Volume 2 — Abbott's Court of Appeals Decisions

James Earl sued Derrick Clute, Jr., in the supreme court, to recover the possession of a horse. The defendant set up that the plaintiff had given a chattel mortgage on the horse to one Van Hyning and others, who had assigned the mortgage to Thomas J. Clute.

Josiali Eaton (for whom, on his death, Abigail W. Eaton and others, administratrix, &c., were substituted) sued John P. Alger and Wilkes T. Alger, in September, 1858, upon a promissory note made by the former, and indorsed by the latter defendant, and payable to Ira M. Clark, or bearer; which note, the plaintiff alleged, was assigned by said Clark 'to him, previous to the commencement of this action. Upon the defense that, 1. The note was usurious; and, 2.

Israel and Aaron Elias sued Benjamin Farley, sheriff of Niagara county, for the value of certain goods seized and sold by defendant, upon executions against Samuel M. Weiner, to whom defendant claimed that the goods seized belonged.

Smith Ely brought this action, iú the New York Common Pleas, against George Cook and the Messrs. Sherwood, to have a discharge in insolvency declared void, and a judgment set off. On November 29, 1850, the defendant Cook had confessed judgment to Ely, the present plaintiff. The confession (after the usual consent that judgment be entered), stated the facts in reference to the indebtedness, in language which is given in the head-note.

Alfred Ely sued Luther T. Norton in the supreme court; his complaint alleging three causes of action;—one for money had and received; another, for money lent and paid; and the third,… Held: that the money obtained by George McLean on plaintiff’s checks was, in McLean’s hands, plaintiff’s property, held by McLean under special instructions; and that the appropriation of part of it to pay the debt of Norton & McLean, was made with the knowledge and assent of defendant.

Robert Grant, assignee of William Montgomery, brought this action, in the supreme court, against William Bleakley, Jr., Sheriff, &e., Jesse M. Emerson being substituted for plaintiff on his death.

Peter W. Enders and others sued Adam Sternbergh and others, in ejectment, in the supreme court, to recover a lot of land containing one hundred and six acres, lying in the Sternbergh patent, and another lot of land containing sixty acres, lying in Morris and Coeyman’s patent. First Appeal: September, 1864 On the first trial they recovered the sixty acres in Morris and Coeyman’s patent, lying in the town and county of Schoharie.

William T.-Erickson, administrator, &c., of Mary E. Erickson, sued David and Tunis Smith, in the supreme court, for damages under the statute, for injuries causing the decedent’s death. Defendants were owners of the steamboat Arrow, running as a passenger boat on the Hudson River.

The Erie & New York City Railroad Company sued Richard Patrick to recover the balance due on a subscription for two thousand five hundred dollars, for fifty shares of the capital stock of the Erie & New York City Railroad. There were numerous subscribers for the stock, all signing the articles of association, and each for himself, severally, agreeing to take the number of shares set opposite to his name, and to pay for the same by certain installments.

Isaac W. Fake (for whom, on his death pending the action, Kate F. Fake, administratrix, was substituted), sued John C. Smith and Hiram R. Wood, on a warranty upon a sale of a note by defendants to plaintiff’s intestate. The note, for three hundred and thirty dollars, was made by Baldwin & Fake, March 24, 1858, payable to defendants, or order, one year after date. Plaintiff’s intestate purchased it of defendants May 18,1859, paying them the face, with interest.

John Fallon was convicted at the Erie oyer and terminer of grand larceny. There were three counts in the indictment. 1. Charging that he stole from the person of one Main four five dollar and one ten dollar bank bill. 2. That he stole bills designated, in the same manner from a person unknown. 3. That he received from a person unknown the like bills, the property of said Main, knowing them to be stolen.

' The Farmers’ Bank of Washington County sued Hugh R. Cowan, for the conversion of personal property. The defense was that the property in question belonged to one Benjamin F. Woodruff, and that the defendant, as sheriff of Washington county, had seized and sold it on executions issued against him.

Horatio N. Farnham brought this action in the supreme court against Wheeler Hotchkiss and Sterry Y. Peterson, to foreclose a mortgage… Held: that, as there had been no eviction or disturbance of the possession of defendant, and no fraud on the sale was shown, the failure of title was no defense to a foreclosure, and the liability for deficiency did not alter the case. Citing Edwards v. Bodine, 26 Wend. 109, and cases there cited. The defendant appealed to this court.

George Farnham and Henry Wombough, executors of William Wombough, deceased, brought this action in the supreme court, against William M. Mallory, on a guaranty by Mallory of a bond given by the defendant, together with one Hiram W. Bostwick, to the plaintiffs, conditioned for the payment and discharge of a mortgage made by one Robert Miller, which was a lien on lands conveyed to the decedent by the defendant Mallory.

i Thomas Eielden and others sued Pierre Erangois Lahens and others in the superior court of the city of New York, on October 31,1844.

Christina, executrix of John Filio, deceased, sued Thomas J. Jones, in the supreme court, under the statute, for damages caused by the death of the deceased, which resulted from an explosion of fireworks on defendant’s premises. Defendant, a dealer in gunpowder and fireworks, had a quantity of fireworks, &c., in his store, at 16 John-street, in the city of New York.

r Plaintiffs sued Jared Q-. Bacon and Joseph Maulin in the supreme court on a bond. The defendant Bacon was an insurance agent, doing business at the city of Troy. The plaintiff was an incorporation of the firemen of that city.

, William Fish sued Isaac Jacobsohn in the New York superior court, to recover on a check for three thousand dollars and twenty-five cents, drawn by defendant at New Orleans, on his bankers in New York, and delivered by him to the plaintiff, in settlement of a balance of account due from Bernard Ullman, of New York, for whom the defendant acted as agent, to Benjamin Lumley, of London, for whom the plaintiff acted as agent.

John Fisk sued the Canandaigua & Niagara Falls Railroad Company, Isaac Seymour, Robert B. Potter, Joseph Fishes and William Brown, in the supreme court, to enfore an equitable lien for the purchase money of land sold by the plaintiff to the company, defendants.

John Fitch sued John A. Gardenier, in the supreme court, to recover attorney and counsel fees due to Fitch from Gar-denier, in the suit of Gardenier against Springstein, in which Fitch had been GardeniePs attorney. The plaintiff established his cause of action. To defeat the claim, defendant proved that while the Spring-stein suit was on trial, the defendant therein offered to pay Gardenier one hundred and fifty dollars, and to pay his own costs, to settle the suit.

Garret T. B. Fonda sued John B. Borst in the supreme court, to compel the opening of a street. The complaint alleged that the defendant, in the year 1835, being the owner of certain lands in a place now known as the village of Fonda, caused them to be surveyed and laid out into lots, with streets, alleys and squares, and caused a map, upon which they were delineated, to be filed in the county clerk’s office.

Hannah Ford brought this action, in the supreme court, against Edward D. James and Sarah, his wife, Albert S. James and Mary L., his wife, and Stephen C. Williams, to set aside a deed as a cloud on… Held: upon the authority of Jackson v. Dunlap, 1 Johns. Cas. 114; Jackson v. Phipps, 12 Johns. 418; Crosby v. Hillyer, 24 Wand. 280, that there was no delivery, Plaintiff had judgment, and defendants appealed.

Clarissa Forman sued Edwin H. Whitney and Susan and Elizabeth Ann Coapman, executors of the will of Ambrose Whitney, deceased, to recover the whole interest on the sum of three thousand dollars, under a provision in the will of the testator, and to compel the regular payment to plaintiff of the whole interest thereafter to accrue on that sum.

Three tax-payers of the city of Poughkeepsie had controversy with the city corporation, the tax assessors and the tax collector, in reference to the liability of the former- to certain taxes; and they respectively agreed upon a statement of facts, in each case, which were submitted to the supreme court for determination, without action, under section 372 of the Code of Procedure. One claim was by Charles W. Swift against the city.

Eliza 0. L. Freeborn (formerly Eliza 0. Outwater) and Sarah A. Vedder (formerly Sarah Augusta Outwater) brought this action, in the supreme court, against John W. Wagner, to compel specific… Held: in an opinion by Gilbert, J., that, as both devisees had united in a conveyance with warranty, this would divest all their estate vested or contingent, and the warranty would estop them from asserting any title in contravention of the estate.

<p>James Freeland sued George Van Campen, in the supreme court, to recover money paid for his use and at his request.</p> <p>Among the items allowed by the judge at the trial (which, by consent of the parties, was without a jury), was one which the plaintiff claimed under an agreement between himself and the defendant, in which the defendant agreed to pay a certain note for two thousand six hundred and sixty dollars, made by the plaintiff and indorsed by the defendant. The plaintiff alleged that the defendant did not so pay the note, but that afterward the plaintiff, at the request of the defendant, paid a large sum on the note, part of which had been repaid by the defendant, but of which there still remained due a considerable amount, which the plaintiff claimed. In support of his case, the plaintiff proved a receipt made by Van Campen, in substance as follows : “ Deceived from James Freeland the draft of Messrs. Alny & Wilcox, of Cincinnati, on Messrs. Duncan, Sherman & Co., of New York, for one thousand five hundred and ninety-seven dollars and fifteen cents, together with his note for three hundred and eighty-four dollars and ninety cents, which said draft and note are in full payment for a note given by said Freeland for two thousand six hundred and sixty dollars. (Signed) Geo. Yah Campeh.”</p> <p>The plaintiff also proved an ageement between himself and the defendant, stipulating that as the draft mentioned in the former agreement had not been paid at maturity, the plaintiff should, for the present, but without in any respect changing or altering the rights or liabilities of the parties, take care of so much of the note of two thousand six hundred and sixty dollars as was represented by the draft.</p> <p>The plaintiff then proved that in consequence of this agreement, he had paid on the note one thousand six hundred and twenty dollars and eighty-three cents (which was the sum represented by the draft), only one thousand five hundred and twenty-nine dollars and fifteen cents of which had been repaid by the defendant. He now demanded the balance, with interest from the time of payment. The nature of the defense and the facts in support of it are given in the opinion.</p> <p>Judgment was given for the plaintiff, and affirmed by the court at general term, and defendant appealed.</p>

George G. Freer and Cynthia Ann, his wife, and John T. Durkee, sued Abram Stotenbur, in the supreme court, to recover the value of certain stone, taken by defendant from land owned by the plaintiff Cynthia and leased by the plaintifi Durkee. In 1839, one Watkins owned the land in question, consisting of a farm of about one hundred and twenty-five acres. He leased it for twenty years to John T. and Asher S. Durkee.

<p>A carrier, undertaking to carry goods at the owner’s risk, is not liable for injuries arising from negligence, unless it be gross negligence, or, at least, the want of ordinary care.*</p> <p>In the case of goods carried by railroad, it is not sufficient to prove that the injury resulted from a railroad accident, the causes of which are not explained, and which it does not appear affirmatively would have been prevented by the exercise of ordinary care and diligence on the part of the company and its servants.*</p>

Luther French sued Philip E. New, in the supreme court, to recover the last two installments of rent under a sealed lease, and also recover damages for the breach of several covenants in the lease.

<p>On the trial of an indictment for homicide, evidence of the violent conduct of the accused on the premises of the deceased, and his exhibiting there a weapon similar to that employed in the homicide, and declaring that it “ would be the death of somebody here,”—shortly before the fatal affray, is admissible as tending to indicate personal hostility.</p> <p>Exceptions taken by the prisoner to proceedings on the challenge of a juror for cause, are not open to examination at his instance, on error, if he subsequently, by a peremptory challenge, excluded the juror.</p> <p>Ownership of real estate is not under the act of 1847, a necessary qualification for jurors in the city of New York.</p> <p>It is not a good cause of principal challenge, that a presented juror, from what he has heard or read of a particular transaction, has an opinion that a crime has been perpetrated by somebody.</p> <p>When such juror is challenged for favor, it is not proper to charge the triers that he may be biased by the opinion that a crime has been committed ; but the triers should be instructed to determine the question according as they think the juror is impartial, and has no bias against the prisoner, or the contrary.</p> <p>A juror, challenged for principal cause, testified that he had read of the transaction, had formed an opinion of it, not as to the guilt or innocence of the party charged, but that-a party had committed the crime ; and if the party were the prisoner he presumed him to be the guilty party; hut had not actually formed an opinion that F. (the prisoner), was either innocent or guilty of killing L. (the deceased).—Held, that a challenge for principal cause was not sustainable.</p> <p>Proper instructions to the triers of a challenge to the favor,—stated.</p> <p>The mere expression of an opinion by the officer, designated by law to summon jurors, as to the merits of a cause that may chance to be on the calendar of the court for trial, or in respect to the guilt or innocence of a party under indictment, is not matter for challenge to the array.*</p> <p>The neglect of the officers of the court to pursue the directions of the statute in the mode of drawing and summoning jurors, is not, in the absence of any suggestion of frbud or of injury to a party, a ground of challenge to the array.†</p>

<p>In the statement of facts in a confession of judgment under section 383 of the Code of Procedure, it is enough that the nature and consideration of the debt confessed, the time in which it accrued, and that it is due and unpaid, are concisely stated. The character apd dates of particular items need not be given.*</p>

<p>Under an order appointing Joseph (S. as one of several commissioners, Jamies (S. took the oath of office and acted as such. Held, that the mistake being shown to be a clerical error, in the order, it was amendable.</p> <p>Where the charter of a city requires' the common council to make a compensation in money, within a fixed time, for land taken for a local improvement, and makes such compensation a general debt or charge on the city, an action lies against the city therefor, after the time limited expired, although the city have not collected the amount from the parties assessed.*</p> <p>In such a case, those to whom compensation is due are not restricted to a mandamus, as would be the case if the sum were payable out of the assessments.</p> <p>The provision of the charter of Buffalo requiring a city assessor to be appointed on each commission of assessment for local improvements, is unconstitutional; but this objection is not available to avoid the proceedings of a commission, if it does not appear that such appointment was made; and it*seems that the unconstitutionality of the requirement does not make it illegal for the court in its discretion to make such an appointment.</p> <p>After the right of a land owner to compensation from the city, for land taken for a local improvement, has become absolute, under a statute making the compensation a charge upon the city, a subsequent amendment of the charter, declaring awards for lands taken, to be payable within a specified time after assessments to be made upon the parties benefited by the improvement, cannot be applied retrospectively to take away the previously vested right of action.†</p> <p>The provisions of the charter of Buffalo, section 9 of title 8 (L. 1853, p. 501),—requiring an application by the majority of property holders, in order to authorize an assessment for local improvements,—apply only to the improvements mentioned in that section, and do not apply to the other improvements mentioned by section 6 of the same title.</p>

David L. Gardiner brought this action against Julia G. Tyler and Harry Beeckman. The facts are stated in the opinion of the court. The cause came up upon appeals involving the question of the receiver’s right to commissions and disbursements. Cited N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y. 33; Estus v. Baldwin, 9 How. Pr. 80; Lovett v. German Ch., 12 Barb. 67; Code, § 330; 8 Coke, 142, b; Drury’s Case; King v. Harris, 34 N. Y. 336; How. v. Davis, 4 Abb.

Nicholas Center sued Seth H. Fields, sheriff of Otsego, in the supreme court, and recovered a verdict for nine hundred and eighty-five dollars and ninety-four cents, money collected, on which verdict he entered judgment. On July 35, 1857, defendant served a notice of appeal from the judgment, to the court at general term, and gave the undertaking with sureties which is required by section 348 of the Code, in order to secure a stay of proceedings pending the appeal.

Gashton R. and Erseba Gilbert, by I. Y. Matthews, their guardian ad litem, brought this action against William Gilbert, in the supreme court, for the specific performance of an agreement between defendant and William Gilbert, Sr., deceased, the father of the plaintiffs. The father of the plaintiffs, in his lifetime, had contracted with one Winter, for the purchase of land from Winter, and the latter had given his bond to convey.

Jonathan Goodwin'brought this action against Mary Nelin, to recover possession of lands. On plaintiff’s death his claim passed by devise to, and the action was continued by Calvin Goodwin. The lands in question formerly belonged to one Bristol, who contracted to sell them to Francis Hunt. Hunt took possession under the contract, and died before having paid up the purchase money. On his death, Mary Nelin, the defendant, his heir, was left in possession.

De Witt 0. Graham and James S. Carpenter, executors, &c., of David Graham, deceased, sued Peter Chrystal, in the supreme court, for professional services as an attorney and counsellor-atlaw, rendered for the defendant by the testator, at various times between October, 1845, and June, 1850.

Daniel H. Gray sued defendants, in the Supreme court, to recover damages for alleged negligence on the part of the defendants in constructing a sewer, whereby his premises were flooded. The injury was sustained after the passage of the act of 1863, quoted in the opinion. The defense interposed was the amendment to the city charter, made by that act. The complaint was dismissed after the plaintiffs evidence was put in> and the plaintiff appealed.

Charles H. Green sued the Hudson River Railroad Company, to recover damages for the instantaneous killing of his wife by the negligence of the defendant. The facts are stated in the opinion.

Jeremiah S. Hakes sued John M. Peck in the supreme court, to recover two hundred and fifty dollars, claimed to be due under an agreement made by the defendant on an exchange of lands between them.

<p>George M. Griggs, Miles W. Bennett and William L. Lothrop sued Otis B. Howe, S. T. Arnot, E. G. Herrick and H. H. Howe, in the supreme court, on defendants acceptances of two bills of exchange, drawn by H. L. Webb, for one thousand two hundred and fifty dollars each, dated June 9, 1855, and accepted by the defendants under the name of Otis B. Howe & Co.</p> <p>The answer among other defenses set up usury and alleged that plaintiffs had in one contract discounted the drafts at the rate of two per cent, a month, or twenty-four per cent, a year, and that the illegal interest thus taken was one hundred and twenty-five dollars.</p> <p>On the trial it was proved that the drafts were drawn and accepted in blank as to the amount, under an agreement that they were not to be filled up for an amount exceeding one thousand dollars.</p> <p>Webb, the drawer, afterward filled them up with the sums of one thousand two hundred and fifty dollars each, and negotiated them to the plaintiffs before maturity. The evidence respecting this negotiation of the drafts offered on the trial went to show that plaintiffs discounted them at the rate of one-eighth of one per cent, per day, or about twice the discount alleged in the answer.</p> <p>The defendants also proved that they had transferred to plaintiff a note made by others, for two thousand dollars, as security for these drafts, and that plaintiffs had sued on this note, and collected by judgment and execution over one thousand nine hundred dollars, of which they were bound by their agreement to apply the net proceeds to the payment of the drafts. To meet this evidence plaintiffs proved that the total proceeds of the sale on execution were one thousand nine hundred and twenty dollars and seventy-four centsthat their attorneys received one thousand five hundred and ninety-eight dollars and seventy-six cents, and paid over to plaintiffs one thousand four hundred and ninety-eight dollars and seventy-six cents, reserving one hundred dollars for their own fees, as they had entered the judgment without waiting to tax costs.</p> <p>At the close of the evidence defendants asked leave to amend them answer to conform it to the evidence as to the amount of usury. The court, after hearing both sides (plaintiffs objecting on the ground that they were surprised), granted the motion on condition that the cause go over, &c., which defendants refused to accede to, and the court submitted the case to the jury.</p> <p>The judge charged that failure to prove the usurious agreement as alleged in the answer was a failure to prove that defense. Proof of usury was not a substantial proof of the particular allegation in the answer, and that accepting the drafts for the purpose of taking up outstanding paper on which defendants were indorsers, was not accepting for accommodation merely; and that if plaintiffs were Iona fide holders, the drafts were not void because of the excess in filling them up. Plaintiff had a verdict and judgment.</p> <p>The supreme court, at general term, held, that defendants, in pleading usury, were bound to set up in their answer the terms of the usurious agreement, and the amount of the usurious premium or interest taken by the lender, and that the usury must be proved as set up in the pleading. They also held that the terms imposed by the court as a condition of amendment were just, and in answer to defendant’s objection that the judge erred in imposing conditions of amendment since there was no legal proof offered that defendants had been surprised or misled, the court said that plaintiffs had waived that objection by failing to take it at the trial, in which case the proper proof might have been made by affidavit. In reference to the alteration in the notes made by Webb, the court held that this would not invalidate the notes in the hands of plaintiffs, who were holders for value, and that the acceptors having themselves put it into Webb’s power to do the wrong, they could not be allowed to shift the loss from themselves, and cast it upon a bona fide holder for value. (Reported in 31 Barb. 100.) Defendants appealed to this court.</p> <p>That there was no variance under the code between the proof and the answer, cited Catlin v. Gunter, 11 N. Y. (1 Kern.) 368; Fay v. Greensteed, 10 Barb. 321; Dugal v. Summers, 23 N. Y. 491. Plaintiffs, having come into possession of the notes under a corrupt and usurious agreement, cannot be regarded as bona fide holders. The sheriff’s claim for rent and auctioneer’s fees was without semblance of law, and there was no evidence to show that the retention of one hundred dollars by the plaintiffs’ attorney was proper. For aught that appears they might with equal propriety have retained one thousand dollars.</p> <p>That the variance was material, cited Manning v. Tyler, 21 N. Y., 567. That it could not be now objected that there was no proof that plaintiffs had been misled. Brown v. Cayuga & Susq. R. R. Co., 12 N. Y. (2 Kern.) 486. The filling up of the drafts hy Webb for a larger amount than he was authorized to do is no defense against the plaintiffs if they are bona fide holders. Mitchell v. Culver, 7 Cow. 336, and cases there cited.</p>

Andrew J. Hackley brought an action against Anth ony S. Hope and Joshua Burt, in the supreme court, for an accounting and settlement of partnership accounts, and a division of the funds among the partners, who had each a one-third interest. . All of the funds of the-copartnership were in the hands of the defendant Hope.

Joel Hall and five other persons brought this action against the city of Buffalo and Moses Balcer, and seven others. The following facts were found by the referee. A city contractor, Moses Baker, in October, 1849, had made with, the city of Buffalo a contract to grade and fill certain market grounds, for which he was to paid in orders on the general fund of the city, to be paid from the tax of the year 1850.

De Witt 0. Halsted, administrator, &c., sued Jonas 0. McChesney, in the supreme court, to compel the assignment to plaintiff of a bond for fifteen hundred dollars, or its cancellation, on the ground that it belonged to plaintiff’s wife, the intestate, at her decease. Eliza, daughter of defendant, intermarried with plaintiff, in March, 1849, and died in December, 1855, leaving a daughter, issue of the marriage.

William Hamilton, assignee of Smith & Mathews, sued Enos Ganyard, in the supreme court, for damages in not delivering the com contracted for in the following agreement: “ $50. Received from Smith & Mathews, $50, on account of my crop of corn now growing on about 30 acres of ground, to be delivered to them in Rochester, in good merchantable order, any time after the first day of January next, and before the first day of May next, at fifty cents per bushel of sixty pounds.

<p>A corporation chartered for the purpose of receiving and holding in trust property committed to them by.bequest, &cv in trust for an unincorporated association, with power to execute any trusts confided in them by such association, may take a fund bequeathed to them to be expended under the direction and for the appropriate uses of a committee of such association.—Per Fullerton, J.</p> <p>The provision of the Laws of 1860, 607,—that a testator leaving husband wife, child, or parent, shall not devise to benevolent, &c., societies more than one-half his estate, &c.,—is peremptory, and may be insisted on by any person who would derive a benefit therefrom, although not one of the relatives designated in the statute. And the one-half is to be computed with reference to the e'state at the time of the testator’s death.— Per Fullerton, J.</p>

William Harris sued Isaac Rathbun, to recover a balance due upon a contract. The plaintiff and defendant were lumbermen; the former engaged in manufacturing, and the latter in furnishing logs to be manufactured into lumber, and then selling it.

<p>Joseph W. Hartley brought this action, in the New York superior court, against Benjamin Tatham and wife, and others, to foreclose a mortgage on land.</p> <p>One Cunningham made the mortgage to Dunscomb, May 30, 1860, to secure fifteen hundred"dollars. June 1, Cunningham conveyed the land to one Smith, subject to the mortgage, which Smith, by the terms of the conveyance, agreed to pay. January 26, 1862, Smith conveyed the land to defendant, Tatham, subject to the mortgage; but this conveyance contained no assumption of the mortgage nor any, agreement by Tatham to pay it.</p> <p>Before the mortgage was made, Dunscomb, who then owned this land and adjoining lots, made an executory contract for the sale of all the land to one Higginson, who by the contract agreed to erect houses thereon; and before the mortgage was made Higginson assigned this contract, with Dunscomb’s consent, to one Arment, a plumber engaged at work upon the houses, and Dunscomb agreed to convey the premises to Arment when the plumbing work was finished. After Dunscomb had conveyed the premises to Cunningham, taking back the mortgage in suit to secure a portion of the purchase money, he employed Arment to do other work for him, and agreed to apply the price thereof by deducting the amount from the mortgage which he at that time held. This work was done, and Dunscomb and Arment liquidated the price at four hundred and ninety dollars and three cents.</p> <p>Arment, instead of taking a conveyance of the property to himself, procured Cunningham to convey it through Smith to Tatham, as above stated; and, pursuant to an agreement made at the time of those conveyances, assigned to Tatham, May 3, 1862, his claim against Dunscomb for the price of the work, and which was to be applied 'to the mortgage then held by Dunscomb.</p> <p>Afterward, and on May 13, 1862, Dunscomb assigned the mortgage to plaintiff, without notice of the credit agreed on, and plaintiff, on June 16, 1862, commenced this suit to foreclose for the whole amount due, for default in payment of interest. Defendant, on July 9, 1862, tendered principal, interest and costs, less the amount of the demand, which he claimed to be applicable in payment. This tender plaintiff refused. The first decision of the court below is reported in 10 Bosw. 273. After a second trial the defendants had judgment.</p> <p>The superior court affirmed the judgment, on the ground that the demand was applicable to the mortgage; that, as it more than paid the interest, there was no default; and that as a tender of all' that was due had been refused, the lien of the mortgage was gone. Their decision is reported in 1 Bolt. 246.</p>

Abraham B. Hasbrouck and four others, suing on behalf of themselves and other taxable inhabitants,, brought an action in the supreme court, against the Kingston Board of Education, Elijah Ellsworth, the collector, and Cornelius Burhans, the treasurer of the Kingston school district, to enjoin the collection of a tax which had been assessed.

Willard Hatch sued Dan Pryor in the supreme court, on his promise to pay a note made by a third person and held by plaintiff. The note was made by Clark Reason, in favor of one Arnold, and was transferred to plaintiff before its maturity. After the making of the note, Pryor, the defendant, for a valuable consideration moving to him from Reason, agreed with Reason, that he, Pryor, would pay the note.

Eder V. Haughwout and Charles L. Tiffany sued the Mayor, &c. of New York, in the New York common pleas. Plaintiffs were the president and treasurer of the Broadway Association, an association composed of the merchants doing business on Broadway, in New York, who had voluntarily cleaned that street four nights in the week for two years.

Nathaniel Hayward sued the Liverpool & London Fire and Life Insurance Company, in the New York superior court, on a policy of insurance of an India rubber factory against fire.

George S. Hazard and Prank W. Piske sued James Spears and James D. and Ezekiel M. McDonald, in the Buffalo superior court, to recover money paid. The plaintiffs, being factors at Buffalo, and having received from defendants, who were pork packers in Indiana, a consignment of hams to be sold for defendants’ account, at a limited price, contracted for the sale of the hams at the price limited, to one Perry. This sale was made through one Howe, Perry’s agent.

James H. Heroy and others sued John Kerr, in the New York superior court, for the conversion of certain glass, which plaintiffs alleged was in their possession at the works of the American Glass Company, but which defendant had caused the sheriff of Brooklyn to take away and sell, and the proceeds of which defendant had received.

Russell E. Hides sued Amariah H. Bradner, in the supreme court, to recover damages for criminal conversation with plaintiff’s wife. On the trial, the defendant called as witness the plaintiff’s Wife, to disprove the wrongful act complained of, and she was allowed to testify, against plaintiff’s objection. The jury found for defendant; and judgment thereon having been reversed by the court at general term, and a new trial ordered, defendant appealed.

Xavier Hochrieter, the plaintiff in error, was indicted in the New York oyer and terminer, for the killing of one Leonard Gander, and convicted of the crime of murder in the second degree. TJpon the trial, one Senior, a policeman, testified that he arrested the prisoner and his son in the street, and took them to 148 Essex street, in the city of New York, where the deceased then was, hut he was too far gone to recognize any one.

Robert Hollister and William Wilkinson appealed to this court, from an order made by the supreme court, directing the receiver of the Hollister Bank to divide its remaining assets among creditors, excluding the claims of the appellants (who were stockholders and had been assessed, and had contributed to raise the fund), to share in the' distribution. The details are fully stated in the opinion of Davies, J.

Eugene Hollywood having been convicted in the New York general sessions, in September, 1865, of assaulting one Eliza, wife of Thomas J. Bayley, with intent to kill her, and the conviction having been affirmed by the supreme court, brought error to this court. The evidence at the trial showed that the prisoner shot at the husband intending to kill him only; and that the wife being beyond him was hit.

<p>David Honegsberger sued the Second-avenue Railroad Company, in the New York common pleas, for damages which he had sustained by the injury of his son Solomon, a lad of six and a half years of age, by being run over by defendants’ car.</p> <p>The lad was returning from school, in the city of blew York, at three o’clock in the afternoon of a day in May, 1857. As he was crossing Second-avenue, near ¡Ninth-street, on his way home, he was run over by one of the defendant’s cars. At the time of the accident the driver of the car was conversing with a passenger, and had his face turned away from the horses, and did not notice the boy on the track until his attention was called to him by a passenger. There was conflicting evidence as to whether the driver could have stopped the car in time to have prevented the accident.</p> <p>The judge charged the jury that it was necessary for plaintiff to prove that the injury was produced by the exclusive negligence of the defendants, and that the boy’s negligence did not contribute to it. “But in determining what would or would not be negligence on the part of the boy, it is not to be understood that a child of the age of the boy is to be held to the same degree of caution, foresight and discretion that would be exacted from an adult. If the child has arrived at an age in which his parents, in the exercise of sound discretion, are justified in permitting him to go to school alone and unattended; if they are chargeable with no negligence in suffering him to do so, the child, while in the public streets, is to be held only to the exercise of that caution and discretion of which children of his age are presumed to be capable. If he does that, it is all that the law can require. There may be cases in which an adult, in going through, or crossing the pfiblic street, would be expected to exercise a degree of discretion and judgment, in respect to the safety of his person, or to avoid accidents, which could not, to the same extent, be expected from a child, though he had arrived sufficiently at years of discretion to justify his parents in allowing him to go into the public streets alone, especially in going to and from school.”</p> <p>To this, defendants excepted; and requested the judge to charge that it was negligence on plaintiff’s part to, allow his son, a lad six years 'of age, to he in the crowded streets of the city without a protector. This the judge refused, and defendants excepted.</p> <p>Under the instructions of the judge, the jury awarded plaintiff as his damages the amount of his expenses in consequence of the injury.</p> <p>The common pleas, at general term, on appeal from an order refusing a new trial, held, that if a child which the law considers of sufficient age to go alone in the public street, exercises the caution of one of its years, this is all that the law requires of it. The defendants appealed. ■</p> <p>Cited Haring v. N. Y. & E. R. R. Co., 13 Barb. 9; Sheffield v. Rochester & Syracuse R. R. Co., 21 Id. 339; Wilds v. Hudson River R. R. Co., 24 N. Y. 430; Ernst v. Same, 24 How. Pr. 97; 98 Eng. Com. L. 566; Hartfield v. Roper, 21 Wend. 615; Brown v. Maxwell, 6 Hill, 592; Kreig v. Wells, 1 E. D. Smith, 74; Hunger v. Tonawanda R. R. Co., 4 N. Y, (4 Comst.) 359.</p> <p>Cited Bernhardt v. Renss., &c. R. R. Co., 19 How. Pr. 199;* Wilds v. Hudson River R. R. Co., 33 Barb. 503; Mangam v. Brooklyn City R. R. Co., 36 Id. 230; Oldfield v. N. Y. & Harlem R. R. Co., 3 K D. Smith, 103; 14 N. Y. 310.</p>

■ The Hope Mutual Insurance Company sued Dennis Perkins, in the New York superior court, to recover the amount .of a promissory note, made by the defendant, in pursuance of an agreement entered into by defendant and others with the plaintiff. The plaintiff was incorporated by a law of the State of Connecticut, in May, 1846. By the charter, subscriptions for policies to the amount of one hundrecf thousand dollars were required before organization.

James Horner and James Ludlum, brought two actions against David H. Lyman and Richard L. Allen, in the supreme court, on two undertakings given pursuant to the provisions of the Code of Procedure, in previous actions.

Calvin Hotchkiss and L. B. Hotchkiss sued the Artisans’ Bank, in the supreme court, to recover fifteen hundred dollars alleged to have been deposited by plaintiffs with defendants. The facts are stated in the opinion. Plaintiffs had judgment.

Leman B. Hotchkiss brought an action in the supreme court against the Clifton Air Cure, a corporation, and many other defendants, to foreclose a mortgage on real property. A judgment was obtained directing a referee to sell the premises at auction. The referee made a sale, and reported that he had sold the premises for twenty thousand dollars, and delivered the deed and received the amount of the bid less two thousand five hundred and twenty-six dollars and sixty-three cents.

Amory Houghton sued Michael McAuliff and John W. Wheeloclc, in the New York superior court, on a note made by them, dated October 1, 1855, for one thousand dollars, payable, to the International Insurance Company or order, and indorsed by Avery, the president, and Eolio, the secretary.

Stephen W. Howell commenced this action in February, 1862, in the superior court of Buffalo, on behalf of himself and such others as… Held: on the authority of Lathrop v. City of Buffalo,* that the certificate must, on its face, state that the application was made by a majority of the property holders resident in the city, and liable to be assessed for the improvement, for which a petition and certificate are necessary. From a judgment for plaintiff, defendants appealed.

Nelson Howell sued David H. Gould, in the New York common pleas (whence the,.action was transferred to the supreme court), for damages for the breach of a building contract. The contract was made by Gould with one Treadwell, and the cause of action was assigned by him to plaintiff.

Edmund W. Howell sued William Huyck,- in the supreme court, to foreclose a mortgage executed hy Charles B. Howell, a brother of the plaintiff, upon lands, now owned by defendant in fee by virtue of deeds of full warranty derived from Charles B. Howell.

William W. Hurlbert and others sued Delos W. Dean and Harvey Strong, in the supreme court, to set aside an assignment made to the defendants by James F. Dean and Enos S. Brown, of their real and personal estate.

Harvey W. Hyde sued John P. P. Lathrop, in the supreme court, in an action in the nature of replevin, for about seven thousand flour barrel staves. The plaintiff, and Hitchings, and Oliver, made a contract in writing, in these words: ■ “ §30.

Oliver H. Jenkins (for whom, on his death pending the action, Catherine A. Jenkins, administratrix, was substituted as plaintiff), sued David E. Wheeler, in the New York superior court, to recover for services rendered under a contract.

Oliver N. Jenkins (for whom, on Ms death pending the action, Catharine A. Jenkins, administratrix, was substituted as plaintiff) brought this action in the New York superior court, against David E. Wheeler. . The facts appear in the opinion.

White was a manufacturer of steel, and purchased, or negotiated with plaintiffs, to purchase from them .the steel now in suit, and in consequence of their negotiation, they sent the steel to his factory. White broke and partly manufactured the steel, and subsequently failed, and made an assignment of all his property to Miller and Furguson, the other defendants.

Philip J. Jetter sued the New York & Harlem Railroad Company, in the New York common pleas, to recover for loss of services, and for his expenses, &c., occasioned by an injury to his child, which was struck and run over by a car on defendant’s track, while crossing a street in the city of New York. The child was about six years of age, deaf, and, partly dumb.

Henry Johnson sued Rowland P. Cooley (for whom, on his death pending the action, Henry H. Hathorn, his executor, was substituted as defendant), for deceit in an exchange… Held: among other things, that the objection that the judgment was for legal relief merely, under a complaint asking for equitable relief, was untenable; for fraud and damages entitle to relief in any court, and the judgment could not be reversed because of the form of the action, if justice had been done.

Wallace Johnson sued Henry Monell and Henry B. Cramp-ton in the supreme court, to recover possession of merchandise, which he alleged that the firm of Warner & Co. procured from him by false representations, upon credit, and then, being insolvent, transferred to the defendants by a general assignment in trust for the benefit of creditors.

Benjamin Keller, administrator of Rachel Keller, deceased, sued the defendants, in the supreme court, to recover damages under the statute (L.… Held: on the authority of Quin v. Moore, 15 N. Y. 434, that the statute gave an action, not only where the decedent left some one who sustained the pecuniary loss, hut in any case in which the injured person could have maintained it if he were living. Reported in 17 How. Pr. 102. Judgment having been entered, the defendants appealed.

Catharine Kelly (for whom, on her death pending the action, David, her husband and administrator, was substituted as plaintiff), sued Anthony E. Campbell, in the supreme court, to recover the value of certain personal property taken by defendant as sheriff of Kings county, under an execution against Charles H. Jones.

Thomas Kelly sued David Tilton, in the Brooklyn city court, to recover for injury sustained by being bitten by a dog kept by the defendant. The facts were these, in substance: The defendant was in the poultry business, in Brooklyn, in March, 1859, and had been, for several years previously. He had a yard which used for killing poultry and preparing it for shipping. He owned a dog, which he kept upon his premises.

William H. Kenzel brought this action, in the supreme court, against Edwin R. Kirk and others, owners of the ship Moonlight, to enforce payment… Held: that in the absence of any notice to the plaintiff that the vessel was let on shares, or of an opportunity, by reasonable care and caution, to ascertain the fact, the case would appear to be the ordinary one of the master of a vessel buying necessary supplies for the voyage. Reported in 37 Barb. 113; S. C., 21 How. Pr. 184.

Elijah H. Kimball, executor and trustee under the will of Ellen Le Roy, sued Richard B. Connolly, the county cleric of New York, in the supreme court, to recover damages for an erroneous return made… Held: as a conclusion of law, that the plaintiff was entitled to recover the sum paid to obtain a re-conveyance. The supreme court, at general term, on appeal, reversed the judgment, and ordered a new trial, without, however, assigning their reasons therefor.

Alexander King sued Abijah Fitch, in the supreme court, to recover damages for the conversion of a quantity of lumber, which it was alleged was fraudulently obtained by Thomas Nelson, the defendant’s assignor, from the finn of A. King & Sons, the plaintiff’s assignors.

Charles King, Edward J. King and Sylvester Brush, sued Nathan 0. Platt, in the supreme court, to compel the specific performance by the defendant of an agreement to purchase real estate in New York. The purchase price was seventy-five thousand dollars, and the time fixed for the performance was October 6, 1860. It resulted in a judgment in favor of the plaintiffs, which was entered on March 15, 1862.

This was a case agreed upon by Enos Kinne and the City of Syracuse, for the purpose of presenting for adjudication the question of the constitutionality of the 9th section of the act passed by the legislature on April 17, 1858. This act, by its title, purported to be “An act to amend the act to-revise the charter of the city of Syracuse.

Adolphene Kluender sued James Lynch, sheriff of the city and county of New York, in the New York superior court, to recover the contents of the cigar store No. 78 Bowery (or the value thereof ), which had been levied upon by the defendant, under an execution against Frederick H. Kluender, the husband of the plaintiff. The plaintiff married F. H. Kluender in 1845, in Prussia; they came to this country about 1851, and always lived together subsequent to their marriage.