Volume 20 — New York Supreme Court Reports

This action was brought to recover for injuries sustained by the plaintiff, by being thrown off his wagon, loaded with hay, when crossing the defendant’s track at Coeymans, Albany county, in… Held: in numerous cases, that where the alleged irregularity is brought to the knowledge of the party during the- trial, and he proceeds without objection, he thereby consents to abide the result, and he cannot afterwards raise the objection.

This action was brought upon a promissory note made by defendant, payable to Mary W. Smith or bearer, for $500, with nse, and dated on tbe 4th day of July, 1865, payable one day after date. Tbe defense, among other things, was that tbe defendant at the time of tbe execution and delivery of tbe note was a married woman, and that tbe note was executed and delivered for money loaned to her husband, George W. Kennedy, and was not given for tbe benefit of her separate estate.

Tbe plaintiff’s complaint alleges that by tbe defendant’s fraudulent representations be was induced to purchase a farm of tbe defendant for tbe sum of $18,000 ; that tbe farm was, in fact, worth not over $12,000; that if tbe defendant’s representations bad been true tbe farm would have ,been worth $20,000; that the plaintiff paid in cash $5,000, assumed a mortgage of $2,000, and gave a bond and mortgage for $11,000, payable in $1,000 annual installments, one of which he has…

The action was brought to recover on three promissory notes, one for $3,000 and two for $2,500 each, made by Michael Warner, the original defendant and the intestate of the present defendants, and indorsed by one Daniel Ayer. The answer admitted the execution of the notes, but alleged that they were made solely for Ayer’s accommodation, and that Ayer indorsed them and procured them to be discounted at a usurious and unlawful rate of interest.

The action was brought to vacate letters patent issued by the governor of this State to the defendant Daniel Stephens and others, of the southern terminus of the Chemung canal.

. The plaintiff was the owner of a lot in the village of Monticello.

Tbis was an action for tbe claim and delivery of personal property consisting of farming tools, farming stock and unharvested crops, brought by tbe plaintiff, who is a married woman, against tbe defendant Haynes, who is sheriff of Cortland county, and who, by virtue of two executions issued out of tbe County Court at tbe instance of tbe defendant Tower, who was plaintiff in said executions, levied upon the aforesaid property.

<p>Appeal from an order of the Albany County Special Term, sustaining defendant’s exceptions to the report of a referee.</p> <p>This is a reference, under the statute (2 R. S., 88, 89, §§ 36, 37) of a claim made by the executors of John Magee, deceased, against the administratrix of Peter Cagger, deceased.</p> <p>The facts are, that, in 1861, Mr. John Magee was the owner of certain leases known as Yan Rensselaer manor leases; that Mr. Oagger agreed to act as the attorney of Mr. Magee, to collect the rents due on the leases, and to make the collections on the leases for the taxable costs; and that Mr. Magee was in no case to be personally liable for the costs of collection. Under this agreement, Mr. Cagger commenced twenty or thirty suits, on some of which collections were made, and some of which were settled, and some are still pending undetermined. Mr. Cagger was defeated in one of the cases, on the ground that the assignee had not notified the tenant of the assignment to him as required by 1 Revised Statutes (739 § 146). Mr. Cagger collected $2,218.09. The costs of the suits in which this sum was collected was $631.60, which was, by the referee, deducted from the amount of the collections, and judgment ordered for the balance, with interest, amounting to $2,523.30.</p> <p>Mr. Cagger died July 6, 1868. At the 'time of his death two suits had been discontinued and costs paid, and there were pending, undetermined, seven suits on these leases. The taxable costs in these nine suits were $901.80. These suits were commenced without giving the tenants notice under the Revised Statutes. At the trial of this reference they were still pending. The referee refused to deduct the taxable costs in these nine cases from the amount collected, and the defendant excepted to such refusal. The plaintiffs moved for judgment on the report, and the defendant made a case and exceptions, and brought them to a hearing at Special Term at the hearing of the motion to confirm the report. The court allowed to the defendant the $901.80, and modified the report accordingly, and from that order the plaintiffs appeal.</p> <p>The. exceptions are based upon the proposition that the death of Mr. Cagger, the attorney of Mr. Magee, rendered it impossible for him to perform the entire service he had contracted to do, by prosecuting the actions to final determination, and, therefore, the defendant, as his personal representative, was entitled to be credited for what services had been rendered by Mr. Cagger up to the time of his death. The rule of law is that: 1. One who, under a contract requiring his personal services, performs services valuable to the employer, but before the full performance of the service is disabled by death from completing the contract, is entitled to recover as upon a quantum meruñt for such services as he rendered. ( Wolfe v. Howes, 20 N. Y., 197, 203.) 2. The recovery in such a case cannot exceed the rate of the contract-price for the part of the service performed. (Gla/rlc, v. Gilbert, 26 N. Y., 279, 283.) 3. It is also essential that the employer should have received actual benefit from the services of his agent; and where the services are worthless, no compensation can be recovered for part performance. ( Wolfe v. Howes, 20 N. Y., 197,203; Clarice v. Gilbert, 32 Barb., 576; Fahy v. Worth, 19 id., 341.) The plaintiff insists that the services in the nine actions not finished at his death were worth absolutely nothing. If, to sustain the report of the referee, it is necessary to assume that he fouiid the fact that these services were of no value, the court will do it, if there is evidence to sustain such a finding. (Walsh v. Powers, 43 N. Y., 23, 27; MeKeon v. See, 4 Robt., 449,' affirmed 51 N. Y., 300.) The statute requiring the notice was one of long standing, and was peremptory in its requirements. Mr. Cagger should have known of it before he brought the actions. The notice not having been given, and the actions not being sustainable without it, there can be no possible benefit to Mr. Magee’s estate from the bringing of them. (Add. on Con., 612; Hv/ntley v. Bul/wer, 6 Bing. [N. C.], Ill; Long v. Orsi, 18 O. B., 610; Shear. & Redf. on Neg., § 221, and note.) When, from negligence, carelessness or inadvertence, the attorney’s services are of no benefit to his client, he is not entitled to compensation. (Add. on Con., 455 ; 1 Pars, on Con., 116; Hill v. Featherstonhcmgh, 7 Bing., 569 ; Braeey v. Carter, 12 Ad. & E. [N. S.], 373; Hu/ntley v. Bul/wer, supra; Hoppi/ng v. Qui/nn, 12 Wend., 517; Bowman v. Tallma/n, 40 How. Pr., 1; Pa/rlcer v. Bolls, 14 C. B., 691; Goodman v. Walker, 30 Ala., 482.)</p>

On the 7th of July, 1875, plaintiff Porter commenced an action upon an undertaking executed by the defendants Kingsbury and Newton, to recover the amount alleged to be due thereon. To that complaint defendants demurred on the grounds: I. That the complaint does not state facts .sufficient to constitute a cause of action. II. That the court has no jurisdiction of the persons of the defendants or the subject of the action.

On September 23, 1846, George Webster, tbe owner of tbe house and lot described in tbe complaint, executed to David Eussell a general assignment of all bis property for tbe benefit of bis creditors. Held: however, that such deed was only valid to transfer tbe dower right of tbe wife.

The action was brought to restrain the defendant from the use of certain appliances, by means of which it is enabled to maintain at its mill a uniform flow of the waters of Fish creek throughout the entire year, and for damages. The plaintiff runs a paper mill propelled by water from this creek, and the defendant owns and operates a cotton factory about one mile above him on the same creek.

The action was commenced in 1869 by Elijah B. Smith, as sole plaintiff.

This action was brought by the plaintiff to recover the sum of fifty dollars, subscribed by him in pursuance of the following agreement: “ For value received, and in consideration of the covenants hereinafter mentioned, we, the subscribers, hereby promise and agree to pay unto Elmon. Howe the sums set opposite our respective names by the 1st day of July, a. d. 1867.

Tbe plaintiff claimed title to tbe premises in question through a contract or lease made by it with tbe Albany and Yermont Railroad Company some seventeen years before tbe commencement of this action.

After this action had been commenced it was agreed to submit the same to the justice trying the case upon a statement of facts agreed upon by the parties. Subsequently an application was made by the plaintiff for leave to change and alter the form of the submission, which was denied. Thereafter the plaintiff applied, upon notice, to another justice for leave to discontinue the action, which was granted. From this order this appeal is taken.

<p>Oemal Appraisers — •refusal to malee return to canal bowd— mandamus.</p> <p>Upon an appeal by a claimant to the canal board from a decision of the Canal Appraisers, the latter refused to make a return to the appellate tribunal, on the grounds, first, that the appeal was not taken in time; and, second, that the relator had settled his claim and given a release in full therefor.</p> <p>Held, that both of these questions were to be considered and decided by the appellate tribunal and not by the Canal Appraisers, and that a momda/rrms should issue compelling the Appraisers to make the required return.</p>

The action was brought to recover damages for an assault and battery. The defense interposed was that the plaintiff was trespassing upon defendant’s ground and refused to leave the premises. The locus i/n quo had been used as a private way from plaintiff’s premises, over defendant’s land, to the public highway, for more than sixty years, a gate having always been maintained near the highway and also at plaintiff’s line.

The plaintiff, on July 20,1871, entered defendant’s train at Syracuse. To the train was attached in addition to the ordinary cars a .Wagner drawing-room car, which latter was run upon defendant’s road under the provisions of the contract hereinafter set forth. Tbe drawing-room car was in charge of a porter employed by Wagner. The train was in charge of defendant’s conductor.

Tbis action was brought to recover damages for personal injuries sustained by tbe plaintiff while driving a horse and cutter upon Mobawli street, in tbe city of Cohoes.

<p>Appeal from a judgment in favor of the defendants, entered upon the report of a referee.</p> <p>Full and complete performance by plaintiffs was not a condition precedent to payment by the defendants, because there was nothing in the terms of the contract, nor outside, that made full performance a condition precedent. (Typton v. Feitmer, 20 N. Y., 423 ; Withers v. Reynolds, 2 Barn. & Adol., 882; Pattridge v. Gildermester, 1 Keyes, 93; Sielcels et al. v. Patterson, 14 "Wend., 256, 257; Tal/mage v. White, 3 Jones & Spencer; 35 N. Y. Sup. Gt. Rep., 218; Swift et al. v. Opdylee et al., 43 Barb., 274; Gardner v. Ciadle, 21 N. Y., 399 ; BaÁley et al. v. The Western Vt. R. R. Go., 18 Barb., 112; Snoolc v. Fries, 19 id., 313 ; Bowlcer v. Hoyt, 18 Pick., 555 ; Parsons on Contracts [6th ed., vol. 2], 517-524, 657, etc.)</p>

Tbe action was brought upon a promissory note for $500, dated November 15, 1875, and payable December fifteenth of that year. Tbe answer was a general denial and an affirmative defense that tbe note was given in pursuance of a contract which tbe plaintiff bad failed to fulfill. The contract was for tbe sale of certain land by tbe plaintiff to tbe defendant.

On March 23, 1863, John P. Benham, plaintiff’s intestate, conveyed certain real estate to tbe defendant Pennock, and took back a purchase-money mortgage for $2,800.

<p>Services rendered by ma/rried ‘woman — ■ husband must maintain action foi' — Mutual account — proof of.</p> <p>This action was brought by the plaintiff, a daughter of David Quackenbush, deceased, against his executor, to recover for services rendered by her in attending upon her father during his last illness, she being then married and living with her husband. Seld, that the husband, and not the plaintiff, was the proper person to bring the action.</p> <p>She also claimed to recover for services rendered before her marriage, to which the statute of limitations was pleaded. To remove the bar of the statute, she proved an account in which she had charged her father with the services and credited him with various amounts, the credits being for such articles as a- father would naturally give to a daughter living with him, although of age. No account was kept by her father. Seld, that the simple presentation of an account containing such credits to the executor was not sufficient; that an account of her father against her should be regularly proved, in order to have the effect of taking the case out of the statute,</p>

<p>Refusal, of pa/rty to action, to produce paper ■— contempt — striking out complaint.</p> <p>Upon the trial of this action, brought to foreclose a bond and mortgage, in which the defense was payment, the plaintiff having been subpoenaed-to produce the bond was called as a witness and asked if he had it, to which he said he did not have it; that he did not have it in his possession when subpoenaed. The court then staled that the question was, whether he had control of it. After about an hour had been occupied by counsel in his efforts to find out where the bond was, the counsel for the plaintiff stated that he had it in his pocket, and being asked by the court if he would produce it said that he declined to do so at present, whereupon the justice ordered the complaint to be stricken out. Held, that this was proper.</p>

<p>JHew trial on ground of nmly-diseov&red evidence — costs of former trial — must be paid by applicant for.</p> <p>A new trial, on the ground of newly-discovered evidence, should only be granted upon condition that the party applying therefor shall pay the costs of the former trial.</p>

<p>Receiver of insolvent insurance company — not entitled to security deposited with superintendent of insurcmce department— chap. 463 of 1853.</p> <p>A receiver of an insolvent insurance company, appointed under chap. 463 of the Laws of 1853, is not entitled to have transferred to him the securities deposited hy the company with the superintendent of the insurance department. Chapman v. Buggies (59 N. Y., 163) and People ex rel. Buggies v. Chapman (64 N. Y., 557) followed.</p>

Motion to amend an order of the General Term. At a General Term held at the city of Albany on the 23d of November, 1811, an order was made in this action affirming an order of the Special Term, “ with ten dollars costs and disbursements.” The order of the Special Term overruled a demurrer interposed by the plaintiff to the fourth defense set up in the answer.

The judge erred in charging the jury, in substance, that if the plaintiff’s testimony was true she was entitled “ to recover the full amount of the note, principal and interest, from tbe time it was given to her by her brother,” and the exception to such charge is well taken. (Rom/ig v. Romig, Eawle, 241; Lowremore v. Berry, 19 Ala., 130; O’Donohue v. Oorby, 22 'Mo., 393; Bredow v. Mut. Saw.

<p>Appeal from a judgment in favor of tbe defendant, entered upon tbe verdict of a jury.</p>

Oeetiobabi to review proceedings instituted before tbe county judge of Onondaga county, under tbe landlord and tenant act, to remove tbe relator from certain premises on the ground that be was bolding over after tbe expiration of bis term.

Tbe plaintiff sues as tbe assignee for tbe benefit of tbe creditors of Cliauncey W. Gibson, tbe assignee of Mary Marsb, tbe party for whose benefit tbe policy of insurance, to recover on wbicb tbis action was brought, was issued on tbe life of her son Charles H. Marsb.

<p>Oontroveb.sy submitted upon au agreed statement of facts, without action.</p>

<p>Appeal from an order made at the Special Term, denying a motion to set aside the service of a summons.</p>

There was a totai failure of consideration for the note, and the plaintiff was not entitled to recover. {Aldrich v. Stoe7cioell, 9 Allen, 45,; Sawyer v. Chambers, 44 Barb., 42; S. C., 43 id., 622; Colmille v. Besley, 2 Denio, 139 ; Cross v. Huntley, 13 Wend., 385 ; Head v. Siemens, 19 id., 411; MeDougall v. Fogg, 2 Bosw., 387; Tappcvn v. Van Waggenen, 3 Johns., 465 ; Briggs v. Vanderbilt, 19 Barb., 222; Hills v. Bam/niste/r, 8 Cowen, 31; Spaulding y.Vcmdereoo7c, 2 Wend.,…

<p>Process' — volunim'y appem'ance — when sufficient — Violation of city ordinance — power to imprison in jail does not authorize imprisonment m penitentim'y.</p> <p>The want of process to bring a defendant into court may be waived by a voluntary appearance in the action; but to be effectual, such appearance must be with knowledge that there is an action pending and with a full intention to appear therein.</p> <p>The mere presence of a defendant in a court room does not authorize a magistrate to proceed and render a judgment against him, unless he notify him that an action is pending against him and unless he fully understands the nature of the proceedings.</p> <p>By the charter of the city of Rochester the police justice thereof has jurisdiction in suits brought for a violation of any of the city ordinances, and is authorized .to enter a judgment commanding a penalty, recovered for a violation of said ordinances, to be made of the goods and chattels of .the defendant, if such can be found; and if not, then to commit the defendant to the county jail for such time as shall have been directed by the common council, unless otherwise provided by the charter. The plaintiff having been adjudged guilty of a violation of one of the city ordinances, was sentenced to pay fifty dollars, or, in default thereof, to be imprisoned in the Monroe county penitentiary for ninety days.</p> <p>Held, that the judgment was void, (1)' because it did not appear that the common council had made any direction as to the length of time for which persons found guilty of violating city ordinances should be imprisoned, and (2) because the charter authorized an- imprisonment in the county jail only, and not in the county penitentiary.</p>

<p>Plaintiff described in pleading as executor instead of as administrator — amendment allowed .at General T&rm ■ — Defect of pcwties — must be pleaded — Indorsement on note — when it takes a case out of statute of limitations.</p> <p>In this action, brought upon a promissory-note made and delivered to one Eliza R Wightman, the complaint alleged her death, the admission of her will to probate, and the issue of letters testamentary to the plaintiff as sole executor. The answer denied the appointment of plaintiff as executor and the issue of letters testamentary to him. Upon the trial it appeared that no executor had been named in the will, and that letters of administration with the will annexed had been granted to the plaintiff and one Harriet E. Ackerley.</p> <p>Held, that the error in the description of the representative character of the plaintiff was amendable, either before or after judgment, and that such amendment should be allowed by the General Term upon appeal.</p> <p>That any defect of parties plaintiff, arising from the omission of the plaintiff to join his co-administratrix with him, was waived by the. failure of the defendant to set up the defect in his answer.</p> <p>The defendant claimed that the action was barred by the statute 'of limitations. The note was dated March 1, 1864, payable one year after date. Upon the back of the note were indorsements of interest in the handwriting of the'testatrix, dated in 1865, 1866, 1867, 1868 and 1869, and May 9, 1870. The action was commenced April 12, 1876.</p> <p>Reld, as the indorsements purported to have been made by the testatrix before the note was outlawed, they were admissible in evidence against the defendant, without proof of actual payment.</p> <p>Whether or not such payments were actually made was a question for the jury.</p>

Wrigbt, do hereby guarantee that tbe said security is amply sufficient for tbe payment of tbe amount secured to be paid by said mortgage, and I hereby guarantee tbe collection of tbe said mortgage.”

<p>Parol agreement — easement cdnnot.be created by — not to be performed under one year —when it mures as a license.</p> <p>The defendant’s assignor having a five years’ lease of certain lands, upon which was a stone quarry, entered into a parol agreement with plaintiff’s assignor, by which the latter, a railroad company, were to lay a side track to the quarry over the leased land; and were to be allowed to take such loose dirt and stone as they might need for their road, for which they were to pay plaintiff’s assignor $100 per year, and he was to use the side track to ship his stone. The agreement was to continue during the term of the lease. Subsequently the plaintiff, having become vested with all the rights of the first company, paid fifty dollars on account of the rent and used the side track to draw stone and dirt. Thereafter, desiring to abandon the agreement and take up the tracks, they were prevented by the defendant from removing the same.</p> <p>In this action of replevin, brought by the railroad company to recover the iron and ties and for damages for the detention of the same, held, that the effect of the agreement would be to give tbe company an easement in tbe land upon wbicb tbe tracks were laid, and that, as it was a 'parol agreement, it was void under the statute of frauds.</p> <p>That it was also void, because it was a contract not to be performed within one year.</p> <p>That the agreement, though void as a contract, was valid as a license; the company were not therefore trespassers in laying the tracks thereunder, and that for that reason the rails and ties so laid down did not become fixtures.</p> <p>That plaintiff was entitled to recover.</p>

<p>Policemen — power of, to a/rrest for violating city ordinance.</p> <p>A policeman has no authority to arrest, without a warrant, a person violating a city ordinance, unless expressly authorized so to do by the city charter, or unless such violation of the ordinance is accompanied by a breach of the peace.</p> <p>Butotph v. Blust (5 bans., 84) distinguished.</p>

<p>Motion for a new trial on a case and exceptions ordered to be heard in the first instance at the General Term, after a nonsuit directed by the court.</p>

<p>Appeal from an order made at the Special Term setting aside an order of arrest.</p>

order striking out an answer herein as frivolous, and directing judgment for the plaintiffs for the relief demanded in the complaint, with costs. These actions, two in number, were brought to recover for liquors sold to the defendant by the plaintiffs, the original term of credit for which- had expired. The only defense set up in the answer was that the time of payment had been extended.

<p>Appeal from a judgment in favor of the plaintiff, entered on tbe report of a referee.</p> <p>Tbe action was brought to recover tbe purchase-price of certain land sold and conveyed to tbe defendant by Leonard Trimmer, tbe plaintiff’s assignor. Tbe referee found, upon conflicting testimony, that a portion of tbe price bad been paid, and be reported in favor of tbe plaintiff for tbe reihainder.</p>

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial made upon tbe minutes of tbe justice before whom tbe action was tried.</p>

Justice Morgan. Action on a policy of insurance for $Y00, issued by defendant to plaintiff, on a frame building occupied as a dwelling and grocery. The policy was issued October 11, 1869, and was continued in force by annual renewals till October 11, 18Y3.

This action was brought upon a contract to pay the plaintiff a specific compensation for his services as an agent of the defendant. The referee reported in favor of the plaintiff for the sum of $105.52.

<p>Appeal from a judgment of the Monroe County Court, reversing a judgment rendered by a justice of the peace in favor of the plaintiff.</p> <p>The judgment was reversed by the County Court upon the ground that upon the day to which the cause had been adjourned, the justice held it open to the next morning indefinitely, in the absence of the defendant, the County Court holding that the action was thereby discontinued, and the justice lost jurisdiction.</p>

<p>Appeal from order — only one appeal therefrom, or from part thereof allowed,— Additional affidavits — cannot be read upon appeal.</p> <p>• By an order of the Special Term, made upon an application for the confirmation of the report of a referee, two claims presented by one M. to the referee, and allowed by him, were disallowed. M. appealed from so much of the order as disallowed one of the said claims. Subsequently and after the decision of the said appeal, he brought this appeal from the portion of the order disallowing the second claim.</p> <p>Held, that his right to appeal from the order was exhausted by the first appeal; and that the second appeal could not be maintained.</p> <p>Affidavits, made after the making of an order at the Special Term, cannot be read upon the hearing- at the General Term, even although all the parties to the appeal consent thereto.</p>

Justice Rumsey. The action was brought to recover damages for enticing away the plaintiff’s wife, who was the defendant’s daughter.

<p>Appeal from a decree of the surrogate of Erie county, ou the final settlement of the accounts of Mary Flint, executrix, and John N. Bougbton, executor, of tbe last will and testament of Daniel Flint, deceased.</p>

Justice Dwight. This action was brought against the defendant as the acceptor of a draft, drawn in these words: “ Rochester, July 17,1875. Edward L. Hopkins. One month after date pay to the order of Hollister & Co., seven hundred and eighty-two dollars and thirty-four cents, and charge the same to me, to apply on contract for your building on South avenue.

Justice Barker, and from the judgment entered thereon, dismissing a writ of cerliorari directed to Ur. Justice Daniels to remove certain proceedings instituted before him, for the appointment of commissioners to change the proposed route of the Lockport and Buffalo Railway Company.

Motion by tlie plaintiff for a new trial, on exceptions taken at tbe Monroe Circuit, before Mr. Justice Dwight, and ordered to be beard at tbe General Term in tbe first instance. This action was brought to recover for injuries caused by tbe negligence of tbe driver of a bose cart, wbo is alleged to bave been acting at tbe time in tbe employment and under tbe direction of tbe defendant.

<p>Appeal from a judgment of the Jefferson County Court, entered on a verdict in favor of the plaintiff, and from an order of the said court, denying a motion for a new trial made on the minutes, and on a ease and exceptions, and also from an order of the county judge declining to pass upon the question of the trustee’s good faith</p> <p>This action was brought to recover for an alleged breach of contract in refusing to permit plaintiff to teach the school in defendant’s district during the school year of 1875-76.</p>

<p>Motion to dismiss an appeal from a judgment of the Orleans Oounty Court, entered on the report of a referee before whom the cause was tried in the County Court. The action was brought in' the County Court to foreclose two mortgages. The ground of the present motion was that no motion for a new trial has been made in the County Court.</p>

Justice Dwi&ht, striking out of the judgment in this cause the costs taxed in favor of the appellants. This was a common-law certiorari directed to the county judge of Ontario county, issued for the purpose of reviewing his adjudication in a proceeding to bond a town. On the return the General Term gave judgment for the relators, which was reversed in the Court of Appeals.

The order of the county judge was made under the second subdivision of section 292 of the Code.

<p>Appeal from an order of the Surrogate of Oliautauqua county, directing executors, the appellants herein, to advance a portion of a legacy.</p>

<p>Impeaching cha/racter of witness — rebutting testimony — lohat admissible as.</p> <p>Upon the trial of an action for assault and battery, tbe defendant having called several witnesses who testified to tbe bad character of the plaintiff, a milliner, who had testified in her own behalf, she was recalled and asked: “ How was it as to the better class of ladies in the village patronizing you up to that time? ” Held, that the question was improper, and that.the court erred in allowing if to be put and answered against the objection and exception of defendant’s counsel.</p>

Justice Rawson, at the Ontario Special Term. Action to recover $2,500 upon a policy issued by the Connecticut Mutual Life Insurance Company, upon the life of the plaintiff’s husband. He died on the 12th September, 1815. Pursuant to an order of the court, the insurers, who were originally made defendants, deposited the money in court, and the present defendant, Lawrence, who claims under an assignment from the plaintiff, was substituted in their place.

Writ of error to the Court of Oyer and Terminer, held in the county of Oswego, to review the conviction and sentence of the plaintiff in error for murder in the first degree.

The action was brought to recover damages occasioned by defendants’ alleged negligence in setting fire to, and destroying plaintiff’s woodland. The court erred in declining to charge as requested, “that the defendants were not bound to use any other appliances than such as are in known practical use.” This is the law, and they had a right to have it charged without qualification. The qualification, “such as are best adapted to that purpose,” imposed too severe a rule.

This action was brought to restrain the defendant, by injunction, from erecting a building in, and thus obstructing a highway in the town of Livonia, Livingston county, N. Y. The plaintiffs are highway commissioners of said town, and as such bring this action. The defendant was threatening, and had determined to erect a building in the highway known as G-rove street, in said town. The plaintiffs thereupon immediately commenced this action.

Writ of error to the Court of General Sessions of the county of Orleans, to review the conviction of the plaintiffs in error of a conspiracy to cheat and defraud.

Writ of error to tbe Court of General Sessions of tbe county of Ontario to review tbe conviction and sentence of tbe plaintiff in error for grand larceny.

Tbe New York and Erie Bank was incorporated under tbe general banking law of tbis State, passed in 1849, having all tbe powers conferred by that act on corporations created under it. It was located and did business in tbe city of Buffalo until tbe 6th of September, 1815, when it became insolvent, and tbe defendant Hazard was appointed its receiver.

<p>Appeal from a judgment in favor of the defendant, entered upon the report of a referee.</p> <p>The action was brought by the plaintiff, a judgment creditor of one Timothy Chapman, in behalf of himself and all others similarly situated, to compel the assignees of the said Chapman to render an account, and also to set aside certain conveyances of portions of the assignor’s property, alleged to have been fraudulently conveyed to one John Chapman by said assignees.</p>

<p>Notice of lien by laborers and material-men against railroad conypany —what must be shown to establish lien — Qluvp. 402 of 1854 and 529 of 1870.</p> <p>One Robertson entered into a contract with the defendant, a railroad company, to construct forty-seven miles of its road, and thereafter entered into a contract with one McGraw, by which the latter agreed to construct a portion thereof. Subsequently, McGraw having failed to pay his laborers and others who had furnished materials, the latter filed notices as provided by section 4 of chapter 402 of the Laws of 1854, as amended by section 1 of chapter 529 of 1870, and to foreclose these this action was brought against the company and McGraw. At the time the notices were filed nothing was due to McGraw.</p> <p>Held, that as nothing was due to McGraw at the time the notices were filed, the company were not liable to pay the amounts therein set forth.</p> <p>That, to render the company liable, it must also be shown that it was, at the time of the filing of the notices, indebted to Robertson on its contract with him.</p>

The action was brought by the plaintiff, as receiver of August Rassiga, to set aside certain transfers made by him, on the ground that they were fraudulent as against his creditors.

The action was brought to recover damages for the conversion of personal property belonging to the plaintiff. The complaint alleged, among other things, that heretofore, to wit, in or about the years 1876 and 1877, this plaintiff was the lawful owner of, and entitled to, the quiet and peaceable possession of certain goods, chattels and personal property, of the value of $5,000, then being at the town of Goshen, in said county of Orange.

<p>Commissioner's of highways — duties of, as to bridges — negligence.</p> <p>The defendants, commissioners of highways, were notified, in June, 1875, that a bridge was defective, no particular defect being pointed out. Within a week, they, in company with an experienced bridge builder examined the bridge carefully, from above and below, taking off the planks and testing the timber, but could discover no defect. Shortly after, they caused another experienced bridge builder to examine it, and replace old planks by new, where necessary. In the following month, the bridge fell and injured the plaintiff. The accident was caused by one of the timbers being rotten at the center, which defect could only be discovered by cutting the timber in two.</p> <p>Held, that the defendants were guilty of no negligence, and that the plaintiff was not entitled to recover.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury. A motion for a new trial was made on the minutes and was denied.</p>

The action was brought to recover damages sustained by the plaintiff, from falling into a trench in the sidewalk in front of a building belonging to the defendant.

A corporation cau act only in the mode prescribed by the law of its creation. (F. L. cmd T. Go. v. Ga/rrol, 5 Barb., 613.) That law has said that the property and affairs of the corporation shall be managed by trustees, and by not less than three.

<p>Question arising upon trial — cam, only he reviewed upon a ease settled — Worm of judgment in replevin.</p> <p>No question, either of fact or of law, arising upon a trial — e. g., an objection that a judgment in replevin is for money only, instead of for a return of the property or for its value, in case of its non-delivery — can be reviewed upon appeal, except upon a case made and settled according to the established practice.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury. A motion for a new trial was made on the minutes and was denied.</p>

The costs accrued in an action of ejectment and the following proceedings have been had therein : On the first trial before a referee judgment was rendered for the plaintiff, an appeal was taken by the defendant to the General Term. The judgment was there reversed on the facts and the law, and a new trial ordered at Circuit, “ costs to abide the event.” On the second trial a verdict was given for defendant.

Tbe action was brought under tbe act of 1853, in relation to disputed wills, tbe plaintiffs claiming tbe partition of lands devised to and in possession of tbe above named respondents. Tbe pleadings presented, in form, various issues of fact. Tbe case wras tried at tbe Circuit.

The only question presented hy this appeal was as to the power of a justice of the peace of the city of Brooklyn to issue and cause a summons to be served on the defendant in this action, in the town of New Lots, in Kings county.

<p>Setting aside of contract for fraud — offer to restore whatwas recevoed under the contact— when necessa/ry to he made in the complaint — •Joinder of causes of action.</p> <p>Where an action is brought to set aside a contract, on the ground that the plaintiff was induced to enter into it through the fraud of the defendant, it is not necessary that the complaint should contain an offer to restore what has been received under it.</p> <p>It is only when relief against an illegal contract is sought, and a statute requires that an offer to do equity must be made, that such an offer is necessaiy. '</p> <p>A joinder in one complaint of a cause of action, arising from duress and restraint exercised over plaintiff’s ancestor in inducing him to execute a will, and of a cause of action arising from false representations made to plaintiff, by reason of which plaintiff waived all objections to the probate of such will, is proper.</p>

Sherman’s answer as frivolous and irrelevant. The allegations of the answer (stricken out) not being contradicted by affidavit, are to be taken as true; and they establish a total failure of title in said infant, and either a willful falsification or a mistaken assertion of the fact that said George Rinchey was not alive; and upon either the ground of fraud or mutual mistake, the contract of sale and the bond, mortgage and all conveyances. should be set aside.

<p>Exempla/i'y damages — when not allowable.</p> <p>The plaintiff, in pursuance of a contract made with the defendant, claimed to be entitled, by virtue of a commutation ticket, to ride to East New York. Having exercised this right for some time the defendant refused to carry him to that point unless he would pay extra fare from Jamaica to East New York; and upon Ms refusal so to do, in obedience to an order of the defendant, the conductor ejected him from the train, using, in so doing, no unnecessary violence. Upon the trial of this action, brought to recover damages for so doing, the court charged that the evidence was not sufficient to give punitive damages against the conductor, but that plaintiff was entitled to have the railroad company punished to such an extent as the jury should, in their discretion, say the facts authorized and demanded. Held, that the charge was erroneous.</p>

<p>Bonds and, mortgages — uswy in — by whom, after conveyance of the mortgaged property, it may be set up.</p> <p>One Nelson, on October 13, 1874, in pursuance of an usurious agreement entered into between himself and the plaintiff, executed and delivered to it four bonds and mortgages. On February 19, 1875, he conveyed the property covered thereby to one L., subject to the mortgages. On March 15, 1875, L. conveyed the same, subject to the mortgages, toW., who, on March 23, 1876, reconveyed the premises to Nelson, the conveyance not being stated to be subject to the mortgages.</p> <p>In an action brought to foreclose the mortgages, held, that Nelson, being the “borrower,” and the mortgages being liens only upon his own property, was entitled to set up the defense of usury and have the bonds and the mortgages collateral thereto declared null and void.</p> <p>Quaere, whether, if any of the intermediate grantees of the property had become bound for the payment of the bond and mortgage, the mortgage might not be considered as collateral security for that liability, and enforceable with it.</p>

Appeal frorh a judgment in favor of the plaintiff, entered upon a verdict directed by the court. This action was brought upon the following nóte: “ $1,400. Bedford, April 1, 1871. On demand for value received we promise to pay Samuel Hoyt, or order, fourteen hundred dollars with interest at seven per cent per annum. M. R. MEAD, GEO. W. MEAD, Sv/rety.” The complaint was, in the ordinary form, against the makers of a promissory note.

Appeal Horn an order denying a motion for a new trial, made upon tbe minutes of tbe justice before whom tbe action was tried. Plaintiff’s intestate and one Barringer were riding in a wagon on a highway which crossed defendant’s- railroad. Barringer was driving, and the horse, becoming unmanageable, ran into the locomotive and plaintiff’s intestate was killed. Barringer and plaintiff’s intestate were aware of the approach of the defendant’s train.

Tbe referee found that on or about tbe 8th day of October, 1874, the plaintiff and the defendant and a certain corporation, known as the Erie and Pacific Dispatch Line engaged in transporting property from Chicago to New York for hire by their duly authorized agents, entered into a contract whereby it was agreed that the plaintiff should ship, or cause to be shipped, on the transpontation lines of said parties 1,000 tons of merchandise from the port of Chicago, in the State…

' The action was brought to recover damages alleged to have resulted from false representations, whereby the plaintiff was induced to purchase certain railroad bonds. By agreement between the defendants and the plaintiff a certain portion of the formers’ commissions on the sale were allowed to the plaintiff.

<p>Action upon bond given by married woman — complaint in — what allegation itrmst contain.</p> <p>In an action against a married woman and her husband upon a bond executed by them, it is sufficient if the complaint allege the execution, and delivery thereof by the defendants to the plaintiff, and set forth a copy of the bond. It is not necessary that it should contain any allegation as to her separate property or business.</p>

<p>Public officer — action against — • where triable.</p> <p>The warden of the city prison, in New York, is a public officer, and an action brought to recover damages for an act done by him in virtue of his office, must be tried in the county of New York.</p>

The strip of land proposed to be taken by these proceedings is in the center of a public highway called Gravesend avenue, which had been opened and graded by commissioners, pursuant to chapter 531 of the Laws of 1873, and an act amendatory thereof, being chapter 216 of the Laws of 1874.

18 on each lot to tlie sum of fifty-dollars on each of them. ■ The application was made to have an assessment on certain lots belonging to the petitioner reduced, on the ground that the amount of such assessment exceeded one-half of the assessed valuation of the lots and was in violation of section 5 of chapter 169 of 1861.

The plaintiffs applied to have assessments upon certain lots in the city of Brooklyn owned by them reduced and vacated. Upon the hearing the justice decided as follows: “The assessment against lands of Jane IToffman and Helena Rogers, between.

The defendant was entitled to make any and all reasonable rules with reference to the use of its tickets, and was not bound to make such rules known to the public except „ in response to inquiry. (Dietrich v. Penn. B. B. Co., 71 Penn. St., 432 ; 3 Am.

<p>Assignee in bankruptcy — actions by —jurisdiction of State courts over.</p> <p>This action was brought upon an undertaking given to procure the discharge from arrest of one Miller, who had been sued by the plaintiff, as an assignee in bankruptcy, to recover money collected by Miller for the bankrupt, which he had failed to pay over. Plaintiff having recovered a judgment in the first action for $2,195.50 and taken the necessary measures to charge the bail, brought this action upon the undertaking; Held,</p> <p>That the action was properly brought in the State court and could be maintained.</p> <p>That even if the amendment to the bankrupt act, passed in 1874, operated in any case to deprive the State courts of jurisdiction over an action brought by an assignee in bankruptcy, this case was not affected thereby, for the reason that the cause of action did not arise under the laws of the United States, and that it was not brought for the collection.of the legal assets or debts of the bankrupt.</p>

In an action by the plaintiff to recover what he had paid under the contract' held, that he was entitled to recover. Held: that he was entitled to recover. Appeal from a judgment in favor of the defendant, and from an order setting aside a verdict in favor of the plaintiff, and directing judgment in favor of the defendant.

It appeared by the papers upon which the motion at Special Term was made, that a judgment was entered providing that certain parties to a certain subscription paper who had not paid their subscriptions (plaintiffs and defendants being parties to said subscription paper) should pay in the amounts of their said subscriptions to a receiver to be appointed to receive the same, and that upon such sums being paid in, the aggregate sums should be distributed, fro rata, among all…

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury, and from an order 'denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.</p>

Appeal by defendant Becker from a judgment entered upon tlie verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried. . The. action was.brought to foreclose a mechanic’s lien. The only question in the case arose upon the effect of two clauses contained in a contract for the erection .of a house entered into between the defendant Becker, the owner, of the land, and the defendant Sherwood.

This was an action of ejectment brought to recover possession of certain real estate in the city of Brooklyn, with damages for the withholding of the possession of the same. The action was tried before tbe court without a jury.

Controversy submitted .upon au agreed statement of facts. On tbe 12th day of April, 1875, George W. Bergen, as county treasurer of Queens county, sold to the plaintiff, for non-payment of taxes, a number of lots, pieces or parcels of land, in the town of Jamaica and comity of Queens, and delivered to the plaintiff a certificate signed by said county treasurer for each lot or parcel purchased by him; the county treasurer did not serve or cause to be served either personally…

CeRtioeaei, brought by tbe district attorney, to review tbe judgment and decision of tbe Court of General Sessions, quashing an indictment theretofore found in that court against one John Flanigan.

This action was brought by the plaintiffs, as owners and holders of two drafts drawn by John IT. Wingfield of Connecticut upon, and accepted, payable in the city of New York, by the defendants, then residents of that city. The drafts were dated in New Haven and directed to the defendants at their place of business at No. 60 Duane street, New York.

Appeal by defendant from an order made upon the minutes of the justice before whom the action was tried, setting aside a verdict and granting a new trial.

<p>Appeals from judgments in favor of tbe defendant, entered upon tbe report of a referee.</p>

The judgment of a court of a sister State should have the same credit, validity and effect in every other court in the United States which it had in the State where rendered. (MoHlm'oyle v. Cohen, 13 Peters, 312 ; Wa/rrm Mfg. Co. v. TElma Ins.

Writ of error to the Court of General Sessions of the city and county of New York, to review the conviction of the plaintiff in error of an assault with an intent to commit a rape.

Appeal, by defendant Gillies, from a judgment of foreclosure, entered upon a trial of this action by the court without a jury.

The complaint alleged, among other things, “ that the defendant above named was and is the superintendent or head of the department of buildings of the city of New York, duly appointed and created and qualified by law, and as such had possession and control over the said department, as aforesaid, for the doing and performing of all the acts and duties incumbent and devolving by law upon said department, and the officers of the same under and subordinate, and subject to the…

Appeal by plaintiff from an order denying a motion for a reference, on tbe ground that tbe trial of tbe action would involve tbe examination of a long account. Tbe action was brought by tbe plaintiff, as receiver of tbe Security Life Insurance and Annuity Company, against tbe defendant to recover $180 for dividends paid to bim by said company between tbe 1st May, 1871, and tbe 17tb November, 1876, and which, as is alleged, were paid while said company was insolvent.

Appeals of the above-mentioned parties, respectively, from orders made at Special Term held by Mr. Justice Beady, denying their respective motions to send back the case to the referee for further findings.

<p>Abandonment of husband by wife — right of wife to compel a provision for her maintenance.</p> <p>In this action, brought by the plaintiff against her husband, she alleged that shortly after her marriage she had conveyed to him the greater part of all her property, both real and personal; that the defendant "had taken possession of the same and spent large sums in gambling and riotous living; that the plaintiff was now living apart from her husband with her mother and had no means of support, and she prayed that a portion of the real estate held by her husband might be conveyed to her for her support and maintenance.</p> <p>Upon an application for an injunction restraining the defendant from collecting the rents of the real estate or selling or disposing of the same, pendente lite, held, that, as the wife had voluntarily separated from her husband and did not charge him with adultery or any act of cruelty or desertion which would entitle her to a limited divorce, the motion was properly denied.</p>

<p>Order of wrrest — motion to meate— denied, with leame to renew — renewal of motion aftrn' judgment.</p> <p>November 20, 1869, an order for tbe arrest of tbe defendant was granted in this action, and on December 28,1869, a motion to vacate the same was denied with leave to renew the motion on showing the amount secured by an attachment previously issued in the action. In 1872 the action was tried and judgment recovered by the plaintiff. In February, 1877, this motion was made to vacate the order of arrest.</p> <p>Held, that it was properly denied as the leave to renew was only given for a special purpose, and the right to renew was terminated by the entry of the judgment.</p>

Controversy submitted without action upon an agreed statement of facts. The action was brought to recover the amount of a tax paid by the plaintiff upou certain premises leased to the defendant.

It was error in tbe court upon tbe trial at Special Term to exclude tbe evidence offered, of statements by plaintiff, in regard to tbe indebtedness of tbe defendant to tbe firm, made to Mr. Camp and to Mr. Allen after tbe 5tb day of February, 1874, and tbe time of tbe alleged settlement, and before the 24th day of March, 1874, the date of tbe death of Adon Smith, senior. (The People v. Vane, 12 Wend., 78; Róbb v. Hockley, 23 id., 50; People v. Finnegan, 1 Parker’s Crim.

Appeal by defendant, Zillah McLaughlin, from an order overruling defendant’s demurrer to the complaint. The defendant Alfred McLaughlin was an infant at the time of the commencement of the action.

On April 6,1815, one Charles Stallknecht, plaintiff’s intestate, who was then in the employment of the defendant, was killed by a collision on its railroad near Millstone, New Jersey.. On September 23, 1815, the surrogate of the county of New York issued letters of administration to the plaintiff who, thereupon, brought the present action. The defendant demurred to the complaint.

The action was brought to prevent the defendant from obstructing a drain which ran from the premises of the plaintiff, Nos. 31 and 33 Broadway, to and through those of the defendant, Nos. 35 and 37 Broadway, New York.

The devise was to the trustees, as individuals, for the benefit of the college and is, therefore, void. It contravenes the statute forbidding the suspension of the power of alienation for more than two lives in being; in other words it creates a perpetuity in trust.

Appeal by tbe defendant Hammond from a judgment in tbe above action, entered after a trial by the court without a jury. The action was brought to foreclose a mortgage. The recording of a mortgage is notice to all the world that such an incumbrance exists. The discharge of the record must be an official destruction of such notice. {Frost v. Beekmam, 1 Johns. Oh., 288; Peck v. Mallams, 10 N. Y., 519, 520.) The respondent had a right to rely upon the records.

Ahpeal from au order made at tbe Special Term. In these proceedings tbe commissioners bad, on tbe lYth day of July, 18Y6, published in tbe City Record a notice, as required by law, stating that they bad (1) completed their report and filed it with tbe department of public works; (2) that all parties interested and who objected to tbe report should present their objections to tbe commissioners on or- before tbe first day of September, 18Y6, and (3) that tbe commissioners…

' This action was brought by plaintiff, as trustee in bankruptcy of the Citizens’ Savings Eank of South Carolina, against the defendants, who composed the firm of Courtney, Everett & Go., at New Yprk, and the firm of W. C. Courtney & Go., at Charleston, to recover upon two bills of exchange drawn by said Courtney, Everett & Co. upon W. C. Courtney & Go., and accepted by the latter film and delivered to the defendant Palmer, who obtained the same to be discounted by the…

This action was brought to recover damages for a breach of a covenant of seizin contained in a conveyance of certain real estate bearing date April 15, 1873, from the defendant to the plaintiff. A notice of Us pendens describing the property in question had been filed April 2, 1873, in an action brought for the foreclosure of a mechanic’s lien. In the latter action judgment in favor of the plaintiff and sustaining the lien was rendered in January, 1875.

<p>Ohap. 40 of 1848 — trustees of corporation rmst be stoclcholders — how the fact that a person is a stoclcholder may be proved,.</p> <p>Chapter 40 of 1848 requires that the trustees of the corporations created thereunder shall be stockholders of the company; defendant had signed and acknowledged the articles of association of a corporation created thereunder, and was named a trustee therein.</p> <p>Held,, in an action brought by a laborer under section 18 of said act to charge him individually with the payment for services rendered to the company, that he could not deny that he was, at the time of signing the articles, a stockholder thereof.</p> <p>Where one has been shown to be a stockholder at the time of the organization of the company, he will be presumed to continue to be one until the contrary is established.</p> <p>Section 35 of said act providing that the book containing the names of the stockholders which the company is required to keep "shall be presumptive evidence of the facts therein stated in favor of the plaintiff in any suit against any stockholder,” does not make such book the only or even the best evidence of the fact that the defendant was a stockholder.</p>

This action was brought against the defendant Gilbert, as receiver of the assets of a firm, and against the other two defendants who were sureties upon his bond, to recover for a breach thereof. Each of the defendants served a separate answer and verified iu as follows, viz.: “City and County of New Yoek, ss. : Mathew H. Gilbert, being' duly sworn, says: That he is the son of this defendant. That he has read the foregoing answer and that the same is true to his own knowledge.

' Appear from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury. Plaintiff, in the month of June, 1867, was the holder of a mortgage for $2,500, made by Nathan Smith and Jane, his wife, covering premises in Westchester county. The mortgage contained the usual insurance clause. On the 28th of June, 1867, defendants insured the plaintiff in the sum of $2,500 on “ her interest as mortgagee ” in the premises in question.

Tbe action was brought by tbe plaintiff, as receiver of tbe Central Park Savings Bank, against ten of its trustees to recover some $15,000 claimed to bave been lost by reason of an illegal purchase of real estate.

-Apreal from an order made at tbe Special Term overruling exceptions to tbe report of a referee.

<p>Appeal from a judgment in favor of tbe plaintiff rendered at Special Term, and from an order denying a motion for a new trial made on tbe ground of surprise, etc.</p>

Controversy submitted without aotiou upon a geueral statement of facts. Smith and Taylor, the plaintiffs, are the holders of a note for $500 that matured February 29, 1876. Krauskopf and Gunsen, the defendants, are indorsers thereon, and this controversy is for the purpose of determining how much they are required to pay to satisfy and discharge their liability thereon.

Clementina Ruthven died October 28, 1862, leaving a will dated August 20, 1862. Letters testamentary were granted to J. J. Owen, June 15,1866. Owen died April 18,1869, and letters testamentary •were thereafter granted to James A. Ruthven, another executor, May 15, 1874. By her will she bequeathed to Emma Ruthven Lord (now Ludlum) the sum of $5,000, and made various other bequests of specific sums, amounting in all to twenty-one specific bequests of sums of money.

This action was brought to recover the amount of two policies of insurance for $7,000, issued by the defendant on the life of William F. Diefendorf, of Geneva, New York, title to which was claimed by the plaintiffs by virtue of an assignment bearing date October, 18, 1870.

HALL v. CROUSE. Fourth Department, April Term, 1878. The action was brought to foreclose a mortgage.

Appeal by defendant from a judgment entered on tbe report of a referee on a claim presented by plaintiff against tbe estate of tbe defendant’s intestate, and also from an order made at tbe Special Term confirming said report.

H. Lyon. Lyon bad assigned tbe mortgage to Aaron Griswold. In 1872, and after assignment to Griswold,'and while Griswold owned tbe mortgage, defendant called upon plaintiff and. stated to plaintiff that be owned tbe mortgage; that it bad been assigned to him by Griswold; that there were payments due on tbe mortgage and be wanted it settled.

<p>Collector’a hond — sureties upon — rights of.</p> <p>A. bank collected, the rents of certain real estate in Watertown as tlie agent of the owners, George F. Paddock, Oscar Paddock and Edwin L. Paddock, from December 8, 1874, to October 39,1875. On tbe former date Blood, Sawyer and George F. Paddock signed as sureties tbe bond of one Rogers, as collector of tbe town of Watertown, which bond was duly filed. Rogers failed to pay over the sum of $11,848.68 of the taxes collected by him, but deposited it with a firm of bankers, of which George F. Paddock was a member, which firm converted the money to its own use and then became bankrupt. On October 39, 1875, Paddock’s interest in the real estate was-sold under a judgment recovered in an action brought by the supervisors upon the bond, the proceeds thereof being insufficient to pay the amount of the judgment for which the other sureties were liable. This judgment directed that the real property of Paddock should be first sold thereunder, before resorting to the property of his co-obligors</p> <p>In an action by the assignees in bankruptcy of the firm to recover from the bank the bankrupts’ interest in the rents collected by it, the other sureties claimed that as between them and Paddock, the latter was primarily liable for the moneys converted by his firm, and that they could avail themselves, in equity, of the lien of the bond on his real estate; and that he being insolvent, and his real estate being inadequate security, they could reach the rents by means of a receiver, in the same manner that amortgagee could under like circumstances. Held, that this claim could not be sustained and that the assignee was entitled to the money.</p> <p>Semite, that the lien created by the filing of a collector’s bond is analogous to that of a judgment creditor, and not to that of a mortgagee; and the owner of the property has a right to redeem and a right to the possession, and to receive the rents and profits after a sale thereunder, the same as after a sale under an ordinary judgment.</p>

Writ of ERROR to tbe Court of Sessions of Cajuga to review a conviction of tbe plaintiff in error of obtaining property by false pretenses.

<p>Provisional remedy — what is not, under Code of Oiml Proeedm'e, §772.</p> <p>An order authorizing a substituted or constructive service of a summons is not an order granting a provisional remedy, within the meaning of section 772 of the Code of Civil Procedure.</p>

Motion by plaintiff for judgment on a verdict, ordered in bis favor at tbe Jefferson Circuit, subject to tbe opinion of tbe court at General Term. By special act of the legislature, under which the defendant received the money, the defendant is put in the place of, and subjected to the same liabilities, as the collector. The defendant cannot question the validity of the bonds or the right of the plaintiff to the money. (People exrel.

Tbe deceased'was a passenger on tbe defendant’s railroad, and it (tbe defendant) was under an obligation to provide for ber an easy and safe mode of egress from its station to tbe nearest street, and until it did so, its liability as a earner of passengers did not terminate.

<p>Ba/iilvmptoy aot — when proceedings a/i'e determmccL — •Rights of sw'eiy of bankrupt.</p> <p>Under the provisions of the bankrupt act prohibiting any creditor who has proved his debt or claim from maintaining any suit at law or in equity thereupon against the bankrupt, unless a “dischargehas been refused or the proceedings have been determined without a discharge,” the proceedings are not determined unless an order to that effect has been entered by the United States Court.</p> <p>If a creditor has proved his claim against the bankrupt, a surety for the bankrupt, who, after such proof thereof, pays the debt, occupies the position of the original creditor as to the enforcement of the claim by suit.</p>

<p>Appeal from a judgment entered on the report of a referee, dismissing plaintiffs complaint.</p>

<p>Forgery of negotiable paper — when person signing it is estopped from denying its genuineness.</p> <p>In 1874 a promissory note made by one George W. Carpenter, a son of the defendant, and indorsed by the latter, was transferred to one McKee, who stated to the defendant that he had transferred it to one Hamlin, and that Hamlin said he wished defendant had signed it on its face. Subsequently Hamlin saw the defendant, and the latter having agreed to sign the note on the face, Hamlin produced the note, now in suit, and defendant signed it as surety. Subsequently the note was transferred to other persons and purchased by the plaintiff before maturity, and in good faith. Upon the trial of this action, brought upon the note, it appeared that the note signed by defendant was not the note originally indorsed by him, but was a copy thereof, upon which the signatures and indorsements had been forged by McKee. Defendant interposes this as a defense, alleging that at the time of signing his name at Hamlin’s request, he made no examination of the note, because the face looked just like the one he had signed, and he supposed it was the same.</p> <p>Held, that the defendant having had full opportunity to examine the note as to its character and genuineness, and having failed so to do, preferring to rely upon the statements of McKee and Hamlin, he could not interpose such a defense in an action by one who purchased the same in good faith before maturity.</p>

E. W. Gardner, for plaintiff. A will giving specific legacies, and then giving the real and personal estate after paying debts, without any direction as to the payment of the legacies, is a charge upon the real estate, where the personal property is shown not to be sufficient. {Flynn, v. Oroncken, 9 How. Pr., 214; Lwpton v. Lupton, 2 Johns.

Arpe at, from a judgment in favor of the plaintiff, entered upon a verdict of a jury, and from an order denying a motion for a new-trial, made upon a case and exceptions. The house was not occupied within the meaning of the conditions of the policy. (Qamwell v. M. TJ. Ins. Go., 12 Cush., 167; O'*Neil v. The Buffalo F. Ins. Go., 3 Com:, 122; Wastbwrn v. Gity F. Ins. Go., 15 •Wis., 138; Cummings v. Agri. Ins. Go., 5 Hun, 551; Paine v. Agri. Ins.

<p>Appeal by exeeutor — secv/i'ity on — failure to apply for limitation of, amount of, under Code, § 389 — presumption of assets, an’ising from — Meaning of “adverse party.”</p> <p>Although section 339 of the old Code authorized the court to dispense with or limit the security, required by sections 335, 336, 337 and 338 to be given upon an appeal, when the appellant was an'executor, administrator or trustee acting in the right of another, yet when an executor without making any application to have the security limited or dispensed with gives the security in the ordinary form, the giving of such undertaking will be taken as an admission by him that he has sufficient assets applicable to the payment of the judgment appealed from, to satisfy the same.</p> <p>The term “adverse party,” asused in section 348 of the Code, requiring notice of the entry of judgment, affirming the judgment appealed from, to be served upon the “adverse party” at least ten days before commencing an action upon the undertaking, means the parties to the original judgment by whom the appeal was taken.</p>

<p>Appeal from an order denying a motion for a new trial made by tbe defendant, after a verdict for tbe plaintiff.</p>

<p>Appeal from a judgment iu favor of the defendant Emma A. Jones, entered upon an order sustaining a demurrer to the complaint.</p>

<p>Admwaliy jv/risdiction — chap. 482 of 1862 — constitutionality of — Ganal boat— when a “vessel.”</p> <p>Admiralty jurisdiction does not extend to contracts relating to a vessel wholly engaged in the internal commerce of a State, and no maritime lien or claim can he founded on such contracts.</p> <p>Chapter 482 of 1862, providing for the collection of demands against ships and vessels is, so far as it relates to vessels wholly engaged in the internal commerce of this State, constitutional and valid.</p> <p>A canal hoat is a “ vessel ” within the meaning of the said law.</p> <p>The owner of a canal hoat made a contract with Pierce & Son, by which the latter were to make certain repairs in and upon the hoat. The repairs were made and the price to he paid therefor was paid by the owner to Pierce & Son. The plaintiff, who had been employed by Pierce & Son, to work upon the boat, not having been paid for the services rendered by him, sought to enforce his claim against the hoat under the said statute.</p> <p>Held, that he had no right so to do, as his employment by Pierce & Son gave him no right under the law of 1862 to claim a lien.</p>

<p>Agreement not under seal to convey lands — Covenant to stand seized — what consideration must exist for — When a contn'act is not enforceable by a stranger to the consideration thereof.</p> <p>One Lydia J. Noyes, who was the owner of a farm, entered into an agreement with her husband, by which she agreed that her husband should have the use of the farm during his life ; that upon his death, if she was then living, she ' should have the use of it for her life; and after the death of both, she agreed that one, Malvina Noyes, the child of her husband by a former wife, should have all the right and title of the said Lydia therein “in consideration of $200, in hand paid.” The agreement was not sealed.</p> <p>Held, that the instrument purported to be a contract between husband and wife, and was void at law.</p> <p>That as it was not sealed it could not operate either as a conveyance or a covenant to stand seized.</p> <p>That, even if it were sealed, it could not operate as a covenant to stand seized for the benefit of Malvina, as it was not founded on a consideration of blood or marriage; and she being a stranger to any pecuniary consideration therein mentioned, could not take advantage of or enforce it.</p>

<p>Certiorari to review the action of the respondent, as school commissioner, in making an order dividing Union Free School District No. 2 of the town of Onondaga.</p>

' Tbe act conferring tbe power and delegating the right of eminent domain to tbe city for tbis specific public use is to be strictly pursued and cannot be extended by implication, or beyond what is expressed, except as necessary to accomplish tbe purpose for which it was granted; beyond that tbe statute creating tbe power is to be strictly construed and limited to the use and purpose expressed.

<p>Assignment of property, in consideration of a covenant by the assignee to suppo?'t the assignor — does not constitute a ti-ust.</p> <p>This action was brought by the plaintiff, as receiver of one 0., appointed in proceedings supplementary to an execution issued upon a judgment recovered against the latter. After the creation of the debt upon whic.h the judgment was recovered, O. entered into a written agreement with one S., his son-in-law, by which he conveyed to S. all his personal property and a contract for the purchase of land, amounting, in all, in value, to about $2,100; and S. agreed, in consideration thereof to support the said O. during his life, and his minor son until he attained the age of sixteen years, and to send the latter to a common school.</p> <p>In this action, brought by plaintiff to annul the transfer, sell the property and pay the debt from the avails, the court held that the transfer was, in fact, an assignment of said property in trust for the use of 0., and such trust was void as against the creditors of the latter. Held, that this was error.</p>

The defendant, in selling the horse to the plaintiff, must be held to have warranted the title. (Defreeze v. Trwm/per, 1 Johns., 274; Mg Coy et ad. v. Archer, 3 Barb., 323.) It is immaterial even if buyer have notice of a prior claim, as for instance a levy. He may purchase .and rely on the warranty.

<p>Bspavrs to boat — liability of own&r for — when wedit gimen to captain.</p> <p>Plaintiff’s intestate made repairs upon a canal boat owned by tlie defendant, in pursuance of orders received from the captain of the boat. Subsequently, the captain paid to the plaintiff a portion of the bill, and gave his note for the balance. The plaintiff, without returning the note, brought this action after its maturity against the defendant.</p> <p>Held, that the acceptance of the note of the captain, without explanation, was sufficient to show that the credit was given to him, and not to the owner, and that plaintiff could not recover.</p>

Appeal by tbe plaintiff from two orders made at a Special Term of this court, one of which denied plaintiff’s motion for a retaxation and further allowance of costs in said action, and tbe other of which granted defendants’ motion for a retaxation and reduction of costs.

On the 8th January, 1810, the plaintiff and Mark V. Thompson became copartners in the city of Syracuse in the stove business. This firm succeeded that of Drake & Wells who had previously carried on business at the same place, Thompson taking the place and assuming the responsibilities of Wells, who retired from the business.

The plaintiff in error was indicted in tbe Jefferson county Oyer and Terminer for unlawfully obstructing a public highway, or street, in the Tillage of Carthage in said county. Having been convicted, and sentenced in the Court of Sessions, to which the indictment was sent, he sued out a writ of error and removed the record into this court.