Term (February 24, 1877) as provided, “ but that in case tbe said plaintiff shall fail within said time to pay said sum and redeem said premises, then and in that case the conveyance of said premises, referred to in said complaint, shall be deemed to be an absolute deed and conveyance.” The order was made on the return of an order to show cause why an injunction, restraining the defendant from instituting or prosecuting…

<p>Contempt of cowi’t — punishment for— interrogatories — when they need not be filed.</p> <p>Tbe provisions of tbe statute, in relation to contempts, providing that when tbe defendant shall have been brought into court upon an attachment, the court shall cause interrogatories to be filed, specifying the facts and circumstances, and require him to answer the same, are only applicable to cases in which the act or omission constituting the contempt is either denied or not admitted ; and when such act or omission is expressly admitted by the defendant, it is unnecessary that interrogatories should be filed.</p>

<p>Execution — power of the attorney ovw — Assignment of judgment — rights of slw'iff until notified, of.</p> <p>After executions had been issued upon two judgments, the latter were assigned to the plaintiff, who gave no notice thereof to the sheriff. Subsequently, the attorney of the plaintiff in the judgments instructed the sheriff to return the executions nulla tona, and apply money received from the sale of the judgment debtors property on which a levy had been made under the first execution upon a subsequent judgment.</p> <p>In an action by the assignee of the judgment against the sheriff for a false return, held, that the sheriff was protected in obeying the directions of the attorney for plaintiff in the judgment, until notified of the assignment, and that the plaintiff was not entitled to recover.</p>

<p>Removal of cause to United States courts — act of Man'ch 8, 1875 — notice of application.</p> <p>Where the court at Special Term, upon a petition setting' forth all the jurisdictional facts, after approving as sufficient the "bond required by the statute, makes an order directing the cause to he removed, the removal is, eo instamti, complete, and cannot he reviewed or vacated on the ground of improvidence or inadvertence. The only remedy of the party aggrieved is by application to the United States Court to remand the cause.</p> <p>S&rnble, that under the act of congress of March 8, 1875, providing for the removal of causes from the State Court to the United States Circuit Court,_ notice of the application for an order directing the removal should he given to the plaintiff, though not required by the terms of the act. (Per Brady and Daniels, JJ.)</p>

Appear from a judgment entered in favor of the plaintiff on a 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. In the year 1872, plaintiff’s testatrix, Mrs. Sarah M. Dorrity, and the defendant, were respectively owners of adjoining houses, situate on the southerly side of Thirty-second street, between Second and Third avenues, in the city of New York.

The judgment in question was recovered March 1, 1867, and on the 21th day of October, 1867, an execution was issued, which was returned unsatisfied on December 13, 1867. The judgment debtor died subsequently, and on the 29th day of December, 1867; and Edward Schell, of the city of New York, was thereafter, and on the 1st day of September, 1868, appointed, and now is, the special administrator of his estate.

<p>Appeal from an order of the Special Term vacating an assessment. The petition in this matter states that the petitioners are the owners of certain real estate in New York city used for purposes of public • worship; that an ■ assessment for building receiving basins, etc., has been laid thereon; that said assessment 'is more than, one-half the value of said lot as valued by the assessors and commissioners of taxes, and has been imposed contrary to the provisions of section 7, chapter 326 of the Laws of 1840.</p>

<p>Appeal from a judgment in favor of tbe plaintiff entered on a verdict, and also from an order denying a motion for new trial made on tbe minutes of tbe justice before whom tbe action was tried.</p> <p>This action was brought against tbe defendant Volkenning, as one of the sureties in an undertaking given to procure an injunction.</p> <p>Tbe complaint alleged that on tbe 12th day of July, 1869, an injunction was issued out of this court at tbe suit of one Joseph W. Bray against tbe plaintiffs in this action, by which they were enjoined from prosecuting an action to eject Bray from tbe premises owned by tbe plaintiffs located on Broadway; that upon tbe issuing of said injrmction tbe defendant Volkenning gave an undertaking required by tbe judge in tbe sum of $2,500 for tbe payment to tbe plaintiffs so enjoined such damages, not exceeding said sum, as they might sustain by reason of tbe injunction if tbe court should finally decide that said Bray was not entitled thereto, such damages to be ascertained by a reference or otherwise, as the court should direct; that the defendant Yolkenning duly verified and acknowledged the said undertaking; that the said action against the plaintiffs by said Bray was finally decided by the court to the effect that said Bray was not entitled to said injunction; that the damages to the plaintiffs by reason of the injunction amounted to $3,805.55 and interest from February 7, 1871, which the court on that day awarded to the plaintiffs. A demand for judgment was made against the defendant for $2,500, besides the costs of the action.</p>

Writ of error to the Court of General Sessions of the city of New York, to review the conviction and sentence of the relator for bringing into the city of New York and offering there for sale impure and unwholesome milk.

This action was brought by the plaintiff, as assignee in bankruptcy of one Aspinwall, to recover certain goods in the hands of the defendants, alleged to have been transferred to them in violation of the provision of the bankrupt act. A judgment in favor of the plaintiff was set aside at the General Term, on the ground that, the court had no jurisdiction of the action (10 Hun, 211), and it was directed that the complaint be dismissed, without costs.

<p>Corporation — what acts void as ultra vires — using its funds to destroy competition.</p> <p>The defendant corporation was organized for the purpose of printing and selling books, principally a New York directory. In 1875 one Goulding published a city directory, and sold it for a less price than defendant; the defendant’s trustees alleged that he was able to undersell them, and that an unfair competition was created because he did not intend to pay for printing it. To prevent its future publication, defendant entered into an agreement with Goulding’s'printer, by which it purchased of the latter one-half of Goulding’s over-due notes for $3,000, and paid to the printer $1,000 in addition, in consideration of which the printer agreed to publish no more directories for Goulding, and to sue upon and get into judgment the indebtedness due from him, in order to ruin his credit. Held, that the agreement was ultra vires and void, and that plaintiff, a trustee and stockholder of the defendant, was entitled to an injunction to restrain his co-trustees from using the funds of the corporation to carry it into effect.</p>

The plaintiffs brought this action, as judgment creditors of the firm of Elauraud & Son, to set aside an assignment made by it to the defendant Salmon, on the ground that the same is an impediment to the collection of the execution issued on the judgment. The assignment was not executed and acknowledged as required by section 1 of chapter 348 of 1860.

<p>Board of police commissioners of New York — power of, to it'y policemen for offenses committed by them when off duty.</p> <p>It is the duty of the board of police commissioners of New York to take notice of the conduct of the members of the police force, as well when off, as when on duty, and to dismiss an officer who is guilty of criminal or immoral conduct when off duty as an unfit person to be a member of the force.</p> <p>The relator, while off duty and in citizen’s clothes, seeing a girl standing on the stoop of the house of the Sisters of Mercy in New York, enticed her to go with him to a house of assignation for an improper purpose, the girl knowing the purpose with which she was taken there and assenting thereto. Beld, that the conduct of the relator was such as to justify the board in dismissing him from the force.</p>

The cause of action arose out of an alleged fraudulent attempt on the part of plaintiffs husband to deprive her of her dower interest in certain real estate.

Appeal by tbe plaintiffs from a judgment rendered against tbem at Special Term, declaring a deed an estoppel, and by tbe executors of Tbomas C. Butler, Jr., one of tbe grantors in said deed, from sucb judgment, for tbe reason that sucb deed is declared an estoppel as to bis estate. Tbe action was commenced by tbe plaintiffs, children of Jane Ann Butler and Tbomas C. Butler, Jr., against Tbomas 0. Butler, Sr., trastee, Cecilia Ann Butler, bis daughter, and said Tbomas 0.

Webster to the complaint. It is not necessary that the parties to each action should be the same.

Tbe action was brought to recover tbe price of forty-nine gold medals, at $100 apiece, furnished to tbe members of tbe common council of tbe city of New York in 1870, in pursuance of a resolution of tbe common council directing their purchase by tbe clerk.

This action was brought to recover for damages resulting to plaintiff from an alleged breach, by defendant’s testator, of a contract for board and lodging. Tbe evidence tended to show that plaintiff rented to defendant’s testator certain rooms, and agreed to board bis family from September 1,1866, to May 1,1867, for $150 a week.

Ajppbal from a judgment in favor of the plaintiff, entered by direction of the court at Circuit, in an action to recover the salary of the plaintiff, as assistant clerk of the Tenth District Court in New York city.

Motion by tbe plaintiff for a new trial, on exceptions ordered to be beard in tbe first instance at tbe General Term after an order dismissing tbe complaint. Tbe action was brought against tbe city of New York, James M. Sbaw, tbe owner of a building, and Amos N. Titus, a contractor, who, it was alleged, bad agreed to take down tbe wall thereof, tbe fall of which gave rise to this cause of action, and bad wrongfully neglected to take tbe same down.

<p>Injunction — damages occasioned by— Code, § 222.</p> <p>Where, in an action brought to procure an injunction, a temporary injunction is dissolved, and, subsequently, upon the trial, the complaint is dismissed, the successful party is entitled, under section 222 of the Code, to an order directing that the damages sustained by him shall be ascertained by a reference or otherwise, as the court may determine; and it is error for the court to deny a motion for a reference, without directing any other mode of ascertaining the damages, even though no damages would be allowed.</p>

Certiorari issued to the justices of the Marine Court, to review the action of that court in granting an attachment against the property of the relator in the city of New York, after suit brought and pending, commenced by service of summons upon the defendant, in which one Nugent was plaintiff and Garvey defendant, upon the ground that Garvey was a resident of Richmond county, and a nonresident of the city of New York.

Tbe complaint alleged a sale and delivery of liigb wines by tbe plaintiff to tbe defendants, of tbe value of $3,848.32; tbat a payment of $400 on account was made tbe day of tbe sale, leaving a balance of $3,448.32 due, for wbicb, with interest, tbe plaintiff demanded judgment.

Exceptions ordered to be beard in tbe first instance at General Term after tbe dismissal of tbe complaint at Circuit. Held: by assignment under a certain lease froin tbe Bemsen estate, tbe bouse No. 61 Monroe street, New York, tbe lease containing’ certain covenants as to its renewal.

Tbe action was brought by an executor to obtain a construction of a will, tbe material portion of wbicb appears in tbe opinion of tbe court.

Motion by defendant for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff. This action was brought to recover damages suffered by the plaintiff in the month of March, 1873, through the shipwreck of the steamer Atlantic off the coast of Nova Scotia.

On the application of Eugenie Barber Barnett, the mother of a bastard child named George Samuel Barnett, the Supreme Court granted a writ of habeas corpus to obtain possession of said child from David Barnett, its putative father. Return was made charging gross improprieties on the part of the petitioner, to which a traverse was filed denying the charges, and making counter-charges against respondent.

The defendant made and, for a valuable consideration, delivered to the plaintiffs three contracts. By the first he agreed that the bearer might deliver to him, at any time within sixty days, 500 shares of Lake Shore Railroad Company, at sixty-six per cent, on one day’s notice; the defendant to have all intervening dividends or extra dividends.

<p>Appeal from an order denying a motion to set aside tbe service of a summons, on tbe ground that tbe same was served while tbe defendant was attending examination as a witness.</p>

June 1, 1870, defendant, being tbe owner of three lots of land on tbe north side of Fifty-seventh street, between Fourth and Lexington avenues, in the city of New York, together seventy-five feet wide in front by 100 feet in depth, made a lease thereof to George E. Thrall, for three years from that date, at $1,500 per annum, with privilege of another year at $2,000 per annum; lessee to pay taxes and^ assessments.

<p>Bond wpon opening of inquest ■— liability of sureties on.</p> <p>Upon application of the defendant Hazlett, leave was granted to him to appear and defend in an action in which an inquest had been taken against him, upon his giving a bond, with sureties, to secure to the plaintiff any judgment that might he recovered by him. The bond having been given, a judgment was recovered against Hazlett, from which he appealed, giving security to stay proceedings. The judgment was affirmed on appeal.</p> <p>In an action by the plaintiff upon the bond, given upon 'the opening of the inquest, the sureties thereto claimed that they were released by the extension of time given during the appeal; and that, in any event, the plaintiff must first resort to the sureties on the undertaking given on the appeal. Meld, that these defenses were properly overruled.</p>

<p>Appeal from a judgment dismissing the complaint at the Circuit, 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>Prinelpdl cmd agent — limited authority — JOmdenee—of delivery of m'tiele sold.</p> <p>Where an agent is authorized by a special power of attorney to sell sand, but his authority so to do is limited by the established grade of the street, any sale by him in excess of the amount thereby authorized is void, and the party dealing with him is chargeable with notice of the restrictions contained in the power of attorney.</p> <p>Upon the trial of an action to recover for a breach of a contract to deliver sand, it was shown that the sand had been delivered upon tickets issued for that purpose to plaintiff's intestate. It was also shown that the tickets so issued had all been returned to defendant’s agent Held, that the evidence was competent; that the delivery of the tickets to the plaintiff’s intestate, and their subsequent possession by the defendant’s agent, created a presumption that the sand had been delivered for which the tickets had been issued.</p>

<p>Action to proawe equitable relief— when it may be sustained as an action at law.</p> <p>The plaintiffs brought this action as owners of two-tenths of a steamboat. The complaint alleged that the defendant had purchased the other eight-tenths, and that the boat was to have been delivered to the defendant in the fall; that before that time the boat ran upon a rock and was sunk; that it could have been raised and repaired at a cost not to exceed $5,500; that defendant took from her portions of her engine, rods, joiner work, state-room glasses and mattresses, and used them in the construction of a new boat, and sold the residue of the old one. The relief demanded was that the plaintiffs might be declared entitled to an interest in the new boat, upon contributing what might be equitably due from them.</p> <p>Upon the trial it appeared that the portions of the old boat used in the construction of the new one formed but a small portion of the latter. The referee held that the plaintiffs had failed to establish any interest in the new boat, and dismissed the complaint. Held,</p> <p>That the referee rightly held that the plaintiffs had no interest in the new boat.</p> <p>That, as it appeared from the complaint and the evidence upon the trial that the defendant had wrongfully converted to its own use the plaintiffs’ interest in the old boat, the action should have been continued as an action at law to recover the damages sustained by the plaintiffs therein.</p> <p>Semble, That the General Term may direct the entry of such a judgment as it appears from the evidence a party is entitled to recover, only in cases where the facts establishing that right have all been found. It has no power to determine such facts upon conflicting evidence.</p>

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

<p>Appeal from a judgment in favor of plaintiff recovered on trial before the court, without a jury.</p>

Oeetioeaei to the respondents to review their action in refusing the application of the relator, to have its house and lot No. 11 West Twenty-ninth street, New York, exempted from taxation. Two writs were issued, oue to review the action of the respondents with reference to the assessment for the year 1876, and, the other for the year 1877. The property in questson was purchased by the relator in June, 1876.

This action was brought to foreclose a mortgage executed by John T. Decker and wife to the plaintiff to secure the sum of $3,000, with interest thereon from April 1, 1872. The mortgage contained the usual clause requiring the mortgagor to keep the property insured and the policy assigned to the mortgagee to protect his claim.

This action was brought upon the following note, executed by the defendant, a married woman: “ $100. Bain-bridge, Chenango Co., N. Y., March 21, 1870. “ Eight months after date, for value received, I promise to pay to the order of Hiram Baker $100, with interest. (Signed) “ JANE LAMB.” The defendant had no separate estate. (Albamy Fire Ins. Go. v. Bay, 4 N. Y., 11; 4 Barb., 407, 414 ; Bouviers’ Law Die., “ Separate Estate ;” Farmers and Mech. Fat.

<p>Attmcmeements — who entittecl to insist upon — ■grandchildren — S B. 8., 97, § 76.</p> <p>Under the provisions of the Revised Statutes in relation to advancements, grandchildren are entitled to insist that advancements, made to his children by the intestate, shall be brought by them into hotéhpot, and that the grandchildren shall be entitled to share therein.</p>

The referee found that plaintiff was a corporation duly created and organized by and under an act of the legislature of this State, passed April 9, 1856 (chap. 146, Laws of 1856); that under the authority conferred by said act, plaintiff had acquired title to lands in the town of Greenbush, in the county of Rensselaer', and had erected a bridge over and across the Hudson river, the westerly portion of which is in the city and county of Albany, the easterly portion, from the…

This action was for a divorce a vinculo, and was commenced by service of summons and complaint March 27, 1875. Answer was duly served, and by consent the action was referred to Stillman Eoote, Esq., as referee, to take and report the evidence. Hearing was duly had before the referee, who made a report in favor of defendant August 8, 1876, which report was filed with the clerk of St. Lawrence county.

The action was brought to recover damages alleged to have been sustained by injuries occasioned through the negligence of the defendant in not keeping its sidewalks in good repair. The defense was that the action had not been commenced within one year’ after the cause of action had accrued as required by the charter of the city (chap. 912 of 1869).

This action was brought by the plaintiffs, as administrator and administratrix, with the will annexed, of the estate of Samuel Daily, deceased, to foreclose a mortgage executed by the defendant Cordelia Wright (then Cordelia Daily) to the said Samuel Daily, in his lifetime, upon lands in the town of Coventry, in the county of Chenango. At the time of the execution of said mortgage the defendant Cordelia and the said Samuel Daily were husband and wife.

Appear from a decree entered in the surrogate’s court of Tompkins county, upon a final accounting. Nancy A. Hanford, the widow of Irus Hanford, and the mother and general guardian of Charley Hanford, when Charley was seven years old, married Wesley F. Hill. Charley was entitled to a pension, commencing at that time and continuing till he was sixteen. She received that pension, as his guardian, every six months.

John A. Wheeler became indebted to Beards & Co. in about the sum of $784.76, evidenced by five promissory notes. Two matured October 26, 1876, and three afterwards, and prior to December 1, 1876. October 26, 1876, Beards & Co. brought an action in the Supreme Court against Wheeler to recover a judgment upon the first two notes.

The action- was brought to recover damages for the death of the plaintiff’s intestate, occasioned by his falling from a bridge which the defendant had allowed to remain out of repair.

Tbe action was commenced March 16, 1871, to. recover .the possession of certain real estate in tbe village of Sandy Hill. The plaintiffs claimed title to tbe premises by virtue of a conveyance from tbe Washington County Bank, which bad purchased them at a sale bad under tbe foreclosure of a mortgage given to it by tbe defendant, dated July 7, 1857.

Objections were taken by the defendant, to a class of questions, asked for the purpose of proving damages; and were overruled. The action was brought to recover damages alleged to have been occasioned to cattle, by their escape from the lot of the defendants, in whose care they were claimed to have been placed.

Tbe action was brought to recover damages for an injury to tbe plaintiff while in tbe employment of tbe lessors of tbe Ogdensburgh and Lake Champlain Railroad Company, arising from tbe alleged carelessness and negligence of tbe employers in not furnishing proper and adequate appliances or machinery for tbe business or labor in which tbe plaintiff was engaged.

judgment in favor of the plaintiff, entered upon the trial of this action at the Special Term in an action brought for the foreclosure of a mortgage. The defendant John I. Cox, on the 9th day of May, 1861, executed to the plaintiff a bond and purchase-money mortgage.

<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 directed by tbe court.</p>

This action was brought to recover the amount of seven penalties for an alleged violation of an act of the legislature of the State of New York, entitled “An act in relation to the weights and marks on casks and packages containing butter,” passed April 2d, 1865. The action was originally brought in a Justice’s Court where a verdict was rendered for defendant.

An order was made June 10, 1871, on affidavits, ordering an attachment to issue against the defendants for violating an injunction. The attachment was personally served. The defendants were brought into court and appeared by attorney or counsel. They waived the filing of interrogatories, and the matter was referred, by consent, to a referee, to report as to the facts and as to the damages.

<p>Negligence — liability of principal to employe, for negligence of co-employe — when question of negligence should be left to the jury.</p> <p>A. contracted to build a bridge, and employed tbe defendant, a skillful builder, and gave bim tbe sole management and control of tbe work and of tbe manner of carrying it on, all tbe other employes being in all respects subject to bis orders. Under defendant’s direction and supervision a scaffold was erected, secured by stay-latbs, upon wbicb laborers worked and materials were placed. Some of these laths were removed by direction of defendant, tbe plaintiff aiding in so doing. Subsequently the scaffold fell, and plaintiff was injured thereby. The manner of constructing the scaffold and the material of which it was composed, were described to the jury.</p> <p>In an action by the plaintiff to recover the damages sustained by the injury occasioned by the falling of the scaffold, the plaintiff was nonsuited. Held, That under the circumstances of the case, the principal was responsible to plaintiff for any negligence of the defendant;</p> <p>That an action could be maintained against the principal or the defendant, or against both jointly.</p> <p>That the questions as to the negligence of the defendant and the contributory negligence of the plaintiff should have been left to the jury.</p> <p>Quaere, as to whether an employe would be liable to a co-employe for a mere nonfeasance or neglect of duty, in a case in which the principal himself would not be liable.</p>

Tbis action was commenced against tbe village of Eondout, on tbe 19tb day of October, 1871, by tbe plaintiff, wbo, for more than forty years, bad run a ferry-boat from tbe Tillage of Bondout across tbe Bondout creek to Sleightsburgh, and was subsequently continued against tbe city of Kingston, wbicb, in 1872, succeeded to all tbe rights and liabikties of said Tillage.

This action of replevin was brought against the former sheriff of Broome county to recover certain buckwheat, seized by him by virtue of an attachment issued against one Murphy, which buck, wheat the plaintiff claimed to have purchased from said Murphy.

The complaint is in assumpsit and contains two counts. The first is for twenty-five tons of hanging paper, alleged to have been sold and delivered at the agreed price of eight cents per pound; the second is on contract to make for the defendants twenty-five tons of hanging paper at the price of eight cents per pound to be paid on delivery, and it is averred that the plaintiffs made the paper and offered to deliver it to the defendants and were at all times ready to deliver…

<p>Appeal from a judgment rendered at Circuit nonsuiting the plaintiff, after his opening, on the complaint.</p> <p>The plaintiff, defendant, and other persons, were stockholders in the Myers Steel and Wire Iron Company, a corporation organized under the general act of 1848 (chap. 40), for the formation of manufacturing, mining and other companies.</p> <p>Certain laborers employed by the company sued the plaintiff on his several liability, and recovered judgments against him, they having previously exhausted their remedy against the corporation. Their suit was based on the liability created by section 18 of chapter 40 of 1848, which provides that “ the stockholders of any company organized under the provisions of this act shall be jointly and severally liable for all debts that may be due and owing to all their laborers, servants and apprentices, for services performed for such corporation.”</p> <p>The plaintiff herein thereupon paid the judgments so recovered against him, and brings this action against the defendant, who was a stockholder of the same company at the time the debts to the laborers were contracted and were due, for contribution, seeking to recover only that proportion of the amount paid by him which the number of shares held by the defendant bore to the whole number of shares issued by the corporation.</p> <p>It was admitted that there were other stockholders who were not made parties to this action.</p> <p>After the opening of the case by the plaintiff’s counsel, the defendant moved for a dismissal of the complaint on the ground that the action should have been brought against all the stockholders, and would not lie against one of them.</p>

This is a case submitted under section 372 of tbe Code of Procedure. The relator was appointed clerk of tbe judiciary committee of tbe senate on January 14, 1876, and continued to act as such to tbe end of that session. Tbe session began on tbe 4th January, 1876.

Tbis action was brought to recover damages sustained by tbe plaintiff, occasioned by tbe discharge upon bis lot, from drains, of large quantities of water, dirt and filth. Tbe plaintiff’s lot was situated in tbe city of Albany, on Yan Woert street, which runs along tbe bottom of a ravine towards tbe Hudson river.

<p>Dower — action for — wlwn complaint sufficient.</p> <p>In an action of ejectment for dower, the plaintiff alleged that one Draper was at the time of his death, and for many years prior thereto had been her husband; that he died May 81, 1874; that at the time of his decease he was, and for many years had been, seized in fee simple of the premises described in the complaint; that she was entitled to an undivided one-third thereof for life, as her reasonable dower; and that the defendant was in the actual possession of the land, and wrongfully withheld the same from her. Held, that the complaint set forth a good cause of action, and that a demurrer thereto was properly overruled.</p>

<p>Section 331 of the Code — liability of assignee of ccmse of action after action commenced tlwreonfor costs — how enforced.</p> <p>Under section 331 of the Code, which provides that payment of costs may he enforced hy attachment against an assignee of a cause of action after commencement of suit thereon, a demand was made against one Clarke for the costs of an action assigned to him during its pendency, and an order was thereupon made directing him to pay the same, and providing that upon the return of an execution against his personal property unsatified, a precept should issue to the sheriff committing Clarke to jail until he should pay the same. Held, that this order was unauthorized.</p> <p>Semble, that the attachment mentioned in section 331 of the Code is an attachment against the person.</p>

This action was brought to recover damages for the ejection of plaintiff’s testator from- defendant’s cars. It has been three times tried. On the first trial, the jury rendered a verdict in plaintiff’s favor for $8,000. The complaint claimed but $5,000, and judgment was entered for that amount, the plaintiff remitting $3,000 of the verdict. On appeal from this judgment, the General Term set aside the verdict as excessive, imposing costs as a condition.

The action was brought to recover damages for personal injuries sustained by the plaintiff while driving a wagon through one of the streets of the city of Cohoes. Along the side of the Erie canal, in that city, where it is intersected by White street, there is a strip of land some fifty feet in width, leading to a bridge across the canal, which has for some time been used as a highway.

Writ OK ERROR to tbe Court of General Sessions of Warren county, to re-view tbe conviction and sentence of tbe plaintiffs in error of an assault with intent to kill. Tbe indictment charged that tbe plaintiffs in error assaulted one William J. Davis with an iron stove griddle or cover, a club and a chair, with intent to kill him.

Writ of error on bebalf of tbe people to tbe Court of Sessions of tbe county of Essex, to review a decision of tbe court quashing an indictment and rendering a judgment in favor of tbe defendant in error. Tbe defendant was indicted for arson. Tbe indictment containing three counts, each charging tbe plaintiff with willfully and feloniously setting fire to, and burning in tbe night-time, two stores situated in tbe town of Westport.

This action was brought against the defendant, a deputy sheriff, for the alleged conversion of certain furniture seized by him under an execution issued upon a judgment recovered against one Benjamin Y. Fraser, the father of the plaintiff, for a debt contracted between June and September, 1869.

The order was granted January 2, 1877, on an affidavit showing that an action was about to be commenced for commissions received by the defendant, which he had fraudulently neglected to pay over to the plaintiffs.