Volume 20 — New York Reports

The action, which was commenced in 1843, was debt on the statute “of,betting and gaming” for $3,000, had and received by the defendant, as stakeholder, for the plaintiff. The first trial in' 1844 resulted in a verdict for the defendant, upon which he had judgment in the Supreme Court, which was reversed in this court, and a new trial granted. (8. O., 1 Comst., 392.) There was a second, trial, on which the plaintiff recovered a verdict for $3,000.

The plaintiff brought his suit against John J. Palmer, the former special receiver of the ¡North American Trust and Banking Company, in whose place the present defendant has been substituted pendente lite,, to obtain a judgment declaring void, and to procure the cancellation of, a mortgage which had been executed to the president of that corporation for its use, by one Cornelius Hasten, on the 1st day of ¡November, 1838. The case was tried before Hr.

Action upon a policy on the life of Conrad Schumacher for the sum of $10,000, dated May 15, 1850, issued to Schumacher. The claim of the plaintiffs to the sum insured was this: On the 30th May, 1850, Valton, Daniel Martin (who had assigned to the other plaintiff), and Schumacher, entered into articles of partnership for the purpose of carrying on a wholesale business in foreign and domestic liquors in the city of Albany.

Action for money had and received. A bill of particulars showed that the money claimed was the proceeds of the sale of land conveyed in fee simple absolute by the plaintiff to the defendant in 1833.

Action to obtain possession of land. On the trial before Mr. Justice Gbeene, a jury being waived, at the Wyoming Circuit, the plaintiffs proved a conveyance of the premises in question by the defendant to one Andrews (who subsequently granted to them) by deed, dated October 23, 1854, containing the usual covenant of warranty for quiet possession. The deed from Andrews to the plaintiffs was dated November 21, 1854, and reserved the possession to Andrews until April, 1855.

The action was brought against the defendant as a common carrier, for a delay in the carriage of a large quantity of potatoes in barrels and sacks, from Nornellsville in Steuben county, to the city of New York.

<p>Appeal from the Supreme Court. The complaint was that the defendant, a corporation created under the laws of Massachusetts, had agreed to insure the plaintiff against damage .by fire to his stone dwelling-house, and to execute a policy for that purpose; that he had paid the required premium; that the building was consumed by fire within the term stipulated for the continuance of the risk, but the defendant refused to issue a policy, or to pay the sum insured. The trial was before a referee. It was proved on the part of the plaintiff that he had some negotiations with one Atwood, an insurance broker accustomed to procure'the taking of risks by the defendant, and who had examined the premises and corresponded with the officers of the company in respect to the amount of premium. Atwood had transmitted to the defendant a written and printed application signed by the plaintiff, being a blank form furnished to Atwood by the company, and filled up by Atwood. In this application the building was described as a stone dwelling-house, without any reference to a wooden kitchen which was attached to and formed a part of the establishment. The application' referred to the charter and by-laws of the company, and stated that the applicant held himself bound by the terms thereof. The 13th by daw provided that “unless the applicant for insurance make a true representation of the property on which he requests insurance, so far as concerns the risk and value thereof, the policy issued thereon shall be void, and in case the application is made through an agent, the applicant shall be held liable for the representation. ISTo insurance agent or broker forwarding applications to this office is authorized to bind the company in any case whatever.” The application also stated “ that the misrepresentation or suppression of material facts shall destroy the applicant’s claim for a damage or loss, and the company shall not be bound by any act done or statement made to or by any agent or other person which is not contained in this application.” The defendant’s president wrote to Atwood upon receiving the application that the risk would be taken at two per cent premium, and requested him, if the plaintiff desired insurance at that rate, to return a new application. Atwood informed the plaintiff that he thought there was some mistake about it, and that the risk would be taken at a less premium. He then filled out a new application, dated October 18, 1854, which was a mere copy of the former one, and forwarded it, signed by the plaintiff. On the 1st of November, 1854, the plaintiff paid Atwood the amount of the premium at two per cent. On the night of November 2d, the house was burned without fault on the part of the plaintiff. The defendant declined the risk as soon as it received the application. Evidence was given of the service of notice, preliminary proof of loss, &c. The defendant moved for a nonsuit, which was refused and an exception taken. The referee directed judgment for the plaintiff, which was affirmed at general term in theu eighth district, and the defendant appealed to this court.</p>

The complaint averred that the plaintiff and defendants entered into a partnership for the purpose of undertaking contracts for the construction of railroads: that the firm entered into a contract with the Buffalo and State Line Railroad Company, under it performed work to a large amount, but did not complete the work contracted for within the stipulated time, mainly in consequence of the inability of the corporation to obtain the right of way: that after the expiration of…

The complaint set out an agreement between the plaintiff and defendant, by which the former was acting as a superintendent of a manufactory of agricultural implements, and was to receive, in addition to a fixed salary, half the net profits of the business. It was provided that the net profits were to be ascertained by deducting from the gross receipts various enumerated charges and expenses, and all losses in the business, including bad debts.

Action for alleged negligence, by which the husband of the plaintiff (whose executrix she is) was run over and killed by a baggage train, on the defendant’s railroad. The accident occurred in West street, in which the railroad tracks ran, at ita intersection with G-ansevoort street, in the city of New York.

Action to recover possession of several bank bills amounting to §250. On the trial at the Essex Circuit, before Mr. Justice Bocees, the case proved was this: The plaintiff had negotiated with Boyal Dudley and Levi G. Dudley, brothers of the defendant, in respect to a loan of §250 to be made by him to them upon usurious terms. The loan was to be secured by the conveyance of certain lands to the plaintiff, with an agreement for re-conveyance upon payment.

Ej ectment for a part of lot Mo. 25, in a tract of land know as Legg’s patent, in Essex county. On the trial before the late Mr. Justice Galt, the plaintiff’s evidence shewed the defendant in possession of a part of lot Mo. 25, differing from that described in the complaint, in that it was hounded on the west by land in the possession of one Boot, instead of being thus bounded on the east and on the west by lot Mo. 26, as described in the complaint.

Hpon the trial the defendants, to establish a set-off, proved these facts. On the 29th August, 1857, the Hollister Bank of Buffalo, of which the plaintiff was receiver, discounted a sight draft made by one Monteath on Grant, Sayles & Ford of Hew York, and passed the amount to Monteath’s credit. Two days afterwards the Hollister Bank failed. Grant, Sayles & Ford were informed of the fact and advised by Monteath not to accept the draft.

Action commenced in the late Court of Chancery by the plaintiffs, the children of Sally Traver, a daughter and legatee of Hendrick Pells deceased, to recover the legacy to- their mother. The testator made his will October 7th, 1820, by which, after providing for his widow he devised and bequeathed all the residue of his real estate to his two sons Jacob and Simon, subject to the payment of all his debts, and the legacies mentioned in the will.

<p>Appeal from the Supreme Court. The plaintiffs were car-tiers from Oswego to ports on the Upper Lakes. In October, 1851, certain goods of the defendant were transported from Hew York, by river and canals, directed to him at Cleveland, and consigned to the plaintiffs at Oswego, who forwarded them by schooner to the defendant at Cleveland, Ohio, and brought this action for the freight earned by themselves, as well as the charges paid by them for river and canal freight. On the trial at the Oswego Circuit before Mr. Justice Allen, a jury having been waived, the case proved was this: On the 10th of March, 1851, the plaintiffs entered a written contract with Van Dewater Brothers, carriers upon the Hudson river and canals, by which the parties agreed to divide freights pro rata with each other between Hew York, Albany or Troy and the Western Lakes during the navigation season of 1851: on down freights from Lake Erie ports to Hew York the lake freight to be three-eighths and the canal freight five-eighths. Upward freight for Lake Erie ports from Hew York, lake freight to be one-third and canal freight to be two-thirds of the contract price through. There were similar provisions for the division in different proportions of freight between New York and the other eastern termini, and ports on Lake Michigan; and a provision that in case the rates of toll on the Erie canal should be varied from those-of the preceding year, the advances or deductions should be divided in the same proportions as was agreed in respect to freight.</p> <p>On the 18th of April, 1851, the defendant made a contract with Yan Dewater Brothers, at New York, by which the latter undertook to transport all his goods from New York or Albany to Cleveland at certain specified prices until the 20th of October; all shipments after that date to be subject to an advance equal to that which should be made in the current rates for lake freights. The course of business between the Yan Dewaters and the plaintiffs was for the latter to pay the captains' of the canal boats of the former, upon their delivering goods, the charges for canal freight, or so' much thereof as was required. The amount earned, according to the provisions of the contract between them, was credited by the parties respectively upon their receipt of goods from the boats or vessels of each ether. The goods in question were shipped on the 20th of October; they arrived in Oswego upon seven different canal boats; the plaintiffs paid the canal freight and shipped them on the 6th of November upon a vessel bound for Cleveland, with a shipping bill by which the plaintiffs’ agent at Cleveland was directed to collect all charges, to pay the captain and lake freight,' and credit their account with the balance.</p> <p> i </p> <p>The defendant’s clerk at Cleveland received the goods, promising to pay the charges; but before paying was directed by the defendant, who was then in New York, not to do so. The defendant had a claim against the Yan Dewaters for damages to some of his goods (not those involved in this case), while in course of transportation by them on the Hudson river in the preceding month of September. This was his reason for not paying the charges in question, and he set up the claim by way of recoupment in this action.</p> <p>The defendant moved for a nonsuit upon the ground that the Yan Dewaters were proved to be partners with the plaá» tiffs, and should have joined as such in bringing the action. The motion was denied, and the defendant excepted. The same question and that of the defendant’s right to recoup were raised by other exceptions. The judge ordered judgment for the plaintiffs, which having been affirmed at general term in the fifth district, the defendant'appealed to this court.</p>

Action upon a bond executed by the defendant upon the issuing of an attachment by a justice of the peace against the plaintiffs as non-resident debtors under the provisions of the act to abolish imprisonment for debt. (§ 33, Laws of 1831, p. 403.) The defendant pleaded, first, non est factum. The second plea raised the ques tion whether or not a bond was authorized and required by the statute on issuing such an attachment.

The testator, at the time of his death, on the 24th day of October, 1848, was a resident of Durham in the State of Connecticut, where he had resided many years. On the 7th day of the same month he duly executed his last will and testament, of which he appointed Lyman, the respondent, who resided and still resides at Middletown in Connecticut, and his wife Elizabeth Parsons, his executor and executrix.

<p>The reasonableness of a regulation requiring way passengers on a railroad to surrender their tickets before reaching the station nearest to that of their destination, without receiving any check or other evidence of the payment of fare, is a question of law, and should not be submitted to the jury as one of fact.</p> <p>It seems that such a regulation is reasonable and valid. Per G. B. Strong, J*</p> <p>It seems that a conductor sued for ejecting a passenger for non-compliance with such a regulation, may give evidence of previous threats by the passenger tending to prove his disposition to pick a quarrel, although the threats did not come to his knowledge. The evidence appears to be proper to reduce the vindictive damages to which the conductor is exposed.</p>

Upon the trial at the Herkimer Circuit before Mr. Justice Pratt, the defendant offered in evidence the deposition of one Wilson taken under a commission. The plaintiff objected to its reception on the ground that the return or certificate of the commissioner was on a separate piece of paper attached to the commission, -and not on the commission itself.

Appeal, from the Supreme Court. The defendant ’cade hi? promissory note payable to Wilson & Calkins at Albany The payees procured Both & Co. to become second indorsers of it for .their accommodation, and it was discounted by a Troy bank. The note being unpaid at maturity, the indorsers were duly charged, and Both & Co. took up the note. After this the defendant paid the amount into the hands of Wilson & Calkins.

Action on an executory contract for the sale of a farm in Groton, in the county of Tompkins, by the vendee against the vendor. The contract was dated October 2, 1855. The farm was described as the one owned and occupied by the defendant, containing seventy-three acres, one rood and thirty-nine rods. The plaintiff was to ¡Day $3,800; $1,000 thereof on the 1st day of March then next, and the remainder in seven equal annual installments.

<p>This was a suit in the late Court of Chancery. The original bill was filed in that court on the 20th of July, 1842, by the plaintiff against Mathew Calkins to compel him to cancel a mortgage, and to account for the rents and profits during the time he was in possession, and to stay proceedings on a foreclosure of the mortgage which he had commenced. The bill charges that the plaintiff, in January, 1817, executed a mortgage to Cleveland Holmes upon four acres of land in Hew Berlin, Chenango county, in lot Ho. 15, and also upon one equal undivided eighth part of two acres of land in the same lot, together with the three equal eighth parts of the saw mill standing on the same, and one equal undivided half of the carding-machine, buildings and utensils belonging to the same, to secure the payment of $696.12, all of which had been paid on the 80th of March, 1818, except $248.12: that no further payments had been made since, except by the use and rents of the premises received by the assignee of the mortgage while in possession: the last payment was due January 1, 1819: that on the 10th dajr of December, 1818, Holmes assigned the mortgage to John Thompson, and on the 1st of March, 1822, Thompson assigned it to Mathew Calkins: that Thompson took possession of the premises some time in 1820, and kept possession until he assigned the mortgage to Calkins, when he gave up possession to him: that Mathew Calkins or his grantees have continued in possession ever since: that at the time Thompson left and Calkins took possession, Mathew Calkins sold to Thompson machinery in the carding-warehouse building, worth $200, the half of which belonged to plaintiff, and should have been applied towards payment of the mortgage: that this machinery, together with the rents and profits received by Mathew Calkins, fully paid and satisfied the mortgage, and that Mathew Calkins had commenced proceedings of foreclosure by advertisement under the statute. The bill prayed for an account: that the mortgage be canceled of record, and the plaintiff be put in possession of the premises; and for general relief.</p> <p>The sum claimed to be due and unpaid upon the mortgage, at the date of the notice advertised, was §626.28. The assignment by Holmes to Thompson, recited that there was, at its date, unpaid on the mortgage the sum of §248.12; and that to Mathew Calkins stated the sum of §303.05 to be due at its date.</p> <p>Mathew Calkins answered the original bill denying that the mortgage had been paid, and averring that the plaintiff had by an arrangement with Thompson surrendered the premises in payment of the amount due on the mortgage, and claimed to hold the premises and to foreclose the mortgage for the purpose of protecting the title only. That he had some years previous sold and conveyed by deed, the four acre lot to Charles Tucker, and the two acre lot, upon which the saw-mill stands, to James Isbell, and that the rents and profits had no more than paid the taxes and kept the premises in repair. A replication was put in to this answer, and proofs were taken. The cause was heard on pleadings and proofs before the Vice-Chancellor of the sixth circuit, and a decretal order made on the 15th of November, 1843, decreeing the title of the premises to be in the plaintiff: that the mortgage was an open subsisting mortgage, and the plaintiff had a right to come in and redeem; and a reference was ordered to take an account of the rents and profits. Mathew Calkins died on the 16th of May, 1844; and on the 10th of April, 1846, the plaintiff filed a bill of revivor and supplement, making James Isbell and others defendants, setting forth, among other things, the substance of the original bill and supplemental matter, and praying, among other things, the possession of the premises claimed by Isbell, together with a prayer for general relief.</p> <p>Isbell answered the supplemental bill, claiming the title and fee simple of the premises, and that he had been in possession of two acres and a saw-mill under his two deeds from Philo and J. W. Chapman, since October 11, 1841. He denied that he knew anything about the mortgage, or anything about its foreclosure, except by hearsay. The evidence, however, was held by the court here to prove that he was aware of and interested himself in the proceedings for foreclosure during their progress, on the 27th of October, 1841. The cause was heard on the pleadings and proofs on the supplemental bill before a Justice of the Supreme Court of the sixth district, and on the 20th March, 1848, a decretal order was made, referring the cause and directing the referee to take and state an account between the parties. The referee took such account and made his report, to which the plaintiff excepted, and the court at special term modified the report. The defendant appealed from the order modifying the report, and the order was affirmed at general term. By this order nothing was found due upon the mortgage. A decree was made at special term in December, 1852, that the plaintiff was entitled to the possession of the mortgaged premises, and decreeing costs against Isbell and Tucker, two of the defendants. Exceptions were filed and an appeal taken. The decree was affirmed at general term in the sixth district, and the defendant, Isbell, appealed to this court.</p>

The complaint alleged that in 1855 a contract was entered into between one McAuliff and the school officers of the nineteenth ward of the city of ¡New York for the erection of a public school-house; that McAuliff, in pursuance of the contract, furnished materials for the building and erected a part of the house, and that, upon the occurrence of a disagreement between him and such officers, the latter declared the contract forfeited and prohibited McAuliff from proceeding…

The defence was, that the plaintiff was not duly incorporated.

'The original action was commenced for the purpose of foreclosing a mortgage of $3,800, executed by one John 0.

<p>It is in the discretion of the judge presiding at a trial to determine whether a question is objectionable as leading, and a judgment will not be reversed for an error in that respect.'</p> <p>Nor because a witness not stating any difficulty in giving the language of parties was permitted to state his understanding of its import, the fact thus proved being established by other evidence.</p> <p>The title of a school district to its real estate capnot be affected by the admission of one of the trustees without the concurrence of his colleagues, that he recognized a claimant thereof as landlord.</p>

<p>•Appeal from the Supreme Court. The plaintiff was underwriter on several policies of insurance upon goods shipped on board the defendant’s boats, in the city of blew York, in September, 1852, by several merchants, to be delivered at different ports in the Western States. The defendants were common carriers, doing business under thenamfrof the American Transportation Company. It was alleged in the complaint that the goods were damaged and wholly lost to the firms on whose account they were shipped, through the'carelessness and negligence of the ■ defendants: that being so lost they were wholly abandoned to the plaintiff • and that the plaintiff, in consequence thereof, paid to the owners the value of their goods, and ten per cent in addition: that by reason thereof, the plaintiff became subrogated to all the rights of the firms, and it claimed from the defendants the amounts it'had thus paid.</p> <p>The defendants denied that the goods were lost through negligence, and set up a special contract, between them and each of the firms shipping the goods, by which they were to transport all goods which the firms should have, at reduced prices, and that in consideration of such reduction, the firms should take the risk of loss or damage from the dangers of lake and river navigation, fire, breakage, leakage, &o. The agreement also contains this clause: “ In'case of loss or damage for which the party of the first part (defendants) may be liable, they shall have the benefit of any insurance by or for account of the party of the second part (the firms insured by the plaintiff), and should the said goods be damaged or destroyed by accident or fire, the freight and charges to and at the place where such loss may happen, shall be paid by the party of the second part.” ■</p> <p>The action was tried without a jury, and the justice found the following factsThe goods were delivered to the defendants as common carriers, by their respective owners, under the special agreement above recited and set out in the answer: while the goods were in process of transportation on board of a vessel, and in the possession of the defendants, they were damaged to the amount of $2,878.72, by collision with another vessel on the Erie Canal: the goods, at the time'of said damage, were insured by the plaintiff for the respective owners, and after such damage the owners abandoned the same to the plaintiff: the plaintiff thereupon paid to the respective owners the full value and invoice price of the goods, having no knowledge of the special agreement in respect to insurance under which they had been shipped. The justice found and decided as matters of law from these facts, that such abandonment and payment would have subrogated the plaintiff to all the rights and interests of the owners, and would have vested in it all rights to the said goods, and all the claims which the owners of said goods had against the defendants for the damage to the goods, but for the clause contained in the agreements with the owners; but that by reason of such clause the plaintiff took no right of action against the defendants for the damage to the goods.</p> <p>Judgment was entered for the defendants with costs, which was affirmed at general term in the first district, and the plaintiff appealed to this court.</p>

Action by creditors of an insolvent partnership to have its debts ascertained and distribution made of its funds; for the appointment of a receiver, &c. The complaint alleged that the defendant Schenck was a special partner, and that he claimed to have made large advances for the business of the firm over and above the amount of capital contributed by him, for which advances he claimed to be entitled to a dividend in the same manner as other creditors.

<p>Appeal from, the Supreme Court. Action upon a bond executed by the defendants to discharge a vessel from an attachment. The claim exhibited by the plaintiff was for materials furnished for the building and equipping the steamboat Erastus Corning, which one Van Wie was constructing under a contract with Austin, one of the defendants. Austin paid Van Wie the full contract price for the boat upon its completion and delivery to him in May, 1854, without any knowledge of the claim of the plaintiff. The trial was before the late Mr. Justice Watson, at the Albany Circuit, a jury having been waived, and he ordered judgment for the defendants, upon the ground that Van Wie, who contracted the debt, was not the owner, master, agent- or consignee of the vessel, within the meaning of the statute. This judgment was reversed at general term in the third district, and a new trial ordered. The defendants appealed to this court, stipulating that if the order should be affirmed, judgment absolute should pass against them.</p>

Action for a specific performance of a contract. The trial was before Mr. Justice W. F. Allen, without jury, and these facts were proved: The defendant located its road upon the plaintiff’s land, and its workmen having entered thereon, and being warned by the plaintiffs to keep off until they got their pay for the land, desisted from their . operations.

Action to foreclose a mortgage of a lot situate on the corner of Hammond, and West streets, ,in the city of Hew York. The mortgage was by the defendants Tallman and wife to John Greene, and was dated on the 15th of April, 1845.

The complaint contained the common counts only for work, labor and services done by Nicholas Vache, the testator, for the defendants. The defendants denied the facts averred in the complaint, and set up as a separate defence that the work was done under a special contract not performed by Yache in his lifetime, and claimed damages for the breach of the contract on his part.

Action upon two promissory notes executed by the defendants under the firm of Fobes & Backus for $500 each, both payable on or before the 1st day of June, 1850. The defendant Fobes set up in his answer that previous to January 22d, 1852, a controversy having arisen between him and his co-defendant Backus of the one part, and the plaintiff and a third Backus of the other part^ the matter was submitted to arbitrators by a written submission, which he set out in verbis.

Action against a corpo ration created by and existing under the laws of Pennsylvania upon a bill of exchange drawn by it in payment for a locomo tive engine, and protested May 21, 1842. Held: was made in the State of Pennsylvania. It was a foreign contract made by a foreign corporation. As the plaintiff seeks to bring the defendant within .an exception to the operation of the statute of limitar tions, he must show that he comes within the plain words of the statute.

Action to recover the amount of a promissory note, together with the costs of an action to collect it, in which the plaintiff was defeated. The trial was before Mr. Justice Masost, without jury.

The complaint was that the defendant as a common carrier, received from the plaintiffs at Laporte in Indiana, one hundred and eight beef cattle, and four hundred hogs, to be transported to Toledo in Ohio; that the defendant’s agent placed the cattle in cars which were too low for the cattle to stand upright without scraping and bruising their backs, and which had iron staples projecting into the cars against which the cattle were jammed and rubbed; and that the defendant…

Action upon a promissory note purporting to be made by J. & A. Dearborn & Co. Upon the trial at the Kings Circuit before Mr. Justice Rockwell, these facts were proved: Previous to the making of the note on December 20th, 1853, John Dearborn, Alexander Dearborn and John McChesney, composed the firm of J. & A. Dearborn & Co., doing business in the city of Hew York. It had dealings with Ketchum & Co., the payees of the note.

Dearborn, representing John and Alexander Dearborn: thé same parties who were defendants in the last preceding case. John alone appeared and defended. Upon the trial before Mr.Justice' Rockwell, at the Kings Circuit, it appeared that the signature was in the handwriting of Alexander Dearborn.

<p>Appeal from the Common Pleas of the city and county of Hew York. The action was to enforce a mechanic’s lien, under the act of July, 1851 (ch. 513), for york done and materials furnished upon a building in the city of Hew York. The trial was before a referee, who found these facts: The dwelling-house, when the labor was performed and materials furnished, and when the contract therefor was made, was the sole and separate property of the defendant, Catherine Gatlin, wife of John M. Catlin. The work was done and materials furnished pursuant to a. contract made previous to the act of July 11,1851, between the plaintiff and the defendant John M. Catlin, who acted therein as the agent of his wife, and with her knowledge and consent; said contract was made for her use and benefit. On the 17th of May, 1852, within six months after performing the work and furnishing the materials, the plaintiff, pursuant to the act of July 11, 1851, served a notice on the clerk of the county of Hew York that he had “a claim against John M. Catlin and Catherine Ann his wife,” specifying its amount and character, and that the work was done and materials furnished in pursuance of a contract or agreement with the said John M. Catlin. It stated that the building, which it described, was owned by Catherine Ann Gatlin; and claimed a lien thereon and on the land on which it stood. A notice and bill of particulars of the amount claimed to be due were served on the defendants, and proceedings duly taken to create and perfect the plaintiff’s lien. The referee reported that the plaintiff was entitled to judgment for a sale of the dwelling-house and land, and for payment of the sum of $262 which remained due him. Judgment was entered accordingly for the sale of the right, title and interest which Mrs. Catlin had in the property on the 17th of May, 1852, without any personal judgment against her or her husband. This judgment haying been affirmed at general term, the defendants appealed to this court. The cause was submitted on printed arguments.</p>

In an action for the foreclosure of certain mortgages there was a sale under the judgment, which produced surplus moneys to the amount of $3,800. One Hannah B. Smith claiming the whole surplus, a reference was ordered to ascertain and report the amount due to her or to any other person which was a lien upon such surplus, and to ascertain the priorities pf the several liens. The plaintiff Marshall claimed a part of the surplus, as did also the defendant Thomas Downing.

The relator obtained an alternative mandamus requiring the defendants to show cause why they should not audit a claim of the relator for damages due to him for the laying out of a public highway in the town of Southfield. They made a return upon which issues were joined and tried at the Richmond Circuit before Mr. Justice Rockwell.

Action to recover of the defendants the value of merchandise lost while in their charge as common carriers. The trial was before a referee, who found these facts: The defendants were common carriers on the Hudson river, between New York and Albany, and received the plaintiffs’ goods at NewAork to be transported to Albany directed to the plaintiffs, at Brockport, to the care of H. Field & Co., Brockport, Ef.

Justice Masten, it appeared by the evi dence of a bystander, that one Holly, in November, 1857, at the request of the defendant, loaned and advanced to him §80Q, stating at the time that he owed that sum to the plaintiff for money borrowed of him, and had agreed to pay it to him the then next day; that the defendant in consideration thereof, at the time of receiving the money, promised to pay it to the plaintiff the then next day.

• Appeal from the Common Pleas of the city and county of New York. Action to recover one quarter’s rent of the first floor of brick building No. 8 Fulton street in said city, for the quarter ending May 1st, 1855, leased by the plaintiff to the defendant for one year from May 1st, 1854, at a yearly rent of $1,500, payable quarterly on the first days of August, November, February and May.

The plaintiffs sued to recover the. amount of a note for $297, made April 11, 1856, by the defendants, payable presently. The defence was fraud in the consideration of the note.

<p>A condition inserted in the certificate of renewance of a life policy, that the insured was then in good health, is to be construed by the standard of health existing at the time of the original policy, and the description of the insured’s condition and ailments contained in the declaration upon which it was made.</p> <p>Where the insured, at the time of the renewal, is not affected with any diseases other than those mentioned in the original declaration, which tend to shorten life or increase the risk, and those diseases have not become so aggravated as to make his condition substantially different from what it was at the date of the first policy, he is in good health within the meaning of the parties.</p>

Appear from the Supreme Court. Action for malicious prosecution and false imprisonment. The complaint contained two counts. The first was for malicious prosecution, fully detailing the facts and circumstances under which, as it was claimed, the action could be maintained. The second was the usual count for false imprisonment.

The plaintiff sued, as assignee of one Patten, for money had and received by the defendant, to the use of Patten, under these circumstances: In 1846, the defendant, Martin, having obtained a judgment in the Superior Court of Hew York city, against Cornelius Kanouse; the latter sued out a writ of error to the Supreme Court, and Patten, as his surety, executed with him a joint and several bond, conditioned for the prosecution of the suit in error, and for paying the judgment…

The action was bronght to recover the amount claimed to be due the plaintiff for work under a contract in writing between the parties, entered into by the street commissioners on behalf of the city, for setting curb and gutter stones, and flagging Eighty-third street, from the Third avenue to Aventie A. The case was tried before a referee.

<p>Appeal from the Supreme Court. This suit was brought iu 1857, to recover fifty-eight acres of land, situated in the county of Erie. At the trial, before Mr. Justice Davis, a verdict was taken for the plaintiff, subject to the opinion of the Supreme Court, on a case to be made, and that court gave judgment for the plaintiff. The defendant appealed to thb court.</p> <p>Rhodes Stranahan died in 184B, seised in fee of one hundred and seventy-five acres, of which the premises in question are a part. His only children and heirs were: Elizabeth, wife of Peter Miller; Margaret, wife of E. D. Bivins, and Angeline, wife of Erastus B. Wright. Mr. Wright was an alien. In July, 1844, the heirs .made an agreement for the partition of the land; and in pursuance thereof, Miller and wife, and Bivins and wife, by a quit-claim deed, dated July 23, 1844, conveyed the fifty-eight acres in question to the said Wright, and Angeline his wife, their heirs and assigns forever. In June, 1844, Wright and wife removed to the State of Wisconsin, where they resided until they died. In August, 1844, Wright filed in the clerk’s office, in Erie county in this State, the usual declaration of intention to become a citizen, but filed no deposition, declaring such intention, in the office of the Secretary of State. Mrs. Wright died without issue, in January, 1845. One of the sisters, Mrs. Miller, died without issue, shortly before Mrs. Wright, and the mother, Mrs. Stranahan, died about the same time; but whether before or after the death of Mrs. Wright did not appear. Either Mrs. Stranahan, the mother, or Mrs. Miller, the surviving sister, was the sole heir of Mrs. Wright. If Mrs. Stranahan died after Mrs. Wright, she inherited; and in that case Mrs. Miller inherited from her. If before, then Mrs. Miller inherited directly from Mrs. Wright. The defendant was in possession at the commencement of the suit, claiming title thus: Miller and wife, in .1853, being in possession of the fifty-eight acres, conveyed the same to one Htley, who afterwards conveyed to the defendant.</p> <p>Mr. Wright married a second wife, in May, 1845, and died in, September following. The plaintiff is an infant, and is the posthumous issue of that marriage. Before the death of the first Mrs. Wright, she made a will in the State of Wisconsin, whereby she undertook to dispose of the premises in question, as follows: “And all the real estate which I may hold at the time of my decease, left to me from my father’s estate, I give and devise to my said husband, Erastus B. Wright, to have and to hold the same to him and his heirs forever, should he ever have children of his own; but should he have no issue, the residue, should there be any remaining at his decease, to the children of my sister, Eliza Miller.” In 1858, the Legislature of this State passed an act declaring that the State released to the plaintiff all the retd estate in Erie county, “ heretofore conveyed or intended to be conveyed to Erastus B. Wright and Angeline his wife, or subsequently devised, or intended to be devised, by the said Angeline Wright, to -the said Erastus B. Wright and his children.” Such other facts in the case, as are material to the questions considered, are stated in the opinion of Comstock, J. The case was submitted in this court on printed arguments.</p>

350 shares Penn. Zinc, 3f, B 60. I have purchased of Theodore S. Draper three hundred and fifty shares of the stock of the Pennsylvania and Lehigh Zinc Company, at three and three-eighths dollars per share, payable and deliverable—buyer’s option—in sixty days, with interest at the rate of six per cent per annum. GEORGE R. HAZEWELL.

Action to recover damages for an alleged illegal entry upon the plaintiff’s premises, and taking, removing and converting twenty-three salt kettles. Held: as matter of law, that the kettles were a part of the realty, and that the plaintiff became the owner of them by his purchase of the land, and he awarded damages to $461.77, for which judgment was entered; and it was affirmed at general term. The defendants appealed. The case was submitted upon printed briefs.-

Writ of error to the Supreme Court. Mandamus requiring the sheriff of Montgomery to execute to the relator a deed of certain land, to which he claimed to have acquired title as purchaser upon a sale on execution. The sheriff made a return to the alternative writ, upon which issues of fact were joined and tried at the Montgomery Circuit.

The plaintiff had judgment there in an action for equitable relief. On the trial it appeared that there was no corporation of the name of The Bank of Havana, but that Charles Cook carried on a banking business under that name as an individual banker, at the village of Havana, then in the county of Chemung, having complied with the provisions of the statutes on that subject; and that the cause of action accrued to him out of transactions in the course of that business.

<p>A person, accused of being intoxicated in a public place, under chapter 628 of 1857, cannot be summarily tried before a justice of the peace unless he so elects, but is entitled to give bail for his appearance before the next Court of Oyer and Terminer or General Sessions.</p> <p>The statute having made intoxication in a public place a criminal offence, the accused cannot be deprived of the right of trial by jury.</p>

The facts agreed upon by the parties are these: By chapter 262 of 1836, the Albany and West Stockbridge Railroad Company was authorized to make the western termination of its road at a. point opposite the city of Albany, in the town of Greenbusk.

Case submitted without action, under section 372 of the Code. The facts agreed upon by the parties are these: The defendant became incorporated under the general banking law, December 25, 1851, and is located at the. city of Troy. Its capital stock, $100,000, was not all paid in until April 20, 1853, and it began to issue cireulating notes May 23, 1853.

Action to restrain the collection of a judgment. Held: as a conclusion of law, that the payment of the judgment by Jacob Vanderbilt to the plaintiffs therein was a satisfaction of it, and that he could only call upon his co-defendants for a contribution to the extent of their aliquot shares.

Action to recover land in Seneca county. The trial was before Mr. Justice Welles, who directed a verdict, subject to the opinion of the court. At general term in the second district, the judgment was rendered for the plaintiffs. The defendant appealed to this court. AH the material facts are stated in the following opinion.

• Appeal from the Supreme Court. Action to recover the amount of a promissory note made by Parrish & Utley, dated Sept. 20th, 1853, for $500, payable at the American Exchange Bank, Hew York, six months after date, to the order of the makers, and indorsed by them and the appellant. The complaint alleged that the note was duly presented for payment, and payment refused, and that the defendants were duly noti fied thereof.

Action for the specific performance on a contract made in July, 1851, for the conveyance by the defendant to the plaintiff of fifty acres of land, now within the city of Brooklyn. The defendant was to give a deed with full covenants, conveying a perfect title. He tendered a deed good in form in November, 1851.

' Appeal from the Supreme Court. Action to recover the price of certain slaughtered hogs, sold by the plaintiffs to the defendant. Held: that the plaintiffs were entitled to recover the price of the dressed hogs, deducting the damages which the defendant had sustained for the breach of the other branch of the contract; and he reported accordingly: The dressed hogs came to $1,182.57; deducted for defendant’s damages, $401, leaving $780.38, for which judgment was given,…

Action upon a recognizance entered into by the defendant before W. ÍT. Mason, Special County Judge of Chenango county, in the penalty of $500, conditioned for his appearance at the next Court of General Sessions, to be held in that county, to answer and stand trial upon an indictment against him for grand larceny.

Action to recover for supplies furnished by the plaintiffs, at Cleveland, in the State of Ohio, to the steamboat De Witt Clinton, on the order of defendant Wing, part owner and master. The facts, as found by the referee who heard the cause, were substantially as follows: Eli Hart died, intestate, December 31, 1845, the owner of one-seventh of the boat.

Motion by subsequent judgment creditors to set aside a judgment confessed by the defendant to the plaintiff and executions which had been issued thereon to the sheriffs of Schuyler and Steuben counties. On the 14th day of July, 1855, the defendant signed and verified this statement: SUPREME COURT.

Action to recover for work performed and materials furnished by Patrick McMahon (who had assigned his claim to the plaintiff) in the construction of two sections of the Mew York and Erie Bailroad. The trial was before one of the justices, without jury and sitting in part out of term time, under a stipulation, substantially as referee. It appeared that the work was performed under a written contract, and was completed in October, 1848.

Action to recover the amount of eight chattel notes or special contracts of which the following is a specimen, the others differing only in amounts and times of payment: “New York, April 22d, 1850. “ Nor value received we jointly and severally promise to pay C. Jj.

Controversy relative to the title to a tract of land in the town of Easton in the county of Washington, which was formerly the property of Abraham Ten Broeck, late of Albany, deceased, and was devised by him upon the death of his wife, in the fourth clause of his will, primarily to trustees for the use of his daughter Elizabeth Schuyler, during the lifetime of her husband Rensselaer Schuyler, and upon his death in trust to convey the legal estate therein to her in fee.

Action to recover the amount of a mechanic’s lien for materials furnished under a building contract between the defendant as owner, and one George W. Burwick, for erecting a certain addition to a brewery belonging to the defendant.

The plaintiff, a passenger under a commutation contract for the season, upon the Harlem railroad, brought his action for damages sustained in a collision between the train in which he was riding and a train of the New York and New Haven Railroad Company. Both corporations used the same track under an arrangement between them sanctioned by statute, according to which they were to be governed by a common code of regulations in respect to the management of their trains.

Action to recover damages upon a contract made between Mallory, the plaintiff’s assignor, and the defendant, in December, 1849, by which Mallory was to furnish materials and build fifteen lumber cars for the defendant, for four hundred and seventy-five dollars per car, to be paid for in six months from the average delivery.

<p>The price at which goods were sold at public auction is some evidence, slight or cogent according to the circumstances, to be considered by the jury in arriving at their value.</p>

Action, by the plaintiff, a corporation organized under the act to authorize the business of banking, against another corporation organized under the same act, to recover the sum of $1,000, and interest from the 1st of September, 1857.

<p>This court cannot look outside of the Case for a referee’s conclusions of fact and of law. The rule of the Supreme Court, requiring the referee to state such conclusions in his report, does not affect the practice upon appeal.</p> <p>The nature of a Case, and the manner in which it should be made up.</p>

The action was to compel a transfer to the plaintiffs of 562 shares of stock of the Illinois Central Railroad Company wrongfully transferred, as was alleged, to Robert and George Schuyler, or to recover the premium which the stock bore at the time of the transfer.

This cause was tried by a referee who decided in the plaintiff’s favor, and judgment was entered accordingly in November, 1857. Before the judgment, but after the case had been submitted to the referee, J. A. Johnson of Syracuse, the defendant’s attorney, died, and Messrs. Peckham and Tremain, Esqs., of Albany, had given notice of appearance in his place. The plaintiff’s attorney, residing in Troy, gave notice of the judgment to them in December, 1857.

Motion by the respondent to dismiss 'an appeal. The relator having obtained an alternative mandamus requiring the Comptroller to draw his warrant on the Treasurer for the amount of certain alleged demands against the State mentioned in the appropriation bill of 1859, moved, on the return, for a peremptory writ, which was awarded; and the order was affirmed at general term in the third district on the 16th of September, 1859.

Writ of error to the Supreme Court. Quimbo Appo was tried and convicted of murder, and sentenced to be executed therefor, by a Court of Oyer and Terminer held in and for the city and county of New York, in April, 1859. The court adjourned sine die on the 16th of June following.

On the 6th day of November, 1852, Louis Napoleon, a colored citizen of this State, made application upon a sufficient petition and affidavit to Mr. Justice Paine of the Superior Court of the city of… Held: a negro who had been bought in Virginia and brought to England, to be free. (20 Howell S. T., 82.) In 1824, the doctrine was applied to thirty-eight slaves who came on board of a British man-of-war off Florida, having escaped from a Florida plantation.