Volume 21 — Barbour's New York Supreme Court Reports

THIS was an action brought to set aside a judgment of the late court of common pleas of the county of Suffolk, in a partition suit, on the grounds of fraud and want of jurisdiction. The present action was tried at the Suffolk circuit in May, 1855, before Justice S. B. Strong and a jury, The facts will be found detailed in the opinion below.

IfOTIQH by the plaintiff for a new trial, on a bill of excep,11 tions. The action was brought by the plaintiff to recover a demand claimed to be due on contract. The complaint alleged that the plaintiff, from December 17th, 1851, to September 11th, 1852, was sheriff of the county of Livingston.

THIS action was brought to recover damages of the defendants, for not conveying the plaintiff from New York to California, in the year 1852, according to agreement. The pleadings, and the facts proved on the trial, were very similar to those in the case of Briggs v. Vanderbilt fy Drew, (19 Barb. 222.) The action was tried before Justice Watson and a jury, at the Ulster circuit, in July, 1853.

OTIOE for judgment upon a verdict taken for the defendants, subject to the opinion of the court, on a case. Francis TsTicoll owned 844-¡% acres of land in Bethlehem and Coeymans; and on the 18th day of February, 1817, made his will, devising this land to two trustees, in trust, 1. To pay the rents and profits to the sole and separate use of Abigail L. Sill, wife of John L. Sill, during the joint lives of said John and Abigail. 2.

THIS was an action to recover the arrears upon the subscription of the defendant for twenty shares of stock in the plaintiffs’ company. The plaintiffs were duly incorporated on the 8th of April, 1850. The answer did not deny the regularity of the plaintiffs’ organization, or their existence as a corporation.

THIS was an action brought for the claim and delivery of ' personal property: The plaintiff claimed the property by virtue of an assignment executed to him by W. A. Allen, the former owner, in trust for the benefit of the creditors of the .said Allen, on the 8th of January, 1853.

MOTION by the defendahts, for a new trial* upon exceptions taken at the circtih The complaint alleged that the defendahts, on the 1st of October, 1851, were a corporation, and possessed of a turnpike road at Durham, drreene county, which it was botad to keep in good repair.

THIS action was commenced before a justice of the peace. The plaintiff, in his complaint, alleged that the defendant was justly indebted to him in the sum of $55, for a certain horse which the plaintiff sold and delivered to the defendant, at the town of Schoharie, in February, 1849; and also in the further sum of $5, for so much money lent and advanced by the plaintiff to the defendant, at the defendant’s request, and for money lent the defendant in the year 1849, and had…

<p>MOTION by the plaintiff for a new trial, upon a case. The complaint contained three counts or causes of action. The first charged the defendant with unlawfully taking from the plaintiff a quantity of personal property and converting the same to his own use. The second charged the defendant with unlawfully refusing to deliver to the plaintiff a quantity of personal property belonging ■ to him, and with unlawfully converting the same to the defendant’s use. The third count charged the defendant with unlawfully and forcibly breaking and entering the .plaintiff’s close and freehold, and with seizing and carrying away a quantity of personal property belonging to the plaintiff. The answer denied the allegations of the complaint, and set up that the defendant took the property as sheriff of the county of Essex, under several executions issued on judgments against one Benjamin K. Potter, and averred that the property at the time of the seizure, &c. was the property of Potter.</p> <p>On the trial the plaintiff proved that the defendant, by one of his deputies, took the property, on the 9th of July, 1853, and sold it on the 20th. Potter had owned the property prior to and until the 7th of July, when he executed a bill of sale thereof to the plaintiff. The plaintiff put in evidence a personal mortgage, dated May 6,1853, made by B. K. Potter to Orin Del-, aware, to secure the payment of eleven hundred dollars. This mortgage described the property as follows: “ all the goods, wares and merchandise mentioned and set forth in the schedule hereto attached and referred to, and all the other goods and chattels whatsoever mentioned and expressed in the schedule hereto annexed, now remaining and being in the village of Schroon, Essex county, and a part in North Hartford, Washington county, which are to be removed immediately to Schroon aforesaid.” The schedule described a small stock of dry goods and groceries and .some hardware. The mortgage was assigned by Orin Delaware to the plaintiff by an endorsement thereon, dated June 25,1853. By the terms of the mortgage, the mortgagor and his assigns had the right to take the property on demand.</p> <p>The plaintiff, also put in evidence a bill of sale from Potter to him, dated July 7, 1853, by which, after reciting that Potter was the owner, subject to the mortgage, of certain goods in the store situated in Schroon, and certain other goods on the way from Troy, and in consideration of a full set of tin tools and fifty dollars, and some plate or sheet tin, he sold and transferred to the plaintiff all his goods, wares and merchandise in the store and on the way for the store; also, all th'e notes, accounts and obligations for goods, wares and merchandise sold in Schroon, and the plaintiff released Potter from the mortgage. Potter put into the store $900 worth of goods after this mortgage was executed. Potter, indeed, made this amount something over $1600. For several days prior to the sale effected on the 7th of July, and on that day, Potter was much intoxicated. The plaintiff took possession of the property, under the sale, on the 7th, and on the 8th Potter confessed several judgments on which executions were issued, and under which levies were made on the 9th July.</p> <p>In the course of the trial, the plaintiff objected to the evidence that Potter was drunk when he executed the bill of sale,on the 7th of July, which objection the court overruled, and the plaintiff’s counsel excepted. The plaintiff’s counsel also objected to the proof that Orin Delaware purchased the debts in Troy against Potter. This objection was overruled, and an exception noted. When the defendant’s counsel offered in evidence the judgment on which the executions issued, it was objected that the consideration thereof was -not sufficiently set forth; and secondly, that the verifications were insufficient. The objections were overruled, and exceptions noted.</p> <p>There was evidence tending to show that goods had been surreptitiously taken from the store on the night of the 8th of July, some of which were found at the plaintiff’s house.</p> <p>No exception was taken to the charge of the judge. The jury found a verdict in favor of the defendant.</p>

PPEAL from a judgment entered at a special term, after a trial at the circuit. The action was brought to recover damages for the alleged conversion by the defendants of a ■quantity of hides.

THIS was an appeal from a decree of the surrogate of- the county of Hew York, admitting to probate an instrument propounded as the last will and testament of Abraham Gr. Thompson, late of the city of Hew York, as a will of real and personal estate. The will was dated October 27, 1851, and the testator died two days thereafter, aged 75 years. The case before the surrogate is reported in 2 Bradford’s Hep. 449.

THE bill in this cause was filed to set aside an assignment 'made by the defendant Fuller, to the defendant Bergen, in trust for the benefit of creditors. The grounds of the action were, 1. That the assignment was void on its face; 2. That it was made with intent to hinder, delay and defraud creditors. The defendant moved, at a special term, to dissolve the temporary injunction; which motion was denied, and the defendants appealed.

APPEAL by the defendant from a judgment entered at a special term. The action was brought against the defendant as sheriff of the county of Kings, for not returning an execution issued against Hodges and Hart, for $1000 and costs. On the 1st of May, 1852, Hodges as surety and Hart as principal, entered into a recognizance for the appearance of Hart at the court of sessions in the city of Hew York.

The action was brought by the plaintiff to recover his commission as a broker, for negotiating the sale of a house and lot in the city of New York, at the defendant’s request; being one per cent upon $19,000, and interest. The answer denied the allegations in the complaint.

mHI'S was an action for a libel. Plea, the general issue. On JL the trial, the defendant by his counsel admitted the publication, and also that the defendant was, at the time of such publication, and still is, the proprietor of the Hew York Courier and Enquirer. The plaintiff’s counsel then read in evidence the libel, as follows: City Intelligence. Extorting money to hush up a complaint.

<p>APPEAL from a judgment entered at a special term,</p>

<p>Where a party was insured against loss by fire, “ on his stock in trade, as a manufacturer of brass clock works,” it was held that this was a license to him to use all such articles as are ordinarily employed in that manufacture, and to keep them on hand, and even to make them for that purpose, if it was the ordinary course of that trade to make them; although the use or keeping of such articles was prohibited by the printed conditions of the policy, as being extra hazardous.</p> <p>The written license controls the printed words, in such a case.</p>

THIS was an appeal by the defendants from a judgment entered upon the report of a referee. The facts necessary to an understanding of the decision are sufficiently detailed in the opinion of the court.

The action was brought to recover a demand claimed to be due from the defendants to one Nathaniel Draper, for money advanced, and services rendered, by him, for them. The defendants denied the allegations of the complaint, and set up the statute of limitations, and other defenses. The action was commenced on the 1st of May, 1851. Draper assigned his claim against the defendants, to the plaintiff, in trust for the benefit of creditors, on the 26th of April, 1851.

PPBAL from a judgment of the Monroe county court. The complaint alleged that on the 9th of November, 1852, the plaintiff contracted to sell to the defendant a tavern-house and the land on which it stood, for the sum of $2000 ; and that the parties made and executed an agreement, under their hands and seals, as follows: “ Memorandum of an agreement between Murvin Ware and Joseph Westfall, both of the town of. Greece, state of New York, made this 9th day of November, 1852.

The action was brought upon a promissory note made by the defendants, the defendant Baldwin being the principal, and the other defendants his sureties, for $400, dated May 2, 1851, payable to George C. Mills or bearer, two years after date, with interest annually. The defense set up was usury, the answer alleging that the note was given upon a loan of money by Mills to Baldwin upon a usurious agreement between them, the particulars of which were given.

The complaint alleged that on the 9th day of July, 1851, at the city of Rochester, one Henry Gaul delivered to and placed in the hands of the defendant, as his agent, for collection, certain accounts, orders or demands against sundry persons in Canada, to the amount of $135, which were received and taken by the defendant, and were to be paid over to said Gaul or his order on the first day of November, 1851, or as soon thereafter as collected; and that the defendant at the…

The action was brought to recover the value of a quantity of lumber. The defendants claimed title to the lumber, derived from a sale under a judgment recovered in Pennsylvania, in favor of the defendant Strang, and others, against Asaph Colborne, on a foreign attachment. The jury found a verdict in favor of the plaintiff for $230. His claim amounted to between $3000 and $4000 ; and he appealed from the judgment.

THIS was an appeal from a judgment of the county court of the county of Seneca, reversing the judgment of a justice of the peace. Hill sued Sellick and Hand, to recover the value of a set of harness taken and converted by them.

PPEAL from a judgment of the Steuben county court. The action was commenced before a justice of the peace, to recover of the defendant a penalty of $25 for forcibly passing a toll-gate of the plaintiffs. The justice rendered a judgment in favor of the plaintiffs, for the penalty, and costs, and on appeal, the county court reversed the judgment. The plaintiffs appealed to the supreme court.

THIS action was brought upon a bond given for the appearance of the defendant Clark before two justices, upon adjournment of the proceedings in a bastardy case. Breach, the nonappearance of Clark before the justices named, at the time and place specified in the condition, although the justices were then and there duly convened for the purpose of having an examination and adjudication. The bond was to the people.

The action was brought to recover the sum of $200 and interest, being the balance of rent due upon certain premises situate on Exchange street, in the city of Rochester,.under a lease thereof, hearing date the 5th day of April, 1852, executed by Alfred Ely, to the defendants, Daniel Goodman and James Goodman, ■and signed by the defendant John McElrone, as security for the lessees, which lease was subsequently, and before the expiration thereof, for a valuable consideration,…

<p>An insurance company may make a valid general assignment of its property, for the benefit of creditors. But. the statute prohibits the giving of preferences in such assignments.</p> <p>The assignee can maintain actions against all the debtors of the corporation.</p> <p>The duty imposed upon the directors of an insurance company, by the act to provide for the incorporation of fire insurance companies, passed June 25,1863, to ascertain losses, in the first instance, and determine what amount the corporation is liable to pay, and then to settle and determine the sum which each person insured is to pay, is in its nature judicial. The statute has conferred the power as a personal trust upon the directors; and they cannot delegate it to another to exercise, either by a power of attorney or by an assignment.</p> <p>Although a corporation can make a voluntary assignment, it cannot transfer to the assignee the power of its officers. The assignment transfers the assets merely; not the franchise. And the assignee does not, by accepting the assignment, become tbe corporation, nor acquire the powers which the statute confers upon the corporate body and its officers.</p> <p>Therefore, where premium notes are among the assets assigned by an insurance company, the assignee has no power to make an assessment upon such notes, to pay losses which he has ascertained and determined to allow, and expenses attending the settlement and collection of the assessment.</p>

APPEAL by the defendants from judgments of the city court of Brooklyn, directing the foreclosure of mortgages. The opinion states the material facts.

MOTION to dissolve a preliminary injunction. The action was brought to restrain the defendants from digging ditches upon their land, or opening and working a stone or marble quarry thereon, so as to intercept or cut off the underground sources of a spring existing upon the plaintiff’s land adjoining the farm of the defendant, which supplied a small stream of water, flowing partly through the land of each party.

THIS was an appeal, by tbe plaintiffs, from a judgment entered in favor of the defendant, upon the report of referees, thfe facts are sufficiently stated in the opinion of the court.'

<p>Where a note, not negotiable, is sued on by a person other than the payee, the possession of the note in court, at tho trial, by the plaintiffs’ counsel, is not prima facie evidence, as in case of commercial paper, negotiable in terms, that the note was transferred to the plaintiff before the commencement of the action, and before the maturity of the note. ¿</p> <p>Where such a note is made payable to a bank, and is sued on by a person claiming title to the same by assignment from the bank, the delivery of the note to the payee and the transfer thereof by the bank to the plaintiff, before the commencement of the action, will not be proved by an assignment of the cashier, indorsed thereon, without date, or any evidence of the time when it was mado. A cashier of a bank has no power to assign a promissory note, not negotiable, without authority from the bank, evidenced by a resolution of the bdard of directors, usage in similar cases, or in some other way.</p> <p>The fact that the plaintiff’s evidence is insufficient, at the time of a motion for a nonsuit, to sustain his action, is not a ground for granting a new trial, where evidence is afterwards given, upon the trial, which entitles him to recover.</p> <p>A promissory note, not negotiable, was made by A. for the purpose of raising money for his own use and accommodation, payable to the president, &c. of the Seneca County Bank. V., P. and W, subsequently signed it at his re-' quest, as sureties. The. note, without being offered at the bank, was discounted by B. Held that all the signers of the note were liable, in an action thereon by the executors of B. And this, although the plaintiffs, in their complaint, claimed title through the bank; it appearing that the defendants c were not misled.</p> <p>The declarations and admissions of fone of several joint makers of a note, after the making of the note, are competent evidence, as against the other joint makers.</p>

PPEAL from a judgment entered at a special term, overruling a demurrer to the complaint.

<p>APPEAL from a judgment of the Monroe county court, affirming the judgment of a justice of the peace. The facts appear in the following opinion.</p>

<p>APPEAL from a judgment entered at the circuit upon the verdict of a jury.</p>

Masters, to give the relator a full and perfect certificate as prescribed by law, licensing her to teach a common school in the town of Hornby in the county of Steuben, for one year from the date of such certificate, which date should he of the time of the appellant’s refusal to examine her as such teacher, and which is stated in the alternative mandamus to have been on or about the 23d day of June, 1854.

The action was brought to recover the amount due on a promissory note in the words and figures following: “ Farmington, Oct. 27,1851. Three months after date, for value received, I promise to pay James Osborne, or bearer, two thousand dollars, with interest. Myron Norton. Jacob Smith, surety. Melancthon Lewis, surety.” The plaintiff produced the note on the trial, before the referee, and proved its execution by the defendant.

<p>MOTION on behalf of the plaintiff for a new trial, on a bill of exceptions. The complaint stated that on the 28th day of December, 1846, in the lifetime of said Isaac T. Holmes, the intestate, the defendant demised and leased unto said Isaac T. Holmes, deceased, by a written lease under the hands and seals of the intestate and the defendant, certain premises in the town of Parma in the county of Monroe, being the grist and saw-mills and the premises thereunto belonging, houses and buildings thereunto attached, known and called the Bush mills, situate on Salmon creek, west of Parma Centre &c., for and during the term of three years four months and three days from the time aforesaid, which term would end on the 30th day of April, 1850, reserving the house and barn and half an acre of land, being a portion of said premises, until the 1st day of September next after the date of the said lease. The complaint set forth in hcec verba the agreement called a lease, by which it appeared among other things that the intestate covenanted to run said mills at all times when they could conveniently be run, and there was timber to be sawed and grain to be ground : and that he would pay all repairs that did not exceed $5 at one time, and make all small repairs as they were needed, and that he would pay and deliver to the party of the first part, (the defendant,) one-half of all the earnings of the said saw-mill, and two-thirds of all the proceeds, earnings and tolls of the said grist mill, to. be delivered on the premises: The party of the first part was immediately to make certain repairs specified, and cause the dam to be repaired, and during the term to pay the expense of all repairs that should exceed the cost of $5 at any one time; and to have the privilege to stop the grist mill from the 1st day of June to the 1st day of September then next for the purpose of repairing the mill-race; and he reserved the use of the sawmill to saw what timber he might want to repair the dam and race. The party of the first part to pay all money taxes, and the party of the second part (the intestate) all road taxes during said term. And it was provided that if the party of the second part should fail to perform all covenants on his part, it should be lawful for the party of the first part to re-enter and take possession of the premises or resort to any other legal remedy; and the party of the second part covenanted to deliver the premises to the party of the first part at the expiration of the said term. There were other provisions in the lease, not necessary to be mentioned. The complaint further stated that the said Isaac T. Holmes, deceased, took possession of the premises described in the lease and occupied the same under the provisions thereof until on or about the 16th day of November, 1848, and until his death on or about the last mentioned day. That he the said Isaac T. Holmes died at the town of Parma, in possession of the premises, intestate, leaving the plaintiff his father, and his sole heir at law. That during the, last sickness of the intestate and for the space of about six weeks before his, death, the plaintiff, at the request of the intestate, carried on said premises and occupied the same for him, and from his death up to and including the 16th day of January, 1849, carried on a,nd occupied the premises, yielding and paying to the defendant as required by him and as stipulated in the lease, the rent and use of the said premises; at which time the defendant, with force and violence, and contrary to the wishes and intention of the plaintiff, entered upon and into and took possession of the said premises, including the grist mill and saw-mill, excepting the house and barn and a portion of the land connected with the house on said premises, and expelled the plaintiff therefrom and wholly excluded him from the use and occupancy and the rents and profits of the grist mill from said 16th day of January, 1849, up to and including the 80bh day of April, 1850. That the plaintiff was duly appointed by the surrogate of Monroe county administrator of the goods, chattels and credits of said Isaac T¡ Holmes, deceased, on the 5th day of February, 1849. The pomplaint alleged that the rents and profits of the said grist mill from the ■ 16th day of January, 1849, to the 30th day of April, 1850, were worth $1000. That on the 25th day of March, 1850, the plaintiff, as such administrator, having recovered a judgment in this court against the defendant, in an action to recover the possession .of said grist mill and premises, had on that day the roll of said judgment duly filed and docketed in the clerk’s office of the county of Monroe, by which said judgment the defendant was adjudged to be wrongfully in possession of the said grist mill, and ordered and adjudged to surrender the possession -of the same to the plaintiff as administrator of <fcc., as aforesaid. The plaintiff, as such administrator, claimed to recover of the defendant damages to the amount of $1000, for the wrongful withholding the possession of the said grist mill from the 16th day of January,'1849, to the 30th day of April, 1850, with the costs of this action, and also the costs of the said action to recover possession of the grist mill.</p> <p>The answer of the defendant, 1. Denied the execution of the instrument of Dec. 28,1846 set forth in the complaint; 2. De* nied that he entered upon and took possession of any of the premises on or about the 16th day of January, 1849, or expelled the plaintiff therefrom, except the grist mill. He also denied that the use and profits of said grist mill from January 16,1849, to April 30, 1850, were worth $1000, or any other sum, or that the plaintiff, as such administrator of &c. as aforesaid, was entitled to the use, rents and profits, or any part thereof. 3. Denied that the plaintiff, as such administrator, had sustained any damage, by reason of the defendant’s withholding the possession of the said grist mill from the 16th January, 1849, to April 30, 1850. 4. Stated that the expenses of running the grist mill, for labor and small repairs that did not exceed $5. at any one time, and the labor necessary to work out the road' taxes assessed on the grist mill during the period from January 16,1849, to April 30, 1850, were more in valúe, than the value of the interest of the plaintiff as aforesaid in the rents and profits of the grist mill during said period. The he, the defendant, paid, laid out and expended during said period and for the purpose last aforesaid, $1000, which he would claim to recoup or set off against any claim of the plaintiff for rents &c., which might be proved on the trial. 5. That there was due to the defendant, on the 16th day of January, 1849, from the plaintiff as such administrator, $150 for his share or two-thirds of the proceeds, earnings and tolls of the grist mill, which the defendant would also claim to recoup or set off as aforesaid. 6.'That the plaintiff’s costs of the action to recover possession, mentioned in the complaint, had been paid, &c. A reply was put in by the plaintiff, the contents of which it is unnecessary to state.</p> <p>The action was brought to trial on the issues formed by the pleadings, at a circuit court held in the county of Monroe, at the court house in Rochester, on the 21st.day of October, 1853. It was proved that the plaintiff was appointed adminstrator, <fcc., on the 5th of February, 1849. The plaintiff, to maintain the issues on his part, called as a witness, Amasa A. Holmes, who testified as follows: “ I .am a son of the plaintiff Isaac T. Holmes, the intestate, was my brother, and died in November, 1848, in a house on the premises rented to him by Davis, which premises are described in the complaint. At that time my father, the plaintiff, was living on the premises, and H. my brother, with him. I worked in the mill, as miller. I think I worked in it in the fall of 1848, about the time my brother was taken sick. I continued to work in it till Mr. Davis, the defendant, took the possession of the mill, which was about the 16th of January, 1849. This was the grist mill. The business of the mill was custom work, and some flouring. There were three run of stone. On the morning of the 16th of January, 1849, during my absence and the plaintiff’s absence, the defendant entered into and took possession of the mill, and continued to occupy it, by himself or tenants, until the close of 1850.” The plaintiff here offered to prove by this witness, that the mill was valuable for use and occupation, and that the gross earnings, in seasons when there was plenty of water, would amount to $1800 or $2000 per year. The defendant, by his counsel, objected to such testimony as immaterial and improper, on the ground that this action was not a proceeding for mesne profits authorized by law; that the complaint was substantially for a trespass, and contained no allegation that the defendant had ever received or enjoyed the rents and profits of the mill, nor did any suggestion appear on the record of judgment in the ejectment suit mentioned in the complaint. But the court ruled and decided, that such evidence was proper; to which decision the counsel for the defendant excepted; and the witness then proceeded and gave evidence, subject to such exception, tending to show the facts so offered to be proved. On the cross-examination of this witness, the defendant offered to show, that when the defendant entered upon the premises, on the 16th of January, 1849, as testified to by the witness, he so entered by the consent and permission of the plaintiff; to which the plaintiff’s counsel objected, and the court sustained such objection ; to which the counsel for the defendant excepted. The defendant further offered and proposed to prove by this witness, that the ordinary expense for the labor in running s'aid mill amounted, every year, to the sum of $700; to which the plaintiff's counsel objected, and the court sustained the objection, and decided such evidence to be incompetent; to which the counsel for the defendant excepted. . Ira Randall and Seth M. Woodruff were called and sworn on behalf of the plaintiff, and gave evidence tending to show that, in ordinary seasons, the gross earnings, proceeds and tolls of said grist mill, would amount to from $1200 to $1500 per year.</p> <p>On cross-examination of these witnesses, the defendant offered to prove by them that the ordinary expenses for the labor of running and taking care of said mill exceeded, at all times, the one-third of all the proceeds, earnings and tolls of said mill; to which testimony the counsel for the plaintiff objected, as improper, on the ground that the defendant was a trespasser, in taking possession of the grist mill, and that the plaintiff was therefore entitled to a verdict for one-third of the gross earnings of the mill, without any deduction for the labor of running said mill; and the court sustained the objection ; to which the counsel for the defendant excepted. The judgment record in the action of ejectment, mentioned in the complaint, was read by the plaintiff in evidence, but no suggestion for damages, or mesne profits, was indorsed thereon or attached thereto. The lease described and set forth in the complaint was also proved and read in evidence by the plaintiff. The plaintiff thereupon rested. The defendant moved for a nonsuit, and'stated the following grounds : 1st. lío right of possession to the premises in question was proved to be in the plaintiff, until the 5th of February, 1849. bio trespass had been shown, or demand for the possession of the premises. 2d. That this was an action for trespass, and not for mesne profits, and no suggestion for damages or mesne profits was indorsed on or attached to the judgment record in the action of ejectment mentioned in the complaint. 3d. That the plaintiff had not proved the receipt of any rents or profits from said grist mill, between the 16th of January, 1849, and 30th of April, 1850; and there was no allegation in the complaint, of the receipt of any rents or profits during that time, by the defendant. But the court overruled the said motion for a nonsuit; to which the counsel for the defendant excepted. The defendant then proved, that between the 27th of March, 1849, and the 2d of May, 1850, the gross proceeds, earnings and toll of said grist mill amounted only to the sum of $884, and a quantity of mill feed, sufficient to fat a number of hogs, which were then made to sell for $150. And the defendant rested. It was mutually agreed that no claim was'made on account of any portion of the premises mentioned in the lease, except the said grist mill. The foregoing was substantially all the testimony in the action bearing on the exceptions herein presented.</p> <p>The court charged the jury that the plaintiff was entitled to recover, in this action, one-third of all the proceeds, earnings and tolls of said mill, received by the defendant between the 16th of January, 1849, and the 30th of April, 1850, without making any deduction whatever for the expense or labor of running said mill during that time. To which charge the counsel for the defendant excepted. The court further charged the' jury, that they should estimate the amount of proceeds, earnings and tolls of said mill, from the 16th of January to the 27th of March, 1849, from the evidence before them, show-. ing the value of the use and occupation of the mill at that season of the year, and allow to the plaintiff, in making up their verdict, one-third of that amount. To which charge the counsel for the defendant excepted. The defendant’s counsel requested the court to instruct the jury, that the plaintiff was only entitled to recover nominal damages in this action, under the proof above stated; which the court refused to do; to which refusal the defendant also excepted. The jury then retired to deliberate upon their verdict. After they had so retired, the counsel for the plaintiff moved to amend the complaint, so as to make the action in form a proceeding for mesne profits, according to the form of the'statutes in such case made and provided. To which the defendant, by his counsel, excepted. The court decided that the application for such amendment should be made at the same time with a motion for a new trial on . the above exceptions. The jury rendered their verdict, by which they found for the plaintiff §418.</p>

MOTION on the part of the plaintiff for a new trial, on a bill of exceptions.

THIS was an appeal by the plaintiff from a judgment of the Monroe county court, reversing a judgment of a justice. The action before the justice was against the defendant for converting a one dollar bank bill, the property of the plaintiff. On the trial before the justice, it appeared that the defendant was a freight agent, at Rochester, for the Hew York Central Rail Road Company.

<p>THIS was a suit in the nature of a bill in equity, to charge the separate estate of Mrs. Dederer, a married woman, with the payment of a promissory note, which she signed with her husband, Nicholas A. Dederer. It appeared from the pleadings and proofs in the case, that the note was dated December 26, 1853, payable with interest, on the first of May, 1854, and was signed by both defendants. This note was given in the place of two notes, one of $589.93, dated December 23,1852, and signed by both defendants ; the other dated March 19,1853, for $398, and signed by the defendant N. A. Dederer alone. These two notes were given for cows which the defendant N. A. ■ Dederer purchased of the plaintiff. The defendant Eliza A. Dederer owned three farms in the county of Chenango at the date of the sale of the said cows, and the giving of the said notes; one of about 200 acres, situate in the town of German, another about 215 acres in Smithville, and about 90 acres of land situate in the town of Greene. When the defendant If. A. Dederer • applied to the plaintiff to purchase said cows, he refused to sell to him except upon the condition that he would procure his wife to sign the notes with him, and which he agreed to do as a condition of the sale. The first note was signed by both defendants at the time. The second note was given by the defendant If. A. Dederer, with the agreement that he should procure his wife to sign it, and the note in suit was given on the surrender and for the consideration of the two notes ; and Mrs. Dederer signed this note with her husband, and there was some evidence in the case to show that these cows, or at least a part of them, went to stock one of her farms, but the court found that there was not evidence sufficient in the case to establish the fact that the purchase of these cows was for her benefit, or that they went to enhance her separate estate, or that either the cows or the avails went for her benefit, and the court found that she signed the note upon which this suit is brought, as surety for her husband. It was admitted upon the trial, that Mrs. D. had a separate property in personal and real estate, amply sufficient to pay the plaintiff’s demand. It was proved that the defendant If. A. Dederer was insolvent; that the plaintiff had obtained a judgment against him upon this note; that an execution issued thereon against him had been returned nulla bona, and that he had made a general assignment of his property for the benefit of his creditors.</p>

IN December, 1858, the city of Buffalo purchased of the defendant Austin certain real estate in the city, for the purpose of erecting thereon a market. Austin, by deed bearing date December 27, granted and conveyed the land to the city. The deed was duly delivered by Austin and accepted by the city.

THE plaintiff brought his action in a justice’s court, and claimed to recover the value of a colt, sold by one Smith Low, in February, 1850. The defendant, first, denied the complaint ; and secondly, set up as a justification, that the colt was the property of Adam P. Bellinger; and that Low, as under-sheriff, sold it on an execution against him.

THE plaintiffs claimed to recover for goods and merchandise sold by them to the defendant, on the 14th of November, 1853, to the amount of $299.40» -The defendant denied each allegation of the complaint, and set up a former suit and judgment, in bar.

THIS action was brought before a justice of the peace, to recover of the defendant, a toll-gatherer on a plank road, the penalty imposed by statute for demanding and receiving more toll than by law he was authorized to collect.

THIS was an appeal, by the defendant, from a judgment rendered upon a trial before the court without a jury. The action was upon a note, or due bill, for $500, executed by the defendant to the plaintiff, dated January 2, 1854. The note was given upon a mortgage foreclosure sale, made by the attorneys of the plaintiff, for a part of the consideration money bid by the defendant, upon such sale.

<p>The plaintiff sold and conveyed land to L. and took from him a note for a part of the consideration. L. conveyed the land to the defendant, and died insolvent, leaving the note unpaid. At the time the defendant took the conveyance from L. he had no actual notice of the plaintiff’s demand against L. The sale of the land by L. to the defendant was wholly without consideration. In • an action brought to enforce the lien of the vendor, upon the land, for the unpaid purchase money; &elct that the defendant was not a bona fide purchaser, but was a mere volunteer, and that therefore the land continued charged with the equitable lien of the plaintiff for the consideration money.</p> <p>Although the law protects from the lien of the vendor one who purchases in good faith, for a valuable consideration, and without notice, it will not protect a mere volunteer, who has not paid any thing, nor agreed to pay any thing for the land.</p> <p>The declarations of one in possession of land cannot be admitted for the purpose of showing that an incumbrance upon the land existed, where such person has sold and conveyed the land to a bona fide purchaser; ii seems.</p> <p>But such declarations are admissible as against a mere volunteer.</p>

<p>APPEAL by the plaintiff from the judgment of a county court.</p>

<p>THIS was an appeal from a judgment of the Niagara county court, affirming the judgment of a justice.</p>

THE plaintiff recovered a judgment against the defendant for $4.03 damages, and $1.42 costs, before Jesse Palmer, Esq., a justice of the peace; from which judgment the defendant appealed to the Delaware county court. After the appeal was made, Palmer was elected county judge of the county and was acting as such. He certified that fact, pursuant to § 30, sub. 13 of the code, and the cause was brought to a hearing at a special term of this court.

MOTION on the part of the defendants to set aside a verdict, and fór a new trial, on a case. The facts are sufficiently stated in the opinion of the court.

The referee made a special report, in which he stated as follows : “ That one Daniel Pease, on the fifth day of September, 1853, recovered a judgment in the supreme court of this state against one Leonard B. King, for $158.54.

<p>Proceedings cannot be entertained for the appointment of a guardian to sell infants’ real estate, by a justice of the supreme court, at chambers.</p> <p>Such proceedings must be had at a special term.</p> <p>The supreme court is not always open as a court of equity, except to enable .the justices thereof to make such orders as the chancellor formerly made out of term.</p> <p>Petitions in proceedings for the sale of infants’ real estate should be addressed “ To the supreme court of the state of New York.”</p>

In March, 1821,. Philips, as the owner of a promissory note, of which one McLean was the maker, and the defendant Peters the first indorser, for the sum of $439.78, commenced his action against Peters.

PPBAL from a judgment entered on the report of a referee. The plaintiffs, as assignees of one Absalom Gregg, brought an action to recover from the defendant, a settler on the Oneida purchase of 1840 and 1841, the sum of $263 and interest, being ten per cent, as was alleged, upon the sum of money canceled by the state from the amount of indebtedness existing on the defendant’s bond, and which he had agreed, with other settlers, to pay to Gregg, in the event of Gregg procuring…

<p>In equity, on a bill for a "specific performance, the leading inquiry is, whether in conscience the contract should be enforced; and mere technical objections that would defeat an action at law for damages are not allowed to produce inequitable and oppressive results.</p> <p>If it be conscientious that an agreement should be performed, though the action be lost at law by the default of the party seeking a specific performance, it will notwithstanding, be decreed, where time is not the essence of the contract.</p> <p>Thus, if a vendor’s remedy at law is gone, by reason of there having been a mortgage on the premises, so that he could not convey a good title at the day fixed upon by the contract, he may bring a suit in equity for a specific performance, where the purchaser is in possession of the premises, and will lose nothing by the delay, and there is nothing to show that the parties have made time of the essence of the contract.</p> <p>The plaintiffs and defendant entered into a written contract for the sale of certain lands by the former, to the latter, the price to be fixed by third persons. The plaintiffs were to convey a perfect title to the premises, and the defendants were to pay the price within ten days after notice of the award. Within the ten days the vendors tendered a deed, properly executed. No objection was made to the title. Shortly afterwards the deed was again tendered to the president of the defendant’s company. He raised no objection that the tender came too late, or that the property was incumbered, but subsequently returned the deed; the defendants, however, still continuing in the possession and use of the land, and taking no steps to abandon the contract. At the time the deed was tendered there was a small incumbrance, by mortgage, upon the farm, of which the premises agreed to be sold were a part. This was paid, however, within 18 days after the award was made, and prior to the commencement of the suit.</p> <p>Held, 1. That the acts of the defendants amounted to a waiver of the condition to convey a perfect title within ten days after notice of the fixing of the amount of the purchase money.</p> <p>2. That the parties had not made time the essence of the contract, nor was it a condition precedent to the payment of the purchase money that a perfect title should be furnished within the ten days. That there was nothing, therefore, in the omission of the plaintiffs to make a perfect title within the time specified, to prevent a court of equity from decreeing a specific performance of the contract by the purchasers; provided a good title could be made at the time of the decree.</p> <p>Whether a court of equity shall decree the specific performance of an agreement, is a matter resting in its discretion; but this is a sound legal discretion. The court will not lend its aid to enforce an unconscientious contract. The case presented must be fair, just and reasonable, the contract free from fraud, misrepresentation, or surprise, and not hard, unconscionable or unequal.</p> <p>It must also be entered into upon adequate consideration; and when the inadequacy of price, in a contract to sell, is so great as to be conclusive evidence of fraud, as where it would shock the moral sense of an indifferent man, a court of equity- should not carry it into effect.</p> <p>But inadequacy of price merely, without being such as to prove fraud conclusively, the contract being entered into deliberately, and fair in all its parts, is not an objection to its being executed.</p> <p>An award of arbitrators may be vitiated in a court of equity, for partiality or corruption in. either of them; but it is no ground for setting it aside that the arbitrators erred in receiving impertinent and incompetent evidence.</p> <p>In an action for the specific performance of a contract of purchase, the fact that arbitrators chosen by the parties to fix upon the price to he paid for the land, have received and acted upon incompetent evidence, is not pertinent proof, and ought not to be received.</p> <p>Where a specific performance is decreed in favor of a vendor, he will he entitled to interest on the purchase money from the time the deed was tendered; where the purchaser is in possession of the premises and has not tendered the purchase money nor demanded a deed, and thereby put the vendor in default.</p>

<p>HIS action was brought to recover the possession of the undivided half of a lot of land, in the village of Castleton, commonly called and distinguished as the Schermerhorn brick yard. The answer put in issue the plaintiff's title, and alleged that he claimed title under a deed from John J. Kittle, dated January 16, 1844; that next south of and adjacent to the premises, and separated therefrom by the southerly boundary thereof, is situate a tract of land formerly owned by Isaac Esleeck, deceased, and now owned in fee by the defendant Nancy. St ear ns, and occupied by the defendant Hogeboom, as tenant at will; that the plaintiff claimed that the southerly boundary'of the land described in the deed from Kittle, and in the complaint, so ran as to include a portion of the premises claimed and owned by Stearns and wife, and occupied by Hogeboom.</p> <p>The reply affirms that the premises- are correctly described in the complaint, and denies that the only title the plaintiff can make is under the Kittle deed. That the word “ east” in said deed does not mean due east5 but easterly, as set forth in the complaint. That the land described in the complaint and deed as the Schermerhorn brick yard, is a well known lot of land, and has been.so for more than 20 years.</p> <p>The cause was tried at the Rensselaer circuit in April, 1853. The plaintiff proved that on the 9th June, 1812, Isaac Esleeck conveyed to one George Noyes a lot in the village of Castleton, describing it as “ beginning at the S. W. corner of the house now occupied by George Noyes aforesaid, and running east 157 feet to a stake and stones ; from thence a northerly course 273 feet to a stake and stones; from thence west or westerly 154 feet to a stake and stones; thence 151 feet to the place of beginning.” At the time of the purchase by Noyes from Esleeck, (who owned the land adjacent and directly south) there was no survey made of the lot conveyed. The lines were run by the parties with a rope, and monuments fixed. In May, 1817, John J. and George Schermerhorn recovered a judgment in the supreme court against Noyes. The lot was sold under an execution issued upon this judgment, and the Schermerhorns became the purchasers, and in 1820 the premises were conveyed to them by the sheriff. In October, 1837, John J. Schermerhorn and Cornelius Wilsey assigned to John J. Kittle all the lands in the state owned by the grantors. On the 16th January, 1844, Kittle conveyed to the plaintiff the premises described as follows : “ All and singular, that certain piece or parcel or lot of land situated in the village of Castleton, and. town aforesaid, bounded as follows, beginning at ,the S. W. corner of the dwelling house formerly occupied by George Noyes, running east 157 feet to a stake and stones; thence a northwardly course 273 feet to a stake and stones; from thence west or westwardly 154 feet to a stake and stones ; from thence 151 feet to the place of beginning, commonly called and distinguished as the Schermerhorn brick yard.” Noyes occupied the premises as a brick yard, up to 1823. Subsequently they were owned and occupied by the Schermerhorns, and persons under them, as a brick yard. Noyes left Castleton in 1823.</p> <p>The defendants, Stearns and wife, claimed to own the lands adjoining the southerly boundary line of the plaintiff’s lot. The defendant Hogeboom, some seven or eight years prior to the trial, and about the time of the purchase of the premises'by the plaintiff from Kittle, erected a barn, under Stearns and wife, on land claimed by the plaintiff to be included in the deed to him from Kittle. It was admitted that he was in possession of the barn at the commencement of the suit. The controversy in the case was respecting the southern boundary line of the plaintiff’s lot. The starting point called for in the deed from Esleeck to Noyes in 1812, and from Kittle to the plaintiff in 1844, was a dwelling house occupied by Noyes at the southwest corner of the lot. The first course in the deed was “ east 157 feet to a stake and stones.” This first monument had been removed prior to 1823, and no traces left of it. A due east line from the starting point would run northerly of the barn and premises occupied by Hogeboom. The plaintiff gave evidence tending to show the location of the stake and stones, the first monument called for in the deed; that the plaintiff’s premises were for more than twenty years prior to the conveyance to him, known and distinguished and commonly called “ the Schermerhorn brick yard ;” that the lot as used and occupied by Hoyes, and which in 1828 went into, the possession and occupancy of the Schermerhorns, and was afterwards known and commonly called “ the Schermerhorn brick yard,” embraced and included in it the small strip of land on which the defendant Hogeboom had erected the barn. The defendant showed that a due east line, run as the first course called for in the deed of the plaintiff, would leave the barn and premises in possession of the defendants south of the southerly line of the plaintiff’s lot; and they gave evidence tending to show that the land on which the barn was erected formed no part of the lot as used as a brick yard by Hoyes, and the Schermerhorns, and those under them. By funning the courses and distances as given in the deed, the lines tif the survey would not close.</p> <p>When the plaintiff rested, the defendants moved for a nonsuit, on the ground that the plaintiff was bound by the first course and distance mentioned in his deed from Kittle, and could not claim south of that line, it being shown that there was no stake and stones at the end of the first course intended as a monument, at the time of the execution of the deed ; and that in the absence of a fixed monument the course and distance was the next certain call, and must control any words of common description. The court refused to nonsuit the plaintiff, and the defendants excepted.. Further evidence was then given on the question of the extent and location of the plaintiff’s lot, and in reference to the southerly line thereof. The testimony being closed, the case states that the defendants’ counsel requested the court to decide the following points, and nonsuit the plaintiff: 1. That the plaintiff is bound by the first course and distance mentioned in his deed from John J. Kittle, and cannot claim south of that line, it being proved that there was no stake and stone intended as a monument, at the time of the execution of the deed, and consequently, 2. All proof given to show where a stake and stone placed as a monument, stood previous to the execution of the deed, is incompetent and should be stricken out or disregarded. 3. The addition at the end of the description by courses and distances, of the words, “ commonly called and distinguished as the Schermerhorn brick yard,” cannot vary the construction of the deed or authorize proof as to what premises were intended to be included in the “ Schermerhorn brick yard.” The testimony admitted on that subject was incompetent and ought to be stricken out and disregarded. But the court refused to rule as requested, and to nonsuit the plaintiff; to which refusal and decision the defendants’ counsel excepted. The court among other things, charged the jury that unless the description in the deed had been aided by the last clause, viz : the words “ commonly called and distinguished as the Schermerhorn brick yard,” it would have been void for uncertainty ; the first call being for a line 157 feet east; thence northwardly 273 feet j thence west or westwardly 154 feet, and from thence 151 feet to the place of beginning j the second and third courses being run due north and west the lines of the survey would not close, and hence if it were not for the last clause the deed would be void. To which part of the charge the defendants’ counsel excepted. The court further charged that the evidence in regard to the location of the stake and stones in 1812, was of' importance as testimony to be considered in determining what were the premises usually known as “ the Schermerhorn brick yard.” To which part of the charge the defendants’ counsel excepted.</p> <p>The jury rendered a verdict for the plaintiff. The defendants moved for a new trial on a case.</p>

The complaint states that the plaintiff is the owner of a piece of land in the city of Hudson, purchased from the defendant, in June, 1846, bounded easterly, in front, by Second street, northerly by Strawberry alley, and westerly by land owned by the defendant; that the lot is about 220 feet in width on Second street, and extends westerly 200 feet; that northerly of this lot, on the opposite side of Strawberry alley, is a lot conveyed by the defendant to one George Robinson,…

THIS was an appeal by the plaintiff from a judgment entered at a special term.

PPEAL by the defendants, from a judgment rendered at a-special term, after a trial at the circuit. The action was brought to recover damages against the defendants, for enticing away the plaintiff’s wife; one of the defendants being the father of the wife.

APPEAL by the defendants from a judgment entered at a special term, after a trial at the circuit. The action was brought by the plaintiffs, as surviving executors of Martin Law-; rence, deceased, against the defendants, Bowman, Hicks, Killmer and Tanner, as makers of a promissory note, dated April 29th, 1846, payable to the testator in one year, with interest, On the 2d of May, 1852, an indorsement was made upon the note of $56 'for interest.” This money was paid by Bowman.

THESE were appeals, by the defendant in the first suit, and by the plaintiffs in the second and third, from, judgments entered at a special term, after trials at the circuit. The actions were brought upon the following agreement, signed by the defendants, to recover the amounts severally subscribed by them to the capital stock of the plaintiffs’ company: “ Poughkeepsie and Salt Point Plank Road—with the privilege of extending the same to Clinton Corners.

APPEAL by the defendants from a judgment entered at a special term, upon the verdict of a jury. The action was brought to recover damages of the defendants for wrongfully taking from the possession of the plaintiffs, and carrying away, divers goods and chattels claimed to belong to them.

MOTION to set aside a nonsuit, and for a new trial. The complaint was for trespass quare clausum fregit, and alleged two distinct acts of trespass upon the plaintiff’s premises, describing the said premises as a certain parcel of land, pond and saw-mill standing thereupon, situate at Springfield in the town of Jamaica, Queens county, (together with the stream and pond of water thereto belonging, and the privilege of raising the water in said pond as high as is necessary for…

<p>CeRtioraRi to remove certain proceedings instituted by the defendants for the setting of a new curb and gutter in Smith street in the city of Brooklyn, between Fulton avenue and Sacket street, which were afterwards reconsidered and changed into proceedings for the re-grading and re-paving of said Smith street and setting new curb and gutter therein, between Fulton avenue and Warren street, the expenses of which were assessed upon the relator and other owners of property supposed to be benefited thereby. The material facts appear in the opinion of the court.</p>

THIS was an action to recover damages for the killing of the plaintiff’s horses, upon the rail road of the defendants, by the locomotive.

APPEAL by the defendant, from a judgment entered upon the verdict of a jury. The action was brought to recover the possession of a lot of land situate in Williamsburgh; and judgment was entered for the plaintiff that he recover possession of the premises described in the complaint.

PPEAL by the defendants, from a judgment' entered at a special term, after a trial at the circuit. The action was brought by the plaintiff as administratrix of Enoch S. Brown, deceased, to recover damages of the defendants for causing the death of her intestate by their wrongful act, neglect, or default.

<p>The usual reservation to the legislature, in an act incorparáting a rail road company, of the power to alter, modify or repeal it, will not authorize the passage of an act purporting to allow the local authorities to take, in effect, a part of the road belonging to the company, and to impose a serious burthen upon the latter, without making them any compensation.</p> <p>Accordingly held that the legislature could not, under such a reservation in a charter, pass a subsequent act, requiring the rail road company to cause a proposed new street or highway laid out by the commissioners of highways, to be taken across their track, and to cause all necessary embankments, excavations and other work to be done on their road for that purpose, at their own expense.</p> <p>The property of public corporations is so far private as to come within the prohibition of the constitution against taking private property for public use without just compensation.</p>

APPEAL by the defendant from a judgment entered at a special term, on the verdict of a jury. The action was brought to recover the value of' a wooden frame building, erected by one Ward Barmore upon the defendant’s premises, while said Barmore' occupied the same as tenant of one Winant, a lessee of the defendant, under a written agreement.

APPEAL by the plaintiffs from a judgment of the city court of Brooklyn. The complaint alleged that heretofore, at the city of Brooklyn, one Patrick B. Cox, at the defendant’s request, made, sold and delivered to the said defendant, sash and blinds, did work and furnished materials for him, of the value of one hundred tand nine dollars, over all payments. That the same was, on the 3d day of December, 1853, overdue and wholly unpaid.

APPEAL by the defendants from a judgment rendered against them at the circuit. The action was brought to recover the amount of three several calls made upon the defendants’ subscription to the capital stock of the plaintiffs’ company. The cause was tried by the court, without a jury, and judgment in favor of the plaintiffs for the amount claimed.

COON brought an action before a justice of the peace, against Jane Brook and John Brook her husband, upon a promissory note in these words and figures, viz; “$35.00. Ithaca, Oct. 6, 1854. Sixty days after date, for value received, I promise to pay James Norton, or bearer, thirty-five dollars, with use. (Signed) Richard x Brook, John Brook, Mary X Brook, Jane Brook.” The pleadings were oral.

THIS was an appeal from a judgment rendered at the Rensselaer circuit, in February, 1854, Justice Watson presiding.

THIS was a demurrer to a complaint. The facts, so far as they relate to the question presented by the demurrer, are as follows: William Barthrop, who resided at Kinderhook, in the county of Columbia, died in October, 1888, leaving an estate of the estimated value of $200,000.

THIS was a suit for the foreclosure of a mortgage. The mortgaged premises consisted of two lots in the city of Albany, extending from Broadway to Church street, upon which were situated the Fort Orange Hotel and other buildings. On the 26th of February, 1834, the premises were mortgaged by Simeon De Witt, who was then the owner thereof, to Abraham Varick and John Y. B. Yarick, executors, &c., to secure the payment of $15,000, with. interest.

<p>Where, upon appeal from the decision of commissioners of highways, refusing to lay out a highway, commissioners are appointed by the county court to assess the damages to be awarded to the owners of the land, and the damages are assessed by them, and the board of supervisors directs the amount to be levied and assessed upon the taxable inhabitants of the town, and the same are so levied and collected, and paid over, by the commissioners of highways to the several persons through whose lands the road is laid; and subsequently, upon an application for a mandamus to compel the commissioners of highways to open the road, the supreme court decides that all the proceedings for the laying out of the road are null and void, no action will lie in the name of the town, against an individual to whom damages have been paid, to recover the amount, as so much money had and received by him for the plaintiff, on the ground that the consideration has entirely failed.</p> <p>Those from whom the money has been collected, under such circumstances, are entitled to have it restored to them, and the land owners to whom it has been paid have no legal right to retain it3 but the town, in its corporate capacity, has no connection with the transaction.</p>

THIS action was brought to recover the value of three shingle machines, and the belting of the same, and the belt to a drag saw, which property had been sold by the sheriff of Steuben, under and by virtue of an execution in favor of the plaintiffs against E. and H. G. Gulick, and, upon such sale, purchased by the plaintiffs; It was tried at the Rensselaer circuit, in October, 1853, before Mr. Justice Wright.

THIS was an action to recover personal property. It was tried at the Albany circuit, in November, 1852, before Hr. Justice Wright.

fllS was an action for cutting and carrying away timber from a wood lot in the town of Rochester, in the county of Ulster. It was tried at the Ulster circuit, in May, 1854, before Mr. Justice Bacon. It appeared upon the trial, that the lot upon which the timber had been cut, had been owned by the heirs of Jacob E. Hornbeck, deceased, and that those heirs, by a deed bearing date the 15th day of March, 1851, conveyed the lot to the plaintiffs.

<p>The section of the statute of limitations (2 JR. S. 297, § 27) which provides that if, at the time when a cause of action accrues against any person, he shall be out of this state, the action may be commenced within six years after his return into the state, is applicable as well to non-residents, as to citizens going out of the state.</p> <p>Therefore, where a note is made in the state of Massachusetts, by citizens of that state, payable to residents of this state, the statute of limitations will not commence running against the demand until the makers come into this state.</p> <p>Jn an action here, upon such a demand, the defendants cannot avail themselves pf the Massachusetts statute of limitations.</p>

MOTION to dissolve injunction. The defendants Chollar, Sage and Dunham, in March, 1854, and prior thereto, were partners in the foundry business, at West Troy. In May, 1853, the firm made and delivered to Benjamin H. Sage, one of the partners, their two notes, one for five thousand dollars, the other for one thousand dollars. These notes were transferred to the plaintiif, who at the time of the commencement of this suit was the holder thereof.

PPEAL from the Greene county court. The action was brought before a justice of the peace. Upon the trial the plaintiff produced and proved a note made by the defendant, payable to himself for $23.84, and an account against the defendant for eight dollars. He also produced another note, of which the following is a copy: “ On demand, for value received, I promise to pay Isaac Van Valkenburgh or bearer, seven dollars and thirty-two cents, with interest.

PPBAL from the Ulster county court. The action was commenced before a justice of the peace, It was brought against the defendant Douglass, as a constable, and the other two defendants, as his sureties, for not returning an execution, The cause was tried by a jury.

THE defendant is a corporation organized under an act of the legislature, passed April 29, 1836, and reorganized under the provisions of the general act for the incorporation of insurance companies, passed April 10, 1849.

MOTIOJST for an injunction. The complaint alleged that the hoard of supervisors during their annual session of 1855, adopted an amended report on equalization whereby they proposed to add $300,000 in gross to the assessed valuation of the town of Schodack, which amount, with other sums tp he added to another town and the city of Troy, were to be deducted in other gross sums from other towns, and that the addition of the sum of $300,000 to the aggregate valuation of the town…

THIS was an appeal, by the defendants, from a judgment entered at the circuit, after a trial before the judge, without a jury. In his complaint the plaintiff averred, I. That he owned a farm situate on a bay north of Hudson, that before the construction of the defendants’ rail road, vessels were in the habit of coming into the bay, “ much nearer to his said farm” than the line of said rail road. 2.

THIS suit was brought to compel the Bank of Utica to contribute to the safety fund, as required by the statute regulating such contributions. The complaint alleged the due incorporation of the Bank of Utica by an act of the legislature passed June 12, 1812. That the bank was organized and entered upon the exercise of its corporate rights as a bank with a capital of $600,000.

DEMURRER to complaint. The action was for arrears of rent, reserved in and by a lease in fee, from Stephen Van Rensselaer to John Chamberlin; in which lease there was a covenant that the lessee and his heirs, representatives and assigns, would forever pay to the lessor, his heirs or assigns, the rent, from year to year ; and that for non-payment, the lessor, Ms heirs, &c. might distrain, re-enter, &c. The plaintiff was (by mesne assignments) assignee of the lessor ; and the…

The complaint stated that one Charles Brown was the treasurer of a certain association consisting of seven associates and upwards, in the town of Hanover, known as Forestville Division No. 411, Sons of Temperance.

<p>The power of the supreme court to review the proceedings ofmunicipaj corpora- . tions, upon certiorari, is undoubted.</p> <p>How far, and in what cases, the court will exercise this power, are questions addressed to its sound judicial discretion.</p> <p>The writ is not a writ of right, like the writ of error at common law, but should always be, and generally is, allowed for good cause, and granted with great care and circumspection,</p> <p>The writ should not issue to a municipal corporation to remove the proceedings upon an assessment for the construction of a bridge, without notice, and without a full opportunity for the respondents to show cause against it.</p> <p>Under the 188th and 189th sections of the charter of the city of Rochester, before the common council can pass the final ordinance or determination to make any public improvement therein referred tp, the following stpps must be taken:</p> <p>1. A petition must be presented to it, from a majority of the owners to be assessed for such improvement. 2. Notice of such application must be published 10 days, in two daily newspapers. 3. Some officer must be directed to make an estimate of the expense. 4. An entry must be made, describing the part or portion of the city to be assessed. 5. A notice of such improvement, the estimated expense thereof, and the portion of the city to be assessed therefor, and requiring all persons interested to attend at a time appointed, to show cause, &c., must be published.</p> <p>As respects the first requirement, the common" council must see, when it comes to order the improvement and fix the limits of the territory to be assessed therefor, that a majority of the owners of property to be assessed have in fact petitioned for the improvement in question.</p> <p>If the common council has before it a petition, in the outset, and such petition is in fact ascertained by them to be signed by a majority of the owners of the property to be assessed, when the parts or portions of the city to be assessed for the improvement is fixed, that is a substantial compliance with the charter, and all the compliance practicable in such a case.</p> <p>When the common council has referred the petitions to the appropriate committee, to ascertain the facts, and the committee has performed its duty, and. made its report to the board, which is followed by a resolution of the common council, fixing the limits of the territory to be assessed, and asserting that a majority of the owners of the property to be assessed have petitioned for the improvement, the common council must be deemed to have duly ascertained and determined that fact; and their resolution declaring such fact is to be considered in the nature of a judicial finding in pais, on that subject. T. R. Strong, J. dissented.</p> <p>Enough being presented in the petitions, with the report of the committee of the common council thereon, to call upon the common council to exercise their judgment on the jurisdictional facts essential to entitle them to proceed to order the improvement, if they act thereon their decision is final and conclusive on that question. T. R. Strong, J. dissented.</p> <p>Persons omiting to raise the objection, before the common council, that the petitions presented to the common council do not in fact contain the signatures of owners of property to be taxed for an improvement, requisite in point of numbers and location to confer jurisdiction, when called upon by public notice from the common council to do so, are estopped from raising the objection after-wards.</p> <p>The legislature intended that the action of the common council, upon and after the publication of the notice requiring all persons interested to attend at a specified time, and show cause against the making of the improvement, should be final and conclusive upon the question of the assent of a majority of the persons to be assessed.</p> <p>And the supreme court, upon a common law certiorari, will hold the action of the common council conclusive upon all persons, in such a case, unless it clearly appears that there was an entire and palpable absence of all evidence tending to confer jurisdiction, before them. T. R. Strong, J. dissented.</p> <p>Where a petition, presented to the common council of Rochester, praying for a local assessment for the construction of a bridge, contains a suggestion in respect to the territory to be embraced in the assessment, such suggestion is not to be regarded as of the substance of the petition, or in the light of a condition, or in any respect binding on the common council.</p>