Volume 19 — New York Supreme Court Reports

This action was brought to have a release, given upon the receipt of one-half of a debt due from the defendant, set aside on the ground that it was executed under a mistake of material facts caused by the representations and concealments of the defendant, and to recover from him the balance of the indebtedness remaining unpaid, with the interest due thereon.

Tbe agreement between the parties is clearly an agreement of copartnership. In actions between partners, neither can be arrested at the suit of the other.

Tbe Georgia statute has no force out of tbat State, and tbe courts of this State will not, upon principles of comity, give effect to it as against the rights and claims of our own citizens, and in opposition to our own laws. {Hoyt v. Thompson, 5 N. Y. [1 Seld.], 320; Lem/mon v. The People, 20 N. Y., 562; 2 Kent’s Com. [6th ed.], 406; Wharton’s Conflict of Laws, §§ 335, 347, 348a, 349, 350, 351; Abrahams v. Fiestero, 3 Wend., 551; Hoyt v. Thompson, 23 Wend., 89; De Witt v.…

Appeals by the defendant Helmer, in two actions, from orders made at the Special Term sustaining demurrers to answers, and from the judgments afterwards entered thereon.

The action was brought for the purpose of having certain real estate conveyed by the defendant James W. Walker to his wife declared subject to the lien of a judgment recovered against said James W. On May 4, 1867, the defendant James W. Walker was seized of certain real estate.

<p>Corporation — right of, to issue prefemd stoch.</p> <p>inhere a joint stock corporation, in pursuance of its charter, establishes its capital at $10,000,000, divided into 100,000 shares of stock of the value of $100 each, and issues certificates therefor in the usual form, it cannot thereafter, by a vote of a majority of the stockholders, provide that the holders of the common stock may convert the same into preferred stock, entitled to certain privileges, upon the payment of a specified sum, although its charter does not prohibit the creation of such preferred stock, unless all the holders of such common stock consent thereto, or unless the power so to do has been reserved by the corporation itself at or before the time of the issuing of the stock.</p> <p>The holders of common shares, who consent that the preferred shares issue, ara precluded by such consent from denying their validity.</p> <p>Where a corporation issued a certain amount of preferred stock, the certificates providing that the holders thereof should be entitled to receive interest thereon at the rate of seven per cent per annum, and that any surplus earnings remaining after the payment of the same should be divided among the holders of the preferred and common stock, held, that the corporation could not thereafter issue additional preferred stock, entitled to the same privileges, as the rights of the holders of the preferred stock first issued would be thereby injuriously affected.</p>

<p>Code, § 123 — when additional parties may be brought in as defendants.</p> <p>Ciaflin & Co., in an action against Northman, in which they afterwards recovered judgment, attached a claim existing in favor of Northman against the defendant in this action, upon a policy of insurance. On the return unsatisfied of an execution issued in the principal action, this action was brought by the sheriff upon the attached^claim and a defense interposed. In the meantime an assignee in bankruptcy of Northman had recovered judgment (after a defense interposed by the defendant) upon the same claim in the State of Tennessee. The defendant in this action applied to the court to have the assignee made a party defendant in this action. Held, that as the defendant contested its liability for the loss arising under the policy, the case was not within the provisions of section 133 of the Code (relating to interpleader of parties), and the court had no authority to make such an order.</p>

Weit of certiorari to the justices of the Court of Special Sessions of the city of New York, to review the trial and conviction of the relator for a misdemeanor.

This is a writ of certiorari issued to review proceedings taken to remove tbe relators from premises occupied by them as tenants, for tbe non-payment of rent. Tbe proceedings before tbe justice resulted in a determination in favor of tbe landlord, and tbe relators .were removed from possession of tbe property. They did not appear in any form, but tbe adjudication against them was made upon their default.

Writ of certiorari to review proceedings under the non-imprisonment act, taken against Charles Dusenbury. Tbe proceedings were taken under tbe act of 1831, against tbe defendant for assigning, removing or disposing of bis property with intent to defraud creditors, and tbe plaintiff obtained a warrant under that act. Prior to tbe obtaining tbe warrant, be bad taken measures against the defendant in proceedings supplementary to execution under section 292 of tbe Code.

The creditor must exhaust his legal remedies as a condition precedent to his coming into a court of equity. (.Dunlevy v. Talmage, 32 N. Y., 457 , Ocean B1&. v. Olcott, 46 id., 12, 18; Allen v. Thurston, 53 id., 622, 623; Voorhies v. Howard, 4 Abb. C. A. Dec., 503.) This is no new law. {Clarkson v. De Peyster, 3 Paige, 320 ; Beck v. Bur'dett, 1 id., 305 ; Bf. A. Fvre Ins. Co. v. Graham, 5 Sandf., 197; McCulloch v. Colby, 5 Bosw., 477; Parshall v. Tilton, 13.

<p>Appeal — stay of proceedings pending— Oode, § 348 — what condition may be imposed under.</p> <p>In an action brought to foreclose a mortgage, one of the defenses set up in the answer was a tender of tlie amount due. Pending an appeal from a judgment therein recovered by the plaintiff, the defendant applied for a stay, which was granted on condition that he executed a bond in a prescribed penalty, and that he waived the defense of tender. Upon an appeal from the latter clause of the order, held, that, under section 348 of the Code, the terms to be imposed were left to the sound discretion of the justice, and that, in the absence of all evidence to the contrary, it must be assumed that it appeared to the justice that the alleged defense was not involved in the appeal, and that it would bo inequitable to allow it to remain in the record if, for any reason, a new trial should be granted.</p>

The action was reached in its order on the calendar and defendant’s default taken; it appearing however that an account must be taken to determine what judgment plaintiff was entitled to, an order of reference to hear and determine the issues was made. The defendant thereupon noticed a motion to vacate and set aside the order of reference and to change the place of trial from New York to Ulster county, which motion was granted.

<p>Writ of Error to tbe Court of G-eneral Sessions of tlie city and county of New York, to review tlie conviction and sentence of tbe plaintiff in error of tbe crime of perjury.</p>

<p>Oonter.%pt of court — Stay of proceedings where the attorney is guilty of the conlempl — not proper.</p> <p>One Moses was the attorney for Louise Adolphus in an action in the Marine Court brought against the relator. The relator obtained, in proceedings for a mandamus instituted in the Supreme Court, a stay of the proceedings in the action, and, upon an alleged violation thereof, applied for an order declaring the attorney of Adolphus guilty of a contempt. The application was denied, and the relator appealed.</p> <p>Subsequently the relator procured from the Special Term of this court an order staying the proceedings of the said Adolphus, in the action in the Marine Court, until the determination of the appeal. Held, that as Adolphus had no interest in the question whether or not her attorney should be punished for a contempt, and as its decision in no way affected her action, the Special Term had no power to grant the stay of proceedings, and that the same should be vacated.</p> <p>If the proceedings in the Marine Court were irregular, the proper remedy was by motion in that court to vacate the same.</p>

The mere rendering of services does not establish any liability to pay for them. To constitute a valid contract to do so, the minds of both parties must have assented thereto. (Among v. Flyn, 10 Johns., 102; Dunbar v. Willianns, id., 219; Bartholomew v. Jackson, 20 id., 28; Utica Ins. Co. v. Bloodgood, 1 Wend., 6521) No contract to pay will be implied unless the circumstances clearly indicate it.

<p>Appeal from an order denying a motion for a bill of particulars, or that certain portions of the complaint should be stricken out as vague and insufficient.</p> <p>The action was brought to procure a divorce' on the ground of adultery. After having alleged in the complaint that the plaintiff had committed adultery at certain specified places, between certain dates, with persons therein named it proceeded :</p> <p>“ Tenth. And the plaintiff, upon information and belief, further shows to the court and alleges that the said defendant from the 1st day of November, 1876, up to the time of the verification of this complaint went to, visited and at various houses or places of prostitution or assignation in the city of New York (which times and places plaintiff cannot particularize, and exclusive of the times and places in this complaint particularly mentioned) committed adultery and had carnal connection with the said John Hinckley.”</p>

<p>Appeal from an order denying a motion for leave to serve a supplemental answer, setting up as a defense a discharge in bankruptcy.</p>

Cross appeals from a judgment entered upon tbe trial of tills action by the court without a jury, providing that the jilaintiif recover of the defendants Thomas E. Mason, Francis B. Wallace and John E. Phillips, the sum of $64,190.65, being the value of 466 shares of the capital stock of the Lake Shore and Michigan Southern Railroad Company, and 300 shares of the Cleveland and Pittsburgh Railroad Company, besides costs and an additional allowance.

Motion noticed at the General Term, In The Matter of Bernstein, cm■ Attorney, etc., requiring the respondent to show cause why his name should not be stricken from the list of attorneys and counselors for certain alleged misconduct.

Appeal by Joseph J. West from an order adjudging him in contempt, for interfering with the rights of a receiver appointed on the dissolution of a manufacturing corporation. To make a person guilty of contempt of court, in such case, there must be an actual interference with or disturbance of the possession of the receiver.

Appeal by the plaintiffs in this and two other actions, from orders allowing poundage to the sheriff for levying and serving attachments issued against the defendants.

Spicer and John D. Spicer and others, to deliver and surrender possession of mortgaged premises to a receiver or accept a lease therefor from him and pay rent to him.from the 2d day of July, 1877, or that a rent for the occupancy of the premises be determined upon a hearing to be had before a referee. The action was brought for the foreclosure of a mortgage on the premises in question.

<p>Appeal from an order requiring the defendant Norvin Green to appear and submit to an examination as a witness on behalf, and at the instance of the plaintiff.</p> <p>The affidavit is sufficient. (Glenny v. Steckoell, 64 N. Y., 120 ; S. O., 1 Abb. N. C., 327, with note and case there cited; Bhepmoes v. Bousson, 52 IIow., 40] ; Bailey v. Dean, 5 Barb., 297; McIntyre v. Mcmcius, 16 Johns., 592 ; Me Viekar v. Ketchum, 1 Abb. [N. S.], 452.) The facts sought to be discovered are necessary to aid plaintiff in the prosecution of the case and to frame her complaint, and, even if not absolutely necessary, the examination could be maintained. {Ma/rsh v. Davison, 9 Paige, 580; Vance v. Andrews, 2 Barb. Oh., 370; Bhepmoes v. Bousson, 52 How., 405 ; Mo Vicker v. Ketchum, 1 Abb. [N. S.], 452.) It is an absolute right, and either party is entitled, under the Code, to examine his adversary. (Cook v. Bidwell, 29 How., 483; Green v. Wood, 6 Abb. Pr., 277.) And the rule has been so clearly defined that, where a party calls his adversary as a witness and examines him before trial, he is precluded from cross-examining him any further on the trial, unless some reason or excuse is shown. ( Wilmont v. Meserole, 40 N. Y. Superior Ct. [8 J. & S.], 321.)</p>

Writs of habeas corpus and of certiorari to review tlie arrest and detention of tbe relator by tbe Society for tbe Prevention of Cruelty to Children. Tbe relator was arrested for violating tbe provisions of the Revised Statutes, forbidding any child from begging for alms or soliciting charity from door to door, or in any street, highway or public place of any city or town. (1 R. S., 633, § 4.)

The action was on contract for the recovery of a balance of money due for erecting a building in Syracuse.

<p>Writ ok error to tbe Steuben County Court of Sessions, to review tbe conviction of plaintiff in error on an indictment for obtaining money on false pretenses.</p>

Tbis action, originally, was in tbe name of Aurelia T. Auckland as plaintiff, against tbe defendant, wbo was sheriff of Erie county. It was commenced in April, 1874, and was in trover for a stock of drugs, etc. Tbe answer was a general denial, and also that tbe property belonged to one Hull, and was taken by defendant, as sheriff, on an attachment against Hull, and afterward sold on execution against him.

Appeal by defendant Hubbell, from an order made at tbe Monroe Special Term, appointing a receiver of the rents and profits of tbe premises covered by tbe mortgage, for tbe foreclosure of which this action was brought by tbe assignee in bankruptcy of tbe mortgagee. Defendant Hubbell is tbe assignee of tbe mortgagor, under a general assignment for tbe benefit of creditors.

1, for a stay of proceedings in action No. 2. Parce executed to Wolcott a mortgage of $5,000, which Wolcott afterward transferred to the Traders’ National Bank of Rochester, as collateral security for obligations of Wolcott to about half the amount. Plaintiff in No. 1 afterward became assignee in bankruptcy of Wolcott.

<p>Will — life estate, with power of consuming principal — gift of remainder — validity of.</p> <p>k testator, by his will, bequeathed to his wife the use of so much of his library and furniture as she might wish to retain for life, with power to dispose of the remainder thereof; and also all his real and personal estate, “ to be possessed and used by her at her discretion, and for her support and comfort during her natural life, having confidence in her that it will be used and retained, and the amount, the increase and the residue, whether more or less, left sacred to the purposes to which we mutually agreed to devote it; ” he further bequeathed al 1 his “ estate, real and personal, goods and chattels, of whatever nature or kind soever in her possession and held by her, up to and at the time of her decease,’ after payment of her funeral expenses, to certain benevolent societies therein named, “ to be held in trust by my executor, hereinafter named, and after her decease he is to have it divided equally between the societies above named. ” Held, that the legal title to the whole of the testator’s estate was, immediately upon his death, vested in his executor, with a right in the widow to draw from the estate, out of either principal or income, so much as she might judge necessary for her comfortable support and maintenance, and that, upon her death, the whole estate as it then existed, together with all accumulations thereon, was to be paid over to the residuary legatees named in the will.</p>

Tlie complaint is entitled “ John L. Beers, executor of tlie last will and testament of John Beers, deceased, against Robert L. Shannon and Mark Shannon,” and alleges that the testator, late of Cameron county, Pennsylvania, in March, 1873, duly made his last will, appointing plaintiff sole executor; that after his death, and in April, 1873, said will was duly proved in said county, and letters testamentary issued to plaintiff, which are still in force; that said deceased…

Appeal by defendant from a judgment, entered upon tbe decision of tlie court at Special Term, adjudging that defendant be ousted from tbe office of commissioner of highways, of the town of Alden, in the county of Erie.

Appeal by plaintiff from an order setting aside a verdict in his favor at the Yates County Circuit, granted upon á motion made at the same Circuit, upon the minutes of the justice before whom the action was tried, on the ground that it was founded upon insufficient evidence.

<p>Statute of limitations — Amendment of summons — power of court as to.</p> <p>The plaintiff was the assignee of a claim against ‘ ‘ Butterfield’s Overland Dispatch ” for freight, due to one Trivett for certain articles of merchandise transported by him between September 36, I860, and August 18, 1866. On or about August 5, 1873, the plaintiff caused a summons to be placed in the hands of the sheriff of New York, with intent that it should be actually served in an action against George .13. Cock and other individuals, and the Overland Dispatch Company.</p> <p>Butterfield’s Overland Dispatch and the Overland Dispatch Company wore two distinct joint stock associations, created under the laws of this State, and carrying on business in the city of New York.</p> <p>On July 39, 1873, the summons was served on the said Cock, and thereafter an attorney appeared for him and also for certain other of the defendants and the Overland Dispatch Company. On October 6, 1878,'an order was made by default, but, upon due notice, striking out the names of all the individual defendants except that of George E. Cock; and so amending the summons that it read “Michael W. Shaw vs. George IS. Cock, as Treasurer of Butterfield's Overland Dispatch.” The latter association appeared in the action and answered, setting up the statute of limitations. Held, that the action was not commenced against, nor did the court acquire jurisdiction over the Butter-field’s Overland Dispatch until the making of the order of October 6, 1873, and its appearance in the action; and that the cause of action was then barred by the statute.</p> <p>Quare, whether the court has power to so amend the summons and complaint in an action as to strike out the names of all the original defendants, and substitute that of another person having no connection with the former defendants.</p> <p>Davis v. The Mayor (14 N. Y., 506) cited and approved.</p> <p>McElwain v. Corning (13 Abb., 16) criticised.</p>

The objection made to the question asked of defendant — “Is the body of the note in your handwriting ? ”— was improperly overruled. It was not a personal transaction with the intestate of the plaintiff, and the defendant was not incompetent under section 399 of the Code. (Simmons v. Sisson, 26 N. Y., 261; Franlilin v. Pinl&ney, 18 Abb.

This action was commenced to enjoin the collection of an assessment imposed for the construction of a sewer in the village of Dunkirk, and to have the same declared illegal and void.

Aiu-bal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury. Tbe defendants were appointed referees to bear an appeal from an order of tbe commissioner of highways, in and for tbe town of Benton, Tates county, wherein tbe plaintiff was appellant. Tbe referees affirmed tbe order of said commissioners. A writ of certiorari was granted by this court, to which the referees made return.

<p>Writ of error to review a judgment of the Court of Oyer and Terminer in Monroe county adjudging “ that the defendant abate the said nuisance ” (alleged in the indictment, viz., the construction of its road over a highway) “ by entirely removing the same from the said highway at their own cost and expense within sixty days from this date or within sixty days after final judgment, and in default thereof the defendant be, and it hereby is, sentenced to pay a fine of two thousand dollars, and that the usual process of this court as against corporations be issued to collect the same, and in case the defendant does not abate the said nuisance, then it is ordered that the usual process issue to the sheriff of Moure county directing him to abate the said nuisance, and that the costs and expenses thereof be paid out of the fine as aforesaid imposed.”</p> <p>Also, an appeal from a judgment denying the appellants’ motioii for a new trial.</p> <p>The statute gives the option</p> <p>to the company to carry the highway under or over. The company is to elect as to the mode of crossing. (Regina, etc., v. T.lieSouthEastern Railway Co., 6 Eng. L. & Eq. Rep., 214; S. C., 20 Law J. [N. S.], Q. B., 428.) TLe statute having permitted the company to carry the highway over the track, it cannot be convicted of a’nuisance therefor. (Crittenden v. Wilson, 5 Conn., 165-161; People v. Platt, 11 Johns., 195*; Harris v. Thompson, 9 Barb., 350-364; Trustees, etc., v. TJ. and S. R. R. Co., 6 id., 313 ; Hentz v. Long Island R. R. Co., 13 id., 646 ; Williams v. H. Y. C. R. R. Co., 18 id., 222; Robinson v. N. Y. and Erie R. R. Go., 21 id., 512, 520; Renwich v. Morris, 1 Hill, 515.)</p> <p>Any permanent obstruction unlawfully maintained in a highway is a public nuisance, subject to indictment. (2 Wharton’s Precedents, 614, note ; Davis v The Mayor, 14 N. Y., 524; The People v. Cunningham, 11 Denio, 524.) The right of the public to pass and repass on the highway is paramount, and hence the grant to the railroad company must be strictly construed. (The People ex rel. v. Del. and H R. R., 58 N. Y, 152 ; Cott v. The L. R. R. Go., 36 id., 216.) The grant is to occupy and use plank-roads, turnpikes and streams, on exactly the same conditions, viz., a continuing liability “ to restore the highway, stream, etc., to its former state, or to such state as not necessarily to have impaired its usefulness.” Whenever the railroad ¡¡¡orporation ceases to fulfill that condition, it forfeits its right to occupy and use the highway, and that this condition is absolute and is in no way dependent upon the proper or improper use of the discretion given by section 24, or upon whether such exercise of discretion was in good faith or not. (3 Pay’s Digest Laws N. Y., 206, § 30 ; Laws of 1850, chap. 140, § 28; 1 Redf. on Railways, 411-423, note; 2 id., 401-409 ; The People ex rel. v. Boston R. R., 31 How. Pr. R., 421; -Cott v. Lewiston R. R., 36 N. Y., 214; Worster v. Forty-second Street R. R., 50 id., 205; Mahon v. N. Y. C. R. R., 24 id., 661; Reg. v. B. and G. R. Co., 2 Aid. & Ellis [N. S.], 41; Atty.-General v. D. G. R. R., S Law Rep. [N. S.], 608; The Wardens v. L. C. D. R. R., 1 Jurist [pt. 1], 453; Troy and Boston R.R. v; Horthern R. R., 16 Barb., 105.)</p>

plaintiff. The motion was made on the ground that there was no certificate attached to it as required by law.

<p>County judge — power of to grant new trial — Action for false imprisonment— liability of a justice of thepeaee, for error in judgment.</p> <p>A county judge has power to grant a new trial upon his minutes, when a verdict is found in opposition to the evidence or upon insufficient evidence.</p> <p>The plaintiff having been brought before the defendant, a justice, on a charge of assault and battery, was, after an examination, required to give bail for his appearance at the next criminal court, and having failed to furnish the bail, and omitted to demand a trial by a Court of Special Sessions, he was committed to the keeper of the county jail, to be kept until discharged according to law. After having been therein detained for more than twenty-four hours, he was discharged on a habeas corpus, and thereafter brought this action for false imprisonment.</p> <p>Held, that, as the plaintiff had failed to demand a trial by a Court of Special Sessions, the justice was authorized to commit him to the jail for at least twenty-four hours, during which time he could give bail under the statute (2 R. S., 595, § 5); and that his mere omission to proceed to try him, after the expiration of that time, did not render him a trespasser ab initio.</p> <p>That, even if the justice believing that he was bound so to do, had committed the plaintiff, on his failure to give bail as required, to the county jail until he should do so, yet it was but an error of judgment; and that, as he had jurisdiction of the person of the plaintiff and the subject-matter, he was protected from an action for false imprisonment.</p>

<p>Legacy — action for, pending in Supreme Court, aba/r to proceedings before surrogate.</p> <p>Tlie respondent commenced an action in tlie Supreme Court against tlie appellants, as executors, to recover a legacy alleged to have been left to him by the will of the appellants’ testator. Subsequently, and while such action was pending, he instituted proceedings before the surrogate requiring the executors to appear and render their account and pay over to him the said legacy. Held, that the action commenced in the Supreme Court was a bar to the subsequent proceedings instituted before the surrogate.</p>

Appeal by defendants from an order made at Special Term denying a motion for a new trial made upon a case and exceptions.

Writ of error to tlie Court of General Sessions of Wayne county, to review the conviction of tlie plaintiff in error of burglary in the first degree. The defendant and one Alphonsus T. Butts were jointly indicted at the Wayne County Oyer and Terminer. The indictment was sent to the Wayne County Sessions for trial. The district attorney moved the separate trial of the defendant, and the same was there. had.

Appeals by plaintiff, respondent, from orders of tbe Oswego Special Term setting aside a judgment, in favor of tbe appellant against tbe respondent, in eacb of tbe above-entitled actions for costs. Tbe respondent commenced two actions against tbe appellant, July 16, 1814, to recover a penalty for fifty dollars, under tbe act of March 27,1857, and issue was joined therein about August 28,1874.

This is an action in the nature of a creditor’s bill, to set aside a conveyance of real estate alleged, to be fraudulent as against the creditors of the grantor. The plaintiff is the owner of a judgment against the grantor, for seventy-seven dollars damages, and costs, recovered 12th January, 1875, in a court of a justice of the peace, by Henry E. Warne, as assignee in bankruptcy of one Clemenz Wente, and assigned by Warne to the plaintiff.

This is an appeal from a judgment in favor of tlie plaintiff, entered on a verdict rendered at tlie Erie Circuit in December, 1874, and also from an order of tbe Erie Special Term denying tbe defendant’s motion for a new trial upon a case containing exceptions, and from an order of the Erie Special Term vacating an order granting a new trial herein on the ground of surprise.

Tbe action was brought to recover moneys alleged to bave been received by tbe defendant, arising from tbe sale of certain lands wbicli belonged to tbe plaintiff’s husband, and to which money tbe plaintiff was entitled. Upon tbe trial before a referee, it appeared that tbe money bad been received by tbe defendant and one George L. Marvin, as partners. A motion was thereupon made by tbe plaintiff to bave George L. Marvin brought in as a party defendant.

The action was brought to restrain the directors of tbe Rochester and State Line Railway Company from adopting any resolution Removing the present treasurer, or electing any other in his place, or taking from his control the books and papers of the company.

The action was brought for the foreclosure of a mortgage, given by the defendant Charles L. Bingham, who held the legal title to the mortgaged property. The defendant Cuyler interposed an answer in the action, which first denied any knowledge or information sufficient to form a belief as to the allegations of the complaint.

<p>Exchange of property — decision of umpires — forfeit—liquidated, damages — wager contract.</p> <p>The plaintiff and defendant having been negotiating for an exchange of certain articles of personal property, it was agreed to leave it to two persons, one to he selected by each, to decide how they should exchange, and that if either refused to abide by their decision he should forfeit ten dollars to the other. The umpires having decided that defendant should pay to the plaintiff $115 on the exchange, and he having refused so to do, the plaintiff brought this action to recover the ten dollars. Held, that by the agreement the ten dollars were liquidated damages; that the agreement was not void as a wager contract, and ■ that plaintiff was entitled to recover.</p>

, commanding him to reinstate the relator in his position as stoker of the steamer Alberger, owned by the city of Buffalo.

The complaint alleges two causes of action, but the only one to which this appeal relates is a claim for the rent of certain real estate occupied by the defendant under a lease from the plaintiff.

The action was brought by the plaintiff to compel the defendant the Erie County Co-operative Milk Association, of which the plaintiff was a member, to continue its corporate business and to compel the other defendants, as directors, to call meetings as required by the by-laws and charter of the corporation, and also for an accounting and the recovery by tbe plaintiff of tbe amount alleged to be due him.

<p>Evidence of pa/i'ol agreement cotemporaneous with written lease — when admissible— Voluntary lease — validity of.</p> <p>In 1852 the defendant leased to his mother certain premises for the term of her natura1 life, no rent being reserved thereby. He continued in possession up to the time of the commencement of this action. In 1867 the mother assigned her lease and claim for use and occupation to the plaintiff, and subsequently, in 1872, she conveyed the premises to the defendant for a valuable consideration, he having no notice of the prior assignment. In an action by the plaintiff to recover for the use and occupation of the land, the defendant was allowed, against the plaintiff’s objection and exception, to testify that at the time of the making of the lease it was agreed that he should remain in possession of the same without paying rent; that his mother was to live with him whenever she wished, and that its object was to provide a permanent and safe homo for her.</p> <p>Eeld, that the evidence was properly admitted, as it did not tend to contradict or vary the terms of the lease to his mother, but simply established the terms of the agreement under which he continued in possession under his mother.</p> <p>Although an executory agreement to give a lease, not founded upon a valuable consideration, may not be valid, yet a lease duly executed in pursuance thereof is.</p>

It was not a question of genuineness of a signature, but called for tbe opinion of the witness as to tbe age of tbe indorsement, and such opinion was inadmissible. (SacTcett v. Spencer, 29 Barb., 180,181; The Phoenix Fire Ins. Go. v. Phillips, 13 Wend., 80; 4 Term R., 49; Peake’s Ev. App., 176 ; 5 B. & Aid., 530; People v. Spooner, 1 Den., 343.)

<p>Experts — opinions of.</p> <p>The opinions of experts are only admissible, when it appears from the nature of their avocations, or from their testimony concerning their experience, that the matter inquired about involves some degree of science or skill which they have made use of, so that from experience, they can answer the question propounded, with more accuracy than others, who may not have been called upon to employ science or exercise skill on the subject.</p>

The action was brought to recover against the defendant as indorser of a promissory note, dated June 15,1875, made by ~W, II. Stout, for $168.50, payable two months from date, to defendant’s order, with interest, at S. B. Gavitt’s bank in Lyons, New York.

The evidence on the part of the people tended to prove that at the general election, held in the county of IMonroe in November, 1870, Lord was elected a member of the assembly for said county, took… Held: that the indictment being found within five years subsequent to the commission of the offense was ralid, and to this defendant’s counsel duly excepted. The jury found the defendant guilty, as charged in the indictment.

Motion by plaintiff for a new trial, upon exceptions ordered to be heard in the first instance at General Term after a nonsuit directed at the Circuit. The case was tried at Chautauqua Circuit in January, 1876, and a nonsuit ordered. The plaintiff was a bralceman in the employ of defendant, and the action is to recover damages for personal injuries happening on the 12th May, 1873, and resulting in the loss of his arm.

Bagley, Jr., pay or deliver over to James T. Olwell, receiver appointed herein, the rents and securities collected and received by himself or his agent or agents, of - Nichols & Pennoyer, or either of them, for rent of the premises described in the complaint as the dock property, or the equivalent of such rent or securities in money.” This action was brought by the plaintiff to foreclose two mort gages held by him against the defendants, David Vrooman and wife The…

The action was brought to recover damages for injuries received by the plaintiff in falling into an unguarded excavation in the' sidewalk on Bleecker street, in the village of Gloversville, on the night of May 24, 1875. The defendant required the bed of Bleecker street to be cut down the year before to a uniform grade, leaving the sidewalks on both sides much higher than the bed of the street.

Appeal by tbe defendants from a judgment in favor of the plaintiff entered on the report of a referee, by which a deed was declared to be fraudulent and void, and the property ordered to be sold as under an ordinary judgment of foreclosure. The plaintiff recovered two judgments against Michael Warner, one on 30th October, 1875, and another December 1,1875, on which executions were returned unsatisfied. The notes on which the judgments were recovered were dated in 1873.

<p>Appeal from a judgment in favor of the defendant entered upon a verdict directed by the court, 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>This action was brought by the plaintiffs, as executors of the last will and testament of Latham Cornell, deceased, to recover the value of certain securities in the possession of defendant, and alleged by them to belong to the estate of said Latham Cornell. The defendant, who was the widow of- said Latham, claimed title to said securities by gift from her husband in his lifetime. The securities in dispute consisted of railroad stocks and bonds, bonds of municipal corporations and bonds and mortgages of individuals. No written assignment was made by deceased to defendant, of any of these securities, but they were claimed by the defendant to have been. given to her by her husband shortly before his death in lieu of dower.</p> <p>The plaintiff Latham C. Strong, and Sarah E. Herrington, daughter of plaintiff’s testator, and residuary legatee under his will, were offered to prove conversations between themselves and deceased, with a view of showing, first, that his feelings towards the defendant were such as to make it unlikely that he would have made the gift; and second, that he was not of sufficient mental capacity to make it. These offers were excluded under section 399 of the Code. The plaintiffs also requested the court to hold, that the title to the stocks and bonds did not pass to defendant by delivery alone, which was refused and plaintiffs excepted.</p>

heard in the first instance at the General Term, after a verdict in favor of the plaintiff. , This was an action for an assault and battery. The answer alleged that the plaintiff committed the first assault, and that what defendant did was in defending himself against that assault of’ the plaintiff.

<p>Abandonment of a portion of a street — power of municipal corporation — estoppel— Non-user of easement for twenty years.</p> <p>The common council of the city of Troy, under the authority given to it to ascertain, fix, establish and settle the boundaries of all streets, may so establish the boundaries as, in effect, to abandon a portion of the pre-existing street lying outside thereof; and where an adjacent owner makes substantial improve- _ ments upon the portion of the street so abandoned, the city is estopped from setting up any claim thereto.</p> <p>A. mere non-user of an easement for twenty years, will be deemed an abandonment of it.</p>

Appeal by the defendant from a judgment entered in favor ol the plaintiff, at the Rensselaer Circuit, and from an order denying defendant’s motion for a new trial.

Guy and Delia, his wife, and rendering judgment in their favor, and against the plaintiff, for costs, and granting the usual decree of foreclosure and sale against the other defendants. The action was brought to foreclose a mortgage. Upon the trial it appeared that, prior to the 20th day of October, 1874, the defendant Scribner was the owner of Nos. 3 and 5 St. Paul’s place, in the city of Troy.

This action was brought to recover the deficiency on a bond after a foreclosure of the mortgage by advertisement. The foreclosure took place in July, 1859, and the assignee of the mortgage was the purchaser. The obligor set up, as a defense, that before that time, and in August, 1855, the same assignee foreclosed the mortgage by advertisement, bought the property for the whole amount of the mortgage debt, and went into possession.

■ The action was brought to recover the sum of $414 and interest, írom April 1, 1867, being a portion of ^the price of the American Hotel, Saratoga Springs, N. Y., in which both the parties were interested, omitted from a settlement of accounts between the parties by an alleged fraudulent concealment by the defendant.

The complaint averred that the plaintiff was duly married to the defendant on a certain day, and that she continued to live with him as his wife till a certain date, being for about ten years.

Appear by defendants above named, from - a judgment in favor of the plaintiff, entered on tlie decision of the court at tbe Saratoga Special Term. Tlie complaint alleges tliat one Benjamin Rodgers died seized of certain land, having first made his will, of which a copy is sot forth. By that will all the property, real and personal, is given to Joseph Rodgers, subject to a life estate to testator’s widow, and Joseph is required to pay certain legacies.

Farrington, upon the payment of the sum of $300 and interest, execute, acknowledge and deliver to the plaintiff a warranty deed of the lands in the complaint mentioned and described, with covenants against all incumbrances existing prior to the 10th day of December, 1873, and also adjudging the defendant to pay off the Wing mortgages, so called, or otherwise remove the same of record, and cause the same to só appear in the office of the clerk of Steuben county.

<p>Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The referee found, among other things, that prior to March 2, 1872, one Charles R. Brown was the owner of certain real estate in Saratoga Springs. Brown executed a mortgage thereon to trustees named therein, for the sum of $200,000 to secure bonds sold and to be sold not exceeding that sum. The plaintiff had furnished material and performed work, labor and services in the erection of a hotel on said premises to the amount of $15,000, and had duly filed a mechanic’s lien thereon. At the time of filing said lien not more than. $44,000 of said bonds bad been issued. March 2, 1872, the plaintiff procured a judgment, foreclosing said mechanic’s lien. About that date the plaintiff procured the hotel erected on said premises to be insured to the amount of $15,000 to secure his interest therein. Before making said mortgage for $200,000 one Henry A. Clarke held a mortgage on said premises, which was a prior lien thereto. Said Clarke foreclosed his said mortgage, making all subsequent incumbrancers parties.</p> <p>Before the sale upon said foreclosure plaintiff and sundry of the holders of bonds, the defendant, Alexander Cherry, being one, entered into a combination or agreement, by which Cherry was to bid off the premises on the foreclosure sale in trust for the benefit of said associates, and to manage said property for the benefit of said associates. It was agreed between said associates that the plaintiff’s interest in said purchase should be such part thereof, as $15,000 bore to the whole amount of interests represented in said combination. The amount of said interest, exclusive of said plaintiffs, was $83,220.51. Said agreement was carried into effect. Said Cherry became the purchaser of said premises on the foreclosure sale as trustee for the benefit of said associates, and afterwards executed a declaration of trust, under his hand and seal, and managed said property, and effected said insurance for common benefit. At the time of said purchase and at any time before the fire hereinafter mentioned the value of the interest of the plaintiff in said premises exceeded $15,000. The plaintiff and other associates contributed large sums of money in dealing off incumbrances and protecting said property. After the sale to Cherry as trustee the insurance which plaintiff had effected upon said premises having become void, he caused to be issued five other policies of insurance covering said premises, amounting in the aggregate to the sum of $15,000. Plaintiff procured said policies for his own protection and paid the premiums therefor, and took said policies into his own possession. They were made payable to the plaintiff as his interest might appear. They were issued in form to Cherry, but were intended for the plaintiff’s security only. Cherry had previously declined effecting additional insurance for the benefit of the associates. Said policies were dated about July 4, 1874. "While said policies were in force, and about October 1, 1874, said premises were destroyed by fire. The insurance companies were willing to pay on said policies the sum of $9,753.64, and the plaintiff was willing to accept that sum. Before the companies would pay or could be required to pay that sum it was necessary that defendant Cherry should receipt therefor, and join in the proof. The defendant Cherry claimed that the said money belonged to him as trustee, for the benefit of all the associates, and would not consent that the plaintiff receive the same, and in order that the same might be received from the insurance companies it was agreed between plaintiff and defendant Cherry that both parties should join in procuring the same from said companies, and that the same should be received by defendant White, who should hold the same until it should be determined who was entitled thereto. Said White assented to said agreement, and sai d sum of money was paid to said White accordingly. Said White is ready and willing, and always has been, to pay said money to any party entitled thereto, and submits his rights in the premises to the judgment of the court.</p> <p>The referee found, as conclusion of law, from the foregoing facts, that the said sum of $9,753.64 was and is the property of the plaintiff, and that the plaintiff is entitled to judgment; -that said White pay the same to the plaintiff, with any interest which may have been realized thereon, and directed that judgment be entered accordingly.</p>

Exceptions ordered to be heard in the first instance at General Term, after a verdict for $100 in favor of the plaintiff at the Sullivan county Circuit. The action was brought for alleged malicious prosecution of the plaintiff before a justice of the peace, on the complaint of the defendant that the plaintiff had been guilty of the offense of grand larceny. The complaint was made before the justice on February 25,1876.

Appeals from two orders, eacb denying an injunction in the above action.

<p>Police justices in Troy — jurisdiction of, over misdemeanors — construction of statutes.</p> <p>Chapter 18 of the Laws of 1876 gives the police justices of Troy, appointed thereunder, the same powers as Courts of Special Sessions in towns, and further provides that they, “ as such Court of Sessions, shall have jurisdiction of offenses of the grade of misdemeanors.” Held, in view of the other provisions of the act which appeared to contemplate that such police justices should exercise only the powers of Courts of Special Sessions and of previous legislation on this subject, that the word “as” should be read “ in like manner,” thus restricting the jurisdiction of the police justices over offenses of the grade of misdemeanors to that enjoyed by Courts of Special Sessions in towns.</p>

The testatrix, after providing that her husband should furnish his room after her decease with certain specific articles of furniture, further provided as follows: “ I also give my husband five thousand dollars ($5,000)' to be put at interest, the principal interest to be used for his comfort and benefit.

During the trial of the cause, plaintiff’s counsel stated that Lizzie Cole, a material witness, was ill and unable to be present at the trial, and offered in evidence her deposition, with the affidavits, etc., upon which the order to take the same was granted, taken during the pendancy of the trial, which deposition, against defendant’s objection, was received in evidence.

The action was brought to recover damages, under the “ civil damage act ” (chap. 646 of 1873), by the plaintiff, who is the wife of the person to whom the liquor was sold. The case has already been before the General Term (8 Hun, 319), where it was held that a good cause of action was stated in the complaint.

order reversing an adjudication in summai-y proceedings by a justice of tbe peace, dispossessing tbe relators of certain premises known as St. Mark’s hotel, New Brighton. Tbe respondent rented tbe premises in question to tbe relators. Tbe rent was not paid. Summary proceedings were taken to dispossess tbe relators’ there was no appearance bv them in such proceedings, and judgment was given for the recovery of the premises by the landlord.

<p>Writ of error to tlie Court of Sessions of the Peace of the county of Richmond, to review the conviction of the plaintiff in error of robbery.</p>

<p>Appeal from an order made at Special Term, setting aside and vacating an order appointing Odie Close guardian ad litem for Emily Hatfield, one of the defendants in the above-entitled action.</p>

Appeal by plaintiff from an order, setting aside tbe taxation of costs herein, and directing tbe clerk of Queens county to tax no more costs than tbe amount of tbe verdict rendered in said action.

The assignee of the plaintiff, the owner of the judgment, was, at the time of this application, seeking to enforce an alleged equitable lien of said judgment upon certain lands, such lien having accrued prior to the filing of the petition in bankruptcy and being based upon the statute of uses and trusts.

The action was brought to recover the amount of four promissory notes made by the defendant Robert H. Morrow to Samuel Morrow in 1870. Albert T. Morrow, one of the executors, having refused to be a party plaintiff was made a party defendant herein. Robert H. Morrow set up, among other defenses, that of the statute of limitations.

The action was brought to foreclose a mortgage given by one Purdy to the plaintiff, bearing date July 13, 1875. Two of the defendants, Millard and Wood, who held judgments recovered on the 26th of January, 1876, and the 14th day of February, 1876, respectively, put in answers setting up that the mortgage was void for usury. The court below held that the bond and mortgage were good and valid instruments, and directed that the usual judgment of foreclosure be entered.

The action was brought to recover the value of certain fruit trees sold by the plaintiff to the husband of the defendant, and for the price of which it was claimed that the defendant was liable, it being alleged that the husband had acted as her agent in making the purchase and that the trees were set out on a farm belonging to, and managed by, the defendant.

<p>Appeals from Justices’ Oo-'M'ts — neglect to serve notice on adverse pa/rty — cannot be supplied und&r Oode, § 1308.</p> <p>Section 1303, of the Code of Civil Procedure, providing that where the appellant serves notice of appeal on the clerk or adverse party, and neglects, in other respects, to perfect his appeal, the court may permit the omission to be supplied, applies only to appeals mentioned in the twelfth chapter of the Code, and does not apply to appeals from Justices’ Courts.</p>

Appeal by Henry S. Bedell, executor, etc., of Martha Guyon (the elder), deceased, from an order of the district attorney of Richmond county, acting as surrogate, directing an attachment to issue against said Bedell for his failure to return an. inventory of the estate of which he was executor. The clause of the will of Martha Guyon, upon the construction of which the controversy arose, is set out in full in the opinion.

In December, 1872, the plaintiff herein brought an action in this court against Alexander McNeil, to recover damages for injuries received at New Orleans through the alleged carelessness of McNeil, who was then, as stevedore, engaged in unloading a vessel at that place. In the same month an order for the publication of the summons was made in that action, on the ground that the defendant was a non-resident, having property in this State.

Appeal by plaintiff from a judgment entered upon the trial of this action by the court without a jury, dismissing the complaint and directing the mortgage therein described to be canceled. The action was brought to foreclose a mortgage.

Tbis action was brought by tbe plaintiff as a judgment creditor of Richard Bainbridge, deceased, to have a deed of certain premises executed and delivered to defendant William B. Duncan declared to be held by said Duncan to secure the repayment to him by Bainbridge of the purchase-money and certain advances to be thereafter made by said Duncan to said Bainbridge.

Millets be made a party respondent to an appeal, brought by the appellant from a decree of the surrogate of Queens county, made upon the final accounting of the exe The appellant objected to the order on the grounds that the petitioner had no interest in the question presented by the appeal, and that the time within which she was entitled to appeal had elapsed before the application was made.

This was an application to compel the respondent, as mayor of Brooklyn, to sign certain warrants issued by the comptroller of the city in payment of the relator’s salary as clerk of a Justice’s Court.

Controversy submitted without process, in pursuance of sections 1279, 1280 and 1281 of the Code of Civil Procedure. The plaintiffs were, on May 8, 1875, the owners of a bond and mortgage for $14,000, then past due.

. The action was brought to obtain a construction of the will of the plaintiff’s testator. The court found: That James Purdy died April 10, 1876, leaving a last will and testament which has been duly proved and admitted to probate by the surrogate of Dutchess county, and that the plaintiff is the sole executor thereof and that the defendants are the heirs at law of said testator.

<p>Action pending in another State and in this State for sa/me cause — when stay of proceedings in one action will he granted.</p> <p>A wife, in 1866, commenced an action in this State for a separation on the ground of cruel and inhuman treatment, and procured an order directing the payment of $500 for counsel fees, $350 a month for alimony and a gross sum of $1,000. In June, 1876, she commenced an action in Connecticut for the same cause, for an absolute divorce, as allowed by the laws of that State and a referee reported to the court in her favor, but no judgment was entered thereon. The plaintiff then procured an order in the action in this State requiring the defendant to pay the alimony and expenses awarded by the order of 1866, she having received but half the counsel fee and alimony for two months only. Held, that the order granting alimony, etc., should be vacated and all proceedings in the action in this State stayed until the Connecticut suit sbcaid be abandoned.</p>

From tlie report of tbe referee it appeared that in July, 1866, certain premises in tlie city of New York were conveyed to the defendant Nicoll “ in trust, to receive tbe rents, issues and profits of tbe said premises, 'and after paying therefrom all taxes, assessments and other charges upon said premises, to apply tbe residue to tbe sole and separate use of Sophia Y. D. Reynolds during her natural life.” That Nicoll accepted said deed and entered upon tbe execution of tbe…

The action was brought to recover damages for injuries sustained by the plaintiff in falling from one of defendant’s cars.

<p>Appeal from an order made on tbe application of tbe plaintiff vacating a judgment of partition and sale entered in tbis action, and allowing tbe plaintiff to discontinue tbe same upon payment of costs.</p>

<p>Appeal from a judgment in favor of the defendants, entered upon an order dismissing the complaint herein. The action was brought to set aside a judgment entered in an action to foreclose a mortgage, in which the present plaintiffs were defendants. Erom the judgment roll it appeared that the plaintiffs had appeared therein by an attorney, one William De Yigne. The plaintiffs herein claimed that he appeared fraudulently and corruptly, and without any authority from them, and that they did not know that he had done so until after a sale had been had under the judgment; that neither a summons nor any other paper in the action had been served on them.</p> <p>The justice erred in dis missing the complaint. It is well settled that a court of equity has power to grant relief against a judgment procured by fraud. (Dob-son v. Pearce, 12 N. Y., 168; Reigal v. Wood, 1 Johns. Oh., 402; State of Michigam, v. Phcmix Bamli, 33 N. Y., 25; 2 Story Eq. Jur., § 881; Galation v. Brwin, 1 Hoplc., 54 ; Willard’s Eq. Jur., 160.) It will be observed that the direct issue in this action is whether the attorney had authority to appear. It is not a collateral issue, as in the case of Ferguson v. Crawford (Y Ilun. 25) and in the eases of Allen v. Stone (10 Barb., 54Y); Denton v. Noyes (6 Johns., 296); Meaoham v. Dudley (6 Wend., 515); Ellsworth v. Campbell (81 Barb., 135); Blodget v. Conklvn (9 How., 442). No reported case can be found limiting a party aggrieved as herein to a motion which rests in the discretion of the court, and prohibiting a suit in equity for the sole purpose of obtaining relief. On the contrary, although relief against a judgment or decree for fraud may be obtained in the same court by a motion or petition, yet it may also be obtained by an original bill in a court of equity. (Willard’s Eq. Jur., 163; State of Miohiga/n v. Phoenix Bank, 33 N. Y., 25; Sheldon v. Fortesaue Aland, 3 P. Wms., Ill; Munsell v. Morgan, 3 Bro. O. 0., Y4; Lloyds. Mcmsell, 2 P. Wms., Y3.) The rule that an unauthorized appearance by an attorney binds the party for whom he appears seems to have been based upon the diota of Lord Holt. The rule now in England is that if a party had no notice of the suit an appearance by an unauthorized attorney is void; but if process has been served upon him, he will not be relieved if the attorney is responsible. (Baijley v. Buekland, 1 W., H. & G., 1; Dupen v. Keeli/ng, 4 C. & P., 102; Emersons. Brown, Y M. & Gk, 4Y6; Robson v. Eaton, 1 T. R., 62; Eoeker v. Parker, Y Crancli, 436; Criehfield v. Porter, 3 Ham., 518; and see Field v. Gibbs, 1 Pet. 0. O., 158; Ruckle v. Roach, 2 Chit., 193; Hubbart v. Phillips, 13 M. & W., Y02; Campbell v. Bristol, 19 Wend., 101.)</p>

Tbe complaint alleges tbat tbe plaintiff is tbe bolder of a bond and mortgage made by tbe defendant Gleavey (tben Mrs. Jack) for $44,000, dated October 7, 1874, on certain premises in Flatbusb, L. I., with tbe usual provision therein to procure insurance as collateral to tbe bond and mortgage. Tbat on November 2,1874, the mortgagor conveyed tbe premises, through Ohauncey E. Cook, to defendant Margaret E. Jack.

<p>Railroad company — location of route by statute — what map of route, sufficient.</p> <p>A railroad company ,was organized by an act of the legislature and authorized to construct its road between two points, and over certain streets' and roads therein named. Reid, that this constituted a practical location of its route by the legislature and dispensed with the notice of the location of its route and of the filing of the map required by the general railroad act.</p> <p>The map as filed showed a single line running, along a road, and a notice upon it stated that the center line of the railroad track was eighteen feet from the westerly line of the road. Relcl, that this showed with sufficient certainty the location of the road and the land to be taken.</p>

<p>Judgment in ejectment— stag of proceedings on — not proper, to gime time for exercise of right of eminent domain.</p> <p>The plaintiff brought an action to recover possession of a strip of land held by the city of Brooklyn, and recovered a judgment therein, declaring him entitled thereto. Subsequently, the city applied for and obtained an order staying all proceedings on the plaintiff’s part to enforce his judgment, on the ground that it was about to procure a condemnation of the land under the exercise of its right of eminent domain. Held, that it was erroneous to grant the order, and that the same should be vacated.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and for an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.</p> <p>This action was brought by plaintiff to recover for goods sold to one McKee and others.</p> <p>The defendant entered into a contract to build a portion of Spuyten Duyvil and Port Morris Railroad, the contract providing, among other things: It is further agreed that the railroad C( mpany shall, in all cases of non-payment by the contractor, of all and any sums of money unpaid to laborers for labor at any time actually performed in constructing said railroad, be authorized to pay the same to such laborer or laborers, as the same shall be due; and if any suits are commenced under any statute now or hereafter to be passed against said company for laborers’ 'wages on said railroad, the said company may pay all damages, recoveries, costs, expenses and counsel fees, and charge the same to said contractor; and the company may, from time to time, retain what shall be necessary for their protection, and the contractor shall make up and pay to said railroad company any deficiency.</p> <p>The defendant contracted with John E. Fisher and A. S. Ilart to build a portion of said road embraced in his contract with the railroad company. The latter contract was assigned to Alexander McKee, of Allentown, Penn.</p> <p>The goods, to recover the purchase-price whereof this action is brought, were sold by plaintiff in October, 1870, first, to McKee; second, to laborers of McKee; and, third, to persons who boarded laborers of said McKee.</p> <p>McKee, after he had been paid what was due him upon said contract, and shortly before the time of payment of laborers for the month of October, absconded; and about the seventeenth of November the defendant, through his nephew, Franklin Decker, paid, with the money of defendant-, the balance extended upon McKee’s pay roll as due to laborers, deducting from the wages due to each laborer the amount due to the plaintiff. The laborers consented to the reduction, provided the defendant would pay it to the plaintiff. The ' defendant having failed to pay the plaintiff, this action was brought to recover the same.</p>

The principle deducible from the English and American cases on this subject of the master’s liability for tlie acts of tbe servant, inevitably leads to tbe conclusion tbat in tbe present case tbe servant was in tbe employ of his master until be arrived at tbe end of bis journey, reached bis stables (no matter by wliat route) and put up bis horses as directed.

If tbe surrogate rightfully disregarded tbe releases tbe plaintiff cannot be beard to complain; if be erred in so doing plaintiff’s remedy is by appeal, as would be tbe case in tbe event of any court, inferior or otherwise, striking out or disregarding evidence which it was its duty to consider, or in excluding evidence which it should bave received (7 Hun, 609; Willard’s Equity, 357, 358; Snedelcer v. Pearson, 2-Barb.

<p>Appeal from a judgment in favor of tbe plaintiff entered upon a verdict directed by tbe court, and from an order denying a motion for new trial made upon tbe minutes of tbe justice before wbom tbe act'.t n was tried.</p>

The ordinance under which the work was done and the assessment laid was as follows: “Resolved, That Forty-sixth street, from Eleventh avenue to the North river, be regulated and graded, and curb and gutter stones set, and sidewalks flagged a space four feet wide through the center thereof where not already done, through the direction of the commissioner of public works, who ’may appoint an inspector therein and one of the city surveyors.”

The complaint alleged, among other things, that theretofore this plaintiff and the defendant bartered or exchanged dry goods- owned by them respectively for certain real estate, and upon the making of said barter or exchange, this' plaintiff, for convenience, took the conveyance and title of said property in the interest of the plaintiff and defendant.

Pettigrew, deceased,' which were granted by said surrogate to Robert Pettigrew and Richard C. Downing on the 19th of March, 1875. The action is brought by the heirs at law and next of kin of the deceased against the defendant, who claims to be the widow of the deceased. John W. Pettigrew died intestate in the city of New York, in the year 1875, leaving him surviving the plaintiffs, his mother and brothers and sisters, his heirs at law and next of kin.

On the 23d day of June, 1877, the trustees of the French Manufacturing Company applied at chambers, by petition, praying, for reasons therein stated, a dissolution of the said corporation. This application was made under the provisions of the Revised Statutes relative to the voluntary dissolution of corporations.

<p>Appeal by the Mayor, etc., of New York from an order1 made at Special Term vacating an assessment.</p>

The action was brought by the plaintiff as one of the shareholders of the New York Express Company, a joint-stock association, against the other members thereof, to take and state an account between the parties to the action, and of the claims and demands against the members of such association. The association consisted of nine members, each entitled to an equal share of the profits, and each equally liable for the losses sustained.

Czaki, referee appointed to determine claims to. surplus moneys arising on a sale of mortgagad premises, under tbe judgment in this action.

Ceetioeaei to inquire into tlie cause of tlie removal of the relators as clerks in the fire department of the city of New York. The power to remove is not made dependent upon compliance with the form of procedure presented by the statute.

<p>JVew 1/i'ial — granted because of inijustice, arising from error of the attorney.</p> <p>Upon the trial of this action, brought to recover land claimed by the plaintiff under a sheriff’s deed, the recovery and docket of the judgment and the issue and re* urn of an execution were proved. Plaintiff’s counsel then offered the sheriff’s certificate of sale, to the admission of which the counsel for the defendant objected. -Whereupon plaintiff’s counsel admitted that it was immaterial, but still insisted it should be received. The court excluded it, and sul> sequently excluded the sheriff’s deed when offered by plaintiff.</p> <p>Held, that as plaintiff’s counsel admitted that the certificate was immaterial, the court was right in excluding it.</p> <p>That plaintiff was in error in so admitting, as it was a necessary prerequisite to the execution of the deed, and that the failure to prove its existence justified the exclusion of the deed.</p> <p>That as it was manifest that, without any fault on the part of the court, injustice had resulted through this error of plaintiff’s counsel, a new trial should be granted without costs of the former trial or of this appeal.</p>

Assuming for argument tbe validity of respondent’s contention, namely, that tbe withdrawal or countermand of tbe proceeding did not ipso facto determine it, st.il. after such countermand, etc., tbe court bad no other authority over it than to dismiss it with costs.

The plaintiff is entitled to whatever sum was on deposit standing to the credit of the intestate on the day of his death, October 11, 1870. {Vroom, Admr., eto., v. Van Horn et al., 10 Paige, 549 ; Valentine v. Jackson, 9 Wend., 302, and cases cited; Babcock, Adnvr., y. Booth, 2 Hill, 181, 212; Rockwell y. Saunders, 19 Bail)., 473, and cases cited; 21 id., 311.) Whatever was owned by or was owing to the intestate on the day of his death (October 11, 1876), upon the issue of…

The action was upon a promissory note indorsed by the defendants under their firm name of Leppert and Rottman. This case has already been before the General Term. (5 Hun, 453.)

<p>Appeal from a judgment in favor of the defendant entered on the verdict of a jury, and from an order denying a motion for a new trial.</p>

Tbe alterations were alterations in material, particulars, and tbe instrument, when signed by tlie defendants imposed no liability upon tliem. Tbe agreement, under tbe statute of frauds, must be in writing. Tbe writing must, on its face, express a consideration and tbe whole terms of tbe contract. Nothing lacking in these particulars can be supplied by parol no matter what was originally tbe intention of the parties. (Galkens v. Fttlk 1 Abb. Ct. App.

This action was brought to recover damages alleged to have been caused by a breach of the following agreement: “This charter-party, made and concluded upon in the city of New York the 27th day of July, in the year of our Lord eighteen hundred and sixty-five, between J. P. Mantón, agent for owners of the steamer H. S. Iiagar of New York, of the burden of 1,113 tons or thereabouts, register measurement, now lying in the harbor of New York, of the first part, and Messrs. II.

vacate orders directing their arrest. The action was brought to recover damages for the conversion by the defendants of a horse belonging to one Barremore. Barremore had, subsequent to the conversion, and after he had demanded the horse from the defendants, assigned to the plaintiff his claim and demand against the said defendants for damages for the conversion. The principal question was as to whether or not such a cause, of action was assignable.

<p>Appeal from au order denying a motion made by defendant for a new trial on the ground of newly-discovered evidence.</p>

lomplaint at tbe Circuit. The check was not indorsed by the payees. It was indorsed in the name of the payees by N. Blnn, and there is no evidence of authority on his part to indorse it. It is well settled that the transferee of an unindorsed check has no right to sign the name of the transferer as indorser upon the same. (Byles on Bills, 150; Narlop v. Fisher, 10 Com.

The complaint alleged among other things, that the defendants were a municipal corporation, and that there was a department in said corporation created by the charter, and known as the “ health depart aaent ” or board of health of said city, which said board was authorized to adopt, and had adopted certain sanitary ordinances or “ sanitary code,” and were also authorized to add additional provisions thereto.

Tbe city was bound to maintain tbe pier and bulk-bead in a safe condition, to be used by tba public as a street. (Bradley on Distresses, 191; Buehbee v. Brown, 21 Wend., 116; Dillon on Munic. Corp., § 69; 37 N. Y., 281; 1 Kern., 471; 3 Kent’s Com., 432.) It is for tlie public convenience that the legislature authorizes wharves to be erected on navigable rivers.

<p>Payment of assessment by mistake — when the amount paid may be recovered— right to recover it does not pass by a conveyance of the la/nd.</p> <p>In 1869, W. F, Pinchbeck received a notice that an assessment had been made upon a lot owned by him, designated as ward No, 57 B, of block 536, which assessment he accordingly paid, and the amount received was applied to the' payment of the assessment against' the said lot. In fact he did not own that lot but did own a lot designated as ward No. 57 A, of block 536, the original lot No. 57 having been divided by the city without his knowledge. In June, 1873, he conveyed the lot to his son, who, on the same day, conveyed it to the plaintiff. The plaintiff, upon learning that her lot had been sold for nonpayment of the assessment, redeemed the same, being then acquainted with all the facts, and brought this action to recover the amount expended in so doing.</p> <p>Held, that the payment made by W. F. Pinchbeck was made through mistake and that he was entitled to recover the same from the city.</p> <p>That his right so to do had not been transferred to the plaintiff by the conveyance of the lot to her.</p> <p>That plaintiffwas not entitled to maintain this action to recover the sum paid by her to redeem the premises from the sale, which was regular, the assessment not having been paid on lot A.</p>

Appeal by tbe mayor, etc., of tbe city of New York from anorder vacating an assessment made upon tlie petitioner’s property, for grading and paving Seventy-second street, in tbe city of New York, and taking up and resetting tbe curbing and guttering between Ligktb avenue and tbe Hudson river.

This action was brought to recover the balance alleged to be due plaintiff under a contract made September 29, 1871, between the plaintiff and the commissioner of public works of the city of New York for the doing'of certain paving for the sum of $31,432.50, under which contract plaintiff had received $13,200, allowed to him by the board of apportionment and audit; such board having been compelled to act thereon by a writ of mcmdamtia sued out by the plaintiff.

The action was brought to foreclose a mortgage and resulted in a judgment, foreclosing the rights of the parties defendant in the mortgaged premises and directing a sale thereof.

On or about April 10, 1876, tbe defendant Weber entered into a contract witli J. N. Pattison, whereby be agreed to pay Wealthk P. Craig $3,600 for said Pattison’s services as pianist at tbe centennial exhibition of 1876, at Philadelphia, Pennsylvania, for six months, from May 10, 1876, to November 10, 1876. There was due Mrs. Craig on October 10, 1876, $500, and on November 10, 1876, $1,100, under said contract, which said Weber refused to pay.

The defendant is a manufacturing corporation organized under the general laws of this State. The object of the suit was to forfeit the charter and annul the existence of the corporation, for an alleged failure to comply with the statute requiring corporations to file a certificate, stating how its capital stock was paid up, and for other reasons stated in the complaint.

Wet-more; and also from an order staying all of plaintiff’s proceedings by reason of the non-payment of certain costs theretofore allowed to said Wctmore. It appears that on the 14th day of May, 1876, Charles F. Wet-more was directed by the court to appear before Samuel W. Brown, Esq., as referee, on the 21st day of May, 1876, under certain supplementary proceedings instituted by the plaintiff to enforce the judgment in this action.

Appeal.from a judgment recovered on trial at Special Term, dismissing tlie plaintiffs complaint. This action was brought to prevent the defendant from interfering with the plaintiffs use up to the center line thereof, of the front of a party-wall between their respective houses; the defendant having threatened to cut away and remove from the front of a portion of said party-wall certain stone trimmings and thereby greatly mar and disfigure the plaintiff’s house.

<p>Absolute assignment of securities, given to be used as collateral to a loom — rights of pa/i'ty talcing such assignment with knowledge of the facts.</p> <p>The plaintiff recovered a judgment upon a contract against the defendant Green for $71,979.23, from which judgment on appeal was taken and security given. Plaintiff, desiring to raise money, agreed with one Thomas that the latter should raise $15,000 for him, for three years, at ten per cent per annum, and gave to him his note for $19,500, due in three years, indorsing upon the back of it that the assignment of the contract and judgment were received, but held only as security for the payment of the note. The assignments of the contract and judgment were to be in the same form, but Thomas, by whose order they were made, procured them to be assigned directly and absolutely to him, he representing that he could effect a loan with a person named by him for the required amount. This representation was false, and he never used the note or assignments to procure a loan from any person. Instead of so doing he entered into an agreement with Green, and one of the sureties to the undertaking given on the appeal, by which he sold the judgment to them for $21,000, and satisfied it of record. Green and the surety had notice of the fact that Thomas was only authorized to pledge the contract and judgment for a loan of $15,000. This action was brought by the plaintiff to have the transaction declared usurious and void, and to have the assignment and satisfaction of the judgment set aside.</p> <p>Held, that as no loan had, in fact, been made, the transaction could not be usurious.</p> <p>That as plaintiff had failed to return the $15,000 he could not demand that the assignment and satisfaction be set aside on the ground of fraud; but that as Green and the surety knew that Thomas had no other authority than to make a loan of $15,000, and assign the contract and judgment as collateral thereto, they could only hold the contract and judgment as a security for a loan of that amount, and that plaintiff was entitled to redeem them on repaying to them that amount.</p>

Elizabetli M. Walter, died October Y, 18Y0, leaving a last will and testament of wliicli tlie following are tlie material portions: “ Fourth..

The attachments were issued against the insurance company (a foreign corporation), and a levy made thereunder on the sum of $2,000, deposited by the insurance company with the clerk of the City Court of Brooklyn, as security upon an appeal in an action in which the insurance company was appellant. At this time a receiver of the goods, etc., of the insurance company had been appointed in the State of New Jersey.

The action was begun December 12,1816. A bill of particulars was demanded and served. A further bill was demanded and served. Defendant still required a further bill. The plaintiff notified defendant’s attorneys he could not give any further statement. Thereupon a motion was made which resulted in the order now appealed from. Plaintiff was a traveling salesman for the defendant. He made two journeys to Europe for the defendant.

” The action was brought on July 10, 1871, to recover damages for the misconduct of the defendant, as an attorney and counselor at law. The case was tried in April, 1872, and the trial resulted in a verdict for plaintiff, and a judgment was entered thereon for $4,605.15. An appeal was taken, and the judgment affirmed on June 30, 1873, by the General Term of the Superior court.

Appeal by plaintiff from an order denying a motion for- leave to discontinue this action, brought for a divorce on the ground of adultery.

The amended complaint in this action alleged that the defendant with others named, made a certain promissory note or instrument in writing, of which, the following is a copy: “New York, Jcm’y 11, 1870. “We, the undersigned, Ossian D. Ashley, of New York, William Wetherbee and Gavin H. Watson, both of Brooklyn, N. Y., for value received, do hereby jointly and severally acknowledge ourselves to be indebted to John M. Burke, of New York, in the sum of fifty thousand dollars,…

The action was commenced November 21, 1873, to reform a policy of insurance, containing a clause forbidding fire-works to be kept on the premises insured.

Ceetiobari to review tbe decision and order of tbe respondent, a justice of tbe Supreme Court, on habeas corpus and certiorari in tbe matter of Nelson A. Gessner.

The claim of the relator, as set forth in his moving papers, is, that he is entitled to salary as police surgeon, at the rate of $2,250 per annum; that he has been paid at the rate of $1,500 per annum only.

<p>Service of summons by publication — vacating order for — Due diligence — how it may bepi’oved.</p> <p>Upon a motion made on tlie judgment-roll to vacate an order for the service of a summons by publication, and a judgment entered upon such service, on the ground that the affidavit and papers, on which the order was granted, did not show that due diligence had been used to find the defendant within the State, the judgment-roll and the papers attached thereto may be resorted to to sustain the order and prove that due diligence has been used.</p>

On March 18, 1876, a petition in bankruptcy was filed against the defendant by certain creditors, and on April 18,1876, the defendant was adjudged a bankrupt upon said petition.

<p>Counsel — liability of, to stenographer for copy of evidence on trial.</p> <p>"Where a stenographer furnishes a copy of the testimony given upon the trial oí an action, to one who he knows acted as counsel for one of the parties thereto, he cannot recover the price thereof from such counsel, unless the lattez expressly hind himself for the payment thereof.</p> <p>Bonyngc v. Waterbury (13 Hun 584) followed.</p>

<p>Appeal from an order made at Special Term denying a motion to set aside an order for the examination of the defendant, as a judgment debtor, in proceedings supplementary to execution.</p>

This action.was brought by plaintiff to charge defendant, who was a trustee of the New York and South American Gold Mining Company in the sum of $5,000 and interest (being the amount of certain bonds alleged to have been issued by said company and held by plaintiff) by reason of the failure of the company to make and file the annual report required by the general act “ to authorize the formation of corporations for manufacturing, mining,” etc. Upon the trial it appeared that…

<p>Writ of error to tbe Court of General Sessions of the city and county of New York to review the conviction of the plaintiff in error of the offense of obtaining goods by false pretenses.</p> <p>Lesser was jointly indicted with one Charles H. Melville for obtaining property by false pretenses. Melville was not found. Lesser was tried and convicted at the October term, and was sentenced to the State prison for a term of two years.</p> <p>A woman named Yetta Georges, living at 111 Second street, had a quantity of jewelry remaining from the stock of a shop formerly conducted by herself and husband on Broadway. Lesser and Melville went to Second street to buy. Madame Georges had known Lesser about a month. Melville she had never seen. They examined the jewelry, but did not purchase the first day. They returned the following day (August twenty-eighth) at two o’clock in the afternoon, when Mr. Georges was absent, selected and purchased jewelry of the value of $255.</p> <p>Melville then said: “ I will go and bring the money.” After a short time he returned, bringing a check, of which the following is a copy: ,</p> <p>“New York, August 29, 1877.</p> <p>“No. 756. (Check stamp.)</p> <p>“ The Chemical National Bank of the city of New York, pay in current funds to 0. TI. Melville, or hearer, two hundred and fifty-five dollars ($255.00).</p> <p>“AUGUST P. STEINBACH.</p> <p>“ Indorsed: 1 C. H. Melville.’ ”</p> <p>This check he offered in payment for the goods purchased.</p> <p>The complainant’s sister, Rosa Bradenbach, observed and remarked that the check was dated the following day, to which Melville replied; “ Yes; it is too late to go to the bank.” It was then half past three o’clock.</p> <p>Both Melville and Lesser said to the women that the check was “ good,” and that Steinbach “ had a business.” Madame Georges then took the check and delivered the jewelry to Melville and Lesser, who took it away. Upon presenting the check at the Chemical Bank the following morning, it was discovered that no such person as August P. Steinbach was known there; nor had any such person ever had an account in that bank. The check was worthless. Steinbach could not be found, nor his “ business.”</p> <p>To constitute the crime of obtaining property by false pretenses under the statute, two things are essential: 1. A false representation as to a past or an existing fact. 2. And a reliance upon that representation as true. (People v. Tompkins, 1 Parker, C. R., 224.) The false pretense must be of some present existing fact, and not of some future event or a mere promise. (Rex v. Porter, 2 Moody 1 [Crown Cases]; Corn v. Drew, 19 Pick., 179; McKenzie v The State, 6 Eng., 594; Burrows v. The State, 7 id., 65; Reg. v Wooley, 1 Ben. C. C., 559; Reg. v. Fhenderson, Car. & M., 328 1 English L. & Eq., 537; Dillingham v. The State, 5 Ohio, 280 Wharton Am. Or. Law [7th ed., vol. 2], 2118; Bussell on Crimea [6th ed., vol. 2], 300; Boscoe Or. Ev. [7th ed.], 478; Bishop Or Law [5th ed., vol. 2], 479.) The check in the case at bar was post dated, it was to be honored the day following its delivery. Such a pretense is referable to a future event, and is in the nature of a promise that the check should be paid. It is not a pretense of an existing fact. It is a promise and. not a pretense. (Romney v. The People, 22 N. Y., 417; Rex v. Lee, L. & C., 309; Bishop Cr. Law [5th ed., vol. 2], 419.) The giving of a post-dated check is a promise and not a pretense. A promise is not a pretense. (Rex v. Goodhall, Russell & Ryan, 461; Tefft v. Windsor, 17 Mich., 486; Rex v. Pouglas, 1 Moody, 462 [Crown Case] ; Rex v. Bradford, 1 Ld. Raym., 366; Gloeltan v. The Com., 3 Met. [Ky.], 232.)</p> <p>It is well settled that the presentation of a check upon a purchase of goods for cash, amounts to a representation that it is a good and valid order for the sum named in it, and that such sum is on deposit at the bank to meet it. (Rex v. Jaclcson, 3 Camp., 370; Rex v. Parlcer, 7 Car. & P., 825; id., 2 Moody, 1; Bish. Cr. Law, vol. 2, § 421; Russell on Crimes [last ed., vol. 2], 640; Arehbold’s Cr. Practice and Pleading [Pomeroy’s ed., vol. 2], 1388.)</p>