Volume 23 — Barbour's New York Supreme Court Reports

<p>THIS action was brought to foreclose a mortgage, and was heard upon pleadings and proofs.</p>

order made at a special term, granting a new trial. The action was for an assault and battery alleged to have been committed by the defendant upon the plaintiff. The plaintiff recovered a verdict, at the Monroe circuit, which was set aside at a special term held in the county of Yates in November, 1855.

DEMURRER to the answer of the defendant Davis. The complaint was on a promissory note, dated October 23, 1855, made by the defendant Taylor, payable to the order of the defendant Davis, for $250 at sixty-three days, payable at the Rochester City Bank. After setting forth the note, the complaint stated: “ And that thereupon the defendant, Zimri L. Davis, at the request of said Taylor, and for his, said Taylor’s accommodation, indorsed in blank the said note.

MOTION by the plaintiffs for judgment on a verdict taken at the circuit in Yates county, in April, 1855, subject to the opinion of the supreme court on a case. The action was brought to recover the amount of .the defendant’s subscription to the plaintiffs’ articles of association, for $1000 stock in their company. The plaintiffs were incorporated under the general rail road act of 1850.

<p>Where a party agrees to work for another for a month, and, if the parties arc suited with each other, that he will work during the season, or six or seven months, he is bound to determine, and make his election, at the end of the month, whether to quit, or stay during the season.</p> <p>If he continues to work after the expiration of the month, this is presumptive evidence that he has determined to stay through the season; and he cannot afterwards leave the employer’s service before the end of the season, except for a cause that would be a justification for abandoning or rescinding the contract.</p> <p>In an action for the breach of a contract for work and labor to he done upon a farm, evidence of damage occurring to the plaintiff's crops in consequence of the defendant’s leaving his service is inadmissible.</p> <p>The legal measure of damages, in such cases, is the difference between the wages agreed to be paid to the defendant, and the price the plaintiff was obliged to pay for labor to supply his place.</p>

<p>Upon the trial of an action "of ejectment, brought in the names of several plaintiffs, the defendant’s counsel, upon the opening of the case, moved for judgment on the ground that the complaint did not state facts sufficient to constitute a cause of action in favor of either of the plaintiffs separately, or in favor of all of them, jointly, whereupon the plaintiff’s counsel offered to rely upon the title of F. S., one of the plaintiffs, and moved for leave to amend the complaint so as to set up title in him alone. The judge permitted the trial to proceed upon the offer of the plaintiff’s counsel to rely exclusively upon the title of F. S.; leaving the plaintiffs to apply for leave to amend. The court, p.t special term, subsequently made an order giving leave to the plaintiffs to amend the complaint, so as to charge that the title was in F. S. alone. Held, that the rulings at the circuit were upon questions of practice, not affecting the merits of the controversy ; and that they were within the discretion of the court, and did not form sufficient grounds for granting a new trial, or for refusing judgment for the plaintiff upon a case.</p> <p>Where a complaint alleged that W. J. S. died seised of real estate, leaving no child capable of inheriting, and that the land thereupon descended to F. S. as sole %eir at law, &c.; Held, that this must be regarded as equivalent to an allegation that F, S. was W. J. S.’s heir and only heir at law.</p> <p>Less strictness should be observed in considering objections to a complaint, after the defendant has answered upon the merits, and waits until the trial to raise them, than if the questions were presented by demurrer to the complaint.</p> <p>It is only such defects in the complaint as are incurable, that a defendant can take advantage of on the trial.</p> <p>Where a complaint, in ejectment, described the premises as about fifty acres in the southern part of a lot, which was fully and perfectly described; Held that this was a sufficient description; but that if necessary the complaint could be amended, by striking out the word “ about.”</p> <p>By the 14th section of the title of the revised statutes relative to the descent of real property, in case of the death without descendants, of an intestate who is illegitimate, the inheritance is to go to the relatives of the intestate on the part of his mother, only in case she be dead, which means, if she be dead at the time of the death of the intestate.</p> <p>Where the mother is living, at the time of the death of an illegitimate intestate, the case provided for in the statute, in which the relatives of the intestate on the part of the mother shall inherit, does not arise, and the common law rule must govern.</p> <p>And if the mother of the intestate is an alien, so that she cannot inherit the lands, the brother of the intestate cannot receive the inheritance through her.</p> <p>By the common law, a person of illegitimate birth, not having inheritable blood, can neither inherit lands himself, nor transmit them by descent to any other person, excepting his own legitimate offspring, or persons otherwise capable of inheriting, claiming by inheritance from or through them.</p>

HIS action was brought in the name of the president of the Albany Pier proprietors, to recover wharfage claimed by the proprietors under the provisions of “ An act authorizing the construction of a basin in the city of Albany, at the termination of the Brie and Champlain canals,”.passed April 5, 1823.

<p>IN. EQUITY. This was an appeal by the plaintiffs from a judgment or decree in equity, entered at a special term. On the 29th of March, 1845, the mercantile firm of J. W. & R. Leavitt, in the city of New York, suspended payment and became insolvent, being indebted to the defendant David Leavitt, for money lent and advanced by him to said firm, $70,948.16. A portion of this indebtedness was secured by mortgage, executed by John W. Leavitt. Before their failure, David Leavitt had incurred liabilities, on their behalf, to aid them in their business, which liabilities existing at the time of the execution of the assignments hereinafter mentioned, amounted in the aggregate to the sum of $106,124.29, and were all paid by him. This firm at different times, before their failure, hypothecated to David Leavitt, as security for his loans and advances, certain debts, claims and property which are mentioned in schedule Cz; and on the 29th of March, 1845, they hypothecated to him, as further security for such loans and advances, the surplus of all securities belonging to them, lodged with the American Exchange Bank, after the payment of their indebtedness to said bank. On the 29th day of March, 1845, the said John W. Leavitt and Rufus Leavitt and Frederick T. Mygatt, by deed of assignment of that date, assigned to David Leavitt and Joseph C. Vandervoort, upon certain trusts, for the benefit of creditors, all their joint and several property and estate, within the state of Louisiana, and all merchandise, moneys, credits and effects, belonging to them, or either of them, in the possession of any firm or party in New Orleans. On the first day of April, 1845, the said John W. & Rufus Leavitt executed to the said David Leavitt and Joseph C. Vandervoort, six other deeds of assignment, upon certain trusts, for the benefit of their creditors, by which the assignors conveyed all their lands and real estate, situated in the states of Alabama, Michigan, Kentucky, Indiana, Tennessee and Illinois. On the same day, the same parties executed to the said D. Leavitt and Joseph 0. Vandervoort another assignment of book accounts, debts, &c. for the benefit of their creditors. On the 2d day of April, 1845, the same parties executed to the said David Leavitt another assignment of certain specified claims, for the benefit of their creditors. On the 5th day of April 1845, they executed to the said David Leavitt and Joseph C. Vandervoort another assignment of hypothecated notes, for a similar purpose. On the 25th day of April, 1845, they executed to said David Leavitt an assignment of real estate, in the city of New York, for a similar purpose. The leasehold premises on Barclay street, embraced in this assignment, were subject to a mortgage executed by John W. Leavitt to David Leavitt, on the 19th of October, 1842, to secure the payment of $20,000, the lien of which mortgage was preserved in and by said assignment. On the 26th of June, 1845, John W. Leavitt was, and for several years previously had been, a resident of Weehawken, in the state of New Jersey, and was the owner and in possession, at that place, of certain personal property. On that day he sold said property to David Leavitt, at a valuation, who credited the firm with the amount at which the property was appraised. This property remained at Weehawken, in the possession of John W. Leavitt, upon hire, until May 1, 1847, when he removed to the city of New York, and the property, with the farm, was rented to R. Cochran, who afterwards bought it. On the 81st day of July, 1845, J. W. & R. Leavitt executed to said David Leavitt another assignment of all the real and personal property and estate belonging to them, or either of them, for a similar purpose. It was declared in this assignment, that its execution or acceptance should not in any way impair the lien of the said David Leavitt upon any securities which he then held. On the 26th of July, 1845, in the absence of D. Leavitt from this state, a judgment was entered in the supreme court, in his favor against John W. <fc Rufus Leavitt, upon a bond and warrant of attorney, for fifty thousand dollars of debt; an execution was issued and returned, and on the 81st July, 1845, a creditor’s bill was filed against them ; subsequently, a receiver was appointed of their property and effects, and they executed and delivered to him an assignment thereof.On the 26th of January, 1848, the plaintiffs, who were judgment creditors of John W. Leavitt & Rufus Leavitt, filed their bill in this suit, against the latter, and a subpoena and injunction issued thereon, were served upon them. On the 10th of October, 1850, an amended bill' was filed by said plaintiffs, to set aside said assignments, sale and judgment; David Leavitt was joined as a party defendant, and the subpoena therein was served upon him on the 11th day of the same month. This bill called for an answer from all the defendants, upon oath. The defendants answered the bill, and a replication was filed to each answer. For a fuller statement of the facts, see Nicholson v. Leavitt, (4 Sand. S. C. Rep. 276.)</p> <p>The cause was heard upon pleadings and proofs before Mr. Justice Roosevelt, and a decree made therein, which adjudged: (1.) That the assignments K and L were fraudulent and void as against the plaintiffs. (2.) That the other assignments were not fraudulent and void.' (3.) That the hypothecation of the securities mentioned in schedules O and D, and the prior liens •of David Leavitt upon the securities embraced in the assignments K and L, were unimpaired by the' acceptance of said assignments. (4.) That the creditor’s bill filed by David Leavitt, and the proceedings thereunder, were not fraudulent as against the plaintiffs. (5.) That the plaintiffs were not entitled to any relief in this action against David Leavitt in respect of the household furniture in New Jersey. The plaintiffs appealed from the whole of said judgment.</p>

In November, 1849, the defendant applied to the New York Gras Company to purchase some land at the corner of Canal and Center streets. The price asked by the president was $75,000, and he informed the defendant that the plaintiff, Erben, would take the land on lease at a rent of 8 per cent on the amount of the purchase.

<p>APPEAL from a judgment of the Kings county court. The action was brought to foreclose a mortgage, executed by the defendant. The complaint set forth that on the 12th day of November, 1852, the defendant executed a bond and mortgage to the plaintiff for twenty-five thousand dollars, conditioned for the payment of that sum in two installments, viz: Two thousand five hundred dollars on the first day of March, 1853, and tjjre remainder at the expiration of two years from the date of fine bond and mortgage. That the mortgage covered twenty-ibur lots of ground in the city of Brooklyn. That the mortgage was duly recorded on the 18th day of November, 1852. That the defendant had failed to comply with the condition of the bond and mortgage, by omitting to pay the sum of twenty thousand five hundred dollars of principal on the 12th day of November, 1854. That no proceedings at law or otherwise, had been taken to recover said sum, and that the defendant had or claimed an interest in the mortgaged premises, and prayed judgment of foreclosure and sale, and for any deficiency that might remain after applying all the money, applicable to the payment of said mortgage, thereto. The answer admitted the making of the bond and mortgage, but denied that the defendant had any interest in the mortgaged premises ; and alleged that on the 21st; December, 1854, the defendant sold and conveyed the premises described in the complaint to George W.- Nelson. The cause was brought to trial before the Kings county court on the 19th of February, 1855. The counsel for the plaintiff proved the amount due on the bond and mortgage, and rested. The defendant’s counsel read a conveyance of the premises mentioned in the pleadings, from the defendant to George W. Nelson, dated December 21, 1854. This was a warranty deed, and conveyed the premises to the grantee, subject to the payment of the mortgage. The court held that the proof on the part of the defendant was insufficient to sustain the answer, and ordered judgment of( foreclosure and sale and for the deficiency, on the ground of its appearing that the conveyance to George W. Nelson was not recorded at the time of the commencement of the action; the notice of lis pendens having been filed on the 5th of January, 1855, and the deed recorded on the 9th of February following.</p> <p>From this judgment the defendant appealed to this court.</p>

<p>APPEAL, by the defendants, from a judgment entered upon the report of a referee. The complaint alleged that the plaintiff had purchased from Frederick Philipse and others, who were the owners at the time of such purchase, and was entitled 'to, and was in the actual possession of, a certain piece of land situate in the village of Cold Spring, in the county of Putnam, bounded northwesterly by lands of George P. Morris; northeasterly by lands of the said Frederick Philipse and others; southeasterly and easterly, partly by lands of the said Frederick Philipse and others, and partly by Northern avenue, so called ; and southwesterly by lands of the said Frederick Philipse and others, containing ten acres and a half, be the same more or less. And that said lands and premises were, by agreement of the plaintiff with the said George P. Morris and the said Frederiek Philipse and others, made subject to this provision and condition: that in case the plaintiff should subdivide and lease or sell the premises, in a specified number of smaller parcels or lots for building purposes, then so much of the above described premises as is included within the lines of Morris avenue,'as heretofore surveyed and contemplated to be made a public street or highway by the said Frederick Philipse and others, the former owners thereof, but never yet actually dedicated or laid out as a public street or highway, being one chain wide, and about six chains and twenty-eight links long on the longest or easterly side thereof, and extending from the line of the lands of George P. Morris, southeasterly ¡to the northwesterly line of Northern avenue, as laid out and opened, should be dedicatéd as a public street or highway, and thrown open for public travel, but not otherwise; and subject also to the right of way reserved and granted, or agreed so to be, to George P. Morris and his assigns, and to such other persons as shall be or become entitled thereto, through and over a part of said contemplated avenue. And the plaintiff further alleged that he had never subdivided and leased or sold the said premises in smaller parcels for building purposes, or any part thereof; and that said Morris avenue, as surveyed and contemplated as aforesaid, and included within the general boundaries of the piece of land above described, had not, nor had any part thereof, ever been used, opened or dedicated to the public as and for a public street or highway; and that until the same should be so dedicated, or should legally or in due form of law be made or become a public street, the plaintiff was entitled to a private right of way, in common with George P. Morris or his assigns, or such others as might be or become entitled thereto, in and over a strip of land of forty feet in width through the middle of said contemplated ayenue, and extending from the land of George P. Morris to the" northwesterly line of Northern avenue, and also to the sole use and occupation of so much of said contemplated avenue as was not comprehended within said strip of forty feet; and that he had the right and privilege of enclosing said contemplated avenue, subject only to the rights therein of said George P. Morris and his assigns, and the other persons who may be or become entitled to such right of way. The plaintiff further stated that he made and erected fences on the said contemplated avenue, and granite ga.te-posts or columns along the northwesterly line of Northern avenue as now opened, for the purpose of enclosing the said contemplated avenue from the public highway or street, as he had and has a right to do; and that the said fences and gate-posts, or columns, were the same alleged obstructions mentioned and referred to in the notice and resolution hereinafter mentioned. That the freeholders and inhabitants of the village of Cold Spring were constituted a body corporate, by the name of “ The Trustees of the Village of Cold Spring,” passed April 22, 1846; and that the defendants, as said trustees of said village, now pretend and claim, that the said contemplated avenue is a public highway or street, and claim to exercise authority over and make regulations in relation to it as a public street of the village of Cold Spring ; and that on or about the first day of September, in the year 1853, the defendants caused to be served on the plaintiff a notice and copy of the resolution passed by them, referred to in said notice, of which the following are copies, to wit:</p> <p>“John H. Holdane, Esa.</p> <p>Sir: The following is a copy of a resolution passed by the board of trustees of the village of Cold Spring, on the thirtieth day of August, 1853:</p> <p>Resolved, That John H. Holdane be notified to remove the obstructions he has placed on Morris avenue, such as stone columns, fences, &c. on or before the 7th day of September, 1853, or that the trustees of the .village will cause the same to be removed.</p> <p>You are therefore required to remove the obstructions accordingly. August 31,1853. By order of the board of trustees.</p> <p>E. A. Pelton, Clerk.”</p> <p>And the plaintiff was informed and believed, that the defendants, in accordance with such resolution passed by them, intended to, and would, unless restrained by the court, tear down, destroy and remove the said fences and granite gate-posts or columns, so erected by the plaintiff on said contemplated avenue. The plaintiff therefore prayed tha.t the defendants might, by the order and judgment of this court, be restrained from tearing down, destroying or removing the said fences and gate-posts or columns so erected on said contemplated avenue, and from removing or interfering in any manner with any buildings, fences, walls, "gates or other erections which now are or may hereafter be put upon said contemplated avenue by the plaintiff, or with the land; and also from exercising any authority or control whatever, over the said contemplated avenue as a public street or highway, until the same should be dedicated to the public, or otherwise become a public street or highway.</p> <p>The defendants by their answer admitted that the plaintiff had purchased, or agreed to purchase the lot of land mentioned in the complaint, under the circumstances and in the manner hereinafter more particularly mentioned. But they denied that he was in the entire possession of the said lands; and, on the contrary thereof, alleged that the public pass over the said avenue without any molestation, or any attempt at hindrance; and they always have done so since the said street was opened, in or about the year 1850, as hereinafter mentioned. And they denied that said Morris avenue, as included within the general boundaries of the land mentioned in the complaint, had not been used or opened to the public, as and for a public street; and, on the contrary thereof, alleged that in or about the fall of the year 1850, the heirs and devisees of M. Gouverneur, deceased, who were then the owners of the land over which the same passed, opened Morris avenue from the northerly side of Main street, at a point opposite to Chestnut street, in said village, to within about sixteen feet of the land of George P. Morris, and fenced the same, on both sides thereof, the whole length of said avenue, and also worked or graded the same, and placed it in a condition for public travel; that, as so opened, worked and fenced, the avenue was sixty-six feet wide, or thereabouts, and was thrown entirely open the whole length thereof, from Main street to near the lands of George P. Morris, with the intention, as the defendants were informed by one of the said heirs, of making a perfect abandonment or dedication of it to the public, as and for the purposes of a public street; and that from the time it was so opened, it had been used as such, unconditionally and without any limitation or restraint, by the public. That in the spring of the year 1852, John Bevan made a map of the village of Cold Spring, and that, by direction of the said heirs, as the defendants were also informed by one of them, the streets in said village which were nominal and proposed, and which had not been opened for public use, were bordered by dotted lines, and the opened, permanent streets by smooth lines ; and that by their direction, also, the following note or memorandum was put on the said map: “The streets and avenues, whenever designated by dotted lines, are only nominal and proposed, and may be altered or abandoned; and the lands upon which they are located are in no way to be affected therebyP And the defendants averred that Morris avenue was bordered on the said map by smooth lines the whole length thereof. That they were informed and believed, and therefore • stated; that the plaintiff, well knowing the premises, and the facts ahd circumstances, as above mentioned, respecting the opening and dedication of Morris avenue, and being informed of the Sanie by the heirs themselves, made a purchase of the heirs, of the lot of ground on which his house now stands, on the westerly side of Morris avenue, consisting of about four' acres, ahd received a deed therefor from Frederick Philipse and others, the said heirs, which bounded the lot in terms on the easterly “ by the side of Morris avenue.” That subsequently, and sometime in or about the summer of 1852, the plaintiff agreed with the said heirs to purchase another lot of about five acres of land, on the easterly side of Morris avenue and directly opposite the lot last mentioned, for which no conveyance has been delivered; that after the purchase of this last piece the plaintiff applied to the said heirs to purchase Morris avenue, from the line of Northern avenue to the land of General Morris aforesaid, and was told by them, or by one of them, with whom he was transacting the business, that they could not sell it, for the reason that it had been permanently abandoned to the public for a street; that the plaintiff nevertheless insisted upon buying what interest the said heirs had in the said street, whieh they finally agreed to sell him, but that no deed for this either, had ever been delivered: That at the plaintiff’s solicitation an arrangement was at this time entered into between him and the said heirs, by which he was to give back his deed for the four acres first purchased,- to the said heirs, and receive from them another deed, for the whole of his said purchase, including the said four acres, with a condition therein giving General Morris and his assigns a right of passage through the center of said avenue, for the purpose, as the defendants believed, of destroying all written evidence of the existence of Morris avenue through the said land, and of defrauding the public of their rights therein; but that this arrangement had not yet been perfected.</p> <p>The defendants further' alleged, that the plaintiff had obstructed this street as so opened and worked, as mentioned in his complaint in the cause, by placing four stone columns or posts across the same near Northern avenue, and setting his fences in and on the said avenue, from the said posts to the termination of the said street near the lands of Gen. Morris aforesaid, on both sides thereof, about thirteen feet each: That the avenue, since it was opened and worked by the heirs as above mentioned, had been worked and repaired by the defendants, who had always claimed authority over it for that purpose, and had never been interfered with in the exercise of it in any way, until the interference of the plaintiff, as mentioned in his complaint. The defendants, upon information and belief, denied that the plaintiff was entitled to the sole use and occupation of so much of the said avenue as was not included within a strip of forty feet through the middle of the same from the lands of Gen. Morris to Northern avenue, or that as against the public he had the right to close up the said avenue, subject only to the rights therein of Gen. Morris and his assigns, and the other persons who may be or become entitled to such right of way. They admitted that the plaintiff had made and erected fences on the said avenue, and also four granite columns across the Same, on a line with the northerly side of Northern avenue, for the purpose of closing the said street from the public, and that the said fences and posts were the same obstructions referred to in the notice and resolution mentioned and set out in the complaint; but the defendants, on information and belief, denied that the plaintiff ever had, or now has, a right to erect the said fences or posts on the said avenue, as claimed in the complaint. The defendants admitted that the inhabitants of the village of Cold Spring were incorporated by the name of the Trustees of the village of Cold Spring, by the act, and at the time, mentioned in the complaint, and that the act of incorporation was duly adopted by the electors of the village ; and further, that the defendants, as such trustees, claim that the said avenue is a public street, and claim to exercise authority over it, and to make regulations in relation to it as a public street of the village of Cold Spring, and that they caused the notice and copy of resolution to be served on the plaintiff, at the time and of the purport mentioned in the said complaint. And they also admitted that in accordance with the resolution, they intended to remove the obstructions, as they were advised by counsel and believed they had a right to do. And they further alleged, that they were advised and believed and therefore stated on such information and belief, that the said avenue had been dedicated to the public as and for a public street.</p> <p>The plaintiff put in a reply, denying most of the allegations in the answer. He admitted, however, that the deed for his first purchase bounded the same, in terms, on the easterly by the side of Morris avenue..</p> <p>The cause was referred to James Emott, Esq. in October, 1854. He found and determined as follows: 1. That by or before January, 1853, and before the commencement of this action, the plaintiff had made an agreement for the purchase, from the heirs of Mary Grouverneur, of the lands described in the complaint, including the strip of land hereinafter mentioned and known as Morris avenue, so called; that he had paid a portion of the purchase money therefor, and taken possession thereof.</p> <p>2. That such purchase by the plaintiff, of the strip of land which was fenced and opened as the prolongation of Morris avenue, from Northern avenue northwardly through said lands to the south line of • George P. Morris, was expressly made subject to any rights which the public might have in or to the use of said land as a public street or highway.</p> <p>3. That in the year 1850, the heirs of Mary Gouverneur, being then the owners of all the lands aforesaid, caused to be opened and fenced the said strip of land running through the lands sold by them to said plaintiff, and being the prolongation of Morris avenue, from its intersection with Northern avenue to the south boundary of lands of George P. Morris, which is alsQ the north line of the village of Cold Spring, with the intention of dedicating the same to the use of the public as a highway, and that such strip of land was mapped and designated as a highway by the consent and direction of the said heirs of Mary Gouverneur, or their agent in charge of said property, upon the map of the village of Cold Spring made and published by John Sevan.</p> <p>4. That said strip of land so opened and fenced, was used by the public from that time, by walking and driving upon the same, and by going up to the enclosure of George P. Morris, and returning over and by the same, until it was closed by the plaintiff.</p> <p>5. That said road, so opened and fenced and used, led and extended from and out of a public road leading from Main street northwardly, and known as Morris avenue, at its intersection with a public road running east and west along the south line of the plaintiff’s lands, and known as Northern avenue, to the south line of the lands of George P. Morris and the north line of the village of Cold Spring, and that said road terminates on the north at the enclosure of George P. Morris, Without reaching any public highway or road.</p> <p>6. That in July and August, 1853, the plaintiff erected stone gate posts upon, and across the southerly end of said road or strip of land, where the continuation of said Morris avenue would enter his lands, and moved the fence along the same in and upon said strip of land, thereby obstructing the same and impeding the public use thereof.</p> <p>7. That the defendants thereupon, in the exercise of their authority over the streets and roads in said village, gave notice to the plaintiff to remove said obstructions by a certain day or they would cause the same to be taken down.</p> <p>Upon these facts, the referee’s conclusion and decision, was, that the said road or strip of land fenced and opened for a road, and which the plaintiff obstructed, was not a public highway; and that the plaintiff was entitled to a judgment restraining the defendants from tearing down or removing the gate posts, fences, or other erections of the plaintiff upon or along the same, with costs:</p> <p>The following opinion was given by the referee, at the time of making the above decison:</p> <p>“ I think the evidence in this case established an unequivocal intention, on the part of the Gouverneur heirs, to dedicate as a street what is called Morris avenue, through the lands now owned by the plaintiff, to Gen. Morris’ line, and terminating at his fence. In the first map of their property made by them, a street is laid down under this name, having the same general direction and character, though not absolutely identical with, the present northern extension of Morris avenue. In 1850 they fenced and opened a strip of land of the width of 66 feet, from Northern avenue to Geo. P. Morris’ land, with the intention of making it a street; and if they did not work and grade it, the reason seems to have been, that the land was so smooth as not to make it necessary in their judgment to do so to make it a passable road. Upon the map of the village of Cold Spring, made by Mr. Sevan in the year of this extension, Morris avenue was indicated as an open street, with the assent and under the direction of the Gouverneurs. The public used it, as far as a street of such a character, not being a thoroughfare or passage from one highway to another, is susceptible of use. It is true, the dedication is recent and the period of user brief, but I apprehend that is not material upon a question of dedication, except wheii the proof of dedication rests upon user alone, and the consent of the owner is to be made out wholly from the use by the public.</p> <p>Whenever distinct and unequivocal acts of dedication by the owner are shown, no lapse of time can strengthen the proof of his intention to abandon the entire dominion which he has of his property, and bestow upon the public the right to its use. I think there is sufficient proof here, that this strip of land was fenced and thrown open to public use, as well as designated upon a map by the Gouverneur heirs, as a street, with the intention on their part of making it such, and so far I have no difficulty with the case.</p> <p>It is claimed by the counsel for the plaintiff, that no dedication of a street to the public can be complete or effectual until it has been accepted, and that the acceptance must be made by the public authorities, the commissioners of highways, and can only be made by instituting the proceedings prescribed by the statute for the laying out, opening and recording public highways. This is Judge Harris’ opinion in the case of Clements v. West Troy, (16 Barb. 251,) which was cited on the argument. I was unable at the time to reconcile the views taken in this opinion with my ideas of the doctrine of dedication, and even of the powers and duties of commissioners of highways, and was hesitating as to how far I should be bound by the authority of the decision. Since the argument, however, I have received the report of the trial of the same cause at the circuit, before Judge Wright, (10 How. Pr. Rep. 199,) where the doctrine of Judge Harris is expressly contradicted, and the case decided upon totally different principles. I think the views taken by Judge Wright, in his opinion, coincide with what has been the general opinion of the profession on questions of dedication. It seems to me that the commissioners of highways, or the defendants, acting as such, have no authority to perform such acts as Judge Harris supposed to be indispensable to effectuate a dedication of a road, unless there has been a user for 20 years, and then they will proceed on the ground of the user, and not of a dedication. In fact, the reasoning of Judge Harris would cut up by the roots the dedication of streets or roads in the country. Besides, it is to be remembered, that the doctrine of dedication does not rest upon contract or the presumption of a grant, but is the creation of the courts to effectuate the intention of the party making the gift, and to subserve the public interest, when from the nature of the case, from the character of the right or interest to be created, or of the persons or party for whose benefit the gift or grant is intended, no grantee is in existence to take, or no grant could be made. (See 6 Peters, 431.) It seems therefore to be the doctrine of the cases, and to be sanctioned by the reason of the thing, that the use by the public of the highway intended to be dedicated, in the manner and to the extent contemplated by the dedication, furnishes the requisite evidence of acceptance of any dedication which is proved by acts on the part of the owner.</p> <p>But a question still remains in this case, upon which I have had more difficulty, and on the decision of which I think the case turns. That is, the question whether a street or road can be dedicated as a; public highway, which is closed at one end. and only communicates with a public road at the other; in short, what is known as a cut de sac. To show that this could be done, the learned counsel for the defendants cited to me two classes of cases. First, the cases which have upheld the dedication of lands or property for other purposes than roads, as a public square, a common, a burying ground, or a spring of water for public use. There no longer remains any doubt that such dedications can be made, and there is no doubt that such a strip of land as that included within the limits which bound what has been described as Morris avenue in this case, could have been dedicated for any of these purposes other than a road. It is not claimed, however, in this case, that any such dedication has been made. The claim, both in the pleadings and proofs, is of a dedication to be a public highway; and I am unable to see how the principle to which I have just adverted will help the defendants in this case. When a piece of ground is dedicated to the public for a square or burying ground, what they are to acquire, and what they are to use and accept, is not a right of passage upon or over it, and the question of its susceptibility for use as a highway does not arise. But when a piece of ground is to be dedicated and accepted as a highway, what the public are to acquire and use, is a right for every person, not to have access to the property of any individual, but to pass and repass over a highway for the whole people. Whatever rights individuals might acquire under any circumstances by the opening and publishing such a street as this as a public highway, I think the public do not take any rights by such proceedings, unless such a street as this can be recognized as a legitimate public highway. I do not mean a highway under all the highway acts, so as to subject the town in'respect to it to the duties and liabilities of the statutes respecting statutory highways. The doctrine of the Oswego case, in 2 Selden, 257, applies, as I understand it, to these duties and liabilities created by statute. But I mean a highway within the settled meaning and definition of a highway at common law. To prove that this street, closed at one end, leading up to the entrance or fence of Glen. Morris, and there terminating, and thus forming a ml de sac, could be such a highway, I. was next referred to a class of cases in the English books, which, the counsel for the defendants claimed, recognized expressly such closes or streets as public highways. I have carefully examined all these cases, but I do not think they establish such a doctrine. In the case of the Rugby Charity v. Merriwether, reported in 11 East, 375, note, Lord Kenyon did indeed leave the question to the jury, whether the locus in quo was a common highway, ivith the remark that it made no difference that it was not a thoroughfare; but he puts it on the ground that in a great town like London, where there are so many closes of great antiquity, any other doctrine would be unsafe. Besides, this case, which was only a nisi prius case, has been disapproved on this very point. In Woodyer v. Hadden, (5 Taunt. 142,) the opinion of Lord Kenyon was questioned by Lord O. J. Mansfield, and again by Abbott, C. J., in Wood v. Veal, (3 B. fy Ad. 454,) where that learned judge observed, “ I have great diffculty in conceiving that there can be a public highway which is not a thoroughfare, because the public at large cannot well be in the isse of it.” This latter case does not decide the point, but the doctrine of a highway in a close is doubted by all the judges. In Jarvis v. Dean, (3 Bing. 447,) the road in question was opened, at both ends, to public roads, and the question was left to the jury whether it had been used as a thoroughfare; and if so, they were authorized to presume a dedication. Woodyer v. Hadden decides nothing in favor of the principle contended for, and all the judges but one question the doctrine of the case of the Rugby Charity. In our own courts, I am aware of but one case containing any thing to sanction the doctrine of a highway in a cut de sac, and that is an obiter dictum of Hand,-J., in Wiggins v. Tallmadge, (11 Barb. 457.) The case, however, was not decided on this ground, and even this dictum was disapproved by Cady, J., in a dissenting opinion.</p> <p>The old definition of a highway is familiar to 'every one. It must be a road without termination—that is, leading from one public highway into another. Nothing but a thoroughfare will answer such a definition. Such a street as this will not. I think 1 am compelled to hold that such a street as this cannot be dedicated as a public highway; and upon this ground I place my decision in favor of the plaintiff. I have not examined the question as to the extent of the authority of the defendants under their charter, as commissioners of highways, because that is unnecessary in the view I have taken in this case.”</p>

<p>Where, upon a sale of land, a mortgage is given by the purchaser to secure the purchase money or a part thereof, the mortgagor and his grantees have each of them such a seisin of the equity of redemption in the land that their wives would be entitled to dower in that portion conveyed to their respective husbands subject to the payment of the mortgage.</p> <p>The wives of such grantees can therefore, in case they survive their husbands, come in and redeem the mortgage, and so obtain dower.</p> <p>Such an interest in the equity of redemption, and consequent right to redeem, cannot be barred or divested by a foreclosure or sale in a suit to which the wife is not a party; whether the right be, at the time, actual or inchoate. S. B. Strong, J., dissented.</p> <p>The wives of the grantees of the mortgagor are therefore necessary parties to a suit for the foreclosure of the mortgage.</p> <p>When the title to land fails, especially where the vendor honestly supposed he had title when he contracted to sell the land, the remedy of the vendee is a proper action for damages.</p> <p>Where the state of the title is fully known to both parties, at the time of contracting for the sale, and the vendor offers the purchaser all the title he has, he does all in his power to perform his agreement. And if the purchaser declines accepting that title, he cannot bring a suit in equity to compel the vendor to give a complete and perfect title.</p> <p>The cases of Jaclcson v, Pe Witt, (6 Cowen, 316,) and Cumvimgkqm v. Knight, (1 Barb. S. C. Rep. 399,) so far as they deny the right of a widow to redeem her dower from a mortgage given for the purchase money, either entirely outstanding or foreclosed in a suit to which she was not a party, overruled.</p>

THIS was an appeal from a decision made at a special term, upon demurrer to the complaint. The action was brought upon a policy of insurance issued by the defendants to Robert Caldwell.

PPEAL by the defendant from a judgment of the city court II of Brooklyn. The complaint alleged that Jacob Brouwer and John L. Mason, on the first day of January, in the yea# 1839, became and were the owners in fee of a certain tract of land in the sixth ward of the city of Brooklyn, embracing the several lots thereinafter mentioned or referred to.

THIS was a common law certiorari, to review the proceedings and assessments for a sewer in Warren street, Brooklyn, from Court street to the East river. It appears from the return to the certiorari that commissioners were appointed to apportion and assess the expense of constructing the sewer, and that they proceeded to make an assessment and give the notices required by law to parties interested.

THIS was an action brought to recover the amount due on an instrument in writing, in the words and figures following: “ Sixty days after date, we promise to pay Joshua J. Horton, or order, sixty-six dollars and twenty-eight cents for value received, for and on account of his wages, as teacher in school district No. 4, for teaching up to this date.

mi-IIS was a certiorari to the city of Brooklyn, to review the JL proceedings of the mayor and common council in the matter of flagging portions of the side-walks of Tillary street, between Bridge and Navy streets, a part of which flagging was in front of, and adjacent to, the property of the relator; the expense of which flagging was apportioned and assessed upon the adjoining lands.

<p>Where mutual dealings had taken place between the plaintiffs and the defendant, and the plaintiffs delivered to the defendant a statement of the accounts between them, showing a balance of $842.09 due to the former; and the defendant took the account away with him, to see if it was correct, and kept the same several months; writing to the plaintiffs, from time to time, that he intended to make good the balance of account against him; that the account should be examined and the balance paid; that he had no objection to sending his notes for the balance, but not at thirty or sixty days; admitting that his obligation to pay the amount was no less, as the matter then stood, than if the plaintiffs had his notes; and promising that if they desired it he would send his due bill for the amount; saying, at another time, that he could not pay the plaintiffs the balance they claimed against him, just then, but that he should pay what he owed them at the earliest date possible, &c.; but in none of these letters was any fault found with the plaintiffs’ account, or any complaint that the balance claimed was too large; it was held that these letters, taken together, constituted a strong admission of the accuracy of the account ; and that the same became a settled account, and the balance was admitted to be due.</p> <p>Held also, that it was no objection to the account that a part of it consisted of what was due on certain joint transactions between the parties.</p> <p>When a balance is struck, and admitted to be due, on partnership transactions, it may be recovered, in an action at law.</p>

The complaint alleged that on the 20th of November, 1850, the defendant let and demised to the plaintiff, for the term of two years, a certain grapery and hot-houses, with their contents, belonging to the defendant, at Flushing, upon certain terms and conditions particularly specified in a written agreement between the parties, of the date above mentioned.

THIS was a common law certiorari, to review a decision made by referees, upon an appeal to the county court, from a determination of the commissioners of highways of the town of Amenia, Dutchess county, refusing to lay out a road. Augustus Flint, of Amenia, applied to the commissioners of highways of that town to lay out a new road therein.

<p>Parties in Foreclosure.—Assignees of Defendant.—Equity of Redemption.</p> <p>In an equitable action in rent, relative to real estate, the interest of a purch.aseifrom one of the defendants during the pendency of the suit, is barred by the decree, although such purchaser may not have been made a party.</p> <p>This rule includes the assignee of a bankrupt or insolvent debtor appointed after the commencement of such action against his assignor.</p> <p>Such assignee may undoubtedly be made a party, but this must be done upon his application, not at the instance of the adverse party ; and if he does not interfere, the judgment is valid.</p> <p>Therefore, where a prowling assignee of an equity of redemption from an assigneein bankruptcy, brought suit to redeem lands sold under a foreclosure suit commenced against the bankrupt before the appointment of his assignee, gi which suit the assignee in bankruptcy had never been joined,—Held, that the rights represented by the assignee in bankruptcy were barred by the foreclosure, and. that the complaint to redeem must be dismissed.</p>

THE complaint in this cause was filed for the partition and division of the estate, real and personal, whereof David Wagstaff died seised, and for a settlement of the accounts of the plaintiff as trustee and executor under the will of the said deceased.

<p>In an action under the code, to recover the possession of real estate, the complaint is sufficient if it states that the plaintiff has the lawful title, as the owner in fee simple, to the premises described therein, and that the defendant is in possession of the premises, and unlawfully withholds possession of the same from the plaintiff, and the plaintiff demands that thé defendant may be adjudged to surrender the possession to him, and to pay damages fbr the unlawful withholding of the same, &c.</p> <p>Lawrence v. Wright, (2 Duer, 673,) overruled.</p>

CEBTIORARI to the Broome county sessions, to remove an order of that court confirming a warrant issued by two justices of the peace, on the application of the overseers of the poor of the town of Triangle, authorizing the said overseers to take and seize the goods, chattels and effects of the relator, and confirming a seizure made by the overseers, of the relator’s property, under and by virtue of said warrant.

HIS was an action of replevin. The plaintiff claimed to be the owner of the property and that the same was exempt from levy and sale on execution, under the act of 1842, exempting necessary household furniture and working tools and team. The defendant justified the taking of the property, as a constable, in virtue of two executions against the plaintiff, one in favor of Tracy Beadle and the other in favor of Joseph Harris.

THIS action was tried before a referee, who found there was due, from the defendant to the plaintiff, at the date of his report, the sum of $180. Judgment was entered on the report in favor of the plaintiff for $315.56, damages and costs. From this judgment the defendant appealed to the general term.

<p>On the 2d of February, 1839, the plaintiff had title in fee to certain lands. On that day P. recovered a judgment against him, for $244.29. On the 1st of July, 1839, F. recovered a judgment against the plaintiff and B. for SgOl.dS. These judgments were liens on the lands. The sheriff, by virtue of executions issued to him thereon, advertised the lands for sale, and sold the same, on one or both of the executions, to P., on the 25th of November, 1839, for $305, the amount due on P.’s execution, which was returned satisfied. The execution in favor of F. was returned unsatisfied. The sheriff’s certificate stated that he sold the lands by virtue of both executions. The plaintiff failed to redeem the lands within the time given him by law; but within the time allowed for judgment creditors to redeem, F., by virtue of his judgment, redeemed the lands, by paying to the sheriff the amount of P.’s bid. At the end of fifteen months from the sale the sheriff gave to F. a deed of the lands, which recited a sale of the lands upon P.’s execution alone, and the redemption by F. on his judgment. Under this deed F. went into possession of the lands. Held that if the sheriff sold the lands solely upon P.’s execution, F. obtained the legal title thereto. And that it was a question of fact for the referee to determine, whether the sheriff sold upon P.’s execution alone, or upon both.</p> <p>Held further¡ that in the absence of any decision by the referee upon that questiou, P.’s equitable right to the lands was superior to the plaintiff’s title to the same; and that, as F. must be deemed to have acquired the equitable rights of P., by the payment to the sheriff of the amount of P.’s bid, his equitable right to the lands must prevail over any title the plaintiff had to the same.</p>

The action was brought to recover possession of about two and a half acres of land. It was commenced in March, 1854. In January, 1835, the plaintiff recovered a judgment in the supreme court, against Daniel Tuttle, for $147.51. An execution was issued and returned unsatisfied. In February, 1834, Tuttle became the owner in fee of land described as lot four in Wellsville, Allegany county, containing 13Tff„- acres.

CONTROVERSY submitted without action, pursuant to § 372 of the code. The plaintiff was incorporated and organized as a stock corporation on the 24th of January, 1855, pursuant to the act entitled “An act for the incorporation of companies to navigate the lakes and rivers,” passed April 15, 1854. The capital paid in and secured to be paid was §900,000. Its office and place of business was in the first ward of Buffalo.

THIS was an action to recover the possession of real estate situated in Allegany county. The defendant David Ohase had been the owner, and was in possession of the premises. The plaintiff claimed title under a sheriff’s deed. On the 29th of • June, 1848, Leonard Kirby and Valentine Kirby recovered a judgment in the supreme court against David Chase and one Charles Gilman, for $729.83, which was docketed in Allegany county.

THIS case came before the court on exceptions to the report of the referee in an action for partition. The material facts appear in the opinion of the court.

<p>Demurrer to a complaint.</p> <p>This action was brought to test the right of the defendant, J. H. ITobart Haws, to exercise the office of commissioner of jurors, for the city and county of New York, to which office the relator, William A. Walker, claimed to be entitled. The defendant demurred to the complaint.</p>

THIS action originated in a court held by a justice of the peace. It was founded upon a judgment rendered by Martin Marcley, Esquire, a justice of the peace of Schoharie county, on the 28th day of July, 1842, for $92 damages, and $3.71 costs.

<p>Where, upon the death of a sole or surviving executor, application is made to the surrogate, for letters of administration with the will annexed, of the assets of the first testator left unadministered, prima facie evidence of the fact that there are such assets, left unadministered, is sufficient.</p> <p>The general allegation, in the petition for letters, that the executors named in the will died, “leaving certain property and assets” of their testator “still unadministered,” followed by a statement of the value thereof, is sufficient to confer jurisdiction upon the surrogate to issue letters to the applicant, where the petition is duly verified.</p> <p>It is no objection to the appointment of an administrator with the will annexed, that owing to the lapse of time since the deceased executors took out letters testamentary, and the operation of the statute of limitations, such appointment would confer only a barren office upon the person appointed.</p> <p>Upon such an application, the surrogate has no right to determine the question whether the applicant, if appointed administrator, could recover any of the alleged unadministered assets of the deceased testator; or would have any legal or equitable cause of action against the representatives, or heirs, or next of kin of the deceased executors.</p>

<p>Where a dog, which has the vicious habit of attacking and biting other dogs, without being incited to do so, is suffered to go at large, and he attacks and kills the dog of a person lawfully coming upon the premises where he is, his owner is liable in damages for the value of the dog so killed^ where it is shown that such owner had knowledge of the, viciousness of his dog.</p> <p>A dog which is accustomed to attack and bite other dogs, without being incitéd to do so, is a vicious animal; whether it has bepn trained to such habits or not. Vicious dogs are a nuisance; and their owners must either kill them, or confine them, as soon as they have notice of their dangerous habits; or answer in damages for injuries inflicted by them.</p>

This was an action for an injunction brought by David Wyatt and twenty-six other persons, members of the congregation and society of the First Methodist Episcopal Church in the city of New-York, on… Held: who passed resolutions in opposition to the sale. That on May 10, 1855, on the application of the trustees, an order was made by the court consenting to a sale of the said church property.

Motions for a peremptory mandamus; in two causes. The first of these two applications was by Thomas McSpedon and Charles Baker.

An alternative mandamus having been previously issued in each of the above cases, a motion was now made that a peremptory mandamus issue. In the first ease it was alleged that on the 25th of January, 1855, a resolution was adopted by the board of supervisors of the city and county of blew York directing the books of record in the register’s office to be repaired under the direction of the committee of the hoard on county officers.

THIS suit was brought to test the validity of the sale of the plot of ground on which the edifice commonly known as the Brick Church stands. It was instituted, not by the corporation of the city, but by individual citizens, on behalf of themselves and all other tax-payers, against the corporation and the commissioners of the sinking fund.

THIS was an appeal from an order of Justice Smith, denying a motion to vacate an injunction order granted by Justice Welles. The facts set forth in the complaint were these: that in April, 1854, the legislature passed a law erecting the county of Schuyler, and appointed commissioners to select a site for a court house, jail and clerk’s office. That within the proper time the site was selected at Havana and a deed therefor given by the owner of the land, Charles Cook.

APPEAL by the defendant from a judgment entered upon the verdict of a jury. The action was brought by the plaintiff, as assignee of Christian Cossleman, to recover for work, labor and services done and performed by said Cossleman, in and about the paving and grading a portion of Genesee street, in the city of Utica, and making cross-walks on the same, and for materials furnished and used in and about said work.

J UDGMENTS were entered and docketed in the above entitled causes by confession, without action, as follows : In the first cause, in the clerk’s office of Schuyler county, on the 14th day of July, 1855, for $1450, and $5 costs. In the second cause, in the same clerk’s office, July 16th, 1855, for $3500, and $5 costs. In the third cause, in the clerk’s office of the county of Steuben, on the 19th day of December, 1855, for $1500, and $5 costs.

PPBAL from a judgment entered upon a report of referees. The plaintiff sued upon a contract made in August, 1854, between him and his partner, Martindale, of the first part, and the defendant, of the second part, relative to the prosecution of an action against the New York Central Rail Road Company, in favor of the defendant. The interest of Martindale, in the contract, had been assigned to the plaintiff.

The action before the justice was brought upon a promissory note made by the defendant, payable to Margaret Campbell or bearer, for $20, dated September 15, 1852, and payable on or before the first of April next after its date. On the trial it appeared that the payee of the note was married to John Brotsman, in October, 1852, and died at her husband’s house, in February, 1854.

THIS action was tried at the circuit court held in the county of Cayuga, in October, 1855, before Mr. Justice T. B. Strong. The complaint contained two counts or statements of causes of action.

QTION for a new trial, on exceptions taken upon the second trial of the action at the circuit. The cause was before this court on a former occasion, upon a similar motion, after the first trial. The court then refused to grant a new trial. (See 14 Barb. 90, where the facts are stated.) On appeal to the court of appeals that judgment was reversed, and a new trial granted.

<p>MOTION by the defendant for a new trial, upon exceptions' taken at the circuit. The action was brought to recover the sum of $100, the amount subscribed by the defendant towards the erection of a new church edifice by the plaintiffs, in the village of Lyons. The subscription paper, signed by the defendant and others, contained a provision that, on the completion of the house, the slips should be sold at auction, to the highest bidder ; and that all sums subscribed and paid, might be applied by the subscribers or their assigns, upon the bids made at the sale of the slips. The cause was tried at the circuit in Wayne county, in April, 1853, before Justice Welles. The jury found a verdict for the plaintiff, for $114, the amount of the defendant’s subscription with interest.</p>

The action was upon a promissory note for $1000, executed by the defendant Walter and indorsed by the defendant Charles A. Wheaton, the payee, and also by Horace Wheaton, the other defendant.

APPEAL by tbe defendant from a judgment entered at a special term, after a trial at the circuit. The complaint contained five counts.

<p>ÁPPEAL from a judgment entered upon a verdict, taken at the Ontario circuit in November, 1854, before T. R. Strong, justice. Upon the trial, the plaintiffs gave in evidence, that in June, 1851, one Winchester Merriam and the defendant agreed that the defendant would furnish 81 acres of land on his farm in West Bloomfield, in said county, to be sown to wheat that season by said Merriam; that each would furnish one half of the seed, that said Merriam should raise the crop and deliver to the defendant one half of the wheat, thrashed and measured; and that the defendant would repair and keep in repair the fences necessary to protect the crop from damage by cattle and other animals; it appearing that the fences were at that time much out of repair. The plaintiffs also gave in evidence, that in the same month and year, one Hiram Shaddock made a contract with the defendant in all respects like that above stated, as to 15 acres of other land on said farm. The plaintiffs also proved that Merriam and Shaddock put in their respective portions of the wheat. That in March thereafter, the interest of said Merriam in the wheat growing, sown by him, was sold at auction, on am execution issued out of the supreme court, on a judgment duly entered in favor of Rufus Keeler against said Merriam, to Parmelee, one of the plaintiffs. That in February previous, the interest of said Shaddock in the wheat growing, sown by him, was sold at auction to Wiggins, the other plaintiff, on a chattel mortgage duly made and filed in the office of the town clerk of said town of West Bloomfield, made by said Shaddock to one Solon Peck. It appeared that the plaintiffs, after purchasing, agreed to own said undivided interests in said two parcels of wheat, in common, and gave their joint notes therefor, soon after the last sale. The plaintiffs claimed that by virtue of their ownership of said Merriam’s and Shaddock’s interests in said wheat, acquired as aforesaid, the right to prosecute the defendant for not fencing according to his contracts, and to claim damages of him for injuries done by the animals of the defendant and others to the wheat while growing, occasioned by the non-repair of said fences, passed by assignment in law to said plaintiffs as an incident of the sales ; and offered proof of such injuries. To such claim, and to such proof, the defendant objected, and the court overruled the objection, and the defendant excepted. The plaintiffs then proved that at sundry times after their said ownership had commenced, the sheep of the defendant and of others, and the cattle, swine and poultry of others, damaged the wheat while growing, and that the fences remained out of repair. Other facts appeared, and other questions arose upon the trial, which are not necessary to be here stated.</p> <p>The jury found a verdict in favor of the plaintiffs for $116 damages, upon which judgment was entered, with costs.</p>

THIS action was brought upon a bond dated March 2, 1850, given by the defendants, in the penalty of $6000, to the plaintiffs, who were infants under the age of twenty-one years.

PPEAL by the plaintiff, from an order made at a special term, denying a motion for a new trial.

PPEAL from a judgment rendered at the Genesee circuit in October, 1854, before Mr. Justice Greene. The action was tried by the court, without a jury, and judgment rendered in favor of the plaintiff. On the trial, a stipulation was read in evidence, signed by the attorneys for the respective parties, by which the following facts were admitted : 1.

MOTION by the plaintiffs for a new trial, on a bill of exceptions. The motion was ordered to be first heard at the general term.

<p>Tendee.—Lien of Mortgage.—Taxes.</p> <p>An answer to a bill for foreclosure, which avers tender of the principal, &e., due on the mortgage, but does not allege a readiness still to pay the same,—or that it is paid into court,—nor offers to pay it into court,—is defective.</p> <p>It is essential to a perfect tender that the party should not only once offer to pay the money, but that he should be always ready to pay it; and unless this readiness existed, and is pleaded, the tender is a nullity and does not protect the defendant even from the payment of subsequent costs and interest.</p> <p>The lien of a mortgage is not so far discharged by tender and refusal after the law-day, as to bar a foreclosure.</p> <p>The cases in this State, on this subject, reviewed.</p> <p>The mortgagee who, as such, pays taxes on the mortgaged premises has a lien on the land therefor.</p>

APPEAL by the plaintiff, from a judgment entered at a special term.

Lawrence county court. The action was commenced before a justice of the peace. In the spring of 1855 the plaintiff purchased of the defendant a bull, which was then two years old, for the sum of $10. The bull was purchased by the plaintiff for the use of his cows, and the defendant knew that the plaintiff bought him for that purpose. When the bull was a yearling he got no calves.

Davis, the receiver in this cause, on the 5th day of December, 1856. George Lorillard, by his will, gave annuities of $500 each to certain of his grand nephews and nieces. These persons were not made parties to the suit involving the validity of his will; and consequently their annuities wrere not affected by the decision which declared the will void. (See 14 Wend. 294, 397.) These annuities are now eleven in number, or $5500 per year.

Anthony McGervey, a dealer in coal, applied to the plaintiff to buy coal. He had been previously dealing with George Garvin, on the faith of Cross’s indorsement, and had been recommended by Garvin to apply to Moore, for coal. The plaintiff offered to sell it to him for paper to be indorsed by Cross. McGervey applied to Cross, with whom he had dealings, informing him of the proposition.

The complaint alleged that on the 19th of March, 1852, the plaintiff purchased of the defendant, at auction, a horse, a mare, a double… Held: and arrived there in due time, according to the provisions of the said contract ; that is to say, at 2 o’clock, P. M. of the 31st- day of May, 1852, and there found neither the plaintiff nor the property so agreed by the said contract to be delivered by the plaintiff to the defendant, and then and there waited a reasonable time to…

THIS was a motion for a new trial, on a bill of exceptions. taken at the circuit. The judge who tried the cause directed the exceptions to be heard in the first instance at a general term. The action was trespass, for the wrongful taking of a quantity of merchandise, being part of a stock of goods in a store in the city of Rochester.

APPEAL by the plaintiffs, from a judgment entered upon the report of a referee. The action was brought to recover the possession of goods sold by the plaintiffs, merchants in New York, to one Thomas Sampson jun. of Macedón, Wayne county; on the ground that the goods were obtained by Sampson, by means of false and fraudulent representations made by him as to his pecuniary circumstances and responsibility, at the time of making the purchase.

ON the 20th day of October, 1852, Charles Brown, jr. went with his wife to the Rochester Savings Bank, where he deposited $500, saying “he wanted it so that either he or his wife could draw the money.” Both entered their names on the signature book, opposite which the clerk of the bank wrote the words “to be drawn by either.” The account was opened with Mr. Brown, and a pass book was given as a voucher for the deposit, which book he took away with him.

The action was commenced in May, 1850, to revive a decree which the complaint alleged was directed, by the late court of chancery, to be drawn, and entered, but which was never in fact entered. The following issues were directed to be tried by a jury: 1. Was Isaac L. Middleton born on the 3d day of May, 1810 ? 2. Was Isaac L. Middleton born on the 3d day of May, 18151 3.

PPEAL from an order made at a special term, overruling a demurrer to the complaint.

The action was brought against the defendants Robert Howie, Wellington Spencer and John Spencer, as the makers of a promissory note. The complaint described the note as having been made by the defendants and one William A. Murray. The answer was a general denial.

THIS action was commenced March 4, 1853, by the plaintiff, as receiver of the Genesee Mutual Insurance Company, to recover, as a forfeiture, the whole amount of a premium note for $480, with costs, because of the non-payment of three assessments thereon, which in the aggregate amounted to $6.10.

<p>PPEAL from an order made at a special term, overruling a demurrer to the second cause of action set forth in the complaint. The first cause of action need not be stated. In the second count of the complaint, and for a second cause of action, the plaintiffs alleged that on the 12th day of December, 1854, at Eochester, the plaintiffs and the defendant entered into an agreement whereby the plaintiffs agreed to sell, and did sell to the defendant, twenty thousand, or thereabouts, empty-papers or hags for seeds, with the plaintiffs’ labels thereon, and two thousand papers or bags of seeds with the plaintiffs’ labels thereon, for the sum of $52.27; that the defendant agreed on his part to pay the said sum for the seeds and bags ; to fill said empty bags with seeds of good quality; and sell or dispose of them so filled, and the bags of seeds purchased of the plaintiffs, with their labels' upon the same, in the county of Dutchess, in the state of New York, and nowhere else. That the said quantity of bags of seeds and empty seeds bags, with the plaintiffs’ labels thereon, were then and there delivered to the defendant except a small quantity of empty seed bags which were delivered a few days thereafter; and that the plaintiffs fulfilled, in every particular, their part of the said agreement, but that the defendant, neglecting his duty in that behalf and wrongfully intending to injure the plaintiffs in their said business and in their reputation as seedsmen, did not fill said empty seed bags with seeds of good quality, and did not sell or dispose of said bags of seeds and empty seed bags to be filled with his own seed, which were sold to him by the said plaintiffs, as aforesaid, in the said county of Dutchess, as he by the said agreement had agreed to do, but filled said empty seed bags with seeds of a poor quality, and sold or disposed of them, together with the bags of seeds sold to him by the plaintiffs, as aforesaid, at divers other places, and in divers other counties than the said county of Dutchess; by reason of which premises the plaintiffs had suffered damages to the amount of $200.</p> <p>The defendant demurred to the second cause of action, and specified the following grounds of objection thereto, to wit: 1st. That it did not state facts sufficient to constitute a cause of action. 2d. That the alleged agreement set forth in the complaint in respect to the filling of seed bags by the defendant, with his own seeds, and selling them as seeds raised and put up by the plaintiffs, Avas an agreement to defraud and deceive the public, and no cause of action could arise from its breach by the defendant. 3d. That the condition annexed to said alleged agreement to sell all the said seeds when put up in bags as therein set forth, noAvhere else except in the county of Dutchess, was repugnant to, and inconsistent with, the right of ownership in the defendant, as purchaser of the articles sold by the plaintiffs to the defendant, and was therefore void. 4th. That the entire agreement therein set forth was void, as being against public policy and in restraint of trade.</p> <p>The special term overruled the demurrer, and the defendant appealed.</p>

referee. The complaint alleged that before the time of making of the promise of the defendant, thereinafter mentioned, the plaintiff, at the request of one William' Haines, placed upon his dry dock in the town of Corning, the canal boat “ Metropolisand put repairs upon the same to the amount and of the value of $124.61, for the work and materials of such repairs, and whereby the plaintiff acquired a lien upon said boat for the amount of such repairs, to wit, the sum of…

THIS is an action upon a policy of insurance against fire, issued by the defendants to Gerard í)ey and the plaintiff, Richard Y. Dey, on the 15th day of October, 1853, by which the said Gerard and Richard Y. Dey were insured in the amount of $>1000 for one year, on certain personal property in a store situated in the village of Geneva, in the county of Ontario.

<p>Where, upon the assignment of a bond and mortgage, the holder guaranties “ the collection of all sums of money unpaid upon said bond and mortgage, with costs,” it is a condition precedent to any liability of the guarantor, that the assignee shall, within a reasonable time, institute legal proceedings upon the securities, and prosecute the same with diligence to a consummation.</p> <p>Nothing will excuse the party holding the guaranty from the performance of this condition, except the act of the guarantor himself. It will not suffice for such party to say it would have been of no use to prosecute.</p> <p>Nor will a waiver, by the guarantor, of proceedings to foreclose the mortgage, excuse the assignee from proceeding against the mortgagor, or his estate, upon the bond.</p> <p>Such a contract of guaranty imposes upon the assignee the burthen of exhausting, by legal procedings, every remedy which the bond and mortgage, give him, before the guarantor’s liability will become fixed.</p>

MOTION on the part of the defendants for a new trial; ordered to be heard in the first instance at a general term. The action was brought to recover damages for an alleged breach of a contract between the parties, which contract, as set forth in the complaint, was in the words and figures following : “ A contract made between E. 0.

THIS was an action for the breach of a promise of marriage. It was tried at the Chenango circuit, in March, 1854, before Justice Mason. Among other things the plaintiff’s acts of preparation for the marriage were admitted as evidence of her acceptance of the defendant’s promise to marry the plaintiff, provided the defendant’s promise was made out by other distinct facts and circumstances.

THIS action was tried at the Montgomery circuit, and judgment entered for the plaintiff, from which the defendants appealed.

HIS was a motion by Gandal, plaintiff in the first above entitled action, to set aside the judgments entered on confession in the second and third actions. The facts are sufficiently set forth in the opinion of the court.

The plaintiff in his complaint alleged that “ The American Mutual Insurance Company ” was duly formed, incorporated and organized, under the general law of 1849, in June, 1850, and authorized to make insurances, as allowed by section 1, sub. 2, of said act. That policies of insurance were issued by said corporation, and that it continued to carry on the business of insurance, at Amsterdam, until November, 1857.