Volume 2 — Thompson & Cook's New York Supreme Court Reports

The action was brought in December, 1869, to recover the sum of $2,200 on a special agreement. The defense was a general denial. The case was referred to Hon. H. 0. Van Voorst, and is still pending. During an adjournment of the case, on October 8th, 1872, the defendants were adjudicated bankrupts in the H. S. district court for Massachusetts.

<p>Mortgages—holder of mortgage against estate of deceased person—conflict of lom—personal property— lex rei sitie.</p> <p>A citizen of New York died leaving personal property there and real estate situate in South Carolina which was mortgaged. He left a will wherein he directed his estate to be divided among persons therein named. The will was proved in New York and also in South Corolina; in the latter State as a will of personal property only, it not being properly executed to convey real estate, and the real estate descended to the heirs. The heirs, by suit in South Carolina, recovered the real estate and obtained a decree that the executor under the will pay the mortgage out of the personal property. Afterward the executor petitioned the surrogate of New York for a final accounting, and cited the holder of the mortgage who appeared and filed his claim.</p> <p>Meld, that the mortgage creditor was not compelled, by 1 R. S. 749, § 4, to resort for payment to the land in the first instance, but might either foreclose the mortgage or resort to the personal property. Boosevelt v. Carpenter, 28 Barb. 426, followed.</p> <p>The object of the statute in question was not to interfere with the rights of the mortgage creditor, but to establish an equitable rule among the heirs and devisees.</p> <p>A court of equity, however, can compel the mortgage creditor to first exhaust his remedy against the mortgaged property, before resorting to the personal estate.</p> <p>In this case, the existence of a judgment in a court of South Carolina, decreeing payment of the mortgage out of the personal estate, will not accomplish such object here. The judgment has no extra territorial force, and only applies to personal property situated in South Carolina.</p> <p>A nation within whose territory personal property is situated has as entire dominion over it, while therein, in point of sovereignty and jurisdiction, as it has over immovable property situate there.</p>

<p>Partnership — dissolution — agreements between partners — construction of— final accounting — express promise to pay.</p> <p>In 1859, plaintiff and defendant’s intestate each owned a hank in Wisconsin ; plaintiff the C. bank, and the other the M. bank. They formed a copartnership, each contributing his bank, and together they contributed a bank known as the L. bank, and each contributed some money. The partnership thus formed continued until 1861, when it was dissolved. During the time the three banks continued to do business as such, and had transactions with each other, as though no partnership existed between the owners. At the time of the dissolution the books of the banks showed that the M. bank was indebted to the C. bank $1,000, and that the L. bank was indebted to it $8,000.- Upon dissolution, plaintiff transferred to his partners all his interest in the M. and L. banks, and his partner transferred to him all interest in the C. bank. The partners agreed in writing that the M. and L. banks should pay plaintiff the $8,000 due the C. bank, as soon as they con. veniently could, with interest at the rate of 12 per cent; and defendant’s intestate pledged “ his honor to pay the balance ” as soon as it could be done without pressing the banks.</p> <p>In an action upon this agreement held, that the indebtedness, if any, was not in favor of plaintiff against the two banks as such, but against the intestate, arising out of partnership transactions; that there was not shown to have been a final accounting between the partners, or an express promise on the part of the intestate to pay, and that plaintiff could not recover.</p> <p>The rule in this State is well settled, that one partner cannot recover at law against another, except after a final accounting, balance struck, and express promise to pay.</p>

The complaint was filed, in this action, on the 13th of April, 1872 and sets forth the issuing by the Mutual Life Insurance Company, the defendant, of two policies of insurance upon the life of John S. Barry for the benefit of his wife, the plaintiff. The insured died in March, 1872, and this action is brought to recover the amount of these policies.

This action is of the same nature as Ho. 1 of the same title. In this case the claims against the county sought to be enforced were for stationery supplied to the sheriff of the city and county of Hew York.

<p>Partnership — transactions between pa/rtners—undue influence—void transfers — collusive foreclosure—laches —review of equitable proceedings.</p> <p>Defendant and a younger brother were copartners in business, carrying on two extensive establishments. The brother, in consequence of unfortunate private transactions and ill health, became mentally enfeebled. While in that condition, at the earnest solicitation of defendant, the brother consented to the transfer of his interest in one of the establishments upon the books of the firm to the defendant and ordered it to be done. At about the same time, he conveyed to the defendant by deed all his interest in real estate, of considerable value, owned by the firm. About nine months afterward, the brother being sick at home, defendant caused to be made out an erroneous balance sheet, wherein, by means of false and improper entries, the interest of the brother in the firm property was made to appear very small in amount, although, at the time, the real amount or value of his interest was very large. The defendant at the time expressed a determination to wipe out his brother’s interest altogether. The brother took no part in making out this balance sheet, and did not consent to the methods employed in making it, but was induced by defendant to transfer, in consideration of the amount of his apparent interest upon such balance sheet, his interest in the second establishment. On the same day he conveyed by voluntary deeds valuable lands owned by him in Cayuga and Wayne counties, and three days thereafter, by voluntary deed, valuable real estate in New York owned by him, and constituting the remainder of his property. This last conveyance was proved to have been made in consequence of threats and promises of defendant at the time. While these transfers were being negotiated, defendant held out to the near relatives and friends of his brother that it was necessary to do what was being done in order to prevent the brother’s property being seized to satisfy his individual liabilities, and to avoid embarrassment to the firm business, but there was no evidence that the brother transferred his property to avoid payment of his debts, and he had no reason so to do. At the time of the transfer of the first establishment, the knowledge of the condition of the business of the same was exclusively with defendant, and the brother never knew how it stood, and in this action defendant declined to produce such account books as were kept in connection with it.</p> <p>In an action by the executors of the brother to set aside the transfers of the property, on the ground of fraud and undue influence, held, that the burden of proof was with the defendant to show that the transfers first made were the result of investigation, and that the consideration was fair and adequate, or, at least, arrived at after the brother had the same light that defendant possessed.</p> <p>Equity will scrutinize agreements between partners closely and watchfully, and will not permit them to stand if it can discover that they were brought about by concealment, unfairness, or other unconscionable conduct.</p> <p>Held, also, that the relation oí blood and that of trust growing out of the partnership indicated, when taken in connection with the brother’s feeble state, the existence of dominion and influence, and called for proof of the purity of the transactions. Plaintiffs established affirmatively the existence of undue influence, which not being controverted by defendant, the transfers should be set aside.</p> <p>Certain mortgages upon the real estate were foreclosed at the instigation of the defendant, who purchased at the foreclosure sales. Held, that he acquired no better title thereby.</p> <p>The plaintiffs waited some years after they were entitled to bring the action before commencing it. Held, that they were not guilty of laches, the statute not having run and no estoppel or acquiescence being shown.</p> <p>In equity actions the court will always look at the entire case, and see whether substantial justice has been done, and where that appears, it will affirm the judgment, notwithstanding the admission of testimony which, in ordinary actions at law, might have necessitated a new trial.</p>

This is an appeal from a decree of the surrogate of the county of New York, admitting to probate the alleged will of Samuel A. Belding, deceased. The facts sufficiently appear in the opinion.

Justice Fancheb, made at chambers, May 22, 1873, denying the prayer of the petitioners to vacate an assessment for'paving Avenue B, in the city of New York, with Belgian pavement.

Actioh to set aside and avoid the deed hereinafter referred to. The plaintiff, a married woman, was the owner, as her separate property, of certain real estate 'which was occupied as a dwelling-house by her family, consisting of L. M. Hoffman, her husband, and Ring Hoffman, her son. These last-named two persons were copartners doing business as brokers under the firm name of L. M. Hoffman & Co., and had become indebted to the defendant Wm.

<p>Statute construction — New York city hoard of audit — mandamus. Laws 1870, chaps. 137, 383; 1871, chap. 213.</p> <p>The relator furnished a quantity of water-meters under a contract with the city of New York, made through the commissioner of public works, under a special provision of chap. 383, Laws 1870, § 13. By chap. 213, Laws 1871, § 5, the comptroller of New York city is directed to raise on revenue bonds such amounts as may be necessary to meet the expenses incurred in procuring, connecting and setting the meters, and to " pay for the same, on the requisition of the said commissioner of public works.”</p> <p>Held, that the requisition of the commissioner was not final as to the right of the relator to compensation, nor was the comptroller upon its presentation bound to pay the sum named. The provision of the act of 1871, directing the comptroller to raise the money and pay for the meters, did not repeal §§ 37 and 39, Laws of 1870, chap. 137, which established an auditing bureau, and declared that moneys drawn from the city treasury should be upon vouchers examined and allowed by the auditor and approved by the comptroller.</p> <p>Held, also, that a return by the comptroller to a mandamus to compel payment for such meters, that the sum claimed for the meters was not due ; that the meters were not made of the best quality of brass, and were not such as were agreed to be furnished, etc., and that the contract between the relator and the city was entered into by fraud and covin, were material, imd could not be stricken out.</p> <p>The contract made with the city and the debt due under it could be enforced by action. But it did not necessarily follow that the relator was not entitled to mandamus to enforce his claim. In case a proper audit had been made and the comptroller refused to pay, mandamus might properly issue.</p>

This was an action to compel an accounting. The complaint is sufficiently set out in the opinion.

This action was commenced by the attorney-general for a perpetual injunction, restraining the defendants, Charles H. Mallory & Co., from erecting a shed over pier No. 20, East river, under a permit from the dock department of which the following is a copy: j seal. ) (E | c. 1,360. j “ City op New York, ) Department op Docks, > 346 & 348 Broadway. ) “No. 189.

<p>Henvwrrer—insufficient defense — adverse user—nuisance.</p> <p>Plaintiff brought action for breach of a city ordinance and set forth that defendant, in violation of such ordinance, did “ cast and deposit in O. river, which forms one of the harbors in said city, and in a raceway leading from defendants’ mill into said river, the same being one o.f the water channels of said city, sawdust, etc., which had the effect to fill up and obstruct the water channels and harbors of said city, etc. Defendants set up in answer, among other things, that the raceway is not a part of the 0. river, nor a public highway, nor the property of the city, but an artificial channel belonging to defendants and used by them for upward of twenty years to float sawdust, etc.</p> <p>Held, that this did not meet the charge that defendants cast and deposited sawdust, etc., in the 0. river, which filled up and obstructed the water channels, etc, and was an insufficient defense, and bad on demurrer. Defendants had no right to so use their raceway as to fill up and obstruct the water channels of the city, and the legislature had a right to make provision to pervent the abuse of defendants’ right of using their raceway by prescribing the mode and manner of using it.</p> <p>Held, also, that filling up the channels and harbors was a public nuisance which no length of time would legalize.</p>

Appeal by the plaintiff from a judgment for the defendants entered upon a verdict. The action originated in a justice’s court; the defendant pleaded title; it was dismissed and begun in the supreme court. The facts appear in the opinion.

The testator, Joshua H. Story, died in April, 1871, at Cooperstown, Otsego county, leaving a will and codicil which were duly admitted to prohate by the surrogate of that county. The will contained about twenty-six clauses, besides a codicil containing two clauses.

<p> Will—undue influence—evidence. </p> <p>A testator left surviving him a widow and a son by a former marriage. By his will he gave all his property, amounting to $5,330, to his widow, except a legacy of $25 to his son, and one of like amount to the widow of a deceased son. It was shown that the' testator was a man'of strong will and decided character and determined to have his own way; that his wife and son were not on good terms, and she had, on some occasions, complained of her treatment by the son in the presence of testator, and had also declared her belief that the son was dishonest in his dealings with testator. It was also shown that the will was drawn under testator’s directions, and his wife was not present at the time; that his mind was clear, and that he gave at the time satisfactory reasons for the disposition made of his property, viz.: That the son had more property than he himself had ; that the deceased son’s widow had friends that would take care of her; that he had no more property than he ought to leave to his wife; that his wife had been kind to him and prolonged his days, etc. It was shown, also, that testator had expressed himself as dissatisfied with the conduct of his son to himself and wife, and had, shortly before his death, stated such conduct as one of the reasons for the provisions of the will.</p> <p>Meld, that there was no evidence of undue influence on the part of the wife; that no inference of such influence could be drawn from the complaints made by her concerning the son’s conduct; nor could such an inference be drawn in such a case as this, from the fact that the wife was the donee of the whole estate; and that the will was entitled to admission to probate.</p>

The action is upon two notes of $1,000 each, made by the defendant G-abriella Miller payable to the order of Charles Miller, and by him indorsed. The defendant Charles Miller did not interpose any defense.

This action was brought to recover the sum of $610, and’ interest from February 19, 1864, for an alleged indebtedness which, it was claimed, arose under the following facts: Under the call of the president of the United States, in the year 1863, for volunteers to serve as soldiers, on the 2d day of January, 1864, a special town meeting of the voters and citizens of the town of Pittsfield, in the county of Otsego, was convened, at which, by resolution, it was voted that the…

Motion by defendant for a new trial upon exceptions ordered to be heard in the first instance at general term after verdict for the plaintiff at circuit. The facts appear in the opinion.

Exceptions ordered to be first heard at general term. The case was tried before Justice Baloom and a jury, at the Tompkins county circuit, in October, 1872. The action was brought upon a promissory note, of which Howell, one of the defendants, was maker, and the other defendants indorsers, which fell due on the 25th day of November, 1870. It is contested by the indorsers alone, on the ground of defective notice. The note was discounted at the plaintiff’s bank.

<p>Manslaughter—repeal of statute—saving cla/use—Laws 1869, chap. 681 — Laws 1872, chap. 181—general repealing act.</p> <p>Plaintiff wag indicted, tried and convicted of manslaughter in the second degree, under Laws 1869, chap. 681, § 1, relating to abortions. The act was committed March 15,1872, and the indictment, trial and conviction were had April 24, 1872. On the 6th of April, 1872, a law was passed (Laws 1872, chap. 181), changing the character of the offense and increasing the punishment. By § 5 of such law all acts and parts of acts inconsistent therewith were repealed, and by § 6 it was directed to take effect immediately.</p> <p>Meld, that the provision in question of the act of 1869 was inconsistent with and was repealed by the act of 1872; and there being no saving clause in the latter act, the repeal was applicable to offenses committed prior to its passage as well as to prospective offenses, and under the provisions of that act plaintiff would not be liable to indictment for the offense he had committed.</p> <p>But the provision of § 6 of the general repealing act of 1828 (8 B. S. 155; 1 Stat. at Large, 72), that “ no offense committed, and no penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed, shall he affected by such repeal," etc., is applicable to the law of 1869; and such statute continued in effect as to the offense and penalty, and the indictment, conviction and judgment against plaintiff were right.</p>

peremptory mandamus, commanding the appellants, commissioners of the town of Pitcher, Chenango county, to issue and deliver to the relator, bonds of their town, in aid of the construction of relator’s road, to the amount of $41,900, or proceeds of such bonds to an equal amount. The return to the alternative writ was as follows: “We, Norman P. Hitchcock, D. R. Hakes and William Taylor, dq answer and return to the supreme court above mentioned: “ 1.

Common-law certiorari to bring up an order of referees, affirming an order of the highway commissioners of the town of Germantown, Columbia county, altering a public highway. The change was, substantially, by adding two rods additional in width to the former road. At the hearing before the referees, the relators offered to prove that no legally1 constituted jury had certified to the necessity or propriety of the proposed widening.

398), and of the several acts amendatory thereto, to carry into effect the purposes and provisions of the said acts.

This is a writ of error to review a judgment and conviction of the Albany oyer and terminer. The plaintiffs in error were convicted of grand larceny. The indictment was also, jointly, against one James Mulhall, who has not been arrested, and James Palmer, alias Davis, not tried. The larceny charged, was the taking from the possession of one Job H. Reynolds, a stranger, who arrived in Albany, in April, 1873, about $300 in money, and a gold watch, of the value of about $80.

<p>Certiorari to review proceedings, had before the recorder of Elmira. The facts sufficiently appear in the opinion.</p>

<p>Partner ship — what is not—special agreement—Practice—modification of judgment.</p> <p>S.,by contract in writing, agreed to work the farm of C. on shares, and to take a certain number of cows and keep them in a certain manner. It was also verbally agreed that a ton .of feed should be purchased for the cows and that each should pay for one-half thereof. S. bought the feed of plaintiff, acquainting him with the agreement. Held, that such an agreement did not render S. and 0. partners in the purchase of the feed, and that each was severally liable only for one-half the purchase price.</p> <p>An action was brought in a justice’s court against S. and C., jointly, for the price of the feed. Judgment was rendered in favor of plaintiff, which was affirmed by the county court, upon an appeal by C. Held, that the pleadings might be amended to meet the case (Code, § 64, subd. 11), the name of S. stricken out as an unnecessary party (Code, § 173) and the judgment affirmed against C., to the extent of one-half the amount rendered in the courts below.</p>

<p> Mortgages—priority of lien. </p> <p>L. had a contract from B. for the purchase of certain premises for $2,500, upon which he had paid $100, April 1st. L. represented, to plaintiff that he was the owner of such premises, and plaintiff then agreed to loan L. $1,500 on a mortgage upon them. L. accordingly executed to plaintiff a bond for $1,500; plaintiff paid him $900, and it was agreed that plaintiff should send the remaining $600 to L. on the following day, and that L. should execute the mortgage and deliver it for plaintiff to the county clerk for record. On the following day plaintiff sent L. the $600. L. paid B. upon the contract $900, April 2d, and $500, April 3d. On the 6th April, L. paid B. $100, received from B. a deed of the premises, and gave back a mortgage to B. for $900, the balance of the purchase-money. On the 14th day of April, L. delivered to the clerk for record, his deed from B., and also the mortgage which he had agreed to execute to plaintiff. April 17, B. assigned his mortgage ftir $900 to defendant, and on the following day, that mortgage was recorded. Neither plaintiff, defendant nor B. had notice of any of these transactions, except those in which they acted, as stated above, personally.</p> <p>Held, that the lien of plaintiff’s mortgage was superior to defendant’s.</p>

Exceptions ordered to be heard in the first instance at special term after trial, and verdict in favor of plaintiff. The facts appe'ar in the opinion.

Robert McKinstry, late of the county of Columbia, .died October 27th, 1870, having duly made his last will and testament and codicil .thereto. At the time of the testator’s death there were fourteen nephews and nieces living, of whom Jane Sanders died on the 27th of October, 1871, and Jane P. McKinstry died on the 24th of December, 1872.

<p>Will — construction of— remainder, when it vests.</p> <p>A will contained the following: " It is my will, and I hereby direct that so much of my estate shall be safely invested on interest as will produce an annual income of $600, and that the same be kept so invested by my executors and the interest paid to my said wife, annually or semi-annually, for and during her natural life, in the manner directed in and by the second item of this, my said will, and after the decease of my said wife, Mary Ann, the said principal sum to be equally distributed among my heirs at law.” One of the testator’s sons, living at testator’s death, died before the death of his mother, leaving a widow, his administratrix, but no children. Held,, that the principal vested in the testator’s children at his death, and that, upon the death of the mother, the son’s widow was entitled to his share as his representative.</p>

The prisoner was indicted at the Otsego oyer and terminer on the 20th day of September, 1872, for advising and procuring one Clara Penry to submit to the use of an instrument by one William TCrandall, with the intent to produce the miscarriage of the said Clara Penry, and the indictment charged that the death of the said Clara Penry and that of the child was produced by the use of the instrument. He was tried upon the indictment, at the oyer and terminer held in June, 1873.

Writ oe error to the Delaware county sessions. The defendant was indicted for selling intoxicating liquor without license. He was tried at the June sessions, 1873, found guilty and sentenced to be imprisoned in the county jail for ninety days, and pay a fine of $100. The other facts will sufficiently appear in the opinion.

Writ of error to the Washington county sessions. The plaintiff in error was indicted for, and convicted of, a violation of the excise law, in selling liquors in quantities less than five gallons at a time, without a license. The counsel for the prisoner asked the court to exercise its discretion as to the punishment or sentence of the defendant.

Exceptions ordered td'bVheard in the first instance, at the general term, after verdict for plaintiffs at the circuit. The action was brought upon a policy of insurance against accident and death for $5,000, dated January 1, 1868, upon the life of Elliott J. Kidder, who died of a pistol-shot wound, on the 10th of February, 1868. The plaintiffs are the children of the deceased,- and the payees of the policy. The action was begun October 17, 1868.

Motion by the plaintiff for a new trial on exceptions ordered to be heard in the first instance, at the general term. The action was for false imprisonment. The defendant Viets is a justice of the peace. One Becroft, at the request of the other defendant, Cronk, made an affidavit upon which Viets, the justice, issued a warrant for larceny against the plaintiff and two of his sons. .

Appeal, from a judgment in favor of defendant entered upon the report of Benjamin H. Hall, Esq., referee. The action was brought to recover an alleged balance of $319, claimed to be due the plaintiff from defendant on account of a loan of money. The answer was, 1st. A general denial; 2d. Payment; 3d. Accord and satisfaction; 4th. Arbitrament and award.

Appeal by the defendant from a judgment entered upon the report of Hon. Charles Mason, referee.

<p>Certiorari to bring up the proceedings of the canal board. The facts appear in the opinion.</p>

This action was brought by plaintiff to recover of defendant damages occasioned by a dam across the Schenevus creekj which runs through the lands of plaintiff and defendant, and thereby caused the water of said creek to set back upon and overflow a portion of plaintiff’s land. The action was commenced in April, 1863. The answer was a general denial, and a former suit in bar of the action.

Abpeal by the defendant from a judgment for the plaintiff entered upon a verdict, and from an order denying a new trial. The action was brought to recover upon a policy of insurance for $3,000, dated November 22, 1870, upon the life of one Oliver 0. Fitch, who died December 17, 1870, and was tried at the Columbia circuit, January 20, 1873, before Mr. Justice Ingalls and a jury, and resulted in a verdict of $3,313.89 for the plaintiff.

Action on a promissory note made by Dillon Beebe & Co., August, 1869, payable to the order of Horace Loveland, and by him transferred to plaintiff, after maturity. The defendant, Holland, was a member of the firm of Dillon Beebe & Co., lumber merchants, Holland residing at Buffalo and Beebe at Toledo. On the 9th of March, 1868, Loveland was employed by the firm as agent. On the 29th day of March, 1869, the partnership was dissolved.

<p>Appeal from a judgment, in favor of the plaintiff, upon a verdict rendered at the circuit. The opinion states the facts.</p>

<p>Huisanee— overflow from mill-dam—notice to owner.</p> <p>In an action for damages for the overflow of a mill-pond it was shown that defendant, the owner of the pond, was not in possession, having leased the same to a third party. Held, that the owner of the premises overflowed could not recover for such overflow, without showing that defendant had notice or knowledge of the existence of the same before the action was brought.</p>

Appeal, from judgment on verdict. The cause was tried before Justice Bockes, and a jury, at the Schenectady circuit, in March, 1873.

This action was brought to recover damages for slander, and was tried, at Warren county circuit, in September, 1872, and a verdict rendered for plaintiff for $300. Judgment was entered upon the verdict in favor of the plaintiff, and the defendant appeals. The plaintiff charged defendant with having maliciously and falsely said of plaintiff: “I want you to pay me for the hay you stole- from me. Henry 0.

Exceptions ordered to be first heard at general term. The cause was tried at the Albany circuit, in December, 1872. The action was upon a policy of insurance issued by the defendants on the Binghamton inebriate asylum. It appeared upon the trial, that in 1867, in pursuance of an act of the legislature, the trustees of said asylum conveyed it to the State. On October 28, 1869, the defendants issued to the people a policy of insurance upon the building for one year.

<p>Beal property — excavations — damage to adjoining soil and buildings—negli genee—Laws 1872, chap. 786.</p> <p>The legislature, by a special act (Laws 1872, chap. 786), authorized the canal board to investigate the claim of a private firm for injuries done to the premises of said firm, by excavations made in repairing the canal, and if the facts proved were such as would create a legal liability, if proved, in a civil action against an individual to award damages to such firm. It appeared that the employees of the State excavated alongside the wall of a building standing upon the extreme boundary of the premises of said firm, in consequence of which the soil under such wall fell out and let down the building. The soil was quicksand, and the proof was sufficient to justify a conclusion that the soil would have fallen out if no building had been erected upon the lot. Meld, that an individual would have been liable for injury done to the adjoining lot, and the canal board were authorized to make an award of the damages under the act in question to the extent of the injury done to the soil, but not for the building.</p> <p>The whole amount allowed by the act was awarded. It did not appear distinctly what portion of the damages claimed by the firm was for injury to the building or what for injury to the lot alone. Meld, that the award could not be set aside on that account.</p> <p>The wall which fell was protected by substantial piling. The excavation was made more than two feet below and the earth removed for about seventy-five feet along and the excavation was left in that condition. Held, that there was evidence that the work was so negligently performed as to create a liability.</p> <p>Held, also, that the firm was entitled to reasonable notice of the intended excavation, in order to enable them to protect their building.</p>

<p>Hhidence —former adjudication—waste — growing timber — intent.</p> <p>In an action by the owner of the fee of a farm, against the lessee of the tenant for life for waste, a judgment in a former action for waste upon the same premises, between the same parties, bjit not for the acts alleged in the action at bar, was offered in evidence. The question at issue was whether the acts complained of in the action at bar were waste. Held, that the judgment was inadmissible.</p> <p>The alleged waste consisted in cutting growing timber for fuel. At the trial the court charged that if the trees which were down were unfit for fuel, or would cost more than their value to secure them, the defendant was not bound to take them. Held, correct. The tenant for life of farming land is entitled to cut down and use so much of the standing timber therein as may be necessary for fuel, etc., and is not compelled to cut timber which may cost more than its value to secure.</p> <p>The complaint alleged that the defendant maliciously cut the timber, and the plaintiff sought a forfeiture and eviction. Held, that defendant was entitled to testify that he cut the wood in good faith, believing he had a right to do so.</p>

Actioe to recover for an alleged conversion of a portable steam engine, boiler, rubbing bed, pulleys, shafting and other apparatus connected with the engine. The plaintiff had a verdict; the entry of judgment was stayed and the exceptions were ordered to be first heard at general term.

<p>Appeal from a judgment in favor of plaintiff, entered upon the report of a referee. The facts sufficiently appear in the opinion.</p>

In July, 1871; the plaintiff was in the employ of one Harris, who kept the American Hotel in the city of Watertown. The defendant lived some 15 miles distant, and was accustomed to stop with his team at said hotel. He owned a pair of mares, one of which was a restless, nervous animal, and as the referee finds, accustomed, when hitched, to pull upon her halter and occasionally, break it.

<p>Appeal from, a judgment in favor of the plaintiff, in an action to obtain satisfaction of a judgment out of real estate claimed to be conveyed to the judgment debtor’s wife, in fraud of his creditors. The facts appear in the opinion.</p>

<p>Action against sheriff—demand—Statute construction—Oodc, § 291.</p> <p>A demand is not necessary before bringing action against a sheriff for moneys collected by him npon execution, and which he retains in his hands. The Code has not changed the rule in this respect.</p> <p>The provision of § 291 of the Code, that “ existing provisions of law not in conflict,” etc., “ shall apply to executions,” etc., refers to the law as established by the courts, as well as that established by the legislature.</p>

On the 25th of August, 1870, the defendant issued a policy insuring the life of William P. Swift, to the plaintiff, who was his wife, in the sum of 83,000. Held: as matter of law, that the policy was void from the time it was issued, and ordered-a nonsuit.

In July, 1871, Charles M. Syme made a parol agreement with the defendant, Elvira Bentley, to purchase from her a house and lot in Rochester, for $2,800, and entered into the actual possession of the premises. By the agreement, plaintiff was to pay $500 down upon the delivery of a deed, in which his wife was to be named as grantee.

<p>Mechanic’s lien — extent of.</p> <p>Respondent, under an agreement with the contractor, did work, by the day upon appellant’s building, from January 22d to March 5th, and again from April 8th to April 19th. He filed a mechanics’ lien, under Laws 1854, chap. 402, for such labor, on May 11th, by which he claimed a lien for wages for the whole time he worked. Meld (following Spencer v. Barnett, 85 N. T. 94), that he was entitled to a lien for only the work done during the thirty days next preceding the time of filing his notice of lien.</p>

<p>Appeal by the plaintiff from a judgment of the special term of the superior court of Buffalo, entered upon the decision of that court. The action and appeal were removed to this court under a certificate, pursuant to Laws of 1873, chap. 239, that there were no two judges of the superior court qualified to act in said appeal. The necessary facts appear in the opinion.</p>

<p> Practice—marriage of female plaintiff pending suit—abatement—fraudulent comeyance—rights of grantee—consideration. </p> <p>Plaintiff, a woman, commenced an action and afterward married. The action was referred after issue was joined, and in the order of reference it was provided that the changed name of the plaintiff might be entered, without motion. At the trial before the referee, the defendant objected to proceeding, on the ground of plaintiff’s marriage. The order of reference was produced and the proceedings continued in the cause, as originally entitled. Subsequently, an ex parte order was entered by the clerk, under the direction of plaintiff's attorney, substituting plaintiff’s name after for her name before marriage. Held, that under section 121 of the Code, there was no abatement of the action by reason of marriage of the plaintiff, until it should be so ordered by the court, and no such order having been obtained the proceedings after the marriage were regular.</p> <p>The defendants, in order to defraud creditors by voluntary deed, conveyed certain real estate to plaintiffs’ intestate. Afterward they asked the intestate to reconvey the property to them, which he refused to do unless a mortgage for $1,200 was executed back to him. The mortgage was executed and he reconveyed the property. Held, that the fraudulent conveyance could not be impeached by defendants; the intestate was entitled to require the mortgage as á condition of reconveyance, and the consideration of the mortgage was valid. ■ • .</p>

The facts sufficiently appear in the opinion. The action was commenced against Wm. M. Coburn, who died during its pendency, and the administratrix of the deceased was substituted.

Appeal by the defendants, heirs at law of William C. Lefevre, deceased, late of Carthage, Jefferson county, N. Y., from a decree of the special term, entered upon the decision of Mr. Justice Doolittle, giving construction to the last will and testament of said William 0. Lefevre. The testator died March 4, 1872, leaving personal property about $45,000, and real estate $2,000.

In the summer of 1867, plaintiffs exchanged wagons with the defendant. The plaintiffs’ wagon was a new one, and the defendant’s an. old one. By the terms of the exchange defendant agreed to give, in addition to his wagon, $15 in money, and two notes against one Stephen Vaughn, for $50 each.

Actios of ejectment, tried at the Yates circuit in March, 1873, before Mr. Justice James 0. Smith, and a jury. A verdict was rendered for the plaintiff. Exceptions were ordered to be heard in the first instance, at the general term. The action was originally commenced against Franklin J. Green. He died, leaving Henry Gage and Carrie Green in possession of the premises, and they were substituted as defendants.

The action is upon a promissory note described as follows : “ $185 Tboupsbuegh, May 17, 1870. “ On or before two years from date, I promise to pay David Oonderman or bearer, one hundred and eighty-five dollars, with use. (Signed) “ Diaeea O. De Muee. “ Johe F. De Muee. “ Johe' F. De Muee, Security.” The cause was tried before a referee. The only evidence given at the trial on the part of the plaintiff was the note itself.

Griswold, the commissioner of highways of the town of Sheridan, Chautauqua county, to open and work a highway in said town. In 1868, defendant was sole commissioner of highways in the said town of Sheridan, qualified and acting. In that year the relator, John Miller, a resident tax payer and freeholder of said town, presented to defendant an application asking the laying out of the highway in question, which was refused.

'Exception ordered, to be heard, in the first instance, at general term. The action was brought by the father of a minor son for injuries received by such son from a machine in defendant’s cabinet-factory, while working as an employee of defendant. The injured boy was about twelve years old.

<p>Appeal from a judgment entered at the Yates special term in an equity action to reform a deed. The facts appear in the opinion.</p>

Certiobabi bringing up proceedings of the commissioner of highways of the town of Boonville, in relation to the alteration of a highway. The facts appear in the opinion.

<p>Appeal from judgment for the plaintiff, entered upon the report of a referee, in an action to enforce a mechanic’s lien.</p> <p>On the 27th of ¡November, 1871, the parties entered into a written contract whereby plaintiff agreed to do certain work, and furnish materials therefor, upon a hotel belonging to defendant, for the sum of $1,300, payable in installments. Within a few days thereafter, and before any thing was done under the contract, a parol agreement was made by the parties which materially altered the written one, and provided for the payment of the further sum of $150 to plaintiff. A further agreement was also made by parol providing for additional work and materials, for which plaintiff was to receive $100 additional.</p> <p>Plaintiff entered upon the performance of the work agreed to be done, and while doing it performed, at the request of defendant, considerable extra work and furnished the materials therefor. The value of the extra work and materials, as found by the referee, was $340.</p> <p>The work done by plaintiff was completed about the 27th of April, 1872. During the whole period of its continuance defendant lived in the hotel; was about where the work was going on, and in some things directed the manner of its execution.</p> <p>It was found by the referee that some of the materials furnished by the plaintiff were not of as good quality as those called for by the agreements of the parties, and that some of the work was not performed in a good and workmanlike manner, by reason of all which defendant was damaged to the amount of $431.20. He also found that “ by the contract plaintiff was to put seats on the piazza in front of the hotel to correspond with those on the old piazza; also fenders in front of the posts; to build an entrance to the cellar, and to put two windows in the west room up stairs. But he failed and refused to perform his contract in the several particulars above set forth, although requested by defendant to complete the same.”</p> <p>The referee found that the value of the work performed by plaintiff was $1,459.80; that plaintiff had paid thereon $752.32, and as a conclusion of law that defendant was indebted to plaintiff for the balance of $707.48.</p>

<p>Appeal from the judgment of the county court of Wayne, affirming the judgment of a justice of the peace.</p> <p>The action was brought against the defendant, James Turk, for a violation of the excise law. The plaintiff at the trial appeared by attorney. The case was tried before a jury who found a verdict in favor of the plaintiff, from which defendant appealed, alleging numerous errors. Those contained in the ninth and tenth grounds of appeal are alone important. They are as follows :</p> <p>“ 9th. The justice erred in receiving the verdict of the jury and entering judgment thereon in the absence of the plaintiff. 10th. In the absence of the plaintiff on the coming in of the jury a judgment of nonsuit should have been entered by the justice.”</p> <p>The justice stated in his amended return that he did not call the name of the plaintiff on the coming in of the jury, and before they delivered their verdict; that plaintiff did not appear and answer, and that plaintiff was not present when the verdict was received by him.</p>

<p>Statute of limitations — Mutual accounts — Costs on appeal.</p> <p>In a complaint were set up as causes of action numerous promissory notes made by defendant and held by plaintiff, and in the answer, promissory notes made by plaintiff and held by defendant. Held, that such notes did , not constitute a “ mutual, open and current account" within § 95 of the Code, so as to prevent a part being barred by the statute of limitations. The provision in § 95 was not intended to embrace mere cross demands, but only a mutual, open and current account that is unliquidated.</p> <p>By a mutual mistake of -the parties and referee, as to the date, one of the demands of the appellant which he was entitled to, was not allowed. As soon as it was discovered, respondent offered to deduct from the judgment in his favor the amount of the demand. Held, that the respondent should not be charged with costs of appeal by reason of the mistake.</p>

<p>Motion by defendant for a new trial on exceptions taken at the Cattaraugus circuit, and ordered to be heard in the first instance at general term, The facts appear in the opinion:</p>

<p>Appeal from a judgment entered at the Oswego special term on a trial by the court in an equity case. The facts appear in the opinion.</p>

<p>Contract—construction of— Sale.</p> <p>Plaintiff delivered to H. some sheep ■under this agreement: “ July 8,1869. I have taken of A. E. R. twenty-nine sheep and twelve lambs, to be returned on the 1st of September, 1871, * * said sheep to be returned as good and in as good condition and age as when taken.” Held, a sale and not a bailment of the sheep.</p>

The defendant was convicted of embezzlement, upon substantially the following state of facts: The defendant was an agent for an insurance company to receive applications and premiums, advise the company thereof, and when the company approved of the risk and executed the policy, to deliver over such policy. The defendant sometimes received notes, and sometimes gave more or less credit for the premiums.

This is a motion for a new trial by the defendant, on exceptions taken at the Oneida circuit, and ordered to be heard at the general term in the first instance. The facts appear in the opinion.

<p>Appeal from a judgment for defendant on the report of a referee. The facts appear in the opinion.</p>

<p>Appeal from the order of the surrogate of Onondaga county, admitting to probate the will of Esop Kinne. The facts appear :"n the opinion.</p>

The action is an equitable one, brought by the plaintiff, as the widow of Esop Kinne, deceased, against his heirs and the executors of his estate, to compel the admeasurement and for the recovery of her dower in the real estate of which her late husband was seized.

This is an action of trover for the conversion of 15,000 bushels of wheat. The cause was tried at the circuit in Erie county, where a verdict was found for the plaintiff in the sum of $23,793.66, and the case ordered to be heard upon exceptions at the general term in the first instance, and judgment in the meantime suspended.

Writ or error to the general sessions of the county of Jefferson, to review a conviction for seduction under promise of marriage. The facts appear in the opinion.

Justice Dwight. It was brought to compel the specific performance of a contract to convey to plaintiff 183 acres of land in Victory, in said county. The contract was a verbal one. The defendant owned at the time about 200 .acres of land, and was to take from plaintiff his farm at Brutus, in said county, in exchange, and reserve the wood upon 18 acres out of his own lot.

<p>Appeal from a judgment rendered by the county court of Jefferson county, reversing the judgment of a justice of the peace in favor of plaintiff. The action was brought to recover for the board of the defendant and a workman of his engaged in constructing a house for one Tamblin.</p> <p>Tamblin was to board the defendant and his hands, and sent them to the plaintiff for board, having previously spoken to the plaintiff on the subject. . After defendant's hired man had boarded with him some days, plaintiff informed him and also the defendant, a few days afterward, that he would not board them any longer on account of Tamblin, but should look to him for the board bill. To this the defendant replied, as the plaintiff testified, and said: “ Mr. Tamblin had agreed to pay for the board, but if Tamblin did not pay it he would himself.” The hired man boarded about a week after that, and the defendant eleven days.</p> <p>The justice rendered judgment for the plaintiff for the price of the board after this agreement, not including the board of the hired man before that time. The defendant had not himself boarded with the plaintiff before the making of such agreement. The plaintiff, it appears, applied to Tamblin for payment of the board, and took an order from him on one Watt which was not paid. Defendant claimed that plaintiff should sue Tamblin, and, promised to pay for the board if the amount was not collected of him. ' Plaintiff declined to sue Tamblin and commenced this action.</p>

The action was brought to charge the defendant, as the guarantor of a lease executed by the plaintiff to a firm by the name of Addison & Weeks, by a. written instrument, for the term of five years from December 1, 1868, for the annual rent of $3,900, to be paid as follows: $1,950, in cash, at the commencement of the term of the lease, and at the same time their note for $1,950, maturing and to be paid six months after the time of making, and a like note every six months…

judgment in favor of defendant entered upon the report of a referee. This is an action against the makers with the defendant Marvin, as the indorser of a promissory note, in the words and figures following : $325. Syracuse, N. Y., February 13, 1871. “ Fifteen months after date, for value received, we promise to pay David H. Hull or order, at the First National Bank of Syracuse, N. Y., the sum of three hundred and twenty-five dollars ($325) with interest.

The action was brought to recover for a quantity of stone sold and delivered to the defendant. The plaintiffs claimed that they had contracted with defendant-to cut and deliver to him at Havana stone for a church to be there erected, and that they furnished stone to' the amount of $843, and that there remained unpaid $305, for which the action was brought.

The action was brought to recover the sum of $100, claimed to be due upon a contract made by the defendant with one Gilbert Scofield for the purchase of a lot of land.

Appeal by a part of the defendants from a judgment in an equity action to foreclose a mortgage, rendered at the special term in Jefferson county. The facts appear in the opinion.*

<p>Certiorari — a special proceeding—Abatement—Construction of statute — Overseer of the poor.</p> <p>An overseer of the poor of a town, as relator, obtained a common-law writ of certiorari to review proceedings in a bastardy case instituted by Mm. After the writ was served and return thereto made, his term of office expired. Held, that the certiorari was a special proceeding and not an “ action ” or “ suit ” under the provisions of 2 R. S. 474, § 100 (relating to suits by or against certain officers), and his successor in office could not be substituted as relator.</p>

<p>Appeal from a judgment in favor of defendant, entered upon the verdict of a jury. The action was tried at the Erie circuit in October, 1869. It was brought to recover a small strip of land in the possession of the defendant, and upon which he had erected and maintained for some years a building used for a store-house. The claim of the plaintiff was that, the strip of land was formerly covered- with the water of a mill pond caused by the back flow of the water of Spring creek, by reason of the erection and maintenance of a mill dam across said creek, erected and maintained for many years for the supply of a mill owned and operated by the plaintiff and her grantors. The plaintiff and defendant claim under the same title and the same grantors; the boundary line between them being the high-water mark of the pond. The mill and dam were erected and the pond raised at an earlier date than 1822, and long before the defendant took title, and evidence was given tending to show .that the place where the defendant’s store stood was covered, at times before he took title, by the waters of said pond, and that the ground where said store was made in whole, or in part, by accretions of land and subsidence of the water of the pond, or the changes of the same. No exceptions were taken to the reception or rejection of evidence during the trial, and it does not appear what precise-questions of fact were submitted to the jury, the charge of the judge not being in the case. The jury found a verdict for the defendant, and the case came here upon appeal from the judgment rendered upon such verdict and exceptions.</p>

<p>Appeal from an order denying an application for a mandamus. The necessary facts appear in the opinion.</p>

<p> Pa/rties, joinder of—action in nature of sci/re facias. </p> <p>In an action, brought as a substitute for a scire facias, to revive a judgment against a deceased debtor, held, that the heir at law of the judgment debtor and the administrator of his estate could not be joined as defendants.</p>

<p>Appeal from a judgment of the county court of Niagara in an action originating in a justice’s court. The only question passed upon is one of practice in taking the appeal. .</p>

These are appeals from an order directing and refusing payments from a fund in the hands of General Robert B. Potter, receiver, for… Held: in respect to the claim of ¡Naylor & Company, that there was no presumption that, because a single frog broke the remainder would do so, and that the company had a right, notwithstanding the fact that one or more frogs may have broken within a very short time after being laid down, to lay down and use the remainder as being necessary…

This is an action to recover for moneys laid out and expended by the plaintiff upon nine acres of land, upon which there was a a mineral spring called the Crystal spring, and which the parties owned as tenants in common with others. The cause was tried at the circuit in Yates county, and the plaintiff was nonsuited, to which decision the plaintiff duly excepted, and the circuit judge ordered that the exceptions be heard in the first instance at the general term.

The action was brought upon a promissory note given by the defendant, Lois T. Walker, to the plaintiff, William D. Whipple, on July 31, 1869, for $55.17 and interest. The note was made payable at the bank of Williams & Remington, in Canandaigua, IST. Y., where it was left by plaintiff, after the usual custom of business men, to enable the bank to receive payment of it.

Cebtiorabi to the court of sessions of Niagara county, bringing up the record and proceedings upon the trial of the plaintiff in error upon an indictment for a rapé. The plaintiff in error was tried and convicted in the Niagara county court of sessions on the 27th day of December, 1871, and sentenced to imprisonment for the term of six years and six months.

The suit was brought to foreclose a mortgage made by the defendant, Hiram L. Suydam and his wife. The suit proceeded to judgment and the mortgaged premises were sold and a surplus of $9,609.39 realized. Several parties having liens upon the mortgaged premises, filed claims to the surplus, and a reference was ordered to determine the priority of such claims.

The action is in the nature of a creditor’s suit, brought by plaintiff, as assignee of a judgment recovered by one Hovey against the defendant Milo W. Hill, in. 1856. During the year 1865, said Hovey brought action against said Milo D. Hill, Lydia 0. Grant, Lester Day and others, claiming that Lydia C. Grant held certain leasehold estate in the city of Buffalo in fraud of the creditors of said Hill.

This action is for an accounting between parties claiming to be jointly interested, and comes before the general term on an appeal from an order of special term, granting a commission to take testimony in another State. The defendants, as to whom issue was joined at the time of the granting of the order, object thereto, that issue was not joined as to all the defendants named in the complaint-

The complaint alleges that informal notice was received by the defendant that he, defendant, was entitled tc a prize of $500,000, upon a ticket held by him in the royal Havana lottery, of Havana, Guba, payable at Havana; that, in consideration of certain services rendered and to be rendered to him by plaintiff, defendant agreed to pay over to plaintiff one-half of all moneys received from said lottery ticket; that the services were rendered by plaintiff; that defendant…

The action was brought by the appellant to restrain the respondent from prosecuting an ejectment suit, and for a confirmatory deed of the lot in dispute. The material facts appear in the opinion.

Justice Davis dismissing a writ of habeas corpus, issued December 9, 1872, requiring the respondent to produce in court the body of Michael Joseph Splain, a minor, the son of the relator.

The common ancestor, David Banks (father of the plaintiff), died at New York city, September 8,1871; a son of his, Francis S. Banks (the husband of the appellant), died January 27, 1872, seized of an undivided fourth of the estate of his father, in which fourth this defendant has a right of dower, as established by the judgment in this action, and the two children of Francis S. Banks and this defendant, the defendants Harriet Augusta Banks and David Banks (third) are the…

The action being on trial before a referee, the defendant obtained an order staying proceedings, and to' show cause why he should not have leave to amend his answer by setting up a counter-claim. The motion was heard before Mr. Justice Ingbaham, wbu denied the motion, and indorsed as his opinion on the papers: “The proposed amendment of the answer Cannot be made without making a new issue, and then rendering all proceedings on the reference void.

This is an appeal from an order denying a motion to vacate an assessment upon petitioner’s lots, for the paving of a street adjacent to the petitioner’s property, upon the ground that the ordinance directing the improvement had not been published for two days prior to its adoption by the common council, in all the newspapers employed by the corporation; also, that the said street had been paved in the year I860, by the petitioner, at his own expense and by permission of the…

On the 10th March, 1873, the plaintiff exhibited her complaint for a divorce a vinculo, alleging that she was married to the defendant in 1865, at Berlin, in Prussia ; that since September 10th, 1872,. she has been an actual inhabitant of this State; and charging the defendant with having at a certain house in Berlin, at divers times, since January 1,1870, committed adultery with a .certain person therein named. The'complaint was filed March 12, 1873.

<p>Appeal from a judgment in favor of plaintiff, on a trial before the court, without a jury. The material facts appear in the opinion.</p>

The action was brought for a limited divorce and alimony. The questions raised by the pleadings are: 1. The residence of the plaintiff. 2. Whether there was a marriage. 3. Whether there was an abandonment. 4.

Lane, justice of the district court of the city of New York, for the sixth judicial district, requiring him to send to this court the record in a proceeding before him, wherein he' issued a warrant in favor of 0.

<p>Appeal from a judgment entered upon a verdict directed by the court. The facts appear sufficiently in the opinion.</p>

This action is upon a bond made and delivered by the defendant to Henry Placide, the plaintiff’s testator. Defendant sets up a counter-claim for services rendered as attorney at law of the testator. To the counter-claim, plaintiff interposed the statute of limitations as a bar, and also'made plea that the bond was delivered as a full settlement on a final accounting between the defendant and the testator.

The action is -for the conversion, of certain, drafts, ..the property of plaintiffs. The order of arrest was made on October 18, 1873.

This action was for a limited divorce, and the complaint alleges abandonment and cruel treatment as the grounds for the decree asked for. Judgment was taken against defendant by default, March 30, 1870. On April 6,1870, Judge Beady made an order that the default be opened, the judgment to stand as security, and that the cause be referred.

Justice Barrett, denying defendant’s motion to set aside an order of arrest. The order was granted by Mr. Justice Dahiels, in an action for slander. The affidavit upon which it was granted sets out the slanderous words as having been uttered in the presence of one Weineise, as follows, viz.: “He [meaning the plaintiff] is no doctor; he bought his diploma for $50.” No special damages are alleged.

<p>Certiorari to review proceedings had before a district court justice under the statute for the summary removal of a tenant for non-payment of rent.</p> <p>The facts appear sufficiently in the opinion.</p>

<p>Election law — offenses against. Evidence.</p> <p>On the trial of an indictment, under the statute making it a felony " for any person other than an inspector of elections to knowingly and willfully put, or cause to be put, ballots into a ballot-box ” at certain elections, it was admitted that the prisoner was not an inspector, and that he did put ballots into a ballot-box at an election. Held, that evidence to show that the prisoner was, at the time, acting as inspector instead of C., who had been appointed, and who had, by power of attorney, appointed the prisoner to act in his place, was properly rejected.</p>

• The plaintiff sued to recover his salary as counsel to the health department of the city of New York, from the 30th of April, 1873, to July 8, 1873. ITpon the trial it was admitted that the plaintiff during the entire period named in the complaint was chief supervisor of elections in and for the southern district in the second circuit of the State of New York, appointed pursuant to the act of congress passed February 28,1871.

Appeals from two orders, one in the action above entitled, allowing the referee $100 for his services, the other in five other actions between the same parties, denying a motion to remove the same referee from the last-mentioned actions, on account of his charge of $100 in the one first mentioned. Said actions were brought to foreclose mortgages. The referee was appointed to advertise and sell the property pursuant to the directions of the court.

Actions were brought separately against four fire insurance companies, namely, the Republic, Hanover, Germania and Niagara, each upon the same pleadings, papers, etc., excepting the names of the respective defendants, to recover $15,000 ($3,750 each), the face of a policy of insurance against fire for that amount, made,by the underwriters’ agency of the city of New York, composed and underwritten by each of the defendants, and upon which each is liable for $3,750, one-fourth…

Motioh for a re-argument of an appeal, made on behalf of Benjamin F. Stephens, one of the defendants. The appeal was taken by the plaintiff, Thomas Holloway, from a judgment .in favor of said Stephens fo.r $171,237.43 entered upon the report of a referee.

<p>Bankruptcy—conflict of mjurisdiction—proceedings in State courts against bankrupt. '</p> <p>M. brought action against defendants, a banking firm, and attached certain property. Subsequently A., a special partner in the firm, commenced an action for dissolution and accounting, and a receiver was appointed, and in due time a decree made dissolving the partnership. Afterward a petition in bankruptcy was filed, and defendants declared bankrupts. Upon an application for an order for the receiver to turn over the assets of the firm in his hands to the assignee in bankruptcy:</p> <p>2"eZd!,that the proceeding in bankruptcy did not deprive this court of authority in the matter. This court and its receiver having first obtained possession of the property and control of the litigation, had the right to finish its proceedings before being interfered with by any other jurisdiction.</p> <p>Held, also (following Wilson v. Gity Bank of St. Paul, 9 Alb. Law Jour. 77), that, under the bankrupt law, the attachment of M. constituted a valid lien in preference to the claim of the assignee in bankruptcy.</p>

& Co., the defendants, from selling certain stock belonging to plaintiff. The complaint contains in substance the following statement: Prior to September 27, 1873, Musgrave & Co. were carrying various stocks for one Hatch; they were also carrying 1,600 shares of Panama Railroad stock, purchased by Hatch on joint account of himself and plaintiff, but plaintiff was not interested in any other of the stocks.

Case submitted without action. A contract was entered into between the parties by which plaintiff agreed to sell and defendant to buy a house situated in the city of Brooklyn. Plaintiff tendered a deed conveying said premises which defendant declined to receive, on the ground that plaintiff’s title thereto was defective as to the undivided one-fourth part, which had been conveyed to him by the executors under the will of one Harriet E. Perry, deceased. .

The plaintiff was, in 1870, the owner of five houses and lots in Warren street, in the city of Brooklyn. During that year he sold them to Jacob M. Stiger, one of the defendants, for $4,600 each; in the aggregate $23,000. The consideration was all mortgage. Upon each house was already a mortgage of $2,000, and Stiger executed, to plaintiff a further mortgage of $2;600, giving in all five mortgages.

The action was brought to recover $2,411, besides interest and protest fees.

<p>Landlord and tenant—covenant to repair — what repaws a/re.</p> <p>In a lease the lessee covenanted to kee^p the leased building in good repair and condition. At the time he took possession the roof and steps were in bad condition. The lessee made such repairs only as were required for his own comfort, and the steps became rotten and the roof leaked so as to injure the walls. After the lessee’s term expired the lessor had the roof shingled, gutter repaired and new steps -made. Reid, that these were repairs within the covenant of the lease, and that the lessee was liable for the expense of making them.' '</p>

The action originated in a justice’s court. In the pleadings, plaintiff claimed $50 for house rent, and defendant set up as a counter-claim a demand of $50 and interest, for work, labor and services. The justice rendered judgment in favor of the defendant for $50 and costs. From this judgment plaintiff appealed to the county court, asking for a new trial. Ho offer was made by the defendant.

Appeal 'from a judgment of the Suffolk county court, affirming a judgment of a justice’s court. The action was for the killing by one of defendant’s trains of a steer belonging to the plaintiff. By the evidence it appeared that the defendant’s railroad runs through plaintiff’s farm.

The application was made for a mandamus to the comptroller of the State, requiring him to examine the returns of unpaid taxes in Richmond county, sent to him, and to credit the county treasurer of said county with arrears admitted by him.

The action was brought to recover the sum of $3,500, and interest, from the 4th day of January, 1869, for moneys alleged to have been loaned by the plaintiff to the defendant.

The complaint is in the nature of a bill in equity, and alleges substantially as follows: That on or about the 1st of September, 1864, one David P. Smith, since deceased, deposited with the defendant, Albert G-. Lee, the sum of $2,234.48, which he directed the said Lee to enter upon his book in the name of “ David P. Smith for Chas.

The action was brought for the alleged conversion of a promissory note for $5,000, dated September 14, 1864, payable on demand, with interest, to the order of Kellie Taylor, plaintiff’s mother, and purporting to be made by one A. Throckmorton, of Louisville, Kentucky, defendant’s father.

The actioji was brought by the plaintiffs, James Sutton and Lindley M. Franklin, to obtain the possession of a printing press of the value of $5,000. In March, 1871, plaintiffs and defendant, Andrew- Campbell, made a verbal agreement for the manufacture, by defendant, of two printing presses aP the price of $10,000. Defendant was to accept in payment an old press, and the balance was to be paid in cash. At the time, an order was given in writing.

The defendants, William F. Romer and Jacob Tremper, were, in the spring of 1873, common carriers, doing business under the firm name of Romer & Tremper, and running a line of steamers between Albany and Newburgh, on the Hudson river, stopping at intermediate places, of which Hyde Park was one.

27, entered upon the verdict of a jury at the Suffolk circuit, and from an order denying a new trial. The action was brought to recover damages — 1st, for having been ejected from defendant’s steamboat, the D. R. Martin, on the 23d day of October, 1871, at Jones’ dock, near Huntington, Suffolk county; and, 2d, for having been refused passage on the same boat on the 27th of the same month at Hew York city.

Defendant was superintendent of the insurance department of the State, and held the funds in question under the provisions of the statutes requiring deposits from insurance companies doing business in the State. Plaintiff was appointed receiver of the company named by the Hew York court of common pleas, in an action to wind up the affairs of said company. At the time of his appointment many suits on policies were pending against the company in different States.

Appeal by plaintiff from a judgment of the special term in favor of the defendant. This was an action in equity brought by the plaintiff as receiver of the property of James K. Spratt, under an order after return of an execution unsatisfied. Spratt leased premises in New York from defendant, for the term of ten years commencing May 1, 1866.

The complaint alleged that the plaintiff was the owner, and in possession of a mill, mill-dam, water-power and mill privilege ; that the defendant, with intent, etc., did, with a strong hand and with force, break and enter into and upon the close containing the said mill-dam,” and did break and damage and destroy the said mill-dam, and thereby caused the water to Sow into and upon the lands of said plaintiff, below the said dam, etc., for which wrongful acts the plaintiff…

<p>Appeal from a judgment in favor of defendants in an action tried at special term. Sufficient facts appear in the opinion.</p>

About the middle of October, 1867, the plaintiff, George Pettit, who was then in the employ of the firm of Shaffer & Hamilton, as a commercial traveler, under a contract, ending September 1, 1868, was engaged by defendant, Malcom 0. Turner, to travel for him in the West Indies for five months, from November 1,1867, to April 1, 1868.

The action was brought upon a policy of life insurance issued by the defendant, the Empire Mutual Life Insurance Company of the city of New York, upon the life of Jacob Bohringer in favor of his wife and children, who are the plaintiffs herein. The opinion states the necessary facts.

The action was brought to foreclose a mortgage for $5,666 and interest. The defendants, Spencer Palmer and his wife, who made the mortgage, defended the action upon the ground that a usurious rate of interest was agreed upon and paid at the time of obtaining the loan.

Appeal, by both parties, from a judgment entered in favor of the plaintiff, Amariah A.. Taft, for $4,24483, damages and costs, upon the report of a referee. The action was brought by the plaintiff, Amariah A. Taft against Caroline M. Wright individually and and as administratrix of the estate of John B. Wright, deceased, and two other defendants, David B. Babcock and Margaret Hill.

The action was brought by Frank H. Phillips against Hath aniel Conklin, to recover $1,000 stipulated damages for non-performance of an agreement to exchange lands. The essential facts appear in the opinion.

Brundage, sheriff of Westchester county, from liability for the escape of a party arrested by him in a civil action. The essential facts appear in the opinion.

The action was brought to recover the amount of money paid by the plaintiff, Calvin H. Bell, to the defendant,. Walter Dagg, for a note purporting to have been made by one Joseph Brown for §300, and alleged by him to be forged, together with the costs paid out by the plaintiff in prosecuting an action in the supreme court. Plaintiff sued Brown on said note, and on the trial plaintiff was beaten on account of the establishment of the forgery.

Plaintiffs, John E. Spicer and John D. Spicer, brought action as creditors at large of William H. Ayers, deceased, alleging an indebtedness, in his life-time, to them; that he caused certain real estate paid for by him to be conveyed to his wife, Mary Francis Ayers, the defendant; that he conveyed certain other real estate, through a third,party, to his wife; that he improved such real estate at great cost, after such conveyances, at his own expense; that such conveyances…

The policy was issued and countersigned by Sly & Straight, defendant’s agents, at Elmira.

<p>Appeal from the judgment of a county court affirming the judgment of a justice’s court in favor of the plaintiff for $56 damages, for the loss of some sheep and a heifer which strayed through a railroad fence of defendants on to defendant’s track and were killed by defendant’s trains. The necessary facts appear in the opinion.</p>

The board of commissioners of the Washington park, in the city of Albany, was organized in pursuance of chapter 582, Laws of 1869, and the acts amendatory thereto. By Laws 1872, chapter 45, such board was authorized to acquire title to lands to be taken for the purpose of a public park, in the city of Albany, under the provisions contained in §§ 14, 15, 16, 17, 18, 19, 20, 21 and 26 of what is known as the general railroad laws.

<p>Appeal by defendant from a judgment in favor of the plaintiff for §6,879.27, rendered upon a decision, of the court upon a trial without a jury.</p> <p>The action was upon a promissory note dated June 20,1864, for §5,000 and interest, payable in two years, signed by William A. Sanford, the defendant, and payable to the joint order of his father, Joseph H. Sanford and Maria D. Sanford, the plaintiff, who was the wife of said Joseph.</p> <p>The defense was that the plaintiff was not the real party in interest, but that the note belonged to the estate of said Joseph H. Sanford, deceased.</p> <p>The consideration of the note was a loan of money made by Joseph H. Sanford to the defendant. Some interest and principal had been paid on the note. On the 19th day of July, 1865, said Joseph made and duly executed his last will and testament, wherein he devised and bequeathed the bulk of his real and personal property to the plaintiff, including a bequest of §10,000 in cash, which devise and bequest were expressed in said will to be in lieu of dower and every and all claims upon the estate.</p> <p>On the 5th of June, 1866, a committee was appointed to take charge of the estate of said Joseph, he having become a lunatic, and the note was delivered by plaintiff to such committee as part of lier husband’s property. The committee retained the note until after the death of' said Joseph, and until after plaintiff qualified as one of the executors under the will. At the time of taking possession of the note plaintiff gave a receipt in which the note in question was described as belonging to the estate of the deceased.</p> <p>Some evidence was given showing that the husband did not intend, by his will, to give the plaintiff a- greater sum than $101000, and did not intend to have the note pass to her in addition to such amount.</p> <p>The case was first tried in 1868, before Mr. Justice James as referee. He excluded the defense, and held that the form of the note was conclusive evidence as to plaintiff’s right to recover as survivor, and that .she being the apparent holder, it was immaterial as to whether, as between her and the estate, she was the actual holder or not. The general term affirmed this decision and the court of appeals reversed it, and a new trial was had and judgment rendered for plaintiff. Hpon appeal to the general term a new trial was ordered, which was.had before Mr. Justice Joseph Potter, and from the judgment thereat this appeal is taken.</p> <p>Many other facts are stated in the report of the case, when in the court of appeals, in 45 N. Y. 723. Additional facts were proved upon the present trial, which will sufficiently appear in the opinion.</p>

<p>Appeal from a judgment in favor of the plaintiff, upon the verdict of a jury, and from an order denying a new trial.</p> <p>The action was brought to recover damages for the death of Austin Reynolds, a boy twelve years and three months old, who was run over and killed by a train of cars on defendant’s road, at what is known as Cram’s crossing, a highway crossing about two miles east of the city of Schenectady.</p> <p>The accident happened December 13,1872. At that time deceased was attending school near the crossing, and had to cross the railroad in going and coming between the school-house and his home, and usually passed over the track four times a day. After leaving school upon the day in question, he and a companion went together toward the crossing. Shortly before reaching it, his companion left him. He was not afterward seen alive, but a few minutes after his companion found his dead body near the track, where he had been killed by a passing train.</p> <p>The evidence showed that as the deceased was approaching the crossing there were two trains passing in different directions, one a passenger train, the other a long freight train with two engines. There was a conflict of testimony as to whether or not the engine bells were rung.</p> <p>The boy was found in the cattle trap, between the tracks. Under what circumstances he was struck or by what train, was only a matter of conjecture. It was shown that when within ten feet of the highway, upon the bed of the same, a boy of the size of deceased could see an engine 750 feet distant. If approaching on a foot-path which ran on the side of the highway, he would have to come much nearer the track before he could see the coming engine.</p> <p>The jury found in favor of the plaintiff, Jacob Reynolds, who brings this action as administrator of his deceased son for $800.</p>

<p>Appeal from a judgment in favor of plaintiff, entered on the report of a referee.</p> <p>The action is for divorce a vinculo, for adultery alleged to have been committed in May, 1868.</p> <p>Plaintiff was married to one Thurston, who is still living, at Lowell, Massachusetts, in 1850. They resided for several years thereafter in Massachusetts, then removed to Vermont, where they lived for a year or two; then, in May, 1854, returned to Fitchburg, Massachusetts, where they continued to lire together until April, 1856, when the plaintiff left Thurston and went back to Vermont. Thurston has since continued to reside in Massachusetts. In 1859 plaintiff, in the courts of Vermont, obtained a divorce from Thurs-ton upon the ground of his abandonment of her. The papers, or some of them, were personally served upon Thurston, at Fitchburg, Massachusetts, and he in writing accepted legal service thereof, and waived all objections to the service. In ¡November, 1862, plaintiff married the defendant in this State. At the commencement of this action, and since, the defendant was and has been living with a woman, other than plaintiff, as her husband.</p> <p>Plaintiff now brings action for that cause. Defendant answers, setting up plaintiff's former marriage with Thurston, and that he is still living, thus nullifying the pretended marriage between the parties in this action.</p> <p>Hpon the trial plaintiff offered in evidence the Vermont decree of divorce, which was received under objection, and upon the faith thereof the referee decided that the marriage between these parties in 1862 was valid, and that the plaintiff is entitled to a decree for a divorce from the defendant and judgment is so entered.</p>

The action was brought to recover the possession of a horse, wagon and-harness, valued at $350.

<p>Appeal from judgment in favor of plaintiff, rendered, on report of referee.</p> <p>Plaintiff’s testator, the late Judge Alonzo 0. Paige, while a director of the New York Central Railroad Company, rendered services as attorney and counselor at law for the said company. After a failure to agree upon the amount of compensation this action was commenced. Upon the death of Judge Paige, Samuel W. Jackson and Edward W. Paige, executors, and Clara K. Paige, executrix, under his mil, were substituted as plaintiffs and the action was continued in their names.</p> <p>The only claim upon which this controversy arises is for services in the action of the people against the defendant to recover canal tolls. The referee allowed $8,500 for such services.</p>

<p>fraudulent deed — undue influence — evidence.</p> <p>In an action to set aside a deed, upon the ground of fraud and undue influence, it was shown that the person procuring the deed had strenuously urged the one making it, who was a married woman and of a low grade of intelligence, to do so without consulting her husband or relations. Held, that while this was a suspicious circumstance, mere suspicion of Undue influence was not enough; it must be proved.</p>

<p> Contract —power of steam engine. </p> <p>Defendants agreed to furnish a steam engine which would- run certain machinery in a mill. Held, that if the engine was a fair and merchantable one and did the work agreed to be done, it was sufficient; and such engine need not stand the test of an indicator placed upon it for the purpose of showing its power.</p>

<p> Partnership—statements made by pm'tner—when binding on firm. </p> <p>Plaintiffs being requested, by K. to sell goods to Mm on credit asked defendants, a firm in business in the same city with plaintiffs, concerning the responsibility of K., and were told by one of the defendants that the store carried on by K. was a branch of defendant’s house. Believing this, plaintiffs gave K. credit. Held, that such a statement by one of the partners bound defendant’s firm, whether true or false.</p>

<p>Appeal from a judgment of Queens county court, affirming a judgment of a justice’s court against defendant for a penalty.</p>

<p>Appeal from an order of the special term denying a motion by one of the purchasers at a foreclosure sale, for a re-sale of the mortgaged premises.</p>