Volume 21 — New York Supreme Court Reports

<p>Appeal from an order of the Special Term, vacating orders requiring defendant to appear and be examined as a witness before trial.</p>

Stewart, deceased. Alexander Turney Stewart, a citizen of the United States and a resident of the city and county of New York, died in that city on the 10th day of April, 1876.

<p>Hu/nd for payment of dividends — when regarded as a trust fund — lien of stockholder upon it.</p> <p>September 2d, 187A, the Erie Railway declared a dividend of one per cent, upon its stock, and deposited the money to pay the same with Dnncan, Sherman & Co. On December 10th, 1874, the money then remaining with the said firm was withdrawn by the company, and subsequently passed, with its other property, to a receiver of the road. This application was made by the petitioner, who, at the time the dividend was declared, was and still is a stockholder of the said road, to compel the receiver to pay to him the amount of his dividend.</p> <p>Held, that the fund deposited with Duncan, Sherman & Co., should be regarded as specifically appropriated for the payment of the dividend, anddhat the stockholders acquired in equity a lien upon such fund to the extent of the amount to which they were respectively entitled, and that such -lien followed the fund in the hands of the receiver.</p> <p>That a stockholder might apply on petition for such dividend, and was not obliged to bring an action therefor.</p>

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 the offense of keeping and offering for sale, at his store in the city and county of New York, impure and unwholesome milk. The first count in the indictment was for a separate and distinct offence, for which a specific penalty is provided by statute.

<p>Appeal from an order of the Special Term refusing to vacate the assessment in the above matter.</p>

<p>Mamed women — ratification of acts of agent.</p> <p>Where a married woman carries on business through the agency of her husband, to whom she has given a power of attorney, she may ratify and adopt any act of his in the business, even though such act was not within the letter of the power of attorney.</p>

<p>Special Tenn — power of, to stay proceedings upon and modify a judgment of the General Term,</p> <p>A judgment was entered in this action upon a decision of the General Term, allowing the plaintiff to redeem a certain contract therein described, upon payment of the sum of $15,000, within sixty days from the entry of such judgment, with interest from September 10th, 1874, and costs. Subsequently, upon plaintiff’s application, an order was made at Special Term staying all proceedings on the part of the defendants under the judgment until the hearing and decision by the Court of Appeals of an appeal by the plaintiff, and extending the time to redeem until sixty days after such decision of the Court of Appeals. ■</p> <p>Upon an appeal from this order, held, that the Special Term had uower to make it, and that it should be affirmed.</p>

Writ of certiorari to the Court of Oyer and Terminer of the county of New York. The facts are these: Loring M. Black was indicted, in the Court of General Sessions for unlawfully keeping and exhibiting a gambling table and apparatus in a certain building, with intent to use the same for gambling purposes. On the 26th of October, 1877, he pleaded guilty to the indictment, and was sentenced to six months’ imprisonment and a fine of $250.

<p>Sale in partition — fees of referee</p> <p>Upon a sale of lands in an action for partition, the referee conducting the same is entitled to receive for his services a commission not exceeding in any case §500.</p>

y ruling a demurrer to the complaint herein, and also from the judgment rendered in this action in favor of the plaintiff. Until the partners have given their individual security to the creditor, there is no severance, but the demand of the plaintiff is against both partners jointly, and not otherwise.

This is a proceeding to vacate an assessment under chap. 312, of the laws of 1874, on a certain lot of land in the city of New York, owned by the petitioner. The proofs show that an assessment for paving 20th street, between 3d avenue and East River, was confirmed April 22d, 1873, and was imposed on lot Ward No. 5,012, being the lot mentioned and described in this petition.

Appeal by the plaintiff from a judgment entered after a trial at the circuit where the complaint ivas dismissed ivith costs. The defendants, Charles Neidig and Christian A. Neidig, composing the firm of C. & C. A. Neidig, had been dealing with .the plaintiff since 1869, or thereabouts.

<p>Appeal from a judgment recovered on a trial at the. Circuit, and from an order denying a motion made upon the minutes, for a new trial.</p>

verdict directed by the court at circuit. This is a proceeding under § 375 of the former Code of Procedure, requiring the appellant, Abraham Waitzfelder, to show cause why he should not be bound by a judgment for $2,834.16, rendered in the original action in favor of the plaintiff against Solomon L. Waitzfelder & Co., of which firm the appellant was a partner, on the 6th day of January, 1876.

<p>Appeal — sureties on — action on undertaking against sureties and appellants — not maintainable unless appellants are parties thereto.</p> <p>A judgment having been recovered by plaintiff in an action to foreclose a mortgage, the appellants who were defendants therein, being in possession of the premises, appealed from the judgment and procured a stay of proceedings by furnishing an undertaking, executed by two sureties, conditioned to pay the rents and profits and waste that might accrue during the pendency of the appeal. The plaintiff having been successful, brought this action against the sureties to the undertaking, and the appellants, who were not parties thereto ; the complaint alleging facts showing that the liability of the sureties had become fixed.</p> <p>Held, that as the appellants were not parties to the undertaking, they were not liable to the plaintiff for a breach thereof, and that as to them the complaint did not contain facts sufficient to constitute a cause of action.</p>

Appeal by plaintiffs from a judgment entered on an order sustaining a demurrer to the complaint, and from an order denying leave to amend, and from an order granting an additional allowance.

<p>Passport — not evidence of truth of its contents — Family record of births — when inadmissible in evidence.</p> <p>In an action upon a promissory note the defendant, in order to establish his defense of infancy, offered in evidence a passport, containing a statement of his age, alleged to have been delivered to him on his emigration from Germany. Held, that it was properly rejected ; that although an official document, it was made up from the statements of the defendant himself, or some person in his behalf, and is not by any statute made evidence of the correctness of its contents.</p> <p>He also offered a book called a family record, shown to be in the handwriting of his father, then living in Germany, containing the births of his several sons. Held, that as the book was not a public record, and as the father was still living, it was properly rejected.</p> <p>A party cannot call witnesses to contradict statements made by an adverse witi ness, in answer to questions asked on cross-examination simply for the purpose of impeaching him.</p>

This proceeding was brought in the Second District Court to dispossess the defendants by summary proceedings under the following circumstances: By lease dated 26th March, 1877, Miss Jay leased the premises in question to the defendants, Bennett and Abrahams, for five years, from May 1, 1877, with the privilege of a renewal of fifteen years, at the yearly rent of $2,600, payable quarterly.

This was a proceeding brought by Miss Jay against certain tenants and sub-tenants, to recover the possession of demised premises by summary proceedings under the Illegal Trade Act. The affidavit of the landlord sets up the making of a lease for five years, from May 1st, 1877, from her to the defendants, Bennett and Abrahams, at $2,600 per annum, payable quarterly, in which the tenants covenanted that intoxicating liquor should not be sold upon any part of the premises.

To a complete determination of the case presented by the pleadings, Samuel F. Butterworth ivas a necessary party. The plaintiffs elected to make him a party, and the course and practice of courts of equity hold that he Avas a necessary party and that no decree could be made Avithout his presence. Ilis death could not change the position of things on that question. His legal representatives are now equally necessary parties.

<p>Order of publication of summons —requisites of — Code of Civil Procedure, § 440.</p> <p>An order for publication of a summons, after reciting- that it appeared from the affidavits that the party to be served vas a necessary party defendant, that he could not after due diligence be found within the State, but had departed therefrom, and that his present place of residence could not, after such diligence used, be ascertained, directed that the summons be served upon him by publication thereof in two papers therein specified, once in each week for six successive weeks, and by mailing copies of said summons and complaint, properly inclosed in a sealed wrapper, addressed to said defendant at his last place of residence, West Eighty-third street, near Eighth avenue, in New York, said publication and mailing to be commenced within three months from the date. Held, that the order was void, because (1) it did not require a copy of the ordei’, as well as of the summons and complaint, to be served ; (2) because it did not specify the post office in which they were to be deposited; (3) becau.se it did not require them to be mailed on or before the day of the first publication.</p>

Appeals from orders of the Special Term directing certain referee’s and stenographer’s fees to he adjusted by the clerk as disbursements in the action.

The application for the order of examination was made upon the following affidavit: -, being duly sworn, says: That he is an attorney and counsellor at law, and employed in the office of the counsel to the corporation; that this action is brought to recover the sum of $5,000, on account of sundry injuries, which plaintiff alleges he sustained while riding or driving through Ninth avenue between 55th and 56th streets in the city of New York, by reason of the alleged unsafe…

<p>Motion for a new trial on exceptions, ordered at Circuit to be heard at the General Term in the first instance.</p>

The indorsement;, “Estate of Paul Spofford, by P. N. Spofford, Ex’r,” if made merely in renewal of a liability of the testator, bound the estate, and the plaintiff was entitled to have the case submitted to the jury. The act of the one executor is as binding as if all had joined in it.

<p>Appeal from an order denying defendant's motion to dismiss the summons and complaint in this action, on the ground that the plaintiff was a 11011-resident of this State, while the defendant is a foreign corporation, and that the subject matter of the action is not situated, nor did the cause of action arise in this State.</p>

Charles Donohue, one of the justices of the Supreme Court residing in the city of New York, to review proceedings and an order on habeas corpus, letting the defendant to bail.

<p>Imprisonment wider non-imprisonment act of 1831 — effect of proceedings in bankruptcy upon.</p> <p>On the 21st of December, 1867, one Latorre was arrested by the sheriff on a warrant issued under the non-imprisonment act of 1831. On December 31st, proceedings in bankruptcy were instituted against Latorre; on January 11th, 1868, he was declared a bankrupt, and on February 4th of that year all his estate was transferred to an assig-nee in bankruptcy. In an action against the sheriff to recover damages for an escape of the prisoner which occurred in June, 1868, held, that the pending proceedings under the non-imprisonment act were so far as the assignment for the discharge of Latorre from imprisonment was concerned, legally superseded by the adjudication in bankruptcy and the proceedings subsequent thereto; that even though he had not availed himself of the discharge to which he was entitled, but remained in custody at the time of the escape, that plaintiff was not entitled to recover damages therefor.</p> <p>Queare, whether in an action for an escape the sheriff could insist that the warrant upon which the prisoner was committed was void, because issued before any action had been commenced against him.</p>

<p>Appeal from a judgment in favor of the 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 Avas tried.</p>

This action was brought to recover certain moneys collected by the defendants on the sale of articles, sent by plaintiffs to them for sale on commission. The defendants claimed that an agreement had been made by which they were not to account for articles sold by them during each month until the twentieth of the succeeding month.

the Special Term granting an additional allowance of $2,000. There was no recovery in this action of anything of value, and none was asked for in the complaint. There is no money basis on which to calculate a percentage; it is a case in respect to which there is no provision made by law for an allowance. {Spofford v. Texas Land Co., '41 Supr. Ct. R., 228 and 231; Coates v. Goddard, 34 id., 132; People v. The A. & Susq.

91 Fifth avenue. The respondent on November 4, 1876, was in possession and occupancy of said premises under a lease from George Griswold for a term ending May 1, 1879.

<p>Appeal from an order directing the plaintiff' to treat the answers of the defendants, John F. Peyser, Henry M. Peyser and ■Julia H. Cracaner, as sufficient.</p>

' Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a dismissal of the complaint at the circuit. The action ivas brought upon a promissory note.

The plaintiffs, on February 5, 1876, recovered judgment against the defendant for $3,828.98. Defendant, on appeal to the General Term, moved to have the judgment marked, secured on appeal, and under an order in this action of February 19, 1876, the $4,000 was deposited by defendant in the Trust Company to the credit of this action. After an affirmance by the General Term, and an appeal to the Court of Appeals, said deposit ivas made a deposit in that court.

The action was commenced December 28th, 1875, to recover the sum of $2,304.23, for goods sold and delivered by A. T. Stewart & Co. to the defendant, in November and December, 1875. An order of arrest was issued in the action upon affidavits alleging that the defendant was guilty of fraud in contracting the debt, and he was arrested thereunder and held to bail. This order of arrest was on appeal sustained by the General Term of this court.

In July, 1877, the plaintiff obtained an order and summons for the examination of the defendants Pettengill and Bridgman, as witnesses before trial, under section 391 of the Code of Procedure.

<p>Appeal from orders vacating warrants of attachment in the above entitled actions.</p>

L. A. Moke, deceased. The principal question presented by the appeal relates to the meaning to be given to the word “ executors ” as used in the testator’s will.

This matter came before this court upon a writ of certiorari.

This action was brought to recover upon two checks made by the defendant to the order of one Mieas Meyer. The defense set up was that the checks were accommodation checks, and that plaintiff was not a bona fide holder thereof for value.

The action is brought by the people, by their attorney-general, and is in the nature of an action of quo warranto, its object being to declare forfeited the charter of defendant, on the ground that one-half its capital stock was not paid in within the time required by law. Alexander Studwell is one of its directors, and verified the answer, stating that one-half the capital stock had been paid in.

<p>General assignment — accounting by assignee — when it may be compelled.</p> <p>"Where an application is made to compel an assignee for the benefit of creditors to render an account, he cannot defeat the application by alleging that the assignment has been rendered void by his own failure to file the bond and schedule of assets, as required by the statute.</p> <p>A county judge has power, upon the accounting of the assignee, to admit or reject a claim presented by a creditor, and to determine who are and who are not entitled to participate in the distribution of the estate.</p> <p>The fact that an assignee denies that anything is due to one who applies to have him compelled to render an account, furnishes no reason why such application should be denied.</p>

Under the contract of purchase the plaintiff had no right to the possession of the premises in question. (Spencer v. Toby, 22 Barb., 260; Eggleston v. New York and Harlem R. R. Co., 35 Barb., 162.) The plaintiff was rightfully in possession, as vendee, with permission of the vendor, under a written contract of sale. He could only have his possession disputed by ejectment. (Suydam on Vendors, 179; Tyler on Ejectment and Adverse Eujoyment, 40,' 57, 216.)

<p>Appeal from a judgment in favor of the defendant, entered upon the trial of this action at the Circuit, and also from an order directing the entry of such judgment, after a verdict for plaintiff directed by the court.</p>

<p>Orde)' of arrest for fraud — what allegations necessary in action on contract — Code of Civil Procedure, § 558.</p> <p>In an action upon contract it is not necessary to authorize the court to grant an order of arrest, on account of fraud in the contracting thereof, that the facts, upon which such order is granted, should he stated in the complaint.</p>

Camilla Hunt and Edward P. Wilder, her committee. The plaintiff is bound to prove that the mortgagor was sane at the very time the mortgage was given. {Jackson v. Von Busen, 5 John’s, 159, marg. p.; Attorney-General v. Purniher, 3 Bro. Ch. R. [Am. ed., 1844), 441, 443, 445; White v. Wilson, 13 Vos., 88; Hall v. Warren, 9 Yes., jr., 611; 1 Story’s Eq. Jurisp. [12th ed.], 219, § 222; Ilaviland v. Hayes, 37 N. Y., 33; Goddell v. Harrington, 3 T. & C. [N. Y. Sup. Ct.

<p>Appeal from a judgment of the County Court of Westchester county, affirming a judgment of a justice of the peace in favor of the plaintiff.</p>

These proceedings were instituted to sell the interests of the petitioners herein in certain lands, their interests consisting of a vested remainder in the lands in which their mother had an estate for her life. The proceedings resulted in a contract for the sale of the lands to Wilde being entered into by the guardian andconfirmed by the court. Wilde refused to fulfill the contract, and this application was made to compel him to do so.

The action was brought against the defendants, commissioners, of highways of the town of La Grange, to recover damages for an injury to plaintiff’s horse, occasioned by the defective conilition of a bridge in said town. The defendants claimed, among other things, that they had no notice of any defect in the bridge until the accident, and that it was then put in thorough order.

From the testimony of relator’s wife it appeared that she and the relator were married in Boston; that, she lived with him for six years; that she then went to Halifax, Nova Scotia, and had not lived with him since; that she came to Brooklyn from Halifax, and that the relator resided in the city of New York.

The board of supervisors January 6th, 1876, equalized the assessments of Westchester county, and the supervisor of Yonkers appealed to the State Assessors who decided that the action of the board of supervisors was erroneous. The board of supervisors now seeks to review the action of the State Assessors on the grounds: 1. That the appeal was heard by only two of the three State Assessors. 2.

This action was brought to foreclose a purchase money mortgage.

It appeared that in obedience to an order of the county judge of Westchester county, the defendant Gilchriest appeared before a referee, and was examined concerning his property. At the close of his examination, plaintiff’s attorney moved that the defendant be required to subscribe the minutes of his testimony, and the referee so ordered.

.Appeal from a judgment in favor of the plaintiff entered upon a verdict directed by the court, and an order denying a motion for a new trial made upon the minutes of the justice and the exceptions.

<p>Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.</p> <p>The action was brought to foreclose a mortgage, assigned to the plaintiff by the mortgagee. The defease was usury.</p>

AprEAL from a judgment in favor of the defendants, entered upon the report of a referee. Held: that inasmuch as the statute authorized specialties to be impeached only so far as writings without seal, might have been impeached at common law, and that a writing without seal acknowledging a consideration could not, at common law, be impeached by parol testimony that there was no consideration, or one different from the one…

The action was brought to recover the price of a heater, claimed to have been purchased of the plaintiff by the defendant.

This action was commenced before a justice of the peace. The complaint demanded judgment for sixty dollars. The answer in that court was a general denial, and the case was adjourned for trial. The defendant was not present at the trial, nor did any one represent him there, and judgment was taken against him by default. The defendant appealed to the County Court, and moved that court, on affidavits and due notice, for leave to amend his answer.

The action was brought under the General lien law of this State, to enforce a lien claimed by the plaintiffs to have been perfected by them against the property of the' defendant Beach. Stone and Bassett had agreed to erect a build-in o; for Beach, and plaintiffs had furnished brick to the said contractors, for which they had not been paid.

Appeal by defendant from an order denying a motion for a new trial made on tlie minutes of the court; also a motion for a new trial on a case and exceptions, ordered to be heard in the first instance at General Term, The action was trespass for an alleged illegal entry upon the plaintiff Js premises, and an unauthorized search of his dwelling-house and other buildings for stolen property.

This action -was brought to foreclose a mortgage made by the defendant McKoon to M. Schoonmaker, and by the latter assigned to the plaintiff, which mortgage bore date June 13th, 1868, and was given… Held: that the mortgage was a lien on Gleason’s fifty-five acres, but that Gleason’s mortgage was entitled to priority of payment; that the plaintiff was not bound •by Gleason’s foreclosure, because not made a party to it; and further, that Brown’s defense was unsustained.

The action was brought to recover damages occasioned by the sale of certain personal property of plaintiff’s by the collector of the village of Port Jackson, acting under the authority of the defendants, the trustees of the village.

The action was brought to recover the value of services rendered by the plaintiff in examining a set of books, in pursuance of directions received from the defendants, a firm of attorneys, and for which he sought to hold them liable in this action.

The action was brought to recover damages for the pollution by the defendant of a stream running through the plaintiff’s farm. The complaint alleged that the defendant was the treasurer of a joint stock company or association, known as the Slate Hill Cheese Factory, transacting business in the town of Palatine, consisting of more-than seven shareholders.

h January 13, 1875, and for some time previous thereto, defendants were copartners, engaged in business as merchants at 447 Broadway, New York, and L. Richards & Co., were a firm engagaged in business as merchants at Norwich, N. Y. On that day an agreement, in writing, was entered into betvrcen said firms, by which defendants agreed, at their own proper cost and expense, to “ settle, satisfy and pay all the debts against said party of the first part (L. Richards & Co.),…

The action was brought under chap. 563, Laws of 1869, to recover money as forfeited to the plaintiffs by reason of defendant’s having on different occasions brought to their cheese factory, milk diluted with water. The said act, so far as it is material in this case, is as follows : “ § 1.

The action was commenced before a justice of the peace to recover damages occasioned by an exchange of horses, which the plaintiff claimed to have been induced to make by reason of the false and fraudulent representations of the defendant. The defendant was arrested by virtue of a warrant issued by the justice upon the following affidavit, made by the plaintiff.

The measure of damages is the value of the article at the time of conversion, with interest. {Since)' v. Waters, 65 Barb., 227; Buzsee v. Maybee, 21 Wend., ■144; Tremain v. Smart, 4 Lans., 263; Tiedman v. O'Brien, 36 N. Y., 538.) The measure of damages adopted by the referee was even more favorable to the defendants than was warranted by the case. The plaintiff had particular use for this machine of which defendants were apprised.

The action was brought to have certain conveyances executed by the defendant, State S. Haring, to George S. Dexter, and by the latter to Anna M., wife of said State S. Haring, set aside as fraudulent and void as against, the plaintiffs who were creditors of the husband. On the 2d day of January, 1874, State S. Haring was the owner of the premises set forth in the complaint, subject to a mortgage, upon which was due the sum of $1,800.

<p>Appeal from a judgment in favor of the defendants, entered upon the report of a referee.</p>

<p>Will— construction of — devise to “my four children,” viz., etc. — revocation as to one share — when such share should he divided among the other devisees.</p> <p>Plaintiffs’ testator, by Ms will, after giving certain specific legacies, provided:</p> <p>“ Item Eighth — After the payment of my just debts and funeral charges, I give and bequeath the rest and residue of my property, real and personal, of every kind and description, to my four children, M. W. H., C. S. H., J. S. H., and J. L. H., to be divided between them, share and share alike;</p> <p>"Item Ninth — In the event of any of my children dying, or either of them, before the division of my estate, leaving issue, then the share or shares to which he, or they, respectively, would be entitled under and by virtue of this will shall go to his, her or their issue respectively.”</p> <p>Subsequently he executed a codicil by which he revoked and cancelled “ the devises and bequests, and each and every of them, embraced in my said will to the said Charles S. Heartt.” At the time of the making of the will and of the codicil, Charles S. Heartt was living and had issue then living, a daughter. He died, however, before the testator.</p> <p>In an action brought for the purpose of obtaining a construction of the will, held, that the daughter could take only such share as her father would have been entitled to were he then living, and that as the devise as to him had been revoked, she took nothing.</p> <p>That the testator did not die intestate as to the share devised to the said Charles, but that said share should be divided among the other three children.</p>

The executrix cannot be made liable to pay this judgment under such a state of facts. (Thompson v. Brown, 1 John., 629; Raynor v. Rearsoll, 3 John. Ch., 584; Lansing v. Lansing, 45 Barb., 192; Pierson v. Thompson, 1 Edwards Ch., 223; Tiffany & Bullard’s Law of Trusts, etc., 595; Higgins v. Whiton, 20 Barb., 142.)

<p>Appeal from an order of the surrogate of Chemung county, made in proceedings instituted before him by the administrators of John Welch, deceased, for leave to sell his real estate for the payment of his debts.</p>

The action was upon a policy of insurance issued by the appellant to the respondents, under the name of “ Heirs of John S. Terpenning,” whereby such heirs wore insured against loss or damage by fire from December 1, 1872, to December 1, 1875, to the amount of $3,400, to wit: $1,000 on dwelling-house and wood-house, if attached; $300 on household furniture therein, and the remainder of the amount on out-buildings and their contents, live stock, farming utensils, etc. The…

This action was brought by the plaintiff to recover from the executors of her father’s estate the arrears of interest on a legacy claimed by her to be due, and to have the said legacy declared a charge upon the lands devised by the said will. The defendants claim that the legacy had been adeemed by advances made by the testator, and that the claim was barred by the statute of limitations.

This action was brought to have an assessment for laying a sewer, in one of the streets in the city of Troy, declared void, and to enjoin and restrain all proceedings for the collection thereof.

The plaintiffs are heirs-at-law and next of kin of one Silas Marlett, deceased. The defendants are the executrix, and the legatees, and devisees under his will. The complaint sets forth the will at length, and avers that Rachel Marlett is entitled under the same only to a life estate in the real and the personal property, and that she claims that she is the owner thereof in fee.

The judgment in favor of the First National Bank was not satisfied and discharged when Peter Seeber, one of the judgment debtors, paid the same at the bank and took an assignment thereof. (Olason v. Morris, 10 Johns., 524; Gory v. White,- 3 Barb., 12; Kelsey v. Bradbury, 21 Barb., 531.) It is only when the judgment is obtained against joint debtors that payment by one defendant operates as a satisfaction of the judgment.

<p>Parol contract of sale — invalid wider statute of frauds — same person cannot act as agent for both parties in delivery and acceptance respectively of the goods — Bill of sale — cannot be varied by parol evidence.</p> <p>'Where a contract for the sale of goods rests wholly in parol, and no part of the purchase-money has been paid, a delivery of the goods to, and an acceptance thereof by the vendee being relied upon to take the sale out of the statute of frauds, the same person cannot act as the agent of both parties; that is, he cannot claim to act as the agent of the seller to negotiate the sale, and the agent of the buyer to receive and accept the goods.</p> <p>.A written bill of sale “ of twenty-three casks of wine ” imports a sale of the casks as well as of the wine, unless the contrary expressly appears, and parol evidence is inadmissible to show that it was agreed at the time of the sale that the vendee should return the casks.</p>

<p>Action of replevin — return of property to defendant directed — damages for taking of property— not allowed unless claimed in answer— Code, § 261.</p> <p>Where in an action to recover the possession of personal property, in which the property has been taken from the defendant and delivered to the plaintiff, judgment is finally entered in favor of the defendant, and a return of the property to him directed, no damages for the taking and withholding of the property so seized can be recovered by him in such action, unless a claim therefor has been set up in his answer.</p>

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

The action was brought upon a promissory note purporting to have been signed by the defendant as maker, and which was subsequently transferred to the plaintiff. During the trial, upon her cross-examination, the defendant was requested by the plaintiff’s counsel to write her name in the presence of the referee, and she accordingly did so.

<p>Boards of Supervisors— eorreetiom, of errors in assessments try — what errors may . be corrected — chap. 855 of 1889, and chap. 695 of 1871.</p> <p>Under the provisions of section 5 of chapter 855 of 1869, as amended by chapter 695 of 1871, authorizing- boards of supervisors, upon the recommendation of the County Court, “to correct any manifest clerical or other error in any assessment,” and requiring them to “ refund to such person the amount collected from him by any tax illegally or improperly assessed or levied,” only manifest errors can be corrected; that is, such as are clear, plain, obvious, and evident; such as are apparent from an examination of the tax-roll itself, or at least needing for their demonstration nothing more than a mathematical calculation.</p> <p>The statute does not include errors of judgment, of fact, or of law, or jurisdictional questions.</p> <p>The decision of the assessors as to whether or not a tax should be imposed upon an agent, having in his hands for the purpose of collection and reinvestment bonds and mortgages belonging to a resident of another State, cannot be reviewed under said statutes.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and purporting to be also from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried, (no such order, however, appearing in the case on appeal).</p>

<p>Supplementary proceedings — lien acquired by — lost by discontinuance of — not revived by auditor’s bill — Equitable assignment of fund — what sufficient to constitute.</p> <p>Where, in supplementary proceedings, instituted by a judgment-creditor, an injunction is served upon the debtor, and a person holding property belonging to him, and such proceedings are subsequently abandoned before the appointment of a receiver therein, the lien acquired by the judgment-creditor upon such property is lost, and is not revived or continued by the commencement of an action, in the nature of a creditor’s bill against the debtor, the person •who held the property, and one to whom it was subsequently transferred.</p> <p>Although an ordinary bill- of exchange or check on a bank does not operate as an equitable assignment of so much money, so as to vest the title in the payee without acceptance, yet when a particular fund out of which the amount is payable, or the source from which the money is to be derived, is specified, the order operates, with or without acceptance by the drawee, as an equitable assignment of the fund, or so much thereof as is necessary to satisfy the draft; •and so operating, it transfers the fund, so that the drawee, having notice of the draft, is bound to keep the fund, as upon a special deposit in his hands for the benefit of the payee.</p> <p>One who had taken a contract to build a school-house, sub-let the mason work to one Boland, and thereafter drew the following draft upon the person who was to pay for the school-house : “ Please pay to James Boland two hundred and forty-nine dollars ($249), being the balance due on contract for building said school-house, the above amount to be paid on the acceptance of the said school-house.”</p> <p>Held, that the draft operated as an equitable assignment of so much of the fund as was necessary to pay the same.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was upon a policy of insurance of a canal boat, to the amount of $1,000.</p>

Ajpppeal from a judgment of the County Court of Onondaga county, entered upon a verdict in favor of the plaintiffs, directed by the court, and from an order denying a motion for a new trial ' made upon a case and exceptions.

Appeal by C. E. Marsh, the receiver appointed in supplementary proceedings herein, from an order made by the county judge of Cattaraugus county, requiring him to account and pay over certain money to S. C. Green, the surety of said receiver, or show cáuse why an attachment should not issue against him as for a contempt. The judgment upon the return of- an execution upon which the proceedings were instituted, was recovered in the Supreme Court.

: 1507.02, of which $98.35 were for the costs and expenses of the said writ, the residue being for the relator’s costs and the disbursements of the proceeding to punish for the alleged contempt.

<p>• Appeal from an order of the County Court of Oswego county, opening a judgment taken by default on the ground of irregularity.</p>

The action was commenced by the respondent, his wife, and their four daughters, against the appellant, individually, and Oliver M. Benedict (since deceased), to compel the specific performance of a contract made by Mrs. Miller, the mother of the appellant, for the conveyance.of certain real estate, by requiring Benedict to deliver a deed of said real estate, which Mrs. Miller had executed and left with him, in escrow, and by compelling the appellant to deliver the possession…

<p>Offer to allow judgment to be taken — neglect to annex affidavit — Code of Civil Procedure, § 744.</p> <p>An offer to allow the plaintiff to take judgment for an amount therein specified, signed by the defendant’s attorney, but to which the affidavit required by section 744 of the Code of Civil Procedure is not annexed, is a nullity, and the plaintiff is not required either to accept or reject it. He may proceed with the action, and pay no attention thereto; nor does he waive any right by retaining the same without objection.</p>

<p>Order of arrest — upon what facts granted, — When partner not liable to airest for . representations of a copartner.</p> <p>This action was brought to recover the price of certain lumber sold to the defendants, who were partners, and for work performed for them. An affidavit, used--.to procure an order of arrest, alleged that one of the defendants had falsely-represented that their firm was fully responsible, when, in fact, it was insolv- ' ent; that shortly before these representations were made, each of the partners conveyed certain lands of the value of $6,000 to their wives, without consideration ; that the deeds were not recorded until four months after the making of the representations, and that the conveyances were made to cheat the creditors- ‘ of the defendants; that the concealment thereof was to cheat and defraud the ‘ plaintiffs, and that each partner ordered some of the items of the bill, knowing at the time that they were insolvent.</p> <p>Held, that the affidavit showed facts, independent of the false representations,. sufficient to sustain an order of arrest against both partners.</p> <p>It is not necessary that the affidavits should specify the grounds of the arrest, in terms; it is enough that they state facts sufficient to authorize the conclur sion that the grounds exist.</p> <p>¡Semble, that the action being on contract and not for the wrong, the partner not making the false representation was not liable to arrest for the false representation made by his co-partner, without his knowledge, authority or ratification.</p>

Motion by plaintiff for a new trial on exceptions taken at the Niagara Circuit, and ordered to be heard at the General Term in the first instance.

The action is on a draft, made and indorsed by the defendant’s testator, in the following words: “ $5,000.” “ Syracuse, N. Y., Sept. 13, 1870. “ Orrin Welch, Treas. Morris Run Coal Co., pay to the order, of myself, one year after date, live thousand dollars, for value received. (Signed) “ J. P. HASKIN. (Indorsed) “Pay to the order of Mrs. Mary Hook, 35 King, for the benefit of her son Charlie.

Justice Raivson, at the Ontario Special Term. This action was bi’ought to foreclose a mortgage, accompanied by a bond made by Willard C. Gannett and wife, to Hobart College, of Geneva, N. Y., dated November 1, 1868. .After the execution of the mortgage, the premises were conveyed by the mortgagor to one Lewis E. Gannett subject to said mortgage, and which he assumed to pay as part of the purchase-price.

On the motion to set aside the warrant, the judge decided that the affidavits on which it was issued were defective, in that it did not appear thereby that the plaintiff was entitled to recover a sum stated therein over and above all counterclaims known to him; whereupon' the plaintiff’s attorney asked to be permitted to amend such affidavits, and to oppose the motion to dismiss by new proof by affidavit, on the part of the plaintiff The justice allowed the plaintiff to make…

Aureal from a judgment of the Monroe County Court reversing a justice’s judgment in favor of the defendant. The action was brought to recover the cast of repairing a part of defendant’s portion of the division fence on the line between adjoining lands of the respective parties, the defendant having neglected, after due notice, to repair the same.

The action was brought upon an instrument signed by the-defendants, by which they guaranteed that Davies, Jones and Beckwith who had theretofore been in co-partnership with the plaintiff, and had then, with him, entered into an agreement to dissolve-the partnership, would perform all the stipulations in said agreement on their part contained.

The order appealed from was made on the 5th November, 1877, on the return of an order requiring the defendant to show cause why she should not be punished as for a contempt, for her alleged misconduct in refusing to answer certain questions.

of the plaintiff, entered upon the report of the referee. The action was brought to foreclose two mortgages. The defense was usury.

<p>Indictment— transfer of ease from Oyer and Terminer to Court of Sessions — • jurisdiction of latter court.</p> <p>"Where an indictment has been found in a court of Oyer and Terminer, an order may be made in that court sending the case to the Court of Sessions for trial, without giving any notice to the accused.</p> <p>The Court of Sessions has, since the passag-e of chapter 212 of the Laws of 1865, jurisdiction to try and convict a person indicted for robbery in the first degree.</p>

<p>Personal transactions with deceased peison — when evidence as to, admissible — Code of Civil Procedure, § 829.</p> <p>This action was commenced in a justice’s court upon a promissory note made by Wood, and signed by Stafford for his accomodation, to the order of one Bement who died before the commencement of the action. The plaintiff recovered a judgment against both defendants, from which Stafford alone appealed to the County Court. Upon the trial in the County Court,'Stafford offered to prove by Wood, transactions and communications had by him (Wood) with Bement at the time of the execution of the note, and subsequent thereto to establish his defenses, one of which was an extension of the time of payment without Stafford’s knowledge. The evidence was rejected as inadmissible under section 829 of the Code of Civil Procedure.</p> <p>Held, that its rejection was error; that the testimony of Wood was not offered “ in his own hehalf,” as he was not a party to the appeal, nor in his “ interest,” as he was in no way interested in the result thereof.</p>

An action was commenced by the plaintiff against the defendr ant in a justice’s court, which was discontinued on motion of defendant’s counsel, because the amount in dispute exceeded $400, Subsequent this action was commenced upon the same claim in this court, and it having been referred, a judgment was entered therein in favor of the plaintiff for $21.31. The clerk taxed costs in this action in favor of the defendant.

The commissioners had no right or authority to require or take; any consideration, by way of contract or otherwise, as an inducement to the performance of their duty. And any contract or condition not authorized by the statute was and is utterly void. (Webb v. Albertson, 4 Barb., 51; Palmer v. Fort Plain, etc., Plank P. Co., 1 Kernan, 376, 386; McGuire v. Smock, 42 Ind., 1; Fawl&r v. Seidly, 72 Penn.

A surety, who has paid the debt of the principal, has a claim for contribution against his co-surety who is jointly liable with him upon a joint bond or obligation, and the right of action arises when the surety claiming such contribution pays the debt.

motion to vacate a judgment entered in this action. The summons and complaint herein, were served on the defendant Warren, June 22, 1877. The time to answer or demur to the complaint extended to and included July 12th, 1877. On the 12th of July, 1877, the defendant Warren, by his attorney, served upon plaintiff’s attorney a notice of retainer and a demurrer to the complaint of plaintiff.

Court of Buffalo. The action was based upon the alleged violation of' article 3, section 17, of the Constitution of the State of New York, by the provisions of chapter 369, of the laws of 1875.

<p>Appeal from an order refusing to set aside the appointment of a receiver, and an order directing him to make an assessment upon the stockholders of a corporation.</p> <p>The judge was, by reason of affinity with the stockholders, disqualified from sitting as a judge in the case in which the order was made. (R. S., vol. 2, p. 275, § 2; Graham & Waterman on New Trials, vol. 2, p. 228; Paddock v. Wells, 2 Bar. Ch. Reports, p. 331; People v. Thompson, 41 N. Y., p. 5; The People v. Wheeler, 21 N. Y., 85; Place v. The Butternuts, etc., 28 Bar., 503, upon this point cited and approved in 48 Bar., 523; _ZV Y. <& JY. II: P. II. Co. v. Schuyler and others, 28 How. Pr. Reports, 187; Dimes, appellant, v. The Grand Junction Canal Co., respondents, 3d House of Lords Cases, 759; Schoonmaker v. Cleanoater, 41 Barb., 200, affirmed in 1st vol. Keyes, 310. under the title of Chambers ex’r, v. Clearwater.</p> <p>The orders were absolutely void, for the reason that the justice was related, by affinity within the ninth degree, to several of the stockholders. (2 Revised Statutes, 275 [marg.], § 2; Oakley v. Aspinwall, 3 N. Y., 547, 551; Edwards v. Russell, 21 Wend., 64; Schoonmaker v. Cleanoater, 41 Barb., 200, 203-206; Chambers v. Clearwater, 1 Abb. Ct. of App., Dec., 341, 345; Rivenburgh v. Henness, 4 Lans., 208; Converse v. McArthur, 17 Barb., 410; Baldioin v.' McArthur, 17 id., 414; Foot v. Morgan, 1 Hill, 654; Edwards v. Russell, 21 Wend., 63; Post v. Black, 5 Denio, 66; Jewetts. Albany City Bank, Clark’s Ch. R., 179.) This rule applies to all judicial officers in all judicial proceedings, in all courts, from the highest to the lowest. (Oakley v. Aspimvall, 3 N. Y., 547; Edwards v. Russell, 21 Wend., 63; Baldwin v. McArthur, 17 Barb., 415.) It is immaterial whether the legal proceeding results in an order or a judgment, if it involves a judicial act or decision. {Converse <& Baldwin v. McArthur, 17 Barb., 410, 415; Rivenr burgh v. Henness, 4 Lans., 208.)</p>

Appeal by plaintiff from an order of the Special Term, denying a motion to sot aside the taxation of costs in this action by the clerk of Herkimer county, and the entry of such costs in the judgment in favor of the defendant Elizabeth Bucklin against the plaintiff. . The action was in the nature of a creditor’s bill to set aside certain conveyances. All the defendants appeared by the same attorneys and set up in one answer their respective defenses.

The plaintiff’s husband was a servant of the defendant employed as fireman on the engine ‘ ‘ Plymouth,” upon one of its trains running south towards Sherburne in Chenango county, which engine ran off the track in consequence of defective ties and rails, causing the death of the fireman, the husband of plaintiff. There was evidence of defects and imperfections, at the place where the train left the track, in the ties, rails and joints.

The cause was tried at the Cattaragus Circuit before Justice Daniels and a jury. The jury was charged about 9 p. m. and retired to a room, and the court adjourned until morning. After the adjournment, the jury returned to the court-room and occupied it until morning. Justice Daniels kept minutes of the testimony in a book, which he left on his desk in the court-room where the trial took place, and the jury had access to this book of minutes.

The action was on a policy of insurance, dated January 26, 1875, covering a building for $333; also machinery, $333; also stock, $168. The policy was countersigned by Hiram Smith; second, agent. The property was destroyed by fire September 3. 1875. The cause was tried at the Chautauqua Circuit. The verdict was directed for the plaintiff for $180.74, being for the amount of material plaintiff had in the mill.

The action was on a policy of insurance against loss by fire issued by defendants. The policy described the insured property as “his one story frame dwelling-house occupied by tenant, situated,” etc. The policy was issued November 1, 1874, by Smith & Elwood,the defendant’s agents at their office, in Rochester. Fire destroyed the buildings December 12, 1874, and notice was given to the company.

' The complaint in this action alleged that the defendant, Ann Creswell, wrongfully and maliciously commenced an action against this plaintiff, before a justice of the peace, and that the summons therein was duly personally served upon him; that on the 8th day of June, 1876, the return day mentioned in the summons, the plaintiff” did not appear before said justice, “well knowing that said Ann Creswell had no ease of action against him, and to appear before said justice would…

The action was brought to recover damages for the conversion ’ of a pair of mules. The Rochester Towing Company owned them and executed a chattel mortgage covering them to Thompson and Wilcox, and they assigned their claims to plaintiff, who made demand for the mules. The defendant took them from Dewey, an rgent of the towing company, for a feed bill, and kept them t\.o weeks and then sold them. He had sold them before the demand was made.

The Farmers and Mechanics’ Bank of Rochester held a note made by S. C. and M. A. Hutchins for $1,000, and the note was delivered to Stewart, who was a director in said bank, and a suit was brought… Held: and which was held by the same justice who presided at the trial of this action.

<p>Promissory note — indorser of — contract of — Accommodation papei-— Usury — how it must be pleaded.</p> <p>In an action upon a promissory note, executed in the usual form, the indorser set up as a defense that the maker of the note was a married woman. Held, that this constituted no defense, as it was part of the contract of indorsement that the maker of the indorsed paper was competent to contract in that form.</p> <p>The answer further alleged that the note was indorsed for the accommodation of the husband of the maker, and that this fact was' known to plaintiff when he took the note. Held, that, as it was not alleged that the husband was in any way restricted as to the use he might make of the note, this constituted no defense.</p> <p>It further alleged that the plaintiff purchased the note at a usurious discount. Held, that this did not show usury, as it was not alleged that the plaintiff purchased from the husband, and the latter might have sold it to a third person at a legal discount, and the plaintiff might have purchased from such third person.</p>

<p>Appeal from an order denying a motion-.to change the place of trial.</p>

The covenant in the deed, by which Gearty assumed payment of the mortgage, was strictly matter of contract between Gearty and his grantors, the Smiths. It, therefore, follows that it was competent for the Smiths to alter or rescind the terms of their bargain with their grantee. (Stephens v. Casbacker, 15 N. Y. Sup. Ct. Rep., 8 Hun, 116; Halsey v. Reed, 9 Paige, 446; Blyer v. Manholland, 2 San.

<p>Writ of error to the Court of Oyer and Terminer, to review the conviction of the plaintiff in error of perjury.</p>

<p>Perjury — oath taken before officer defacto, binding.</p> <p>Upon the trial of an indictment for perjury in falsely swearing to an affidavit, required by law to be made, the plaintiff in error insisted that the oath was invalid for the reason that the notary nublic before whom it was taken was a non-resident of the State.</p> <p>Meld, that even though the notary was a non-resident, yet, as he had been duly appointed and was acting as such, he was an officer defacto, and his acts .as such were valid and binding.</p> <p>Meld, further, that the prosecution was not bound to show affirmatively that the notary had actually taken the oath of office.</p>

Writ ok error to the Court of General Sessions in and for the city and county of New York, to review the conviction of the plaintiffs in error of obtaining goods by false pretenses. The question involved in the appeal was as to the admissibility of statements made by plaintiffs in error in March, 1876, as to their then pecuniary condition.

This was an action of trespass brought to recover damages for a forcible ejectment and detainer, under section 4 of 2 Revised Statutes, page 338, which provides as follows, viz.: “ § 4.

Appeal by the plaintiff from a judgment entered in this action, which was brought to obtain a judicial construction of the will of John H. James, deceased, sustaining the devises in trust contained therein.

<p>Probate of will — testamentary capacity — opinion of experts — of non-experts— admissibility of.</p> <p>On an application to set aside the probate of a will on the ground that the testator was of unsound mind, á physician, who attended him about a week after a stroke of paralysis, having been asked if he understood what was meant in law or medical jurisprudence by the term testamentary capacity, and answered in the affirmative, was asked, against proponent’s objection and exception, “ Did you consider him possessed of that power between the time of his shock and the- time of his death.” Held, that it was error to allow the witness to answer the question.</p> <p>Other non-professional witnesses, who had been acquainted and had had conversa- . tions with the testator, were asked to state upon the facts as to which they had testified, and from what they had observed, what opinion they had formed; “ of his soundness or unsoundness of mind after the shock“ as to his being compos mentis' or otherwise;” “was he, in your judgment, of sound mind and memory.” Held, that it was error to allow these questions to be put and answered.</p>

ri he case on appeal showed that the defendant appeared by attorney in the first action, but did not state whether he had ’appeared in the second one.

<p>Code of Civil Procedure, § 829 — what testimony inadmissible under.</p> <p>This, action was brought upon a bond and mortgage executed by Caroline Smith and William R. Smith, her husband, upon land belonging to the wife, to one Coolidge, and by him assigned to plaintiff’s testatrix. . Judgment for any ¡deficiency that might arise was asked- against- W. R. Smith. Coolidge was ' dead. Smith was offered as a witness to prove usury in .the loan to Coolidge.</p> <p>Held, that his testimony was inadmissible, under section 829 of the Code of Civil Procedure.</p>

• This action was brought to recover the value of a wagon built for and delivered to the defendants' by one Breilmeyer'; the complaint alleges that the claim of the latter had been transferred to the plaintiff. The only transfer was a bill of sale of the wagon executed by Breilmeyer to the plaintiff, while the wagon was being built and before its completion.

<p>Insurance broker— acceptance of risk by —when binding on company.</p> <p>One White, an insurance broker at Flushing, was in the habit of insuring applicants in defendant’s company; he accepting the risk, and, taking the premium which he forwarded to one of defendant’s agents at Brooklyn, who obtained a policy of the date of the acceptance of the risk by White, and sent it to him. November 3d, 1876, plaintiff obtained insurance from White on a bam, and paid the premium; on the same day White sent the ’ risk to defendant’s agent, and on the 6th the latter sent the policy to White, who delivered it to plaintiff. On the 4th the barn was burned.</p> <p>Held, that the plaintiff was entitled to recover the loss on the policy. .</p>

• Motion by defendant for a new trial, under section 1001 of the Code of Civil Procedure, after the filing of a report of a referee, deciding the issue in favor of the plaintiff, and directing an accounting.

The assignment was procured, by the father of the defendant Branif, from the owner to the defendant, who was then absent, in consideration of plaintiff paying him ten per cent, under the agreement embraced in the following memorandum: “ Bond, $2,000.

This action was brought to recover damages for five publications of an alleged libel in a newspaper in Jersey City. The plaintiff recovered a judgment for $4,000, from which judgment defendants appealed April 13, 1877, and a case was made and settled.

This action was brought against the defendant Horwitz to recover the possession of certain personal property, and a requisition was issued to the sheriff to take the same; and, upon his return that the property could not be found by him, an order of arrest was granted.

<p>Appeal from a judgment in favor of the 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>

The case came before the Special Term on a return to a writ of certiorari, issued to review the action of the respondent, as mayor of Newburgh, in removing the relator from office. ■ The removal was made under section 9, of chapter 326 of 1875, .which is as follows: “ The mayor, .with the consent-of the common council of said city, shall appoint a marshal, and not more than twenty proper persons to be police constables for said city, who shall hold their office until their…

<p>Appeal from a judgment of partition entered in the abovéuntitled action, brought for a partition of certain hotel property, real and pérsoiiál,-at New Brighton. By the residuary clause of their father’s will, the property in question was given to Francis H. Blancard, Louise Blancard, Mary Ann Blancard, Caroline Blancard and Jessie Blancard. Francis H. Blancard died before his father. The executors — among whom was the defendant, Ger-hard Janssen — were, by the will, directed to sell this among other property, and divide the proceeds among the residuary legatees. Caroline Blancard died after the testator, and left one-half this property to her sister, Jessie Blancard, and one-eighth to her nephews, Horace B. Russ and Francis L. Russ, and three-eighths to her nieces — one-eighth to Louisa Russ, and two-eighths to Caroline Frances Russ. She authorized her executors, during the minority of the nephews and nieces, “ to sell or lease jointly with the other present or future owners of undivided shares therein, the share of each of such minors ” in any of such real estate.</p> <p>A demurrer to the complaint for a joinder of real and personal property in a partition suit was overruled, and the judgment .affirmed at General Term (7 Hun, 86). The plaintiff and defendant own the whole property as tenants in common.</p> <p>The defendants claimed, among other things, that the executor of Francis Blancard had an interest in the property, and should have been made a party defendant; that if he had only a power over the land, no sale could be made in this action' by which its ■execution would be defeated.</p>

<p>Statute of distributions — representation — how far allowed— next of Mn — meaning of.</p> <p>Where one dies intestate leaving no descendants, and no widow, father, mother, brother or sister, or descendants of brothers or sisters, but leaving first, second and third cousins as his nearest next of kin, the first cousins are entitled, under the statute of distribution, to the whole of the personal estate, to the exclusion of the second and third cousins.</p>

This action was brought to compel the defendant to render an account as to the estate of Anna V. Kirk. The principal question in the case was whether certain accumulations of income belonged to the estate of Anna V. Kirk, deceased, or whether they passed to certain legatees named in the testator’s will. The material portions of the will were as follows : “ First.

Submission of controversy, upon admitted facts, in pursuance of section 1279 of Code of Civil Procedure. Martha Van Amburgh died March 9th, 1876. A few days afterwards letters of administration were issued to plaintiff and defendant — the defendant being her son; and plaintiff her son-in-law.

<p>Statute of frauds — agreement to answer for debt of another — vm-bal guaranty of bonds.</p> <p>Defendant was indebted to the plaintiff in the sum of $1,970. On May 2d, 1871, defendant wrote to plaintiff to meet him and one Smith at the Morgan House, Poughkeepsie. She met them there, when Smith produced three railroad bonds of $1,000 each, and asked her to purchase them. Upon her hesitating to take them, the defendant advised her to do so, saying that the bonds were good; that if she took them, he would guaranty them so that no loss should come to her. She took the bonds, relying up on this promise, and paid there_for by canceling defendants indebtedness to her, and by the transfer of a $1,000 note of one Taylor, held by her.</p> <p>tn an action to enforce this guaranty, held, that it was not simply an agreement to answer for the debt or default of another, but a promise founded upon an original consideration between the parties thereto, and not within the meaning of the statute of frauds ; and that the defendant was liable thereon.</p>

Appeal by plaintiff from a decree of the surrogate of Kings county, upon the final accounting of the appellant as administrator of his wife.

The action was brought to recover damages for an injury occasioned to six casks of wine must, delivered to the defendants at Rotterdam to be transported to the plaintiff in New York. The bill of lading expressly relieves the defendants from liability arising from sweating, leakage or breakage. (Steers v. Liverpool, JY. Y. & JPhila.

The action was brought to enforce a personal liability against the defendant, as trustee of a manufacturing corporation, for a failre to file a proper report, as required by the act, chap. 40 of 1848 (as amended by chap. 333 of 1853), in January, 1875. In the spring of 1875, the corporation purchased of Pier Bros. & Co., commission merchants, in New York, a large quantity of hops and malt, and gave four notes therefor, amounting in the aggregate to $4,903.91.

<p>Action fen' dower— consent to receive gross sum, in lieu, of— coste of action and, extra allowance — may be allowed, to both parties — chap. 717 of 1870, and chap. 258 of 1874.</p> <p>Chap. 717 of 1870, as amended by chap. 258 of 1874, provides that a widow, in any action brought to recover dower, may file a consent to accept a gross sum in lieu thereof, and that the court may thereupon order a sale; and that in case such sale is ordered, the plaintiff shall be entitled to recover her costs .and disbursements out of the proceeds, and that “ all subsequent proceedings in said action shall be conducted in accordance with the provisions ” of the Revised Statutes in relation to the partition of lands, and such provisions “ for the purposes of such sale and the distribution of the proceeds thereof, are made applicable to the proceedings in such action.”</p> <p>jHeld, that the court, in an action to recover dower in which such consent was filed was authorized to award costs anil an extra allowance to the defendant as well as to the plaintiff, and that the dower interest was to be computed only upon the proceeds remaining after the deduction of both these amounts. •</p>

Controverst submitted upon admitted facts, under section 1279 of the Code of Civil Procedure. The plaintiff entered into an agreement with the defendant to sell to him a certain parcel of real estate. Upon examining plaint*; iff’s title, the defendant claimed that the wife of one of plaintiff’s grantors had never released her right of dower therein.

W. Jones, and canceling a judgment for deficiency heretofore entered against him. . This was an action by plaintiff as receiver of the Bond Street Savings Bank of New York city, to foreclose a mortgage made by defendant Jones, to secure his bond in the penal sum of one hundred thousand dollars. The execution and delivery of the bond and mortgage were admitted. It was also admitted that the amount due and unpaid on the bond and mortgage, was $27,727,41.

478 of 1862, upon a lot oí land owned by the appellants, and directing a sale thereof to satisfy the same.

The appellant, The People, recovered a judgment against the petitioner on April 29th, 1865, on a bond on which he was surety for the Bank of Sing Sing. On June 30th, 1868, he was discharged from all his debts under the bankrupt law. The question was, whether the judgment recovered by the people was embraced within the provisions of section 1268 of the Code of Civil Procedure.

..defendant, entered upon an order dismissing the complaint, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried. This action, was brought by the appellants against the respondent to recover the costs and charges of a suit in partition, brought by the advice of the respondent, by one of the appellants against the others.

The action was brought to recover damages for a false return to an attachment under the.Code, issued to defendant as sheriff, and for a false return to an execution issued to him upon the judgment recovered in the suit in which the attachment was issued.

Cross-appeals from an order vacating an order of arrest, granted in this action on condition that defendant stipulate not to bring a suit .by reason of such arrest. This action was brought by the plaintiff, an infant, by guardian ad litem, against the defendant, an attorney, to recover money belonging to the plaintiff, which defendant was alleged to have, •received from plaintiff’s mother. This action was properly brought by the guardian. ad litem, Andrew Koch.

This action- was brought by the plaintiff to recover damages alleged to have been sustained by his being evicted from certain premises leased to him by the defendant. The defendant on March 2d, 1874, leased to the plaintiff a farm and summer boarding-house, at East Hampton, for one year or five, at the option of the plaintiff. The plaintiff entered into possession, and at the end of the year elected to continue the lease for four years more.

The action was brought upon a policy of insurance to recover a loss sustained by tire.

<p>Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed by the court at Circuit.</p> <p>The action was brought upon a policy of insurance, to recover for the burning of the insured property.</p>

This action was brought to recover of defendants, as stockholders in the American Shovel Company, the ¿míomit of certain loans made by plaintiff to said company, while- defendants; were -suoh-stockholders. The defendants are sought to be charged with this indebtedness, on the ground that the capital stock of said company has not been paid in. The claims in suit became due in September, 1876.

Court in favor of the plaintiff. • The action was brought upon a promissory note given by the defendant to one Kelly upon the purchase of a horse, and by him transferred to the plaintiff in payment of an existing debt. The horse was sold with warranty, the plaintiff being present and drawing the note. When the note was transferred by Kelly to plaintiff, defendant said, it is all right. The defense was a breach of warranty.

The question presented by the appeal related to the right' of consignors of goods to Thomas & Co. (to sell upon a del creciere commission), to the proceeds of the goods in the hands of the assignee.

separated from lied and board, and directing a reference to determine as to’ plaintiff’s allowance for support and maintenance. The action was brought for a limited divorce, on the ground of cruel and inhuman treatment.

The action was brought against the defendants as the trustees of the Mott Brick Company, to charge them with a debt due from the corporation, because of their failure to file the annual report required by the statute in 1876. The last election of trustees was held February 27, 1874. The defendants claimed that they ceased to be trustees in February, 1875, and that they were not liable for the subsequent failure of tne company to file the report.

Controversy submitted upon admitted facts, under section 1279 of the Code of Civil Procedure. On the sixth day of February, 1877, judgment of foreclosure and sale was made and entered in this action. The plaintiffs and all of the defendants, except the defendant George P. Clark, con.sented to the appointment of Cl. M. Stevens as referee to sell the mortgaged premises.

On the 23d of July, 1872, the defendant insured the plaintiff on its oil, etc., at Hunter’s Point, in the sum of $10,000, for one year, from the 20th July, 1872. A loss to the amount insured occurred on the 30th of July, 1872, between ten and eleven o’clock in the morning.