Volume 22 — New York Supreme Court Reports

This action was commenced against the defendant on the 12th day of April, 1877, to recover the sum due on the following promissory note: KInt.

<p>Appeal from a judgment- in favor of the defendant, entered upon a nonsuit directed at the Circuit, and from an- order denying a motion to set aside the nonsuit and grant a new trial, made upon a case and exceptions.</p>

The policy contained, among mothers, the following provisions: “ And the said company do further agree that, upon the surrender of this policy, duly receipted and without previous change in the mode of paying. premiums,...the said company will issue a . paid-up policy on the life of the said person whoso life is hereby , insured, payable as herein provided for an equitable sum, which .after payments for two years shall exceed two hundred dollars, , and for every year…

Controversy submitted upon admitted facts, under section 1279 of the Code of Civil Procedure. The question submitted was whether the plaintiff or the defendant had the better title to a farm, in the town of Ulysses, Tompkins county. The defendant was not a bona fide purchaser under the recording acts, because the purchase was merely applied upon a precedent debt, and no new or valuable consideration was parted with on the faith of the title.

Appeal by the plaintiff from an order of the Special Term of this court, made on the motion of Charles S. Elwood, the heir-at-law, and Lydia Elwood, the administratrix of the defendant above named, now deceased, and directing the plaintiff to elect whether he would discontinue this action, or continue it by supplemental complaint against said administratrix.

The action was brought under the Civil Damage Act (chap. 646 of 1873).

. Appeal by certain intervening policyholders from an. order of the Special Term, confirming the report of an actuary made under seetion 8, chapter 902 of Laws of 1869, After The North American Life Insurance Company had been dissolved, on the application of the attorney-general, and a receiver appointed, the following order was made : “Upon reading and filing the affidavits of William Barnes herein, the complaint of the petitioner, Yioletta A. Bedell, in the suit brought by…

The action was brought to recover the value of services rendered by the plaintiff to the defendant; in procuring a pension for her, her husband having been killed in the war. After the pension was procured, it was agreed that she should pay $110 for his services, and she did pay to him that amount. Subsequently, he was indicted and' convicted in the United States District Court for charging her an excessive amount for such services.

On the 19th day of April, 1873, Conrad K and John H. Loucks made and delivered their promissory note in. writing to Simeon Dillenback, by which, for value received, they promised to pay said Dillenback, or bearer, $600 with interest, one day after the date thereof. On March 23d, 1874, $42 interest on the note was paid by the makers. On the ,17th day of December, 1874, Dillenback transferred the note to the plaintiff, and indorsed the same.

This action was brought on the 10th day of May, 1876, to recover damages alleged to have been sustained by the plaintiff by reason of fraud practiced by the defendants, in making false and fraudulent representations in regard to a farm belonging to the defendant Erisbie, and in regard to the terms and amount of a mortgage held by David W. Ingalls dn said farm, and in regard to the financial condition of said Ingalls, and in regard to what defendant Ratnour would do…

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. The action was brought against the under sheriff of Schuyler county, to recover damages for the alleged conversion of certain property described in a chattel mortgage given by one Gilbert to the plaintiff.

S. Lawrence & Co., which was composed of the two plaintiffs and L. S. Lawrence. The defendant moved, in the Justices’ Court, for a nonsuit, on the ground that Lawrence should have been named as a plaintiff, which motion was denied and judgment rendered in favor of the plaintiff, which was reversed on appeal to the County Court.

■. Appeal from a judgment iii favor of thé plaintiff, entered xipon the report of a referee. : The action was brought under the Civil Damage Act to recover the value of a horse owned by the plaintiff, a'married woman, 'Which ivas killed by her husband, while intoxicated. ’’ The comqilaint alleged: ■- . “I. That she is, and for about ten years'last past has been, a married woman; that John Mo.renus.is her husband; that,she, with her said husband, resides'' in the tówii…

This action was brought upon a promissory note, in the amount of $2,400, made by the defendants Barr to the order of and indorsed by the defendant Wells, the latter being an accommodation indorser.

The compensation can only be for the land taken, and the effect of taking it upon the part not taken, and hot of the use to which the property may be legally subjected after it has been taken.

<p>Creditor’s trill — statements of husband — when inad/missihle against wife.</p> <p>This action was brought by a. receiver of John McGuire, to have a judgment against him declared a lien upon a lot conveyed by his father to the defendant, John McGuire’s wife, plaintiff claiming that the consideration for the lot and the cost of a building erected upon it had been furnished by the son. Upon the trial John McGuire was examined, and testified that the money he had paid to the contractor had been paid by him as agent for his father. A referee, before whom he had been examined in supplementary proceedings, was then called, and was allowed, against defendant’s objection and exception, to testify that on such examination McGuire swore that this money was loaned to him by his father; and also, that he (John McGuire) gave the deed to his wife as a present.</p> <p>JBeld, that this evidence was inadmissible as'against the wife.</p>

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

The plaintiff presented a claim against, defendant’s estate for services rendered by plaintiff and his wife, and for money expended. The claim tvas referred to referees, pursuant to statute. By her father’s will, plaintiff’s wife is entitled for her life to .interest- on one-third of his personal estate remaining after the payment of his debts.

<p>Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a judgment in favor of the plaintiff, entered upon the verdict of a jury.</p>

The appellants insisted that the court should have directed the receiver to continue the business, as is authorized by section 7 of' chapter 902 of 1869.

The action was brought to recover a deficiency arising upon a sale had on the foreclosure of a mortgage. .

The action was brought to recover the purchase-price of a planing-machine and a shingle-machine alleged to have been sold by the plaintiff to the defendant. The defendant had purchased certain real estate, upon a foreclosure sale, consisting of mill property and a water privilege; subsequently the machinery in question had been sold by the plaintiffs at auction and purchased by the defendant.

Whitney, defendant, as administrator. Whitney and another were administrators of John J. Ferris, deceased, and William Ii. Townsend, the husband of this plaintiff, the petitioner, became one of the sureties on their bond as such administrators. In course of administration a decree was made by the surrogate, directing the payment of certain distributive shares of the Ferris estate to certain persons entitled'thereto.

The original summons and complaint in this action were issued against Josiah Strayer April 10, 1877, and on the same day a warrant of attachment was allowed. The summons, complaint and warrant of attachment were all delivered to the sheriff April 10, 1877, for service. The sheriff attached the bond and mortgage in question April 14, 1877. The original defendant, Josiah Strayer, died April 18, 1877, in Onondaga county, before the service of the summons upon him.

Probate of the will was contested on the grounds: 1. That the said Lyman Heath was not, at the time of the alleged execution of said instrument, of sound mind and memory. 2. That the said instrument was procured by the fraud and undue influence of the said legatees, Luther Cole and J. H. Davis. 3. That the said instrument was never published or declared by the said Lyman Heath to be his last will and testament.

The case was heard at Special Term as a controversy submitted upon an agreed statement of facts, under section 1279 of the Code of Civil Procedure. The statement alleged, among other things, that the plaintiff was the owner and holder of a paid-up policy of insurance upon the life of the plaintiff for the sum of six thousand dollars, issued by the Continental Life Insurance Company of the city of New York, a corporation duly organized under the laws of this State.

The action was brought to recover a balance alleged to be duo upon the consignment of certain goods to the defendants for sale as commission merchants.

The referee found, among other things, that in November, 1872, the defendant, George II. Bristol, was elected treasurer of the county of Tompkins. That thereafter on the 5th day of -December, 1872, the defendants above named executed and delivered to the supervisors of said county a bond with sureties. That during his said term of office said Bristol, as such treasurer, received large sums of money belonging to said county.

The action was brought upon a joint and several note, signed by three persons, payable to the plaintiff or bearer, with interest, on demand, and indorsed by the defendant Lawson before delivery. The principal question was, whether a demand upon one of the makers was sufficient to charge the indorser, such maker being the principal debtor.

In and prior to the year 1860, the defendant owned and operated a railroad from the city of Albany to Eagle Bridge, in the county of Rensselaer. On or about the 1st day of January, 1862, the defendant leased to the Troy and Boston Railroad all that part of its line between Waterford Junction and Eagle Bridge.

On the 10th day of May, 1877, the board of trustees of the village of Saratoga Springs passed a resolution, appointing a committee to purchase a certain parcel of land, known as the I! Waring Farm,” for the purposes of a village cemetery. On the 11th of May, 1877, the defendants, Daniel H. and James II. Deyoe, the owners of said land, executed to the village a conveyance of said land.for the consideration of $12,136.

The respondent presented to the appellants a claim against the deceased, consisting of a note executed by the intestate in his lifetime to her, and the accrued interest thereon, on which note there was unpaid, $455.68; also a claim for money received for respondent by the intestate, on the sale of a house owned by her, and interest thereon, $121; also for a school tax paid by respondent, $7.55; and for six years’ services as housekeeper for the intestate, $900; amounting in…

The action was brought to reform a mortgage by correcting the description thereof, and to foreclose the same as so reformed.

Samuel McCune was duly appointed the administrator of the estate of Catharine McCune, deceased, and on being appointed gave the usual administrator’s bond, with the defendants as sureties.

The contract was executed, and so became an executed contract, making all its terms binding. (Dodge v. Crandall, 39 N. Y., 294, at pp. 303, 304; Thomas v. Dickinson, 12 N. Y. [2 Ker.], 364, 371; Westfalls. Parsons, 16 Barb., 649; Emmet v. Reed, 8 N. Y. [4 Seld.], 312; Talmadgev. Ren. The agreement under ■which this work was done was verbal and not in writing, and by the terms of it was not to be performed within one year. It was therefore void by the statute of frauds.

The action was brought to recover damages occasioned by the acts of defendant, in tearing down a gate and allowing her cattle to trespass upon plaintiff’s land.

Writ of Error to review the conviction and sentence of the plaintiff in error of the crime of forgery in the third degree. The plaintiff in error was indicted for making the following instrument: No.--.

<p> lAaMlity of master for injury to servant. </p> <p>For an injury to a servant resulting from the negligence of his master the latter is liable although, by diligence on the part of a fellow-servant the injurious effects of the master's negligence might have been prevented.</p> <p>The plaintiff, one of defendant’s employes, while repairing a car on a side track, was struck by another car, which was moved against him by an engine attached thereto. The engine was moved by the escape of steam through a defective valve into the cylindei-, which defect had been known to defendant’s superintendent for several months. Defendant’s employe in charge of the engine, knowing of the defect, had left it, without using certain means, which he knew of, which would have prevented the eseape of the steam.</p> <p>Held, that defendant was liable to the plaintiff for the injuries sustained.</p>

The action was brought to recover the amount of a note for $500, made by one C. E. Marsh to tlie order of, and indorsed by, S. S. Marsh, which had been sold by the defendant to the plaintiff. The latter claimed that defendant had warranted that the note was good and would be paid at maturity. The note not having been paid, this action was brought upon the warranty.

The referee executed to one Storke an instrument by which he granted, bargained, sold, assigned, transferred and set over, and by those presents did grant, bargain, sell, assign, transfer and set over unto the said party of the second part, two certain indentures of mortgage, bearing date the 6th day of November, 1869, one made by Andrew Dardis and wife, of $5,000, and the other by William Flanagan for $1,800 ; the assignment containing the following clause: “upon which…

The action was brought in the Supreme Court to recover for defendant’s alleged destruction of a watering trough on plaintiff’s land, and the diversion of a stream of water from its natural channel, and turning it upon plaintiff’s meadow.

<p> One accepting a favor, cannot appeal. </p> <p>One who has sought and enjoyed an extension of time within which to comply • with a peremptory mandamus, cannot thereafter appeal from the order directing that the mandamus issue.</p>

The plaintiff to make out his cause of action proved, among others, the following facts, which were not contradicted by any proofs offered by the defendants or either of them, to wit: That Samuel F. Pratt and others, on or about the 15th day of November, 1854, recovered a judgment in the Supreme Court against the defendant, Frederick ’ Disse and one Louis Berg, for the sum of $166.25 damages and $10.00 costs, the judgtoent-roll being filed and the judgment being docketed on…

Appeal by the plaintiffs in the second action from an order of the Erie Special Term, denying their motion to vacate a warrant of attachment issued in the first action.

' Motion by plaintiff for a new trial, on exceptions taken at the Livingston Circuit, and ordered to be heard at the General Term in the first instance. The action was for an assault and battery. The answer was a ■general denial.

<p>Title to office — how triable— “ Annually appoint.”</p> <p>In this action submitted upon agreed facts, under section 1279 of the Code of Civil Procedure, the city of Buffalo asked the court to determine which of the two defendants was entitled to the office of health physician of the city, in order that it might pay to him his salary.</p> <p>Held, that the right to the salary depended upon the right to the office, and that the right to a public' office could only be tried in an action in the name of the people.</p> <p>Semble, that under a statute providing that a Board of Health shall annually appoint a health physician, a resolution making such appointment if duly adopted, entitles the appointee to the office for one year, and a resolution adopted at a subsequent meeting of the board rescinding such first resolution, although adopted before a delivery of a copy thereof to the appointee, is void.</p>

And a motion to dismiss such appeal. The order of the justices was set aside on the ground that they acted without jurisdiction, no proper allegation having been made to authorize the issuing of the warrant against the defendant. On vacating the order, the Court of Sessions held the defendant to bail, pursuant to the statute (1 R. 'S., 650, § 39), for his appearance at the next Court of Sessions.

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

Appeal by Rudolph Zimmer from an order of the Special Term in Erie, denying a motion made by him to supersede the committee appointed herein. The proceedings in which the committee was appointed were had in the County Court of Erie, and Avere commenced on the' twentieth of December, 1866. The committee Avas appointed on the twenty-first of January, 1867, and immediately entered upon the discharge of his duties.

The action was brought upon the interest coupons of certain bonds, purporting to have been issued by the defendant in aid of the construction of the Belmont and Buffalo railroad.

MotioN by plaintiff to dismiss this appeal. The affidavit of the plaintiff’s attorney, made in support of the motion, showed that this was an action in equity, and that the plaintiff in his complaint asked for an injunction against the defendant and for other relief; that the defendant demurred to the complaint, alleging, as the ground of demurrer, that the complaint did not state facts sufficient to constitute a cause of action; that on the trial of the issue of law…

<p>Appeal from an order of the Special Term in Erie, denying a motion made by the appellant under 1 Revised Statutes, 603, section 5, for an order declaring the appellant to have been duly elected the president and one of the directors of the “Buffalo Mey Grain Drying Company,” at an election held on the 5th of June, 1877, and that the respondent, Edward B. Smith, has no title to either of said offices, or for such other relief as the court shall deem just.</p>

<p>Application for insurance — construction of question as to disease.</p> <p>An application for. insurance contained the following question: “Have the person’s parents, uncles, aunts, brothers or sisters been afflicted with consumption, scrofula, insanity, epilepsy, diseases of the heart, or otherr hereditary disease ?”</p> <p>Held, that the last three words limited the generality of the previous portion of the question, and confined the inquiry to those cases in which the specified diseases were of an hereditary character.</p> <p>Accordingly, where the question was answered in the negative, and upon the trial it appeared that the person’s mother had had three attacks of insanity, not of an hereditary character, and which were due to accidental causes, held, that no breach of warranty was shown.</p>

. The court erred in- allowing the defendants to prove the pecuniary condition of Martin I. Borst, the plaintiff’s testator, at the date of the note in suit, and from thence to the time that the plaintiff’s claim was presented to the defendants for payment. (Alexander v.- Butcher, 7 Hun, 439 [14 N. Y. S. C. R.] ; Baby v. Ericsson, 45 N. Y. R., 786.) The court erred in admitting evidence as to the pecuniary condition of Yan Yalkenburgh, the defendant’s testator.

<p>Appeal from a judgment of the County Court of Monroe county, reversing a judgment of a Justices’ Court in favor of the plaintiff.</p>

Controversy submitted on agreed facts under section 1279 of the Code of Civil Prodedure. The tax imposed was illegal, because the town of Rush had no power to levy a tax upon the property of the city of Rochester. That this extraordinary power does not exist has been decided.

The assignee of a mortgage, though a bona fide bolder, takes the same subject to all the equities existing between the original parties. (Ingraham v. Disbrough, 47 N. Y., 421; Andrew v. Gillespie, id., 487 ; Gutts v. Guild, 59 id., 229 ; Grane v. Turner, 67 id., 437.) This mortgage was made without consideration and for the purpose of a sale only ; it was sold for less than its face value, and the transaction was therefore usurious.

<p>Appeal from a judgment in favor of the plaintiff, entered in Erie County upon the trial of this action by the court without a julT*</p>

Writs of error to the Court of General Sessions in and for the county of Cayuga, to review the conviction of the plaintiff in error of bigamy.

It is well settled that a partner can maintain an action at law against his copartner, before ■a dissolution or an accounting, if the obligation, contract or thing, though relating to the partnership business, is separate and distinct from all other matters in question between the partners, and can be determined without going into the partnership accounts.

Writ of Error to the Court of Sessions in and for the county ot Jefferson, to review the conviction and sentence of the plaintiff in error for burglary and larceny, after a previous conviction for the same felony. There was' no error in the ruling of the court permitting the question to the prisoner whether he had been arrested on a. charge, of bigamy. (•Turnpike Co. v. Loomis, 32 N. Y., 127; La. Beau v, T.he-People., 34 N.- Y., 223;.

<p>Marled vaVtie of a dog — -evidehe& ds'to'.</p> <p>In this action, brought- tri- recover the value of a1 dog killed by the'-defendatít, jt appeared that the dog was a farm dog, trained to bring up cows and as a watch' dog; briirig- part’ shepherd and part’ bull. Opon the trial plaintiff was asked, and, against' defehdant’s’ objection' arid' deception; allowed' to státb What the market value'Of- the dog whs.</p> <p>Held, that, as the dog was not shown to have any market- value! the admifesion-of the answer was error.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon tlie trial of this action in the County Court .of Oswego county, and from an order denying a motion for a new trial made upon a case and exceptions.</p>

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

<p>4-etion ly ijidoi’see upon promissory note — what not .a úfense to.</p> <p>The complaint alleged that the defendant Hitmen made his note to the order ¡of the defendant Guild; that it was by the latter indorsed and delivered, for yalue and before maturity, to the plaintiff, who was the owner and holder thereof, Tfre answer, yntb.out ¡denying ¡any allegation ,of ¡the complaint, .alleged that the note was seized as ¡the property of one Burlingame, in proceedings instituted against him for absconding and leavipg a wife and children liable to become chargeable to the town, and that by virtue thereof the property in the said note becaine, and continued to be vested in, the overseer of the poor .of saicj town.</p> <p>Held, tjiat these facts constituted no defense, the allegation of the complaint being admitted, and that proof thereof was properly rejected.</p>

The bringing of another action by plaintiffs for the entire cause of action was a har or ratification, so that they could not succeed in this action. (Bliss v. Gottle, 32 Barb., 322; see, also, Stevens v. Hyde, id., 171; 2 Lans., 492; 2 Hill, 288; 14 Barb., 598; 35 id., 76; 4 Denio, 51; 45 Barb., 499; 6 N. Y., 648; Bruce v. Davenport, 3 Keyes, 474; 24 Wend., 74; 48 N. Y. [1 Sickles], 533.) Proof of cotemporaneous frauds is admissible.

The instrument in suit is a bill of exchange, and does not operate as an equitable assignment of the fund.

If defendant justifies assault and battery, on the ground of lawful authority, the burden of proof is upon him to show that he did not use more force than Avas necessary.

<p>Appeal from a judgment in favor of the plaintiff, entered upon the decision of the court at a Special Term and Circuit held in Onondaga county.</p> <p>The foreclosure is valid as to those served with,notice, and as to those only. (Ilubbelly. Sibley, 5 Lans., 51; King v. JDuntry, 11 Barb., 191, 193; Robinson v. Ryan, 25 N. Y., 321; St. John v. Bumstead, 17 Barb., 100, 102; Benedict v. Gilman, 4 Paige, 58; Rooty. Wheeler, 12 Abb. Pr., 294; Crary on Special Proceedings, vol. 1, p. 243; Welm,ore v. Roberts, 10 Iiow., 51.) So it has been hold that, whore a mortgage was given by a person under the age required by the statute providing for the foreclosure of mortgages by advertisement, only the mortgagor could object that the statute foreclosure was irregular, and that the right to object was a personal privilege confined to him alone. (Ingraham y. Baldwin, 12 Barb., 9; affirmed in 5 Seld., 45.) See as to the effect of a foreclosure upon the rights of the parties who were served with notice. (Jackson v. Iloffman, 9 Cow-, 271; Braclcetty. Baum, 50 N. Y., 8; Warner <@ Co. v. Bliheman <& Go., 36 Barb., 501; Mitchell y. Mount, 31 N. Y., 356; Burkheady. Browne, 5 Sanclf., 134; Groff v. Morehouse, 51 N. Y., 503; Vandercamjp Shelton, 11 Paige, 28; Robinson v. Ryan, 25 N. Y., 320; Jackson v. Bowen, 7 Cow., 13; Vroom v. Bilmas, 5 Paige, 526.)</p>

■Appeal from an order made at the Onondaga Special Term, overruling the demurrer of the defendant Costello to the-plaintiff’s complaint, with liberty to defendant to answer, on payment of the costs of the demurrer.

<p>Damages on undertaking for injunction — Code, § 222 — when motion premature.</p> <p>.In this action brought by the plaintiff to compel the specific performance of a verbal agreement by -which the defendant agreed to reconvey a farm and the personal property thereon to the plaintiff, from whom he had purchased it, but for which he had failed to pay the purchase-price, two preliminary injunctions were granted restraining defendant from incumbering the place or col-lee'ting the rents. Upon the trial the referee decided that the agreement was void, but held that plaintiff had. a vendor’s lien on the land, which he directed to be foreclosed and ordered a sale, as in cáse of a riiortgkge, making no reference or direction as to the injunctions.</p> <p>In an 'Application against the sCtretieh to the Undéñfcakitrgk giVen'oñ Obtaining the preliihinary injunctions, for a "reference to ascertain the damages sustained thereby, held, that the judgment did not decide that plaintiff was riot entitled to ’the "iñjúñfitions, as it was required that 'it should by the ’undertakings and 'byfoeoti&n 222 'of the Code, atiil thkt the‘mistión should bé denied.</p>

<p>Suit by executor — 'when he is personally liable for costs.</p> <p>This action was brought by the plaintiff, as executor, upon a promise made to him after the decease of his testator. A verdict having been rendered for the defendant, a judgment for costs was entered against the plaintiff, in the ordinary form, and without reference to his representative character, and an execution was issued against him cle bonis propriis.</p> <p>Held, that this was proper.</p>

Appeals, from a judgment entered in Jefferson county upon 'the trial of this action by the court without a jury.

<p>Assignments for benefit of creditors — jurisdiction one!', conferred upon County Courts — Supreme Court has no original jurisdiction over proceedings thereon by petition.</p> <p>One Rogers, the assignee for the benefit of the creditors of one Nicholas, applied, by petition, to the Supreme Court for, and procured an ■ order appointing a referee to take and state his accounts. Upon the coming in of the referee’s report, the assignee was directed to sell the interest of the debtor in certain lands in Pennsylvania, and subsequently, upon a report being made showing the disposition made of the proceeds of the sale, the assignee was discharged.</p> <p>Held, that under chapter 466 of 1S77, as amended by chapter 318 of 1878, the entire original jurisdiction over these proceedings, by petition, was conferred upon the County Court, and that the Supreme Court had no authority or jurisdiction to make the orders appealed from, and that the same were therefore void.</p>

Appeal by defendant from a judgment, entered upon the trial of this action by' the court at the Ontario Special Term, and an appeal by the plaintiff from so much thereof as requires him to pay the defendant $6,308.04

Motion to dismiss an appeal from the decree of the county judge of Onondaga county, on the final accounting of Alpheus C. Beck-with, as assignee of Harlow A. Pierce and Thomas J. Haegerty, insolvent debtors, on the ground that no security had been given on the appeal.

■ Appeal from a judgment, entered in Monroe county upon tho trial of this action by the court without a jury. The judgment ivas entered upon findings and a decision of the Special Term in an action to foreclose a mortgage. On the 4th day of November, 1870, Eranldin Decker executed the bond and'’ mortgage for $1,200, described in the complaint, to Evan D. Vaughn. On the same day Vaughn executed a paper called an assignment, and delivered it to the plaintiff.

county upon the verdict of a jury. The action was brought to recover damages for a cow of plaintiff killed by defendant. The cow was running at large m the highway and strayed to the crossing, and was in the centre of the track and in the highway when the whistle was blown. She was startled by the whistle, and stai-ted along the highway toward one Davis’ house, and his dog started after her and drove her back, and she tinned down the track and was struck by the engine.

Appeal by plaintiff from a judgment entered in Monroe county upon the report of a referee, dismissing the complaint as to defendants, John and Quincy Van Yoorhis. The action was brought to foreclose a mortgage upon premises described as about sixty-two acres in Monroe county. The referee found- that- the- judgments held by John and Quincy Yan Yoorhis were prior and superior liens to the lien and rights of the plaintiff as mortgagee.

The plaintiff was a Methodist minister, and brought the action to recover for a balance claimed to be due him as salary, for his services… Held: and a committee of that church was appointed after consulting with me to fix the amount of salary; the amount of salary was then estimated at $2,000, and that estimate was accepted and confirmed by the quarterly conference, and accepted by me.” This conference was composed of “ the elders who represented the society; the stewards,…

This action was brought on the equity side of the court to foreclose a mortgage (which the defendant, Robertson, had assigned and guaranteed) and to enforce any deficiency, that might remain after the sale of the land and exhausting remedies against the mortgagor, out of the defendant, Robertson, on his guaranty.

proceedings on the trial of the relator, upon an indictment for a conspiracy to obtain, by false and fraudulent representations, from one Dwight W. Haskell a promissory note, dated the 25th day of March, 1875, for the sum of $50, payable at four months. The representations .alleged were, that one Jennie McKee was with child by said Haskell, and that unless the note was given she would charge the paternity of the child on him.

This action was brought in the County Court of Livingston county to recover the balance due on an account for goods, etc., sold and delivered. There was no averment in the complaint that the defendant was a resident of the county. The defendant appeared and answered, ’admitting the copartnership of the plaintiff, setting up a countcr'claim, and denying all allegations in the complaint not admitted. The issues were referred and brought to trial before the referee.

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

Appeal by Horace Grout, executor, from so much of the ' decree of the surrogate of Erie eounty made on a final accounting, as rejected and refused to allow the executor $113,46, paid • out by him for legal expense.

<p>Appeal by the New York Central and Hudson River Railroad Company from an order appointing commissioners made at the Erie Special Term.</p>

<p> Declarations of deceased, inadmissible in favor of administrator. </p> <p>In an action by an administrator, with the will annexed, to recover property of the deceased from persons claiming to own it by virtue of a gift from the testator, declarations of the deceased, inconsistent with such claim, are not admissible in favor of the administrator.</p>

' The defendant was sued upon a subscription to the capital stock of the plaintiff. The plaintiff was incorporated by special act, passed April 12, 1871 (chap. 432), with an authorized capital off $200,000, for the purpose of building a hotel in Buffalo. The company was organized at a meeting of stockholders in 1871.

<p>Motion to dismiss an appeal.</p>

Appeal by .Antoinette E. Hoguet, executrix, etc,, of Anthony L. Hoguet, deceased, from an order entered in the county of New York confirming the report Of Thomas H. Rodman, Esq., referee.

Controversy submitted on agreed-fact's Tinder section 1279 of the Code of Civil Procedure. The plaintiff sues to compel the specific performance of a- contract by the- defendant to purchase a: parcel of land, which was: resisted' by' the defendant on- the ground that the -title was-defective: ■' The land iii question ivas at' one time embraced within the- boundaries, of the' Bloomingdale road; New York ; which road was afterwards-abandoned......

<p>■ Controversy submitted upon an agreed statement of facts under section 1279 of the Code of Civil Procedure.</p>

Appeal by Philip J. Seiter from a judgment entered upon the ■trial of this action by the court without a jury. The action was brought in-the county of New York to foreclose a mortgage, and charge the defendant Seiter with any deficiency that might arise upon the sale. If the defendant Seiter -did not fulfill his contract with Schlcsingcr, he -became liable for damages to Schlcsingcr as if on a common-law liability only.

<p>Unconditional promise to accept a bill of exchange — what alteration of the bill amounts to dranñng a new bill.</p> <p>•The section of the Revised Statutes providing that an unconditional promise in writing to accept a bill, before it is drawn, shall be deemed an actual acceptance in favor of every person, who, upon the faith thereof, shall have received the bill for a valuable consideration, is to be reasonably construed with a view to accomplish the purpose intended.</p> <p>■Where, after a bill of exchange has been negotiated, upon condition, however, of its acceptance, the drawer, at the suggestion of the drawee, writes upon its face “payable through the clearing house,” such alteration amounts to the drawing of a new bill, within the meaning of said statute, so that a promise to accept made after the conditional negotiation of such bill and just before such alteration is to be considered as made “ before it is drawn.” ,</p> <p>Upon the facts of this case, held, that the promise of the defendants to accept the bill of exchange in suit, was an unconditional one, and that defendants were liable thereon.</p>

Probate of the -will first executed by the testator was refused on the ground that it was revoked by a later one executed April 30th, 1875, at Nyon, in Switzerland. The latter will' was in French.

<p>Appeal from a judgment in favor of the plaintiff, entered in 'the county of New York, upon the trial of this action by the court without a jury, and from an order denying a motion for a new trial made upon a case and exceptions.</p>

<p>Bankrupt Act, § 5128 — what transactions void under — effect of amendment in 1874 on prior transactions.</p> <p>In the early part of November, 1873, the defendants held an over-due and protested note, given to them by plaintiff’s assignors, retail traders in Philadelphia, for goods sold to them. The makers promised to pay the same November, twenty-first, and on their failure to do so, the defendants put it in the ' hands of an attorney at Philadelphia for collection. The makers then saw the defendants, and it was agreed that the note should be extended ; and to secure its payment, a package of lace, worth $3,000, was taken from their store and placed in the hands of another dealer, the proceeds of its sale to be applied upon the note; the makers saying they had made a similar assignment to , secure another and principal creditor. A few days after this was done, the firm, in Philadelphia were thrown into bankruptcy. Held, that the transaction was void under section 5128 of the Bankrupt Act.</p> <p>Semble, that a transaction void under said section prior to its amendment in 1874, . and taking place prior thereto, was mot rendered valid by such amendment, although all the connditions required by the amendatory act to make it void did not exist.</p>

<p>Referee's report of deficiency on sale— when it isimneeessary to have it confirmed.</p> <p>Semble, thpi, where a judgment in an action to foreclose a mortgage provides “ that if the proceeds of sale be insufficient to pay the amount so reported to be due to the plaintiff, the said referee specify the amount of such deficiency in his report of sale, and that the defendant pay the same to the plaintiff,” it is unnecessary to apply to the court for an order confirming the report of tbe referee, before issuing execution against the defendant for the amount of the deficiency, nor is it necessary to enter any further judgment upon the filing of the said report.</p> <p>Semble, that it may be necessary to have the report confirmed, in order to nerfect the title, as between the mortgagor and purchaser.</p>

The complaint alleged that the plaintiff was the publisher of a book called the American Biography, and that he had agreed to print and publish a sketch of the life of the defendant for $850, alleged performance on his part and sought to recover therefor. The answer contained a general denial and a special defense.

Writ of Error to the Court of General Sessions of New York, to review the conviction and sentence of the plaintiff iu error of the crime of obtaining goods by false pretences. Proceedings in bankruptcy were commenced against him within three months from the time of making the alleged false pretences.

Upon plaintiff’s application, it was ordered “that the plaintiff have leave to discontinue the above entitled action upon payment of defendant’s costs up to the present time, with the costs of this motion, said costs to be adjusted by the clerk of this court upon two days’ notice to be given by either party.

Appeal of Elizabeth Down from a decree of the surrogate of New York, admitting the will of Samuel Down to probate,'and also an appeal by George J. McGourkey, John R. Flanagan and Emma Down, as executors and trustees, and Emma Down, Charlotte Jane McGourkey and William H. Down, legatees, from an order granting an additional allowance to the proctor of the contestant.

Charles Donohue, one of the justices of the Supreme Court, on the hearing at the return of a writ of habeas corpus, issued to the warden of the New York county jail, in Ludlow street, to inquire into the cause of detention of J. Edward Ireland, held under an order of arrest in a civil action. The order of arrest was granted by a judge of the Court of Common Pleas, and the question was whether he had authority to grant the same under section 556 of the Code of Civil Procedure.

Plaintiff obtained judgment against the defendant for $258.93. Defendant being a non-resident, plaintiff had taken proceedings to attach moneys due to him from E. S. Lathrop, as receiver of the Central Railroad of New Jersey. After the issuing and return of the execution, plaintiff obtained an order for the examination of the said receiver as a third person.

<p>Legacy — when vested.</p> <p>A testator bequeathed to his executors the sum of §275,000, then invested in bonds and mortgages, in trust, to reinvest any of the principal paid in, and to pay over to one Blush seven per cent interest on the sum of §15,000, each year, and at the expiration of five years, to pay the principal to the said Blush. • Held, that the legacy vested in Blush, on the death of the testator, and passed to his administrator on his dying before the explication of the five years.</p>

The action was brought to recover certain bonds belonging to the plaintiff deposited with defendants, J. B. Cornell and J. M. Cornell, and which the latter claimed the right to hold, on the ground that they had been deposited with them to hold in trust for plaintiff’s children.

<p>Voluntary dischwge by plaintiff of defendant from arrest — when not a satisfaction of the judgment on which the execution issued.</p> <p>The defendant was arrested under an execution issued on a judgment, whereupon he noticed a motion to set aside the arrest, on the gi’ound that he had not been arrested on an order before the entry of the judgment. The plaintiff, without waiting for the decision of the motion, consented to his release, upon his agreeing not to bring an action for false imprisonment.</p> <p>Seld, that the consent of the plaintiff to his release did not amount to a satisfaction of the judgment.</p>

Appeal by: tlie plaintiffs frofn an order of the New York Special Term, vacating,an order of arrest.

The plaintiff was a creditor of a firm composed of Elizabeth Drew and William H. Drew; Elizabeth died, and the surviving partner formed a partnership with defendant, Challes W. Drew, and they afterwards carried on the business with a considerable portion of the assets and property of the former firm. This action was brought to compel an accounting by the latter firm, and the payment of the plaintiff’s claim, out of any balance due to the former firm.

<p>Entry in aecount-book — when inadmissible in evidence.</p> <p>In an action to recover money alleged to have been advanced to defendant by plaintiffs, one of plaintiffs’ clerks testified that he made in their books the following entry: “Herman Von Keller, on account, $10,000;” that he had no recollection of the facts contained in it, except that it was like a particular check he was told to draw; or of its correctness, except from its being in the book. Held, that the entry was not sufficiently authenticated to render it evidence of anything.</p>

Motion by plaintiff for a' new trial, on exceptions ordered to be heard in tlio first instance at the General Term, after an order made at the New York Circuit dismissing the complaint.

Certiorari -issued to review summary proceedings, instituted by the respondent, Emilie L. Simmons, and resulting in the removal of the relator, Virginia Sanford, from the possession of certain demised premises.

Appeal by the Mayor, aldermen and commonalty of the city of New York from an order vacating an assessement for repaving Fortieth street, between Third and Madison avenues. The petitioner was the owner of a lot, ward No. 26, in block No. 425, which was assessed for the trap-block pavement in Fortieth street, January 31st, 1871.

Appeals by plaintiffs, one from a portion of an order granting,. conditionally, a motion by plaintiffs to amend by adding a party defendant, the other from an order denying a motion for' a readjustment of costs. This is an action brought by certain stockholders in a national bank against its directors to recover' for their negligence in the discharge of their official duties.

<p>Former trial and acquittal — when a bar to a second trial-</p> <p>The plaintiff in error was indicted for uttering and publishing a forged check, drawn upon tbe Second National Bank, the indictment being defective in alleging that the bank, instead of the prisoner, had knowledge of the falsity and forgery of the check. Notwithstanding this defect, he wag tried, and the. jury, without leaving the bar, found the prisoner not guilty., A second indictment, proper in form, was then found, upon which he was tried and convicted, he objecting on the gr-ound of his former trial and acquittal.</p> <p>Held, that as it did not appear that the-former acquittal resulted from a variance between the indictment and proof, or from any exception to the form and sufficiency of the indictment, the presumption was that the acquittal was on the merits, and that it was, therefore, a bar to a second trial.</p>

A levy was made by one of defendant’s deputies upon a stock of goods belonging to plaintiff’s intestate, and this action was brought to recover the balance of the proceeds arising from a sale thereunder, after satisfying the judgment and all legal claims and fees.

The court at General Term, after holding that as to the defendant Armstrong the order was regular, and should not have been disturbed, said: “As to the defendant Quinan it appears, by his own affidavit, that he had once been summoned on a similar order, and examined and dismissed by the plaintiff’s attorney, after several adjournments, from further attendance.

<p>Contributory negligence — where ■ a desperate alternative is presented, — Gare required, of an employee, and from, another.</p> <p>An employee of a¡raiIroad, lawfully using its tracks over which another company has a right of way, has a right to act upon the presumption that the latter company will conform to the rules, such as to giving signals, etc., prescribed by the company, by permission from which it uses such tracks.</p> <p>When one is forced to a desperate- alternative through the negligence of a. railroad company, and is injured in his efforts to prevent injury to others, he is not guilty of such contributory negligence as will prevent a recovery for the injuries sustained by him, although his own act was the direct and immediate cause of such injuries, unless such act would constitute rashness in the judgment of a prudent person.</p> <p>When the negligence of the railroad company has placed a person in such a situation that he must adopt a perilous alternative, the law does not demand of such person the accuracy of judgment required under other circumstances.</p> <p>Semble, that the same degree of care is not required of an employee engaged in his duty upon the .track as from a person crossing the track.</p>

The action was originally brought against Morgan Spencer and Elizabeth Spencer. After an appeal was taken from the County Court of Broome county, Morgan Spencer died, and letters of administration, with the will annexed, were issued to Elijah Spencer, as administrator of his estate, who, as such administrator, was, by order of the County Court, made a party defendant in the place of said deceased. In contracts for provisions, it is always implied that they aro wholesome.

The principal question was as to the order in which different portions of the premises, included in the plaintiff’s mortgage, should be sold. On conveyance of the house lot, covered by the Childs’ mortgage to Rufus Steere, the remainder of the real, estate covered by the prior mortgage was liable to be first sold. This was a fixed right, affecting not only the corporation but the holder of the mortgage. (Crafts v. Aspinwall, 2 N. Y., 289; Welch v. Tittswoth, 22 How.

The action was brought to recover the amount of a policy of ■ insurance, issued upon the life of the plaintiffs’ intestate by the defendant. The defense was a breach of warranty, in that certain answers to questions contained in the application were untrue.

The complaint in this action alleged, among other things, that the county of Saratoga was a municipal corporation, and one of the political divisions of the State of New York. “This plaintiff further states that * * * (certain of) the defendants * * * have severally commenced actions in this court against the above named-plaintiff, as defendant, alleging in substance that the county of Saratoga is indebted unto the plaintiff in each of said actions, in various amounts from…

The court found as facts : From the fall of 1855 until the 4th day of August, 1857, the defendants were co-partners, doing business as such in the village of Owego, in the county of Tioga. That they kept and carried on a drug store at that place under the firm name of Angelí & Mackey. That on the 3d day of January, 1857, the said 'defendants as such co-partners, drew their draft on the plaintiff, payable sixty days from date, to their own order.

Clarke,'the assignee of the plaintiff, to compel him to pay the costs in this action. The action ivas brought to 'collect a claim of $5,000, and about twenty years’ interest. After the action was commenced, and at issue, Thomas J. Clarke took an assignment of the -'action and ' cause of action'for one dollar, and continued the prosecution of it. The complaint aauis dismissed, and judgment entered'in favor of ■'defendant for $319196 costs, June 26, 1876.

The surrogate before whom the proceedings were had, Mr. A. P. .Smith, was attorney and counsel for the respondent Darling, in a litigated suit against the executor and executrix of the last will and testament of Albert L. Pierce, deceased, and succeeded; having secured a recovery against them as such executor and executrix for $3,590.50 damages, and $216.10 costs. The judgment was entered December 28th, 1871.

The plaintiff, in his complaint, alleged that, on July 1, 1873, the defendant covenanted with the plaintiff to pay it the sum of $3,858.75; that he had failed to do so; that a mortgage, given as collateral security for the performance of such obligation, had been foreclosed, and only $1,360 realised on the sale of the mortgaged premises, and asked judgment for the residue.

This action was brought against John E. Poole and Ann 'O’Donoghue, jointly, for a bill of goods amounting to $105.93, purchased by said Poole in his own name, and without disclosing to 'the plaintiff that he was purchasing the said goods for the defendant, Ann O’Donoghue. The complaint alleged that O’Donoghue received and used said goods in her business, and that the defendant Poole was her agent in the purchase and use of the same.

The action was brought to recover damages for the death of the plaintiff’s intestate,.alleged to have been caused by defendant’s negligence in altering its tracks in such manner as to leave a highway adjoining the railroad, in a dangerous condition by reason of a considerable amount of earth having been removed from such highway.

The plaintiff cannot raise the question of usury to avoid the agreement to extend. Because only the party paying usury can raise that question.

This action was brought by plaintiff to recover of the defendant the possession of three public parks in the village of Ithaca. The plaintiff claims one-fourth of these parks as one of the four heirs of Simeon DeWitt, and also an additional fourth as the purchaser of the interest of his sister, Mary Linn DeWitt. The defense was dedication.

<p>Action for injuries — what not proof of negligence.</p> <p>This action was brought to recover damages for an injury alleged to have'been . sustained by plaintiff by reason of defendant’s negligence. An engineer was backing his engine northerly across one of the streets in Schenectady, at the • rate of two miles an hour, to take in water. The plaintiff, a boy under four years of age, ran easterly on the south side of the street towards the engine, approached near to it, turned northerly, ran alongside of and beyond it, then turned across the track in front of it, was struck by it and injured.</p> <p>Held, that no negligence on the part of the defendant was shown.</p>

Referees hear the matter de novo, and have no authority to inquire into the regularity of the proceedings anterior to their appointment, or to pass upon the question of the jurisdiction of the commissioners to make the order, but are confined to an examination of the case upon the merits, upon the assumption that the order is valid.

The action was brought to recover an undivided five-sixteenths of a parcel of land claimed by the plaintiff to be a part of township No. 47, in Totteii & Crossfield’s purchase, in Essex county, and bounded off the north by the soiith line of Macomb’s purchase, while the defendants claim it to be a gore, situated between the north line of said township No. 47 and the south line of Macomb’s purchase.

<p>Appeal from an order made at a Special Term denying a motion to require the receiver, appointed in the above actions,'to pay to the plaintiffs in actions Nos. 2, 3 and 4, the amounts of their respective judgments.</p>

The action was brought upon a life insurance policy, given by the defendant, insuring the life of C. Henry Ross, in the sum of $5,000, and dated the 17th day of January, 1867. The policy was given to Mrs. Josephine Y. Ross, wife of said C. Henry Ross, who, through the agency of her husband, made the application therefor. The said C. Henry Eoss died from the effects of laudanum, taken by him on the 15 th day of November, 1874.

The action was brought to restrain defendants from interfering with the plaintiff's enjoyment of a right to use an alloy between bis house and one belonging to defendants.