Volume 2 — Lansing's New York Reports

Appeals from a decree of the surrogate of New York, made on the accounting of the executors of the will of Nathaniel Gilman, deceased. Letters testamentary were issued on the 24th May, 1861, the account was filed in October, 1864, was referred to an auditor, who, on the 80th January, 1867, made his report. The decree of the surrogate affirmed this report, with a few modifications.

The will of Francis Saltus, deceased, dated February 3d, 1854, devised and bequeathed the rest, residue and remainder of his estate to his executors, in trust among other purposes, to pay over to the testator’s son, Francis H. Saltus, the income of one-eighth part thereof annually during his life, and afterward to pay and deliver the principal to Francis S. Saltus, the testator’s grandson.

The stockholders of corporations, incorporated pursuant to “An act for the incorporation of companies formed to navigate the ocean by steamships ” (Laws 1852, page 802), are jointly and severally liable for all debts due to laborers for services rendered the corporations, and also to the extent of the stock held by them, severally liable to creditors, for all the corporation debts and .contracts, until the capital stock shall be paid in, and a certificate thereof filed.

Action by the members of a firm of E. A. Kingsland & Co., against the defendants, as members of “ The Kavanagli Association,” to recover upon an indebtedness of the association for goods sold, after judgment recovered, and execution returned nulla bona, in a suit against the association in the name of its president.

The land in question descended to the petitioner from her mother, and the application was for a sale. The petitioner’s father was still living. All the facts requisite, by the common law, to create an estate by the curtesy in the father existed in the case; and he claimed such estate. He was willing to unite in the sale, and take a portion of its proceeds in payment for his interest.

Action in the nature of replevin for a crop of oats. The case, in brief, as stated by the plaintiff’s counsel in the opening, was this : The defendants had been in possession of the land on which the oats were raised, for many years, and, in February, 1868, they assumed, as the agents of one Charles W. Frink, to sell the farm by paroi to the plaintiff.

It was alleged in the complaint that the: defendants, Griffith and Thomas Young, were indebted to Seward B. Clark in the sum of $2,000, being for, a part of the purchase price of lands, &c;; that for the purpose of securing the payment to Clark of the $2,000 and interest, on or about March 19, 1863, they executed to Clark their mortgage, which contained the conditions, covenant and words and figures as follows, viz.: “ This grant is intended as a security for the payment of…

<p>Appeal from a decree of the Surrogate’s Court of Erie county, admitting to probate the last will and testament of Libbius Bagley.</p>

Hill. Jacob B. Hill made and published his will in January, 1850. He died in May, 1867. The proceedings before the surrogate were upon the petition of Mary Hill, the widow of the testator, to compel the executors, &c., to render an account.

<p>Appeal from a judgment of the Cattaraugus County Court, reversing the judgment of a justice.</p> <p>The facts are stated in the opinion.</p>

Appeal by the defendants, Robert Burns, Eddie Burns and Anna Burns, impleaded, &c., from a judgment entered upon the report and decision of a referee. The action was to foreclose a mortgage. Oscar F. Burns and Anna Burns intermarried October 1st, 1850.

This was an appeal taken from an order granted upon a hearing at a Special Term of the court, whereby a demurrer interposed by the defendant John S. Stahl, was sustained to the complaint of the plaintiff in the actidii, which stated that in July, 1847, Wm. P. and Willard J. Daniels recovered a judgment in the Supreme Cotirt against the defendants, Enoch Stahl and John Stahl, junior, for §924.98, in an action on contract, on personal service of process.

<p>Appeal from a judgment entered upon a verdict. .The fcets appear in the opinion of the court.</p>

Appeal by the plaintiff from, a judgment in favor of the defendant,, rendered after trial by the court. The action was against the sheriff of Cattaraugus county, seeking to recover for the escape of Flint and Bullock, who: had been severally arrested and imprisoned in execution upon a judgment recovered against them in November, 1868, on allegations of fraud, for $170.86, for which amount the' complainant demanded judgment.

This was a controversy submitted without action, under • -section 372 of the Code, upon a case agreed upon by the. parties as follows: “ On the 8th day of September, 1869, James II. Goldey was and for several-years prior thereto, had been a private banker (though not-an individual banker under the-statute), keeping an office and doing business in the city of Oswego.

This action was brought to foreclose a mortgage given by? the defendant, Matilda Yeriane, to one Jewel, to secure to him a debt due from her husband. Before the action was-brought the husband had made payments on the mortgage, and at the commencement of the action there remained due but ten dollars. Jewel assigned the mortgage to the plaintiff' who was the holder and owner thereof.

Appeal by the plaintiff from an order, made at Special Term, granting a new trial.

Previous to, and on the 3d day of October, 1863, the defendants were copartners and doing business as liquor mer-. chants in Syracuse, under the firm name of H. 0.

The claim was tried before the referee who found as matters of fact, that Narcissa Yoorhees, in her lifetime and on the 22d of February, 1864, executed to one John Hutchinson, who was her brother, her promissory note in writing, by which on the 1st day of April then next, she promised to pay to him or bearer, $289.63, with interest for value received.

Appeal on the part of George W. Phelps from a judgment entered on the report of a referee. The action was brought to foreclose a mortgage upon the lands and premises described in the .complaint, executed to Jacob M. Cook, by the defendants, Charles G. Kenyon, Peter Mumford, John P. Sliumway, and John S. Kenyon, bearing date the 11th day of May, 1866, described in the ffrst count ■ of the complaint.

The action was commenced against Shearman, on the 10th day of July, 1865, as maker of three promissory notes, and against Ballou' on the 11th day of July, 1865, as indorser of the notes. ■Shearman did not appear, and Ballou in his answer set up that he was accommodation indorser of Shearman on each of the notes, and that the notes had been past due more than six, years before the commencement of the action, and were barred by the statute of limitations.

The action was brought to recover the value of eight cows, which the plaintiff claimed to own, and which the defendant took and converted to his own use.

Case and exceptions on a motion for a new trial. The action was tried at tlie Herkimer circuit, before Morgan, J., and a jury, and a. verdict was rendered for the plaintiff for $1,400. Exceptions were taken and a case made on the part of the defendants, and were ordered to be heard, in the first instance, at the General Term. The material facts are stated in the opinion.

<p>Appeal from an order of the Lewis County Court, affirming the taxation of the costs of the respondent, in that court, and refusing to tax the costs of the appellants. The facts are stated in the opinion.</p>

<p>By taking his appeal from the judgment of a justice of the peace in form as for a new trial, the appellant does not waive the right to insist that an attachment, through which the justice took cognizance of the case, was void. Per Foster, J.</p> <p>Or to raise in the appellate court as fully as he might if he had appealed on questions of law only, all questions properly raised in the court below, excepting those to proceedings which took place on the trial of the action. Id.</p> <p>The affidavit presented to a justice of the peace under the act to abolish • imprisonment for debt (1881, § 83), as the basis for a short attachment, need not state facts showing any fraudulent or improper act, as required in the affidavit on application for a long attachment. Id.</p> <p>But quere, whether an objection that the affidavit do is not s'ate the facts which show that the claim is on contract, and which render a warrant impossible under section 80, is not available to the defendant. Id.</p> <p>When it appears on the return of an attachment issued under section 38, that property has been attached, but that a copy of the inventory and attachment have not been personally served, the justice obtains no jurisdiction of the person until the return of a summons. (§ 88.) Id.</p> <p>If therefore, the defendant appears on return of the summons, joins issue, &c., without objecting to the sufficiency of the affidavit upon which the attachment issued, he waives an irregularity in that respect; and this is so, although he appeared specially for the purpose and took the objection on return of the attachment. Id.</p> <p>The plaintiff in an action to recover for his services under an agreement, to remunerate and board Mm in consideration thereof, may show the value of his services with or over and above board, by the testimony of a witness who has had no knowledge of the value of the board furnished. Id.</p> <p>He may not show the compensation paid him for like services by a former employer in whose service he had been, directly before the services in question, and who had taken him into employment after a prior engagement with the defendant.</p>

This case was submitted under the Code, section 372. The plaintiff claimed to recover for the death of his intestate, against the defendant, a corporation organized under the laws of Connecticut, having authority to insure against death and accident, and upon an insurance policy as follows, viz.: ©5,000.

<p>Tiie facts appear in the opinion of the court.</p>

<p>In an action brought to set aside the deed of a deceased grantor, as fraudulent against his creditors, with a view to a subsequent application to the surrogate for sale thereof under section 72, chap. 466, Laws of 1887, which, as amended in 1848 (chap. 172), renders a judgment upon the merits against administrators, &c., prima facie evidence of indebtedness upon the application. — Held, that the plaintiff did not sustain his complaint by simply showing a judgment in his favor against the grantor’s administrator.</p>

<p>Appeal from a judgment entered on the report of a referee, in favor of the defendant. The facts are stated in the opinion of the court.</p>

Tras action was brought to charge the defendants with liability for the loss and damage of merchandise, while in transitu,. on their boat upon the canal between Rochester and Albany. The plaintiffs were extensively engaged, under the style of “ The Rochester Transportation Co.,” as common carriers .of merchandise upon the canal and river between Buffalo, New York and intermediate places, having a warehouse and office in Rochester, and an office at New York.

The facts found by the referee were substantially these: On the 9th of November, 1857, the plaintiff owned the half of a horse-power dredging machine, used in excavating earth under water, in common with one Osgood, who owned the' remaining half.

This was an action to recover the value of property upon which the defendant had levied under an execution, and sold, while sheriff of Steuben county. The plaintiff was nonsuited, and took this appeal upon a case made, and exceptions. The facts are stated in the opinion of the court.

Appeal by the plaintiff from a judgment entered upon the report of a referee, dismissing proceedings to foreclose an alleged mechanic’s lien. The facts are stated in the opinion of the court.

<p>Where the complaint averred a wrongful talcing and carrying away, and conversion of the plaintiff’s timber from certain described premises, and the answer denied the plaintiff’s ownership of the locus in quo, and evidence had been admitted without objection on the trial, to prove injury to growing timber. — Held, that a cause of action for trespass to land was sufficiently pleaded.</p> <p>By the terms of a contract for sale of timbered land, the vendee agreed that half of all the timber prepared for market, should be applied upon the purchase, and that he would not remove any timber without the vendor’s consent, until the purchase money should be paid; he was to pay the taxes, and have a deed on full compliance with the terms of the contract; and on his failure to perform, it was provided that the vendor should have the right to take possession. — Held, that the vendee had a right of immediate entry, and though not in actual occupancy at the time, such constructive possession under the contract, as enabled him to maintain trespass against one who wrongfully cut timber on the premises.</p> <p>Held further, the vendee having contracted for sale of the land, with reservation of the timber, and for its possession, “ except so far as relates to the timber,” that he could maintain trespass against one who entered under an assignee of his contract of sale, and cut down trees.</p> <p>And that an action against such assignee, for the conversion of timber previously cut upon the premises, would lie by the said vendee by reason of his special property therein, and that if the effect of the agreement with his vendor, was to pledge the timber as security, he was entitled to show a waiver, or fulfillment of the conditions of the pledge</p>

• This was an appeal from a judgment upon the report of a referee in favor of the plaintiff.

This action was brought to recover damages from tl?e defendant for negligent and unskillful treatment of the plaintiff, by whom he had been employed as a surgeon and physician.

The facts are sufficiently stated in the opinion of the court. The case was submitted upon briefs, without oral argument.

This was an'appeal by the' defendant from a judgment of a County Court upon the verdict of a jury after trial on ' appeal from the court of a justice of' the peace. The complaint set forth an action in the nature of trover for certain crops and’other'farm produce, and demanded judgment for $200. The answer was a general denial. The plaintiff had a verdict before the justice for the amount demanded in the complaint.

The complaint averred the conversion of a quantity of winter wheat, the plaintiff’s property, by the defendant, on the 15th August, 1867. The answer denied each and every allegation of the complaint, and set up a sale of the wheat to the defendant on the 9th July, 1867, under a judgment in his favor against one Clute, recovered April 13th, 1867, upon which execution had been issued, and levy made.

The plaintiff sued' to recover possession of various articles of merchandise, alleging in his complaint that the same were of the value of $2,500, and- particularly mentioned' in the affidavit heretofore served- on the defendant, &c. He gave bonds and obtained possession.

The defendant obtained a writ of error to tbe County Sessions of Sene' a. county after bis trial and conviction therein upon an indictment for arson in tbe third degree, which was as follows, viz.: “ At a Court of Oyer and Terminer, held for the county of Seneca, in the State of ISTew York, on the 29th day of September, one thousand eight hundred and sixty-eight, at the court-house in the village of Ovid, in said county, before the Hon Jaines G. Smith, one of the justices of…

This was an appeal from a judgment of the Ontario County Court, reversing the judgment of a Justice’s Court upon the verdict of a jury. The complaint before the justice was in writing, and upon a contract made with the defendant for sale of standing grass, and it demanded damages for a refusal to deliver the same, or allow it to be cut according to the contract.

■Appeal from judgment on report of referee, in favor of plaintiff. The action was brought to recover from the .defendant as executrix, &c., of Christian Mensch, certain sums claimed to be due upon an annuity of eighty-four dollars under the will of the ■ father of defendant’s testator. The answer denied various allegations of the complaint, and set up the statute of limitations.

This was an appeal from an order, entered upon the report of a referee, appointed to determine upon claims to surplus moneys, arising from a foreclosure sale, under a judgment therefor, in the action. The mortgage was given, in his lifetime, by Franklin F. Randolph, deceased, upon premises in New York city, and was dated and recorded in October, 1864.

<p>Appeal by the defendant, from an order at Special Term, whereby he, together with certain other members, seventeen in number, of “the New York Mining Stock Board,” were adjudged guilty of contempt, and fined as for disobedience to an order of Mr. Justice Cardozo, which, after requiring the defendant to show cause at Special Term why an injunction should not be granted as prayed in the complaint, ordered that the said Salem T. Bussell, as president of the New York Mining Stock Board, its officers and members, be, and they each of them are hereby enjoined and restrained, from suspending the plaintiff from his rights and privileges as a member of said board, because of” the matters set forth in the complaint.</p> <p>The order appealed from, had been granted upon affidavits, from which it appeared, that after the order had been duly served upon the defendant personally, with the complaint, &c., while in the board room, he, the board being in session, informed the members present of the service, and thereupon vacated the chair and took no part in the further proceedings of the meeting. It also appeared that the secretary had, during the same session of the board, and after the service upon the defendant, read the summons, complaint and order served, aloud in the hearing of the member’s present, and that afterward a resolution had been passed by the board, to which the members adjudged in contempt as aforesaid had given their votes, or were present acting as members and made no opposition and did not vote against it, suspending the plaintiff from his membership of the board.</p> <p>The members adjudged to be in contempt had presented affidavits that they had never been served with the summons, complaint or the order mentioned; but did not deny their presence or assent upon passage of the resolution of suspension.</p>

Justice Ingkaiiam, at Special Term, upon an order to show cause, and upon the pleadings and affidavits in the action, restraining the defendant, the “New York Mining Stock Board” and each and every of the officers and members of said board, until further order of the court, from enforcing a resolution adopted at one of its meetings, suspending the plaintiff from his privileges as a member of the said board for sixty days.

This was an appeal taken from a judgment upon the decision of Mr. Justice Clerke on a case and exceptions. The plaintiffs brought their suit to obtain the reconveyance of certain lots in Hew York city, claiming the right to redeem the same from the defendant. The defendant denied the plaintiffs’ right to redeem, and set up various releases and other matters in defence.

The testator, who lived in Suffolk county, several years before his death visited his sister, the plaintiff, who resided in the western part of the State. While there he was taken with a sudden and dangerous illness. The plaintiff took extreme care of him and nursed him. The testator after a short illness recovered.

The action was brought to enforce specific performance of a contract bearing date the 28th December, 1868, for the sale by the defendant to the plaintiff of a farm and stock thereon in the county of Rockland, the material parts of the contract are set forth in the opinion of the court. Judgment was rendered for the plaintiff for specific performance, and the defendant appealed.

The action was brought to recover the value of a trun'k and its contents, which the plaintiff claimed to have given into the charge of the defendant, previously to taking passage on its road. The facts are stated in the opinion of the court.

The plaintiffs claimed title, as heirs-at-law of Hannah Youngs, as devisee under the will of her husband, Joshua P. Youngs, deceased. The defendants claimed under the same will as the executors thereof.

This action was commenced in a. justice’s court in Allegany county, on the 30th of May, 1867. Upon the trial before the justice the defendant had judgment for costs. The plaintiff thereupon appealed to the County Court, where the action was again tried, and a verdict recovered by the plaintiff’ for ninety-six dollars. A motion was made for a new trial by the defendant, and denied, and judgment was recovered on the verdict by plaintiff.

<p>Judgment against M. as maker, G. as first and T. as second indorser of a promissory note, was enforced by execution sale of G.’sland, at which T. was the purchaser for the amount due upon the judgment, he having become the assignee thereof, and expenses. T. agreed to give G. three years to redeem, and, persuading M. that nothing had been realized toward satisfying the judgment, agreed with him to satisfy it on receiving certain payments, in the aggregate considerably less than the amount due thereon, and also assigned his certificate of sale to G. on payment by the latter of a sum in full of, and nearly equal to, the amount of .his bid. T. satisfied the judgment as against all of the defendants therein on payment by M. as agreed, and when G. learned of the transaction he sued T. and recovered judgment for the amount paid on assignment of the certificate; but T. being deceased, his estate paid only part of the judgment.— Held, that G. had an election upon discovery of the satisfaction given to M. either to ratify it and claim to recover from T. the amount which ho had paid to the latter, or to ratify the execution salej and recover from M. as principal debtor upon the theory that he (G.) had paid the judgment ; hut that having elected to pursue the former remedy, he could not recover afterward from M. the balance of his judgment against T.</p>

The commissioners appointed by the governor under chapter 479 of the Laws of 1865, selected the village of Little Valley, in the county of Cattaraugus, as a proper, place for the erection of the county buildings, including a court-house, clerk’s office, and other offices and rooms, and a county jail.

This cause -was brought before this court by virtue of a common law certiorari, issued to the assessors of the town of • Dunkirk.

The plaintiff brought this action as the receiver of the Jamestown Farmers’ Insurance Company, upon a premium note made and delivered by the defendant to that company on the 20th day of August, 1853. The note was made and delivered in consideration of a policy of insurance, issued by the company to the defendant, upon a printing press, type, furniture, stock and materials owned by him, and situated in Randolph, in the county of Cattaraugus.

This appeal was taken by the defendant, Johnson, from a judgment entered against him on the verdict of a jury in the Courtland County Court upon a retrial on appeal. The action was upon a promissory note, running as follows, viz.: “For value received we jointly promise to pay John Glover or bearer forty-four dollars and forty-five cents on or before the first day of December next, with interest. “ Dated May 1, 1865. Signed, “HANNAH GLOVER.

The plaintiff in error was tried at the Chenango County Court of Sessions in December, 1869, on an indictment charging Mm with seduction under promise of marriage, under chap. Ill of the Laws of 1848. The jury found him guilty and the court sentenced Mm to imprisonment at hard labor in the State prison at Auburn for the term of two years. He made a bill of exceptions, taken on Ms trial, which formed a part of the record of Ms conviction.

This action was brought before a justice of the peace upon a complaint for wrongfully taking and converting a cow, valued at sixty dollars. The defendants pleaded a sale by the defendant, Smith, as constable, under execution against one Tupper, upon a judgment of a justice of the peace at Delhi, in Delaware county, rendered on or about August 27, 1864.

Barnett and Percy, as administrators of John Barnett, deceased, presented a petition to the surrogate of Rensselaer county praying for authority to mortgage, lease or sell a portion of the real estate left by their intestate, for the payment of his debts. The petition and schedule annexed stated claims amounting to $4,314.26 as the liabilities against the estate.

Error from the Sullivan County Sessions. The prisoner was indicted for- obtaining property under false pretences, and tried at a Court of Sessions held in the said county on the 16th day of November, 1868, and found guilty.

This was an appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee, in an action brought to recover a share of alleged profits in the recruiting business, and for disbursements claimed to have been made in such business, by the plaintiffs, on the defendants’ account.

This action was brought by the plaintiffs to prevent by injunction the destruction of a water privilege attached to their mill. The mill site was purchased by the agreement and conveyance mentioned in the referee’s report, hereinafter set forth, for the sum of §500, and, with the improvements made after the purchase, and the water privileges, was worth $12,000.

Appeal hy the plaintiff from a judgment entered at the circuit against him for costs, in an action to recover for a wagon taken and sold for a fine imposed for not working on the highway. One Lawyer was overseer of road district No. 1, of the town of Schoharie, in the year 1864. His road warrant was in a hook containing the old lists of persons assessed for highway labor in said district for a series of years immediately prior thereto.

<p>This was an appeal by the defendants from a judgment entered on the report of a referee.</p> <p>The action was against the defendants, as common carriers, for damage to a quantity of rye, shipped by the plaintiff, on their boat at Troy, in December, 1862, to be carried to New York.</p> <p>The complaint averred that defendants, as common carriers, received the rye, under a special agreement to carry, at a specific charge for carriage, and an additional charge for extra towing; that the rye was carried, but was damaged by wet on the voyage. The answer admitted the occupation of the defendants, that they received the rye, and cai-ried it, and that it was damaged; but alleged, that by the freighting agreement, the plaintiff was to assume all the risks of the voyage, the defendants being in no manner liable for the safe transportation of the rye; and that the plaintiff was to get the rye insured, defendants to pay the cost of the insurance.</p> <p>It appeared that the voyage was late; that the river was obstructed by ice, and that at Albany, the defendants’ boat ran against another boat lying in the river, causing a leak, which produced the damage. It was conceded that the defendants’ boat was navigated in the ordinary way, and that proper care was taken of the cargo, after injury. And the referee found, that the defendants exercised proper skill and care, in the navigation of the boat, and in notifying the plaintiff of the loss, and in preserving her cargo. The contract for carriage, as alleged in the answer, was substantially proven, and the referee found that by it; “ plaintiff was to take all the risks of the voyage, and that defendants were not to take any of the risks of the transportation.” And also, that “ plaintiff was to procure insurance upon the cargo, and defendants were to pay the premium therefor.”</p> <p>The plaintiff gave evidence to show, that at the time of the agreement, the defendants falsely represented, that the boat, by which the rye was to be carried, ranked as a second class boat, when in fact she was rated as one of the third class on the insurance register, made up in Hew York; that, therefore, the plaintiff could not obtain insurance upon the cargo; that on learning this, before the boat sailed, he notified the defendants, and forbade the transportation of the rye, and that the defendants, nevertheless, carried it to Hew York. Conflicting testimony was given on these issues. The referee found for the plaintiff.</p> <p>Judgment passed against the defendants upon the theory; that their alleged false representation, as to the class of their boat, entitled the plaintiff to rescind the special contract, and forbid the transportation of rye; and that he did so, and defendants having wrongfully carried the rye, the plaintiff could treat them as common carriers thereof, and recover.</p> <p>The defendants excepted to all the findings, upon which this theory was founded, and to the legal conclusions upon it.</p>

Lloyd, the plaintiff’s intestate, brought the action against Carrier, his former partner, after dissolution of their partnership, to recover a balance claimed on account thereof. Lloyd having deceased, pendente lite, the plaintiff was substituted as his administratrix.

This was a certiorari to review the proceedings of the canal appraisers in assessing the damages of the defendant, occasioned by the construction and improvement of the Oswego canal.

<p>A witness called by the prosecution on the trial of a criminal action, upon a direct examination, gave material testimony against the prisoner, but a cross-examination was rendered impossible by reason of her sudden illness, and incapacity to testify further. — Held, the prisoner’s counsel objecting, and claiming to have it stricken out, that it was error to submit the testimony so given to the jury.</p> <p>Where the right to cross-examine is lost without fault, or waiver by the party entitled, the testimony of the witness should be stricken out. Per Mullir, J.</p> <p>The case of Forrest v. Kissam (7 Hill, 463), distinguished-, and some of the dicta therein disapproved.</p>

The complaint demanded judgment, setting aside the assignment of a certain mortgage for §2,000, made by the plaintiff’s assignor in bankruptcy, and also setting aside a foreclosure, and sale of the mortgaged premises, obtained under the mortgage at the suit of an assignee thereof, said assignee having been the purchaser at the sale; or in case of conveyance by the assignee, that the plaintiff might recover the sum paid as the consideration for such conveyanee; and for an…

This was an appeal from a judgment on the report of a referee. The plaintiff was the owner and master of a vessel, and ' received from a shipper in Hew York, a cargo of iron, on' the receipt of which he signed a bill of lading as follows: Merchant's Line. “ Shipped, Hew York, October 12th, 1868, in good order, by II. H. Holt, on board boat Gilbert Candee, of Buffalo, whereof E. Dart is master, the following articles: Care Chas.

This was an appeal, by the defendants, from a judgment entered on the report of a referee, in favor of the plaintiff. The action was brought to obtain an accounting, between the plaintiff and the defendants, as members of a copartnership, known as “ The Carthage, Lowville and New York Line,” and to recover the moneys found due thereon, to the plaintiff.

The plaintiff was by trade a painter, and for the purpose of painting the front of a three story house in the city of Albany, fastened one of the ropes of his scaffold, by tying it to the chimney of the house adjoining, which belonged to, and was occupied by the defendant; and having been injured on account of the falling of the scaffold, brought a suit to recover damages therefor from the defendaút. Upon the trial, he proved that the accident happened on Monday morning, as…

This was an appeal from a judgment, entered on a verdict rendered at the Jefferson County Circuit.

This was an appeal by the defendant from a judgment for the plaintiff entered on a referee’s report. The action was brought under leave obtained therefor in the name of the people, &c., against the defendants, as commissioners, appointed under the act of April 23, 1867 (chap. 581, p. 1561) for the town of Augusta, in Oneida county, for a perpetual injunction restraining them from issuing certain bonds authorized by that act for railroad purposes.

<p>A promissory note, payable to order, was indorsed before maturity, to a holder for value and without notice of any defence, by one assuming to act for the payee, but having no authority to make the indorsement; after commencement of an action thereon by the indorsee the payee ratified the indorsement. — Held, that the note was open to defences, existing between the original parties thereto.</p> <p>And, it seems, that a ratification before suit, if made after maturity, would ■ not relate back'so o's to cut off a defence on the merits.</p>

This was an appeal by the defendant from a judgment for the plaintiff on the report of a referee. The plaintiff sought to recover a sum due on an agreement with the defendant as follows, viz.: “ Received of William D. Perrine, his bond and mortgage for $920, executed by said Perrine and wife to me, as banker of H. Gr.

<p>In an action to recover a balance due upon a contract for sale of two separate patented processes, described in a single written agreement, for an entire sum payable in installments. — Reid, that the vendee was entitled to set-off damages arising out of the vendor’s fraudulent representations as to one of the processes, although the other proved to be more valuable than the price paid for both.</p>

This was an action to recover possession of land in Auburn, Cayuga county, and was tried before the court, and a jury, at the Cayuga county circuit. The plaintiffs proved title, as heirs-at-law, of Dennis C. Low, an infant, deceased, whose title was derived as heir-at-law from Dennis 8.

. Demurrer to the answer. The action is brought to recover penalties imposed for the violation of the “ act to suppress intemperance and to regulate the sale of intoxicating liquors,” passed April 16, 1857, chap. 628. It was commenced Janu ary. 1, 1870. The defendant by his answer set up the statute of April 11, 1870, entitled “An act regulating the sale of intoxicating liquors,” chapter 175.

This action was brought to recover damages for an injury to the plaintiff’s canal boat, at lock number nine, on the Chenango canal, on the 9th day of October, 1867; and for damages for the unloading and detention of the boat, and the detention of plaintiff’s servants and team, in consequence of the injury to the boat. The boat was loaded with coal, and was going north.

<p>An order for the support of a poor person, under 1 B. S., 614, § 1, et seq., is not invalid, because two out of five children of such person, are directed to furnish the support, nor because they are directed to contribute thereto, in unequal amounts.</p> <p>The liability of the children charged by the order is several, and either is liable on default, m an action to recover the payment required of him by the order.</p> <p>An action also lies for the costs awarded on granting such order, against the parties severally charged therewith under -section 6.</p> <p>In counties where all the poor are a charge upon the county, the action is properly brought by the superintendent of the poor (§ 13).</p>

This was a motion for a new trial, heard, in the first instance, at General Term.

This was an appeal from a judgment entered on the report of a referee. The action was brought to recover damages for an alleged trespass upon the plaintiff’s premises.

<p>To maintain kis action as administrator, the plaintiff proved letters of administration in wkick kis intestate’s decease, and residence immediately prior tkereto in tlie county of tke surrogate from wkom the letters issued, were recited. — Held, tkat tkere was prima fade evidence of tke facts so recited.</p> <p>Proof tkat tke intestate did business and had an office in tke county, is, it seems, presumptive evidence tkat ke resided tkere at bis decease.</p> <p>An assignment of a bond and mortgage, and “ tke moneys due and to grow due tliereon,” carries by its terms a note for which, they arc held as collateral.</p> <p>The debtor upon a security for a sum exceeding $1,000, may not impeach a transfer thereof on the ground that it was made for a moneyed corporation (1 R S., 591, § 8), by its president, without authority by previous resolution of the board of directors.</p> <p>Nor can he avail himself of an objection that such transfer was made by the president to pay an individual debt, and without consideration passing to the corporation.</p> <p>And, it seems, without proof to the contrary due authority to the president will be presumed in favor of the transfer.</p> <p>The assignee of a mortgage is a purchaser of “real estate” within the intent of section 1 of the recording act (1 R. S., 756); and the assignment being made in good faith and for a valuable consideration, he is protected by the record thereof against a release subsequently made by his assignor.</p> <p>The principles of the recording acts are extended by the Bevised Statutes to assignments of mortgages. Upon this point Yanderkemp v. Shelton (11 Paige, 38) reaffirmed, and Hoyt v. Hoyt (8 Bosw., 577) distinguished and explained. Per Talcott, J.</p>

This was a motion for a- new trial on a case and exceptions heard by order of the court at General Term, in the first instance. The action ivas upon a promissory note payable to bearer, and signed by the defendants who were jointly and severally chargeable as makers by the terms of the note. The facts are stated in the opinion of the court.

The complaint in this action set forth a policy of life insurance, dated July 25,1868, issued by the defendant, upon the lives of the plaintiff and of Albert Koelges, her husband, for the sum. of $4,000, payable, upon the decease of either of the insured, to the survivor; and providing, among other things, for payment of the sum of $26.93 on or before the 25th days of October, January and April then next; and also of an annual premium of $172.32 on or before July 25th, in…

This was an appeal from an order sustaining a demurrer to certain defences, interposed to the complaints in an action against the defendants, seeking to charge them as common carriers. The facts are stated in the opinion of the court.

This Avas a motion for a new trial upon exceptions ordered to be heard in the first instance at General Term. The facts are stated in the opinion of the court.

This was an appeal from an order for a pluries execution, granted upon motion at Special Term, upon an order to show cause. The facts are stated in the opinion of the court.

This action was brought to recover damages for injuries received by the plaintiff, while in the employ of the defendant and in obeying the orders of one Westman, the defendant’s employee, and was tried at a Circuit Court in Albany county in May, 1869. The facts are stated in the opinion. At the close of the testimony the plaintiff was nonsuited, which nonsuit ivas asked by the defendant upon the following grounds: First.