Volume 2 — Keyes's New York Court of Appeals Reports

<p>Where a referee in Ids report has found, as a question of fact, that title and. the right to convey were in the vendor at the time the conveyance was inade, this court will not. review the evidence in the case in order to ascertain whether .such conclusion is or is not erroneous.</p> <p>This court is bound to take the facts as they are stated in the case to have been found by the judge or referee, and compare the judgment, rendered with those statements of fact, and if the judgment is in conformity With the facts as found, it cannot be disturbed.</p> <p>Where certain incidents of a contract are to be affected or modified by the event of a failure of title to the premises to which the subject-matter of the contract relates, a subsequent judgment tending to establish the fact of such failure of title, even though it does not conclusively establish it, is competent evidence upon the point. 1</p> <p>In offering to establish a fact by the production of a judgment record as evidence, it is not enough to state in terms what is the conclusion of fact that is to be established by the record; in order to constitute such record material or pertinent evidence, there should be a statement in it of some subject of the action, and of such a subject as relates to the controversy on trial.</p> <p>The defendant, in an action to foreclose a mortgage given for purchase-money, cannot set up as a defense a failure of title to the mortgaged premises or to a part of them, where there has been no eviction or disturbance of his possession of such premises.</p>

The action was by the respondents, as owners of the ship “ Jane Parker,” to recover damages in the nature 'of demur-rage against the appellants as consignees. The cause was tried in the Superior Court before Judge Piebbepont, and resulted in a verdict in favor of the plaintiffs for $900. The judgment was affirmed at the General Term, and the particular facts are detailed in the report of the case in 7 Bosworth, 199.

The action was brought by the executors of the late David Graham, to recover for professional services rendered by him for the defendant, between October, 1845, and June, 1850.

<p>Upon complaint for fraudulent misrepresentations whereby the plaintiff was induced to abandon his professional practice in one place and remove to another and remote place, and enter into partnership with the defendant, it was competent for the plaintiff to give testimony concerning the value and growing character of the practice which he had abandoned, not as affecting the question of damages but as tending to establish the fact that he relied upon the defendant’s representations concerning the value of the business in which he was induced to engage as partner.</p> <p>His belief in such representations is one of the facts to be proved, and the plaintiff’s own testimony directly upon the point may be received, and the weight to be attached to it is a question for the jury.</p> <p>In such case it is also competent to show the amount of business done by the parties during the year after the partnership was formed, as affording a presumption of what the business of the preceding year was and thus helping to confirm or to refute the charge of false representations concerning the business of that year.</p> <p>Where, as a part of the contract of partnership in such case, the plaintiff purchased the house and office of the defendant for a price alleged to be above its real value, evidence to establish the real value of such premises is competent as further tending to show that the plaintiff believed the representations of the defendant concerning the value of his business.</p> <p>It is also admissible as affecting the question of damages.</p> <p>Where a part of the representations alleged to be fraudulent were that the defendant had had as many as eight cases of fracture at one time, it is competent to introduce the testimony of a physician practicing in the village concerning his knowledge of the number of cases of fracture existing at one time in such village.</p> <p>The right of the plaintiff to his action for damages sustained in consequence of such fraudulent representations was not compromised by his entering into an agreement with the defendant at the end of the first year of the partnership, to dissolve the partnership and allow the defendant to continue in the practice of his profession in the village; and a motion by the defendant for nonsuit on that ground was properly overruled.</p>

The action was brought to recover the proceeds of a promissory note made by the plaintiffs, McSpedon & Baker, for $1,880, dated New York, June 18th, 1857, payable to the order of M. L. Samuel & Co., six months after date, at the Bank of North America, upon the following facts, which were proved on the trial before Mr. Justice T. R. Strong, without a jury, ■at the New York Special Term, in April, 1859.

The action was on a promissory note made by the defendant, John P. Alger, indorsed by the defendant Wilks S. Alger, and payable to Ira M. Clark or bearer.

<p>Before lands can be deemed fully dedicated so as to entitle purchasers to have a street opened to the width and extent mentioned in the map to which reference is made in their deed of conveyance, it must have been accepted by the public by a formal opening by the proper authorities, or inferentially, by user.</p>

<p>This court cannot review the decision of a referee where the facts are not found, nor his legal conclusions stated and properly excepted to.</p>

The action was to recover the price of a quantity of gas-meters claimed to have been sold and delivered to the defendants. There was evidence on the trial, tending to prove a sale and delivery of the meters to the defendants, from circumstances from which a sale and delivery might have been inferred.

This action was brought to enforce an equitable lien for the purchase-money of land sold by the plaintiff, to the Canandaigua and Plagara Falls Eailroad company.

This is an appeal by the plaintiff from an order of the Supreme Court of the third district, reversing a judgment in his favor and ordering a new trial. The action was brought to recover a balance alleged to be due him from the defendant for the purchase price of a quantity of bones sold by the plaintiff to the defendant.

<p>A father gave to his married daughter $1,500, to enable her husband to purchase a farm, which was so purchased by him, title being taken in his own name, he also furnishing part of the purchase-money. To secure his wife for the money advanced by her or on her behalf, he ■ executed his bond payable to her with interest for the amount, and delivered the same to her father. Subsequently, upon request of her father-to him, he executed a new bond of the same date and for the same amount, but payable to the father instead of to the daughter—his wife—and received and destroyed the first bond.</p> <p>Held, that the last bond, hot less than the first, was the property of the wife, the rights secured .by it not being transferable except by her own act and deed, and that upon the decease of the wife intestate, the husband, as her administrator, was entitled to the possession of the bond as a part of her personal effects.</p>

<p>It seems that where the assignment of the effects of a copartnership, for the benefit of creditors, prefers the creditors of the individual members of the firm, it is competent, in order to rebut the presumption of fraud, for those claiming under such assignment, and the onus is upon them, to show that there are no individual debts thus preferred.</p> <p>Where the referee in such case reports as a conclusion of law the validity of such assignment, upon the ground that no facts have been disclosed showing the existence of such individual debts, his report will be set aside, such negative evidence being insufficient to overcome the presumption of fraud in such assignment.</p>

The plaintiff, on the 2d September, 1846, purchased, at a sale made by the receiver of the St. Lawrence Bank, certain claims against one Egbert 1ST. Fairchild, who had been the cashier of said bank, and who was the testator of the present defendants, his executors.- The sale of the said claims was made at Albany by Bansom H. Gillett, who was such receiver.

These- actions were brought respectively to recover damages for the taking and carrying away certain iron safes, claimed to have been the… Held: That the instrument in writing from John W. Bates to said plaintiffs, was not fraudulent in law or void, but that the same was and is in all respects a-legal and valid instrument, and an absolute transfer of the property to the plaintiffs, subject to their liability to account for any surplus which there might be over and above the…

The action was brought to recover,for labor and services performed by the plaintiff under a contract entered into between him and the city, for deepening the bed of the Oswego river in a specified part of its course within the city limits, and other work connected with it.

Action upon a quantum meruit for services alleged to have been rendered by the plaintiff for defendants. It was tried at the October Circuit, 1858, by Mr. Justice Clerke and a jury. The plaintiff gave evidence tending to show a joint retainer on the part of defendants of him as their agent, the length of time he was so employed, and the value of his services.

This is an appeal from a judgment of the Hew York Common Pleas. The action was brought to recover for loss of services, expenses, etc., occasioned by an injury to a child of plaintiff, who was run over while crossing Canal street in the city of Hew York, by a car of defendant; and was tried before Hilton, J., and a jury. On the trial it appeared in evidence, that the child was but six years of age, and was partially deaf and dumb.

This action was brought to compel the payment of interest on the sum of $3,000, under certain provisions of the will of Ambrose Forman,… Held: as conclusions of law, “ that the conduct of the defendants in the management of the most of the interest of the $3,000 cannot be considered as having been dictated either by good faith or sound discretion,” and “that the plaintiff is entitled yearly to the interest on the $3,000, to be paid at a fixed time yearly, commencing from…

The action was in the nature of trespass for an assault of the plaintiff, Mary Ann Castle, and wounding her by shooting her with a musket ball. The answer was a denial of the complaint.

These are cross appeals from a judgment of the General Term of the eighth district. The action was tried before a referee. The facts found and appearing in the case are substantially these: In November, 1851, one Daniel Lockwood was seised of certain lands situate in the city of Buffalo.

<p>It is not necessary under section three, of chapter 122,. Laws of 1851, providing for the incorporation of building associations, etc., that the copy of articles required by that section to be filed should contain the names of the trustees.</p> <p>The trustees of such corporations, are not officers, within the meaning and intent of the statute.</p>

<p>Where a clerk to whom moneys of his employer have been intrusted used and lost the same at a gambling house: Held, that an action for moneys had and received, could be maintained by the employer of such clerk, against the proprietor of .the gambling house where such moneys were lost. .</p>

This action was instituted to foreclose a mortgage. Loraine Freeman and Eli P. Sherman, two of the defendants, each had separate mortgages on the same property, and both of which mortgages were prior liens. Freeman and Sherman were made parties and served with summons and notice that no personal claim was made against them.

<p>W. mortgaged to M. & Co. certain personal property, including manufactured iron, in the usual form, to wit, a sale with condition that the same should be void on payment of certain promissory notes. In default of such payment the mortgagees were empowered to enter on the premises and take the mortgaged property away and sell it; until such entry and demand, W. to.remain in possession, but only as agent for the sole benefit of the mortgagees.</p> <p>■ Held, that title was in the mortgagees, M. & Co., after default, and the sheriff, under an execution against W., was a trespasser in levying upon and taking such property into his possession.</p> <p>The possession by W., under the terms of the mortgage cited above, was the possession of M. & Co.</p>

This is an appeal from a judgment of the General Term of the fifth district, ■ affirming a judgment entered on the report of a referee. The action was brought by plaintiff, as assignee of the firm of J. & I. Lewis, to recover an alleged balance of the proceeds of the sales of certain wheat, alleged to have been sold by defendants, for and on behalf of J. & I. Lewis, on commission..

<p>Concerning the due execution of a will, the statute only requires on the part of the testator, besides his hand and seal, the publication or announcement of the instrument as his last will and testament, and his request to the witnesses to sign the same. (Coffin v. Coffin, 23 2ST. Y., 9.)</p> <p>It seems that the reading of the will by or to the testator at the time of its execution, is not absolutely necessary, if from facts and circumstances . it may be reasonably inferred that the contents of the instrument are known and understood by the testator.</p> <p>While the fact that the person who drafted the will for the testator is made an executor and chief legatee justly excites suspicion of fraud or undue influence, it is not a rule or principle in the law of testaments, that the draftsman of a will cannot be an executor or take a benefit under it. The suspicion or presumption (if it amounts’ to that) of fraud it would seem may be overcome by evidence to negative such presumption.</p> <p>Mere opinions of witnesses as to the incompetency of a testator are of little weight, unless supported by facts from which such conclusion is drawn.</p> <p>For evidence insufficient to establish the incompetency of a testator, see the dissenting opinion of Potter, J.</p>

This is an appeal from an order of the General Term of the Supreme Court of the eighth district, which affirmed an order of the Special Term. The order appealed from was made in November, 1864, and it directed the receiver of the said bank to divide and pay to the creditors of the Hollister Bank $12,126.52 of moneys remaining in his hands.

<p>The defendant had subscribed, in his own name simply, for fifty shares ($2,500) of the stock of the Erie & New York City railroad. At the same time he subscribed for fifty other shares, writing his name and annexing thereto the letters “ Exr.,” saying that he would take fifty shares for an estate of which he was executor.</p> <p>Held, that these subscriptions were two separate and independent contracts, and that the pendency of an action to enforce the payment of the first, afforded no sufficient ground for abating the action to enforce the payment of the second.</p>

This is an action to enforce an equitable lien on a certain $30,000 received by the defendant, Isabella Patchin, as committee of the person and estate of Aaron D. Patchin, a lunatic, from George W. Tifft, on the settlement of a suit brought by her, as such committee, against the said George W. Tifft, Wiliam Dorsheimer (the plaintiff in this action), and Samuel Barrett, Abner Hazeltine and others, as trustees of the president, directors and company of the Chautauque County…

This is an action brought by the receiver of the ¿Etna Insurance company, of Utica, to recover of the defendant the amount of a premium note of $325, dated January 6, 1853. This note was given in consideration of an insurance policy of $1,000, for three years from the date of the note, on which day the policy was issued.

06 and the costs against the defendants, as a committee of the estate of Alfred Tyler, a lunatic, to be paid out of his estate in their hands upon a . demurrer to the complaint. The defendants appeal from the judgment of the General Term affirming the one rendered at the Special Term. The case was submitted on printed briefs.

A peremptory mandamus was allowed on the relation of the commissioners of records of the city and county of New York, requiring the board of supervisors to raise by tax the sum of $72,034.26, for the purposes designated in the act of 1860. (Laws of 1860, p. 1024.) The facts on which the mandamus was granted, were substantially these.

<p>Under existing provisions of our statute law, a husband cannot maintain an action for the instantaneous killing of his wife through the negligence of another..</p>

<p>In an action to recover possession of lands, the plaintiff can attack a deed . under which the defendant claims title, upon both legal and equitable grounds. (Phillips v. Gorham, 17 IT. Y., 270.)</p> <p>Hence, where the defense to an action to recover possession of lands held under a perpetual lease, subject to an annual rent-charge which had remained unpaid for several years, was, the extinguishment of the rent-charge by possession in the same person of the fee of the rent-charge and of the land, it was competent for the plaintiff to establish an avoidance of such extinguishment, by proving the intention of the owner of the two estates, when he conveyed, to keep the two estates distinct, and to convey only the fee in the land while he retained the fee in the rent- . charge.</p> <p>The recital in the deed of conveyance by the owner of the two estates, of the original lease creating the rent-charge, and reference thereto, are admissions, of the highest grade of evidence, that it was not the intention of the grantor to extinguish the rent-charge.</p> <p>In such case, the omission to limit the estate granted, by express language, may equitably be considered the result of accident or mistake, and the Supreme Court, having jurisdiction in equity, may interfere to reform the written instrument as between the original parties, and those claiming under them in privity.</p> <p>The plaintiff in such action is not required to resort to a prior action in eouity,- to have the rent-charge declared to be an existing estate.</p>

<p>A contract for the sawing of lumber from logs provided, on the part of the mill owner, that he would “ saw it in a good and workmanlike manner, and take pains and saw all the clean stuff, select box, that could be got out of the logs, and would saw all the bark from the edge board, and . what was sawed into inch should be plump inch,” and if any of the lumber should be spoiled in sawing the mill owner was to retain it and allow a specified price.</p> <p>The lumber was all taken by the owner, but not without objection that it was not sawed in a workmanlike manner.</p> <p>Held, that upon the trial of an action to enforce payment of the contract price for sawing the lumber the defendant should have been permitted to show as he offered to do:</p> <p>1. That the lumber was not sawed in a workmanlike manner, and</p> <p>2. That among lumbermen spoiled lumber is that which is rendered unmarketable.</p> <p>"Under a contract like the above, the owner had no option to refuse any lumber, except such as was spoiled; hence his acceptance of the lumber, was not a waiver of his claim for damages for such as was sawed in an unworkmanlike manner. Morgan, J.</p> <p>The sawing of the lumber into inferior qualities did not spoil it so as to render it unmarketable, and did not bring it under that branch of the contract which required the mill owner to retain and pay for it.</p>

<p>Under a contract for the sale of timber on certain land, with the right to enter upon said land for the purpose of cutting and carrying , away said timber, “for and during the term of ten years,!’</p> <p>It was held, that the party claiming under such contract, could not enter •upon the land after the expiration of the"term limited in the contract, for the purpose of removing timber cut prior to the expiration of the term.</p> <p>His right to enter and carry sway expired on a particular day, and he cannot be permitted to overreach the letter of his covenant. Leonard, J.</p>

<p>The certificate of inspectors that a road has been constructed according to the true intent and meaning of the statute in such cases, is not conclusive against the people in an action to vacate the charter of the corporation for not constructing and maintaining their road in the manner required by law. Davies, Ch. J.</p> <p>It seems that such certificate is, prima facie, sufficient to authorize the company to erect gates and demand tolls, and cannot perhaps be impeached collaterally in an action by such company to recover tolls, or penalties for their non-payment. Id.</p> <p>In an action by the people as above stated, evidence showing the condition of the road from the time of first taking tolls to the commencement of the action is clearly admissible. Leonard, J.</p> <p>The refusal of the judge, upon the trial of such an action, to charge that the company were not required to use extraordinary and enormous expenses in constructing the road, and his reading the provisions of the statute directing how the road should be constructed, and his charge that the company were bound to comply with the statute, were all correct. Id. Negligence with knowledge is intentional, willful and malicious. Id. Where the statute provides that the road “ shall be bedded with stone, gravel or such other material as may be found on the line thereof,” this cannot be construed to authorize the use of the ordinary soil, where this is not gravel or some other hard material. Id.</p> <p>The words “ along the line," as used in the statute, mean, to a reasonable distance on each side of the line, and if stone or gravel or other material for making a hard bed, can be found within one or two miles of the road, it is “ along the line,” and must be sought for the bedding. Id.</p>

<p>Appeal from the judgment of the General Term affirming the judgment of the Special Term.</p>

<p>The promissory note of a married woman, not given for the benefit of her • separate estate, cannot, by parol, be made a charge upon it. (Yale v. Dederer, 18 N. Y., 265.)</p> <p>Where money is borrowed by the husband upon notes of the wife; his testimony that he represented to the lender that his wife wanted the money to improve her real estate, is inadmissible.</p> <p>It seems that before her estate can be charged in such case, it must either appear that she authorized the declarations, or that the money was expended for the benefit of her estate, or perhaps both. Morgan, J.</p>

The action was for damages sustained hy a breach of agreement by the defendant.

A motion was made at a Special Term of the Supreme Court, in the first district, to set aside the judgment of the plaintiffs herein, on the ground that it was obtained by collusion and was founded in… Held: that the same job was included in a contract already entered into with.others, refused their assent to the proposal of the plaintiffs, .and they never had any contract with the defendants for any work whatever.

In June, 1857, Broadway, in the city of New York, having received so little attention from the street cleaning department of the city as to have become filthy, the merchants and business men on that thoroughfare took the matter, in part, in their own hands, and formed an association known as the Broadway association.

<p> Writ of Error to the Supreme Court. </p> <p>The plaintiff in error was indicted in the Court of General Sessions of the Peace of the city and county of Hew York, for the murder of Henry Lazarus, in that city, on the 3d January, 1865. The trial took place in that court February 13th, 1865, before the Hon. John T. Hoeeman, Becorder. It appeared that at the close of 1864, and at the beginning of 1865, Lazarus, the deceased, and Friery, the prisoner, kept adjoining drinking and rival lunch saloons in East Houston street. Between three and four o’clock, on the morning of the 3d of January, 1865, a sleigh drove up to Friery’s place. Two men (Clark and McDonald) got out of the sleigh and went into the prisoner’s place, the driver of the horses remaining in the sleigh. They stayed in there some five minutes. They then came out with Friery, and a person called California Jack, and went into the place of Lazarus, where were the deceased, his bar-keeper, and one other person. As they entered, California Jack said, “ I’ll bet $1001 have got a man here that will lick any man in the house.” Ho one made any reply, when Jack turned round to Friery, and asked him, “ What his weight was ?” Friery did not answer, when Jack said again “ I’ll bet ten ($10) dollars I have got a man here that will take that pistol from you Harry (meaning the deceased). Lazarus said “I’ll bet you haven’t, because I have no pistol,” and he threw open both his coats and showed them that he had no pistol. The barkeeper requested Clark and McDonald to have no disturbance there, and they promised him there should be none. Friery their stepped up to Lazarus, apparently to shake hands with him. Lazarus held his head down, and shook it and said, “ I don’t want to shake hands with you; and said that he hoped that they did not come in to raise any disturbance.!’ Friery then leaned back on the counter and said to him, “ You are a dirty little loafer, a little coward.” Whereupon Lazarus, who had a sore hand, wrapped in two handkerchiefs, took one of the handkerchiefs off and threw it over the bar, and said to Friery, “ I’ll fight you anyway, now.” At this moment the bar-keeper turned round to get some cigars for the party, and as he turned he heard the prisoner use the expression “ You are a good little man, Harry,” and as he turned towards him again, he saw the prisoner draw a dirk knife, with a blade some seven inches long, out of the neck of Lazarus. Another witness testified, that he saw the prisoner take the knife out, walk from, the bar to the table near the stove, where Lazarus was, and plunge it into his neck. The prisoner and his party then turned and left the room, the prisoner remarking, “ He is a good little man, but I guess I have fixed him.” They passed out, got in the sleigh' that was in waiting at the door, and drove around towaixls the Bowery, singing and frolicking. One of the men took the lines from the driver’s hands, saying that he did not drive fast enough, and put the horses on a run. They went up town. In the course of the ride, some one of the party remarked “ The son of a bitch is dead now.” After they got up town, near Yorkville, the sleigh was discharged, and they went somewhere, but where was not shown.</p> <p>When Lazarus was stabbed with the dagger, he staggered over against the table, and was caught by the bar-keeper, when about falling, laid upon the floor, and a policeman called. He died immediately from the effect of the wound.</p> <p>The same day, about one o’clock in the afternoon, the prisoner, McDonald and Olark were joined by a policeman who had followed them in a street car, to a drinking saloon, on Third Avenue, between 117th and 118th streets. Some conversation occurred between the policeman and the prisoner. The prisoner asked him what he was doing there? The policeman said he wanted him, and asked him if he was not down at the shindig at Lazarus’? To which the reply was, “ISTever mind, take a drink.” Then, in the course of the conversation, the question was asked whether Lazarus was dead? The policeman stated to him that he was, and asked him if he was implicated in the killing of him. He said “ Yes, I have killed him, and I’ll dance at his wake.” He was taken into custody.</p> <p>It was shown that for some days prior to the homicide the prisoner had been drinking liquor freely. About seven o’clock, in the evening 2d of January (kept as New-Year’s day), he having been engaged most of the day, with " a comrade, in drinking at different places about the city, was lying on the table, in his own bar-room, asleep, in a state of beastly intoxication: Afterwards he went up stairs to bed, where he remained until about three o’clock in the morning, when he got up and came down to the bar-room. Shortly afterwards, McDonald and Clark came in, and after drinking, the party, including the prisoner and California Jack, left for the place of Lazarus. After the stabbing, the prisoner came out, got into the sleigh and told the driver to drive off. California Jack did not go with the party.</p> <p>The morning before the killing, the prisoner was in Lazarus’ saloon. He had a knife, Lazarus was not present. The bar-keeper was asked to state to the jury, how he had the knife and what kind of a knife it was. The prisoner’s counsel objected to any evidence on the subject alluded to in the question, except that part calling for a description of the knife, as irrelevant. The court overruled the objection. The witness testified that it was a two edged dagger knife, blade seven or eight inches long, with a white handle. The prisoner held it in his right hand; he struck it into the counter and left it there ; he was standing with his back to the bar; he reached his hand back and drove it into the bar, and left it sticking there, and said “ that will be the death of somebody around here before long ” or “ somebody here.”</p> <p>- Some weeks or so before the killing, the prisoner was in Lazarus’ place in the morning. Lazarus was not in. The bar-keeper was asked if he then did anything with anything belonging to Lazarus, and the witness answered yes. He was then asked what, did he do, and what did he say ? The prisoner’s counsel objected to the question as irrelevant and immaterial. The objection was overruled. The witness testified in substance, that when the prisoner came in that morning, there was a large Newfoundland dog (shown to have belonged to Lazarus) lying sick under the table. The prisoner came up to the bar and asked for a drink. Before he drank, he went over and took an ice pick out of his pocket and hit the dog with it three or four times in the head. Then he left him and took part of his drink, and commenced beating the dog again. Drumgold, a person present, coaxed him away. He went back, and commenced beating the dog a third time, and jammed the sharp end of the ice pick down the dog’s mouth and broke out some of his teeth. While he was doing this he said, “ I can make him sing.” He was in at Lazarus’ place at this time about ten minutes. This dog, the witness testified, belonged to Lazarus; it was kept about the premises and it was the only one of the kind there. Lazarus had had him all the time the bar-keeper was there, and the bar-keeper went with Lazarus a few days after the prisoner started his drinking place the next door.</p> <p>On Monday, the 2d of January, about six o’clock in the evening, the prisoner came in to Lazarus’ place, Lazarus was not in. A witness was asked to tell the jury, what, if anything, he saw Friery do, on this occasion ?” The prisoner’s counsel objected to the question as irrelevant.</p> <p>The district attorney offered to prove that the prisoner took from a lunch table a mustard cup and flung it against the wall. The court overruled the objection. The witness answered, “ The prisoner entered, stepped to a lunch table, helped himself; called for cigars, and again stepped to the lunch table, ate something; afterwards picked up the mustard cup from the table, threw it across the room, and left the house. On the three several occasions referred to the prisoner was more or less under the influence of liquor.</p> <p>On the cross-examination of the bar-keeper of Lazarus, he was asked, “Did a part of the custom of that house come from women?” The district attorney objected to the question as irrelevant-and immaterial, and the court sustained the objection, and the prisoner excepted.</p> <p>One Donahue, a witness for the defense, testified that he was at Friery’s place just prior to the homicide. California Jack and McDonald were in the bar-room, Friery had a glass of liquor, and was leaning against the bar. The prisoner’s counsel put the question to the witness, “ Do you know what, if anything, was said between California Jack, Clark, McDonald and Friery in his (Friery’s) bar-room?” The question was objected to, and the objection sustained, and exceptions taken.</p> <p>The recorder, after chargiugthe jury as to the legal requisites of murder in the first degree, and in respect to which no complaint is made, proceeded as follows :</p> <p>“ I have been asked to charge you, ‘ that the presumption of the law, that a man intends the natural and public consequences of his own acts is based upon the usual and ordinary condition of the mind of men, and should not be applied strictly to the case of a man whose mind is shown not to be in the usual and ordinary condition of the mind of man.’ In regard to that, I shall charge you, as follows: A man who is in a state of voluntary intoxication is subject to the same rule of conduct, and the same legal inference as a sober man. * * * If a man is not so drunk as to be unable to judge of what would be the probable consequences of his act, he is judged by the same standard as a sober man. When the prisoner plunged the dagger into the neck of Henry Laz- N arus, the law presumed that he intended the natural consequences of that act, by the death of Lazarus, and that jiresumption he must abide the consequences of, unless you should say that he was so drunk as not to be able to judge of what the probable consequences of his acts would be. * * * How, in regard to intoxication, I shall not attempt to lay down any new law or state any views of my own, but shall content myself by reading you the, law as stated by the courts.</p> <p>“ In the case of The People v. Rogers, it was said: ‘ We must lay out of view, as inapplicable, the case of a person who had become insensible from intoxication, and who was performing an act unaccompanied by volition.’ It is not claimed in this case, that the prisoner was a person xho had become insensible from intoxication, and who was performing an act unaccompanied by volition : therefore, you must look at the prisoner not as a man in that state, but merely as one who was more or less under the influence of liquor.</p> <p>“The decree of intoxication you may determine in your own mind, if you can; if you consider him as a man who was intoxicated, but yet sensible and able to do an act in accordance with his will, the law is plain; the courts have laid down the rule. Ho rule is. more familiar than that intoxication is never an excuse for crime, even when intent is a necessary ingredient in the crime charged. So long as the offender is capable of conceiving a design, he will be presumed, in the absence of proof to the contrary, to have intended the natural consequences of his act. Thus, if a man without a provocation, shoot another or cleave him down with an axe, no decree of intoxication short of that which shows he was at the time utterly incapable of acting from motive, will shield him from conviction. In this case, the defendant had struck the blow which caused the death, and to this act the law, without further proof, would impute guilty design. If the perpetrator would escape the consequences of the act thus committed, it was incumbent on him to show, either that he was incapable of entertaining such a purpose, or that the act was committed under provocation. The. adjudications upon the question, both in England and in this country, are very numerous, and are characterized by a singular uniformity of language and doctrine.'</p> <p>“They all agree that, when the killing is unequivocal and unprovoked, the fact that it was committed while the perpetrator was intoxicated, cannot be allowed to affect the legal character of the crime. * * The courts' allow evidence of intoxication to be given to the jury, and the reason is very well stated by the court in the case of The People v. Rogers. It is very proper for the consideration of the jury in several aspects: First, as bearing upon the question of intent. A man may be so drunk as to be incapable of forming an intent. ¡What would be the law in such a case is unnecessary to discuss further than I have done. Evidence in regard to intoxication is admitted for the purpose of giving the jury an opportunity to say how much weight is to be attached to expressions made immediately before and after the occurrence.</p> <p>“The evidence of this man’s intoxication is material in determining what weight or importance is to be attached to the act of sticking the knife into the counter, and the declaration accompanying it, or the expression used in the sleigh, ‘ the man is dead anyhow,’ or to the expression used by him, ‘ I will dance at his wake.’ Such expressions would have more force with the jury if made by a sober than by an intoxicated man. Courts allow such evidence to come in and be considered by a jury; but though they allow it to be considered, they declare that intoxication is no excuse for crime, unless it exists in the degree before mentioned. ¡Now, gentlemen, among the various propositions which have been submitted by the counsel for the prisoner, I find one or more to this effect, ‘ That to convict the prisoner of murder in the first degree it is necessary for the prosecution to show affirmatively beyond reasonable doubt that the prisoner had an intent to kill the deceased.’ Of course, that is so, and I so charge. It must be shown beyond a reasonable doubt that he intended to kill, but if the intention exists a moment before the blow is struck, as I have already told you, it is enough. The other proposition, ‘ That the prosecution must affirmatively prove that the prisoner’s mind was in a condition to form the intent,’ is involved in the general proposition which I have submitted to you. The other proposition in regard to intoxication, and in regard to the purpose for which evidence of intoxication is allowed to go to the jury, also in regard to the presumption of law, and the general presumption that the prisoner is entitled to every reasonable doubt, I have already charged.”</p> <p>There was no exception to the charge as given; nor was there any specific request to charge differently on any point. The jury found the prisoner guilty of murder in the first degree.</p> <p>An extra panel of one thousand jurors was ordered by the Court of General Sessions to be summoned for the term at which the prisoner was tried.</p> <p>On the 13th February, I860, the following certificates of the drawing and summoning of the jurors, was filed in open court.</p> <p>“ CLERK’S OFFICE, ></p> <p>City and County of New York. ></p> <p>I hereby certify that the following is a list of the persons constituting an ex-panel of one thousand jurors for a Court of General Sessions, to be held at the New Court House, in said city, on the 13th February, 1865, at 11 o’clock in the forenoon, drawn by the clerk of the said city and county, on the 7th day of February, 1865, in the presence and with the assistance of the undersigned attending officers, duly notified for that purpose.</p> <p>D. A. FOWLER,</p> <p> Deputy County Cleric. </p> <p>sheriff’s return.</p> <p> </p> <p>Here follows in like manner nine hundred and ninety-nine other names. At the end of names follows:</p> <p>All of which is hereby certified</p> <p>D. A. Fowler,</p> <p> Deputy Cleric of City and County of New Yorlc. </p> <p>John J. Y. Westervelt,</p> <p> Under Sheriff. </p> <p>Ignatius Flynn,</p> <p>Alderman, Fifth District. Bernard Kelly,</p> <p> Alderman Twelfth District. </p> <p>I hereby certify that the manner of summoning the persons named in the foregoing list, appears in the margin opposite to each name, the letter S. meaning personally notified, the letters W. S. meaning a written notice, left with a person of proper age at the place set forth in said list as the residence of the juror, and the letters N. F. meaning not found.</p> <p>JOHN KELLY, Sheriff.”</p> <p>On the 13th February, the trial upon the indictment being moved, the prisoner made and filed a challenge to the array of jurors, “ upon the panel for list of jurors this day filed in ¡this court,” and alleged as cause of challenge:</p> <p>First. That the sheriff who summoned the persons named as jurors upon said panel or list, was not, when he so summoned them, indifferent between the People of the State of New York and the prisoner at the bar, but then had formed or expressed an opinion with reference to the guilt or innocence of the prisoner at the bar, of the matter whereof he now stands indicted.</p> <p>Second. That the sheriff or his under sheriff, or any county judge of the county of New York, or any justice of the peace, or any officer or officers, or judge or judges, having the powers in such case of the sheriff, under sheriff, county judge or justice of the peace, did not appear at the office of the county clerk, or witness the drawing of the persons named as jurors in said panel or list from the petit jury box in the office of said county clerk.</p> <p>Third. On drawing from said jury box of the names or ballots of the persons now on said panel or list returned as jurors, no minute was kept by any attending officer, or by any person for any attending officer, of the drawing of such names or ballots.</p> <p>Fourth. Ko minute of such drawing was signed or certified by any attending officer, but that the certificate or pretended certificate was signed at the end of several blank sheets of paper, which said' sheets did not contain the names of the persons drawn as jurors, but were left blank thereafter, to wit, after the signing of the said pretended certificate, to be filled in with the names of the persons as jurors.</p> <p>Fifth. Said certificate or pretended certificate was not, at the time of the drawing, signed by the attending officers, but was signed only by the deputy county clerk and Ignatius Flynn, alderman, &c.</p> <p>Sixth. Ko copy of the minutes of the drawing of said jurors was delivered to the sheriff of the city and county of Hew York before he summoned the -persons named as jurors in the said panel or list to attend as jurors here in this court.</p> <p>Seventh. Said sheriff, before any copy or pretended copy of the minutes of the drawing was delivered to him, summoned as jurors certain persons whose names upon ballots had been delivered to him by the county clerk, which said ballots were afterward returned by said sheriff to said county clerk, and the names were then, by said county clerk, entered in a book in the office of said county clerk as' a minute of the drawing required by law, and thereupon and after said persons had been summoned as jurors, to wit, on the 11th of February, 1865, a copy or pretended copy of the names so entered in said book was delivered as a copy of the minute of the drawing- to said sheriff, which said pretended copy is the panel or list of jurors, the array of which the prisoner at the bar now challenges.</p> <p>Eighth. The said panel or list is not a copy of the minutes of the drawing of the said jurors by the county clerk, as certified by the attending officers at said drawing ; all of which the said prisoner at the bar is ready to verify. Whereupon he prays judgment that said panel be quashed. The district attorney demurred to said challenge to the array of said panel, and the prisoner joined in demurrer. The recorder sustained the demurrer, overruled the said challenge, and refused to quash the array, and an exception was taken by prisoner to such ruling.</p> <p>On the trial, there were numerous challenges of jurors by the prisoner ; the proceedings in which, the decisions of the recorder on those for principal causes, and his instructions to the triers when they were interposed to the favor, are sufficiently stated in the following opinion.</p> <p>From the judgment of the General Sessions, the prisoner brought error to the Supreme Court, when the judgment of the Sessions was affirmed.</p> <p>He now brings error to this court.</p>

The action was brought by plaintiff against Abraham Lasher, now deceased, for a breach of warranty in the exchange of two pairs of horses.

<p>Funds in the hands of a trustee, which may be made applicable to the payment of a judgment against a cestui que trust, can only be reached through a court of equity.</p> <p>Such funds cannot be reached under supplementary proceedings.</p>

<p>An action to obtain possession of real estate and damages for withholding such possession, is not an action “for injury or for wrongfully taking, detaining, or converting property,” under the 119th section of the Code of Procedure.</p> <p>Where, in such action, the plaintiff fails, and judgment is entered against him for costs, he is not liable to arrest on an execution issued thereon.</p>

<p>Where by the terms of the lease, the lands are demised for agricultural purposes only, such limitation excludes the right of the lessee to dig stone in a quarry on the premises, though opened at the time of executing the lease.</p>

18, rendered on the trial before Mr. Justice Bocees, without a jury, at the Saratoga Circuit.

<p>Under the Bevised Statutes, a claim existing against the assignor, in favor of the maker, of a promissory note, assigned before it became due, cannot be set off against the note in the hands of the assignee, and this, although he had notice of the offset before the transfer, such notice not being notice of any existing legal defense.</p> <p>Section 112 of the Code of Procedure, which provides, in case of an assignment of a thing in action, that the action by the assignee shall be without prejudice to any set-off or other defense existing at the time, or before notice, of the assignment, does not apply, for by the second clause of that section, negotiable promissory notes and bills of exchange transferred in good faith, and upon good consideration, before due, are expressly excepted.</p> <p>If the holder of a promissory note is legally in possession of it, and entitled to receive payment of it, he is the proper plaintiff in its prosecution. Emit v. O’ Connor and others, not reported; Bose v. Black, not reported.</p>

Action to recover the possessiuii of five cows. • The complaint alleged that on the 20th April, 1859, one Joseph Schmidt being indebted to the plaintiff in the sum of $200, executed and delivered to her a chattel mortgage upon five cows conditioned to pay said $200 in one year from date; that the said sum remained wholly unpaid; and that on the 7th of July, 1859, the defendant, as Sheriff' of Erie county, by virtue of an execution, in favor of one Allen McDonald against said…

<p>Where two of three trustees of a school district (assuming them to be such), without notifying the third to meet with them, and without consulting him, and when he is not present, make an assessment or tax list, and sign and issue a warrant annexed thereto for the collection of such assessment, and deliver the same to be collected to a collector appointed by them, such assessment and tax warrant are void, and no protection to them in directing the plaintiff’s property to be taken from him and sold; and where the plaintiff’s property was so taken and sold, a verdict for the value of the property, by way of damages for the taking and conversion, was rightly directed.</p>

This was an action of trespass upon land, originally commenced in a justice’s court and removed on-.a plea of title. The trial resulted in a verdict of three ($3) dollars' for the plaintiff. The defendant appealed to the General Term, where the judgment was affirmed, and then he appeals to this court. The cause is submitted.

At the circuit the judgments were, rendered for the defendants, which, on appeal, were reversed at the General Term and new trials ordered. The defendants appealed from the judgments of the General Term, reversing the judgment of the circuit, and ordering new trials, to this court.

<p>An agreement of a creditor, upon a proper consideration to make the payment of his claim dependent upon a contingency, to be valid, need not be in writing.</p> <p>Such an agreement is not an undertaking to answer for the debt, default, or miscarriage of another, and is not within the provisions of the statutes for the prevention of frauds and perjuries.</p> <p>An attorney can make a valid agreement with his client, by which his right to recover fees for his services is made contingent upon his success in the action.</p>

This is an action to recover the sum. of seven thousand six hundred forty-eight dollars and ninety-six cents, with interest from the sixth day of December, 1854, being the balance of the purchase-money of one thousand eight hundred ninety-seven barrels of flour, sold by the plaintiffs to one Walter Patterson, and by Patterson transferred to the defendants, under the circumstances hereafter stated.

On the 23d day of November, 1859, the defendant, William B. Chamberlain, made his promissory note of that date at three months, to the order of and indorsed by defendant, Harriet H. Chamberlain, his mother, as accommodation indorser. Plaintiff’s testator advanced . the money on the note to the makers.

This action was prosecuted by the plaintiff against Henry Prior, and after his death continued against his executors, to recover damages arising out of the alleged fraudulent representations of the deceased, by which the plaintiff was induced to purchase Henry Prior’s interest in the firm of Prior, Holcomb & Co., and become a member thereof, when the firm was in fact insolvent.

<p>Where the agent of the lender falsely represents himself to be the principal, the borrower believing him to be such, and takes a bonus in excess of legal interest for the loan, it is not usurious if the actual lender did not take usurious interest himself, or know of its being taken.</p> <p>It is not competent to show a particular statement of a witness to impeach his credibility, without first pointing out to him, with reasonable certainty, the occasion of the conversation, to enable him to give such reason-, explanation or exculpation as the circumstances of the transaction may happen to furnish. It is not sufficient to indicate nothing but the name of the person with whom the supposed conversa, tion was had.</p> <p>A witness whose credibility is impeached is still competent. The jury would be justified in disregarding his testimony, but are not bound to do so.</p> <p>Especially should this view prevail at this time, when all the former rules in regard to the competency of a witness are abolished, and everything is reduced to the theory of credibility in the discretion of the jury.</p>

<p>The testator gave, bequeathed and devised all the rest, residue and remainder of his estate, 'both real and personal, to his son and daughter, to be divided between them, share and share alike, subject, nevertheless, to the dower and thirds of his wife, &c.: held, that the dower estate only of the wife in his lands was referred to.</p> <p>“ And ” construed to mean “ or.”</p>

Murray Hoffman, to whom the cause was referred. The action was for the recovery of $5,000, being the amount of two drafts made by the plaintiff on the Mercantile Bank in April, 1861, and delivered to the defendant with directions to apply the drafts or their proceeds to the payment of two notes of the firm of Cook, Evarts & Co. of Weedsport, payable at the Park Bank.

<p>A package of money directed to a person as the cashier of a bank is, in law, ■directed to the bank itself, and a delivery of the same to the assistant receiving teller, during banking hours, at his place behind the counter of the bank, is a legal delivery.</p>

This appeal is from the judgment of the General Term of the Supreme Court, first district, affirming a judgment entered upon a verdict at the circuit in favor of the plaintiff.

This is an appeal by the defendants from a judgment of the Supreme Court rendered in favor of the plaintiffs in the second district. The action was brought upon two drafts drawn by Henry L. Webb to his own order, and purporting to be accepted by the defendants, under the firm name of O. B. Howe & Co., each dated June 9th, 1855, for one thousand two hundred and fifty dollars ($1,250), one at two months and the other at three.

The answer denied the plaintiffs’ ownership and possession of the goods, and alleged that they were the property of a corporation named The American Plate Glass Company; that defendant was a judgment creditor of said corporation, and that he caused the glass to be levied on by virtue of execution upon his judgment.

<p>Clayson executed to the plaintiff a mortgage upon his stock of goods to secure the payment of $1,319.45; stipulating that he, the mortgagor, was to take charge of the said stock of goods and sell the same, and generally to carry on the business of merchandising at his own cost and expense, but subject to the control, direction and general supervision of the mortgagee, and to apply the first avails from the sale of goods to the payment of the above demand. The mortgagee was also authorized to take possession whenever he deemed himself insecure. • He did so take possession, but the goods were levied uppn and sold by the sheriff, on judgment against Olayson. In an action by the mortgagee in possession, against the sheriff, it was held, that it was a question for the jury to determine whether the mortgage was or was not fraudulent and void.</p>

This action was brought in the Supreme Court to recover the amount due upon the defendant’s guaranty of the collection of a promissory note, made by Hildreth and Cary, in the following form, viz. : “Three months after date, we promise to pay to the order of Spencer Hildreth, two hundred and forty-five dollars, value received, with interest, payable at the Ontario County Bank, at Phelps. “ Phelps, August 8th, 1857. “ S. HILDRETH.

<p>Where defendant had leased to plaintiff certain premises, consisting of a large room and the cellar under the house, for the term of ten years, &c., which building was indicted, during the life of the lease, as a nuisance, and by the order of the court, the defendant entered upon the premises and caused the building to be taken down, and then caused other buildings of entirely a different character to be built in its stead: Held, that the plaintiff might maintain ejectment for the recovery of the premises, if not estopped by his acts showing that his rights in the premises had terminated.</p>

<p>Where a defendant lies by until trial before objecting to the sufficiency of the complaint, it is a proper exercise of discretion in the court or referee to allow the necessary allegations to be supplied by amendment where they do not amount to a new cause of action.</p> <p>The official character of the officers of a municipal corporation may be proved by showing them to be officers de facto.</p>

The action was brought to recover money of the defendant, collected by him as sheriff of Otsego county, upon an attachment (which was placed in his hands on 20th March, 1852), in an action in the Supreme Court, in favor of the plaintiff, against one Benjamin Barrett, in which action the plaintiff obtained judgment, June 12, 1852, for $456.41.

The action was to recover for services as an architect in drawing plans for a building to be erected by the firm of Lord & Taylor, the defendants. ' .

Action to recover damages caused by the alleged diversion of a stream -of water on to the plaintiff’s land, originally commenced in a justice’s court and dismissed there by plea of title.

The action was brought on a promissory note, made by' defendants, February 9, 1857, payable to plaintiffs’ order six months after date. The answer set up a release and discharge of the indebtedness for which the note was given. The cause was tried at the Hew York Circuit, in December, 1858, before Hr. Justice James and a jury. On the trial it appeared that, in the latter part of February, 1857, the' defendants, who were carpet dealers in Hew York, became insolvent.

<p>Whether a party has purchased goods with a preconceived design not to pay for them, is a question of fact for the jury.</p> <p>Upon that question, evidence showing the value of assets assigned for the benefit of certain'old and preferred creditors, is admissible; as it might thus be made to appear that such assets were composed almost entirely of recent purchases, whence a jury might properly infer a fraudulent intent in making such purchases.</p> <p>Upon the same principle it is competent for the party assailing the validity of such assignment, to show that the same was fraudulent in fact. Whether a purchase of goods upon credit has been effected through fraudulent representations of the purchaser’s circumstances is also properly a question for the jury.</p> <p>Where nonsuit is granted under rulings the reverse of the above, the judgment will be reversed and a new trial ordered. *</p>

<p>Upon the decision of a referee where no case is made, or if made where there is no sufficient finding of facts, the appeal will be dismissed on motion, or if argued, the judgment below will be affirmed.</p> <p>However irregular the action of the referee may be in the conduct of the case, his final conclusion can only be reviewed upon a case made in the manner prescribed by the Code.</p>

This action was brought to recover possession of a quantity of clover and timothy seed, sold and delivered by the plaintiff, residing at Buffalo^ to the firm of Warren & Co., residing at Batavia; and by the latter firm transferred by general assignments to the defendants, Henry Monell and Henry B. Crompton.

<p>An agreement for insurance was effected by the agent of an insurance company upon the ascertained value of a cargo of lumber, but the rate was not fixed, but was to depend upon the time of the vessel’s sailing— if before October tenth, to be three per cent; if after the tenth and nefore the sixteenth, to be three and a half per cent. The vessel sailed on the fifteenth.</p> <p>A policy was forwarded by the company, but through misinformation contained, a warranty that the vessel had sailed on the 10th of October. The agent of the company, being advised of the error, changed the cipher . into a five, tiius making the policy correspond with the agreement.</p> <p>The vessel was wrecked and the cargo became a total loss.</p> <p>An action upon the policy for the amount of insurance was decided against the plaintiff upon the ground that, the agent having no authority to alter it, the policy was void.</p> <p>This action was then commenced to compel the delivery of a policy according to the terms of the agreement, and to recover the amount so insured as the measure of damages sustained by the loss of the cargo.</p> <p>The court held as a conclusion of law that the plaintiff was entitled to a policy and to judgment for the sum named.</p> <p>The General Term modified the judgment with the plaintiff’s consent, and affirmed it thus modified.</p> <p>On appeal to this court it was held that the questions of fact passed upon by the court below justified the finding upon which the judgment was based.</p>

■Action to foreclose a mortgage. The defendant set up a counter claim, to which the plaintiff replied, and the cause was tried by a referee.

The action was to recover damages for a refusal to issue or deliver to the plaintiff nine hundred and seventy-five shares of the defendant’s stock. On the 22d January, 1857, the plaintiff demanded of the defendant nine hundred and seventy-five shares of its scrip stock, claiming a right thereto according to the terms of “ provisional certificates ” for that amount of stock then held by him and presented to the defendant.

<p>Upon a trial for murder, the prisoner was charged in the indictment with having committed the offense in the city and county of New York. Upon the trial the witnesses spoke of the occurrence as having taken place in Broome street.</p> <p>Held, that, as the prisoner’s counsel, throughout the trial, assumed the fact that Broome street Was in the city of New York, calling and cross-examining witnesses, addressing the jury, and objecting to rulings of the court, on that theory—it is too late, on appeal, to make the objection to the jurisdiction of the court, upon the ground that the offense was not. proved to have been committed within its jurisdiction.</p> <p>The same view was taken of the omission to prove the year in which the offense was committed, the assumption upon the trial being that it was in the year 1865, as charged in the indictment.</p> <p>While an indictment remains in the court in which it is found, a caption is not necessary. The caption forms no part of the indictment.</p> <p>Where the case calls for no charge on the subject of insanity, no exception lies for neglect or refusal so to charge.</p>