Volume 22 — New York Reports

The proceeding in this case was under the act of April 5, 1849, to enforce the liability of stockholders in banking corporations and associations, as prescribed in the Constitution of 1846. (Laws of 1849 ch. 226, p. 340.) The Reciprocity Bank was incorporated in 1834, by a special charter (Laws of 1834, p. 355), under the name of “The Sackett’s Harbor Bank.” In 1852 it was authorized to change, and it did change, its place of business to the city of Buffalo.

Action to recover certain arrears of rent, among which was the rent reserved on a conveyance in fee of a certain lot No. 75, executed by Stephen Van Rensselaer, deceased, under whom the plaintiff claims as devisee, to one Andrew Spickerman, dated February 10, 1803. The provisions of the conveyance were similar to those contained in the one which was before the court in Van Bsnsselaer v. Says (19 N. Y., 68).

The action was to recover the possession of a quantity of lumber sawed out for doors, sash and blinds, and a quantity of lumber not sawed, &c. The defendants answered, justifying under an attachment issued by a justice of the peace to Brown, as a constable, against the property of one John W. Marrion on the application of the defendant Bucldand.

Action of ejectment commenced in the year 1856, to recover a lot of land on Murray street, in the city of Mew York, which The People in their complaint claimed to own in fee. The defendants answered as follows: 1. By denying generally the truth of the complaint: 2.

At the general term in the first district, held in May, 1860, a motion was made on behalf of Henry W. Cooper, for his admission as an attorney and counsellor. Held: in the presence of this constitutional provision, that they had no power to exact any oaths of counsellors which were not prescribed by statute. (2 Caines’ T. R., 386.) The court remarked that the act of this State upon this subject, in existence at that time, was borrowed from 4 Henry IV, chapter 18.

<p>The act in relation to capital punishment (ch. 410 of 1860), in so far as it attempts to subject to the new punishment, of death and previous imprisonment at hard labor, persons already under conviction for murder, is ex post facto and void.</p> <p>It seems that any law changing the punishment for offences committed before its passage is ex post facto, and void under the Constitution, unless the change consists in the remission of some separable part of the punishment, before prescribed, or is referable to prison discipline or penal administration as its primary object.</p> <p>It seems, though all the provisions for inflicting death as the punishment of murder are repealed by the act of 1860, that it is the intention of the act to retain such punishment.</p> <p>In what manner death is to be inflicted and whether the mode is in the discretion of the court, the sheriff or the Governor, Quere.</p> <p>The repeal of a law imposing a penalty, though it takes place after conviction, arrests the judgment; and when the repeal is after judgment, the judgment is to be reversed upon writ of error.</p> <p>Upon appeal under the Code, however, it seems, that the judgment of the subordinate tribunal is not to be reversed unless it was erroneous, when pronounced, upon the law as it then stood. Per Denio, J.</p>

The trial was before a referee, who ordered judgment for the plaintiff, which having been affirmed at general term, in the fifth district, the defendant appealed to this court. The facts sufficiently appear in the following opinion. The cause was submitted on printed arguments.

The action wás against the defendants as indorsers of the following instrument or note; “RUTLAND AND BURLINGTON RAILROAD COMPANY. “No. 253. 81,000. “Boston, April 1,1850. “ In four years from date, for value received, the Rutland and Burlington Railroad Company promises to pay in Boston, to Messrs.

‘ Appeal from the Supreme Court. Action on a note for $100, made by the defendant the 2d June, 1851, payable to Joseph Tillotson or bearer the 1st day of March then next. Joseph Tillotson, the payee, died in October, 1852. His executors had transferred the note to the plaintiff on account of a legacy in his favor in the will.

Action in the nature of quo warranto to recover the possession of the office of clerk of the first district court in the city of New York. Upon the trial before Mr. Justice E. D. Smith, a jury, having been waived, these facts were found: The defendant was duly appointed to the office in question, December 31, 1851, qualified and entered upon its duties. By the law in force at the time of his appointment (Sess.

Writ of error to Supreme Court. The plaintiff in error was indicted in the Court of General Sessions of the city and county of ¡New York, in March, 1859, for the murder of Harmon Curnon, and was tried and convicted of murder in the same court, in June following. Judgment and sentence of death was pronounced upon him, to be executed on the 22d day of July then next.

<p>The corporation of New York city advertised for estimates and proposals for grading and forming a street, according to certain specifications. The plaintiff made a proposition referring to and adopting the specifications one of which required the stone excavated in the street to be deposited in the Hudson river in continuation of the street. Upon examination of the proposals, the contract was awarded to the plaintiff by the street commissioner, and the award confirmed by the common council: Held, that the plaintiff’s proposal and the specification formed the only basis of any contract to be made for the work or from which any request to the plaintiff to perform work could be implied.</p> <p>The street commissioner entered into a written contract with the plaintiff, departing from the specifications in two respects; first, in requiring rock to be excavated two feet below the curbstone grade instead of one foot; and, second, in substituting for the requisition that the rock excavated should be deposited in the river, a provision that it should belong to the contractor upon his furnishing an equal quantity of earth to be deposited upon the street: Held, that such modification of the contract was unauthorized and void.</p> <p>The plaintiff performed a large amount of work, but failed to perform the contract executed by himself and by the street commissioner on behalf (as he assumed) of the corporation, in excavating the rock only to the depth of one foot instead of two, as that required; conforming in depth to the specifications. He failed to comply with the contract made by his proposal and the specifications, by appropriating the rock excavated to his own use instead of depositing it in the river: Held, that the plaintiff was not entitled to compensation on the ground of contract, because there was no contract which he had performed; nor upon a gucmtwn meruit, because there was nothing from which to imply a request to perform the work unless either under the contract made by the proposal and specifications, or under that which the street commissioner assumed to make.</p>

<p>To make the possession of land adverse so as to avoid a deed thereof under the statute against champerty (1 E. S., 739, § 147), such possession must be under the claim of some specific title. A general assertion of ownership, irrespective of any particular title, is insufficient.</p> <p>Accordingly, where a party occupies 130 acres, having a title to 100 only but supposing the entire tract so occupied to include but 100 acres, his possession is not adverse so as to render a grant by the true owner champertous.</p> <p>Otherwise, it seems, in respect to adverse possession for the purposes of the statute of limitations.</p>

Writ of error to the Supreme Court. - The prisoner was indicted in the Court of General Sessions of the city of New York for the crime of arson in the first degree.

Action upon a bond executed by the appellants as sureties for John J. McPherson as administrator, &c., of John A. McMartin, deceased. The condition of the bond was, that McPherson “ should faithfully execute the trust reposed in him as such administrator, and should obey all orders of the surrogate of the county of Genesee touching the administration of the estate committed to him.” The bond was dated March 23d, 1857, on which day McPherson was appointed snch administrator.

Action against the defendant under the provisions of the act of December 13, 1847 (ch. 450), as amended by the act of 1849 (eh. 256), for negligently causing the death of Daniel P. Brown, the plaintiff’s intestate.

Coe, deceased. In the accounts of the appellant produced to the surrogate, he claimed credit for the sum of $2,576.30, which he had paid at several times for interest on certain bonds and mortgages executed by the testator, incumbering a property owned by him, situated in Buffalo, called the Mansion House; and the question in dispute was, whether this interest was properly payable by the appellant, as executor, and allowable in his accounts.

Action for negligently setting fire to the plaintiff’s house. Upon the trial, these facts were proved: The plaintiff was the owner and in the occupation of a hotel at Dunkirk, fronting upon the defendant’s track, about thirty feet distant therefrom. An addition to the hotel was in the course of erection, and in the hands of the carpenters and masons at the time of the accident.

The facts agreed upon and admitted were substantially as follows: John Atkinson, junior,' prior to 1828, died seised in fee of lots Nos. 25 and 33, of the second division of lots in township No. 13, in the seventh range of townships now in the town of Irondequoit, in the county of Monroe. By his death, the lots descended to William Atkinson, Eliza S. Atkinson and others, his children and heirs-at-law, as tenants in common.

Action for taking, selling and converting to the defendants’ use a quantity of wines, liquors, cigars and bar furniture, the stock and utensils of a restaurant. The plaintiff made title under a chattel' mortgage executed to him by M. Caussidiere and E. Bonnier; and the defendants justified under a judgment and execution against the mortgagors, in which judgment they were the plaintiffs, the execution being levied on the property by their direction.

On the trial, these facts appeared: On the 29th of June, 1854, the plaintiff left, or deposited, with the defendant, the sum of $200, and took from him a receipt, in these words: “ Received, Corning, June 29, 1854, of John C. Phelps, two hundred dollars, which is to be indorsed on contract ¡No. 454, given by Corning and Fellows to Dexter Davis, for the south halves of lots 9 and 10 in block 48 in the village of Corning, whenever said contract is presented tomehy said Phelps,…

Writ of error to the Supreme Court. The prisoner was indicted in the Yates General Sessions, for the embezzlement of beef, hams and other provisions in his charge as the agent of one Clark, the sole superintendent of the poor of Yates county. It was charged in the indictment, and proved on the trial, that the prisoner was the keeper of the county poor house under an appointment by Clark. The goods embezzled were stated as the property of Clark.

Action for taking and converting the personal property of the plaintiff. Defence, that the defendant Newcomb recovered a judgment against the plaintiff, and that the property was levied on by the defendant Brown, a deputy sheriff, by virtue of an execution on the judgment, by the direction of Newcomb. The property seized and sold on the execution consisted of household furniture and the tools of the plaintiff’s trade as a glass-blower.

On the trial before a referee, in July, 1855, one John L. Requa, a son of the then plaintiff, being called as a witness, was objected to by the defendant on the ground that he was the person for whose benefit the action was brought and prosecuted; and the defendant offered evidence to prove that the action was in fact brought and prosecuted for the benefit of the witness. To this the plaintiff objected; but the referee overruled the objection, and the plaintiff excepted.

Action against two distinct railroad corporations for a breach of their duty, safely to convey the plaintiff, a passenger upon a train of cars, which they, by a contract between them, had united in running, and by means of the negligence of their agents suffering a collision with another train, by which the plaintiff’s leg was broken.

Action in the nature of quo warranto, to determine the title of the defendant to the office of clerk of Ulster county, to which, by the certificate of the county canvassers, he had been declared to have been elected by a plurality of one vote, at the general election in November, 1858.

Action against acceptor and indorsers upon a bill of exchange drawn by Freeman Loomis and accepted by Isaac Sisson, payable to the order of the drawer. Upon the trial it was proved that the acceptance was without consideration and made for the purpose of enabling Loomis to borrow money.

Writ of error to the Supreme Court. The prisoner was convicted of murder, in the New York Oyer and Terminer, upon an indictment which… Held: him the said John Leary * * * willfully and feloniously and of his malice aforethought did beat, strike, stab, and wound.” There was the formal conclusion, that “ the said Mortimer Shay, in the manner and form and by the means aforesaid, * * * did kill and murder.” One Stephen Leary was sworn as a witness for the People, and gave…

<p>The time fixed by statute for the allowance of an appeal to this court in an action originating in a justice’s court cannot be enlarged.</p> <p>Accordingly, where one general term of the Supreme Court had elapsed after the justice’s judgment, and at the next term the court allowed an appeal, and directed the order to be entered as of the preceding term, the appeal was dismissed.</p>

Action for labor and materials expended in building certain additions to the defendant’s tannery. In their answer, the defendants set up a counterclaim for damages sustained by them in consequence of the negligent and unworkmanlike manner in which the plaintiff had constructed certain leaches—a part of the work he had undertaken. Issue was taken upon the counterclaim by the reply. The case was tried before a referee, whose finding is stated in the following opinion.

Action to avoid a deed as fraudulently obtained from the plaintiff, and to compel the defendant Smith to reconvey to the plaintiff the real estate therein described, or, as an alternative, that Smith and his co-defendant Ogden should pay the value of the land.

The complaint was, that the plaintiff had assigned to the defendant a bond, secured by mortgage, for the sum of $6,500, for which the defendant agreed to issue to the plaintiff, or his order, certificates of its capital stock to the same amount, which it had refused to do. On the trial before a referee, in November, 1857, the plaintiff, against the objection of the defendant, and under exception, was examined as a witness in his own behalf.

The complaint stated that, on 29th January, 1856, the defendant occupied and resided in a house at the northwest corner of Fifth avenue and Twenty-sixth street, in the city of New York; that, on that day, William H. Warner, the plaintiffs’ intestate, was lawfully passing through the public street in front of the defendant’s house, when a servant of the defendant was, by the defendant’s orders, clearing off snow and ice from the roof of said house; that said servant did…

Action to recover the price of a quantity of sugar alleged to have been sold and delivered by the plaintiffs to the defendant, in the month of April, 1853, The trial was had at the New York Circuit, in April, 1856. Under the direction of the judgé, the jury found a verdict for the plaintiffs, subject to the opinion of the court at a general term, upon a case to be made.

The executors of John Hoysradt, deceased, propounded before the surrogate of Columbia his last will and testament, bearing date August 2, 1854, and disposing of both real and personal estate. The surrogate decreed that the instrument was not executed and attested in the manner prescribed by law. Upon appeal to the Supreme Court, this decree was reversed at general term in the third district, and the surrogate required to admit the will to probate.

Action by the receiver of the Hollister Bank, against Williams the receiver of the Reciprocity Bank, and other defendants, for the foreclosure of a mortgage. Prior to September, 1857, both banks were doing business in the city of Buffalo.

.Appeal from the judgment of the Superior Court of New York city, sustaining a demurrer to a complaint, which alleged, in substance, that the European and American Colonization Society in Texas was a corporation duly created by and existing under the laws of Belgium, in Europe, of which said corporation the business name was Bureau, Gruillon, Godin & Co.; that the defendant, on or about the 1st March, 1855, at the city of New York, applied to the plaintiff (acting as the…

Action on a policy of insurance against fire. On the trial these facts appeared: On the 5th of September, 1851, the plaintiffs, being the owners of a steam saw-mill, in the town of Union, Broome county, in this State, effected an insurance thereon with the defendant, in the sum of $1,000.

Writ of error to the Supreme Court. Eanney was tried at the New York General Sessions upon an indictment charging that, with intent, &c., he did falsely and fraudulently pretend and represent to one John Hock that he (Eanney) had employment for Hock in the city of New York and in the State of New Jersey; that he wished Hock to collect money and do other business for him in those localities; that he would pay Hock for such services the sum of $50 a month, his board and…

The statement was duly sworn to, and was in the following words: “ James D. Brink and ¡Noah Snyder, defendants, hereby confess themselves indebted to Valentine Freligh, plaintiff, in the sum of eight hundred and sixty-two dollars and forty-eight cents, and hereby authorize him, or his executors, administrators, attorneys or assigns, to enter a judgment against us for that amount.

The respondent Sehenck and two others were residuary legatees under the will of Peter H. Sehenck, deceased, and on their petition the appellants, Bussel Dart and Peter H, Vandervoort, the executors, were cited to appear before the surrogate of the county of Dutchess, to render an account concerning the estate of the decedent.

Action to recover possession of personal property. The trial was before a referee, who reported that the plaintiff was entitled to judgment for the recovery of the property, or for its value, with damages for the detention, which were assessed by him. The judgment was entered for the amount of the value and damages, absolutely, without any reference to a recovery of the chattels.

Action to recover the amount insured by a policy issued by the defendant upon the life of Nicholas Casler, of which the plaintiff was the assignee.

Action for the foreclosure of four mortgages, executed by one Gratacap to Francis Griffin, and by him assigned to the plaintiff. The complaint prayed that the defendant Coman might be adjudged to pay any deficiency arising upon the sale. On the trial before a referee, these facts were found: Subsequent to the execution of the mortgages by him, Gratacap conveyed the premises described therein to Coman, by deed, with full covenants.

Action upon a policy of fire insurance on the plaintiffs’ “printing and book materials, stock, paper, stereotype plates, fixtures, printed books, and steam engine and machinery contained in [certain described premises], and privileged for a printing office, bindery and bookstore.” The policy provided, in its printed conditions, that, if the premises should be used for carrying on any business denominated hazardous, or extra hazardous, or specified in the memorandum of…

Action to obtain payment from the separate estate of a married woman, of the amount due upon a promissory note given by her husband for certain cows purchased by him, and which she joined him in signing. On the trial before one of the justices, without jury, it was proved that the plaintiff, when the appellant’s husband offered to buy the cows, distrusted his solvency, and required him to procure his wife to unite in a note for the payment.

Action on a promissory note, made by the defendant, on the 13th day of July, 1843, payable one day after date, to George Sharts or bearer, for $250. It was transferred to the plaintiff, July 25th, 1854, and this action was commenced immediately afterwards. The defence set up was, payment to Sharts while he was the holder, and the statute of limitations.

Action by the receiver of a mutual insurance company upon a premium note. The defendant moved that the receiver be required to give security for costs upon an affidavit that there were no funds in the receiver’s hands hable for costs.

<p>The only limitation attached by the Constitution of 1846 to the jurisdiction of new magistrates, to be created by the legislature, in cities and villages, is, that it be local and inferior.</p> <p>The jurisdiction of a police justice, in an incorporated village, is sufficiently defined and limited, within the intent of the Constitution, by giving him that of a justice of the peace of the town in which such village is situated, and restricting its exercise to the limits of the village.</p>

Action upon a promissory note, made by the defendant and one Dardin, dated at Apalachicola, in Florida, October 11,1841, and payable, at the same place, May 1, 1844, for the sum of $800 and interest at the rate of eight per cent, to Lewis Curtis and others, trustees, and by them indorsed to the plaintiff’s intestate. Two defences were interposed: 1st, the statute of limitations; and, 2d, usury.

Action for goods, wares and merchandise sold by Watrous & Lawrence to the defendants—the plaintiff being the assignee of all their property in trust for creditors. The trial was before Mr. Justice James, a jury having been waived.

Action to recover the value of fourteen canal barges, of which the plaintiff claimed to be the owner, and which, he alleged, the defendant had converted to his own use. Upon the trial before a referee, these facts appeared: In 1845, the Northern Railroad Company was incorporated, to construct, maintain and operate a railroad from Ogdensburgh to Lake Champlain. (Laws of 1845, chap. 324, p. 351.) The terminus on the lake is at Rouse’s Point.

Action of ejectment in the Mayor's Court of the city of Albany, by Margaret Thurber, a married woman and another, not her husband. Upon the trial it was proved that the plaintiff, Mrs. Thurber, married in 1833, and had a daughter, the issue of such marriage, who was living at the time of the trial, as was her father. The land in question came to Mrs. Thurber, by descent, in 1854.

Action to compel the defendant to convey to the plaintiff, as receiver of Oliver Lee & Co’s Bank, at Buffalo, three parcels of real estate, the title to which the defendant claimed to hold as security for certain moneys he and his co-sureties had paid, or become hable to pay, for the bank, prior to the plaintiff’s appointment as receiver.

Action to compel the defendant to assign to the plaintiff a bond and mortgage executed by one Addis to one Cole, and by the latter assigned to Noble, the plaintiff’s intestate, and which had come to the hands of the defendant under the circumstances hereinafter mentioned. The trial was before Mr. Justice Balcom, without a j ary. From his finding, these facts appeared: The bond and mortgage were given to secure the sum of $1,400 and interest, by certain installments.

Action to recover from the defendant the sum of $1,000 and interest from June 28, 1858, when the suit was commenced, on account of a judgment for $1,756.98 upon a debt contracted by the Hudson River Stone Dressing Company on the 19th January, 1854.

Upon the trial before a referee, these facts were found by him: Richard Tyson died in 1841, having made and published his last will and testament, bearing date on the 6th October of that year, by which he directed his executors, immediately after his decease, to proceed to call in and collect all the moneys that should be found due to him: to sell at public vendue all his personal estate; and, as soon as they could get a fair price for his real estate, to sell the same,…

Action for the purpose of obtaining a judgment postponing the lien of a certain mortgage of real estate executed by Mrs. Mann and her husband, two of the defendants, to the Hollister Bank, to the lien of the plaintiff’s judgment against the husband of Mrs. Mann, and for the sale of so much of such real estate as might be necessary to satisfy the plaintiff’s claim.

Appeal ftom the Supreme Court. Action to foreclose a mortgage, bearing date in October, 1846, given by the defendant, Eobert Hancock and wife to the testator, John Hancock, for… Held: at the time of the trial, a mortgage on the premises, which was a prior lien, to the amount of $150. In the answer of the defendant, Robert Hancock, it was claimed that the original consideration of the mortgage in question was only the said sum of $986.94; and the defence of usury was set up.