Volume 23 — New York Supreme Court Reports

Hopkins against the estate of E. Wheeler, deceased, in an application by the executor to have the real estate of the testator sold to pay debts. Van Valkenburgh, the executor of Wheeler, deceased, presented a petition to the surrogate for leave to mortgage, lease, or sell real estate of the deceased to pay debts.

The item complained of was the charge for the fees of the referee. The referee was engaged in the business of the reference some fourteen days. His charge was $100.

<p>Board of commissioners to issue town bonds — what a breach of duty on its part — Power of Legislature to dispense with consent of toion— When a contract is made, not alterable by th’e Legislature.</p> <p>This action was brought against the defendants, on a bond given by them as commissioners of the town of S., under an act authorizing it to issue bonds and take stock in a railroad company. The bond was given in pursuance of the statute,- and was conditioned “for the faithful discharge of their duties.” The complaint alleged as a breach the willful and fraudulent issue of the bonds by the commissioners, in 1867, before the consent of the town had been obtained, as required by the act, with knowledge on the part of the commissioners that such consent had not been obtained; it was further alleged that the bonds had been sold, transferred and delivered to divers persons, and were held by citizens of this and other States.</p> <p>As one defense the defendants .set up an act of the Legislature, passed in 1868, expressly ratifying and confirming the acts of the commissioners in issuing the bonds. A demurrer to this defense was interposed by the plaintiff. Held that the complaint set forth a breach of the condition of the bond, and a a cause of action sufficient to justify the recovery of damages therefor.</p> <p>That, as the Legislature had no power to compel the town to issue its bonds in aid of the railroad, without its consent, it could not, by a subsequent act, dispense with the condition in the original act requiring such consent as a prerequisite to their issue (per Bocees, J.</p> <p>That the bond sued upon was a contract; that the issuing of the bonds, fraudulently and collusively, without the consent required by the act, and with knowledge that such consent had not been had, was a breach of such contract on the part of the commissioners; and that any subsequent Act attempting to relieve them from the liability so created was a violation of subdivision 1 of ■ section 10 of article 1 of the United States Constitution, and void (per Learned, P. J.).</p> <p>That the demurrer should be sustained.</p>

Tbe action was brought by tbe plaintiff as assignee of William T. Kilmer and Jobn Hodge against defendant, to recover money paid on a contract for tbe purchase of land, made by Kilmer with one James R. Shaver. One Knapp was tbe original owner of lot number eleven, in regard to which this claim arises. In 1859 he entered into a written contract to sell this lot for $600 to Townsend Shaver, and to give him a warranty deed; the last installment payable June 1, 1865.

The action is brought to recover part of the purchase-price of certain real estate sold by the plaintiff to the defendants in 1869. At the time of the sale a mortgage for $4,800 was transferred by the defendant Bandall to the plaintiff. It was a second mortgage, there being a prior one for $6,000 on the same property, which was held by Bandall.

<p>Grantee assuming mm'tgage — estopped from disputing its validity.</p> <p>This action was brought to foreclose a mortgage, dated January 2,1865, executed by S. W. Gregory to Noyes P. Gregory, and by the latter assigned to the plaintiff. After the assignment, the mortgagor conveyed the premises covered by it, by a deed containing covenants of warranty, “except as against the five certain mortgages upon the above premises, mentioned and described in a certain agreement.” By this agreement the grantees agreed to pay “ the amounts remaining unpaid upon the following mortgages: * * * A mortgage executed by Silas W. Gregory to Noyes P. Gregory, dated on or about the 2d of January, 1865, now owned by Louisa D. Haile,” and an additional mortgage collateral thereto. The defense was that the mortgage had been paid before its assignment to plaintiff.</p> <p>Held, that by the deed and agreement the grantees were estopped from denying the existence and validity of the mortgage.</p>

The relator was originally committed to the common jail of Ulster county by the following commitment: ULSTER COUNTY, ) CTIY OF KINGSTON. ) To any Constable of said County, and to the Keeper of the Common Jail of said County, Greeting: Whereas, Charles Staudacher was arraigned before the undersigned, recorder of said city, on the 26th day of July, 1878, charged, on the oath of Daniel R. Johnston, with a misdemeanor, viz.: with having, on the 14th of July, 1878, at said city,…

Appeal by plaintiff from an order made at the Delaware Special Term, denying a motion made on a case and exceptions to set aside a nonsuit and for a new trial. The action was tried at the Delaware Circuit in June, 1875, and at the close of plaintiff’s evidence she was nonsuited.

Motion-for a new trial, on exceptions ordered to be heard, in the first intance, at the General Term, after a verdict in favor of defendant. The action was in ejectment to recover about 6-]^ acres of land. The decision of the case turned upon the true boundary line between the lots of the respective parties.

<p>Code of Civil Procedure, § 873 — examination of parties before trial — court not bound to grant — when denied.</p> <p>Under section 873 of the Code of Civil Procedure, regulating the taking of depositions of parties and witnesses before trial, the court is not bound to grant an order in every case where the application is formally correct, but it may examine into the facts and the object thereof to see that the law is not being perverted to mischievous and unjust ends.</p> <p>An order will not be granted where the applicant only seeks to find out what the ’ opposite party will swear to, so as to enable him to prepare to meet and overcome it.</p>

<p>Proceedings to take lands — mght of company to discontinue — costs of the proceedings.</p> <p>Where proceedings are instituted by a corporation, under the laws of this State, to acquire title to lands, such corporation may, at any time before title thereto is actually acquired, abandon such proceedings upon payment of the taxable costs and expenses, and it cannot be required to pay, in addition thereto, other charges and counsel fees.</p>

The plaintiff' and one Levi T. Simmons worked a blue-stone quarry of the defendant, paying him a certain share of the value of the stone sold therefrom, as royalty or rent. The lower or north end of the quarry filled with water, and it became necessary to drain said quarry by means of a ditch, at considerable expense.

or of tbe defendant, entered upon the trial of this action by the court without a jury. In February, 1864, a boiler owned by the Saratoga Paper Company, having exploded and injured the property of Hervey Losee, he brought an action against the corporation, and D. A. Bullard and Buchanan, two of the trustees, to recover for such injuries. Judgment was rendered in favor of the trustees, but against the corporation, in April, 1867.

<p>Appeal from an order made at Special Term, striking out a defense of usury as sham, and awarding judgment of foreclosure in favor of plaintiff, unless defendant should consent to a reference of the action.</p>

The action was in ejectment to recover four-fifths of a farm. Both parties claim under a deed made by Robert T. Livingston October 11, 1811. The question is whether Margaret Race, the mother of the plaintiffs, took a fee simple absolute under it, or an estate for life. In the former case the defendants, who claimed under conveyances from her, were entitled to judgment; in the latter case the plaintiffs, her children, were entitled thereto.

Kerr, as executors of the will of Adam Hillis, deceased. The testator made his will May 14, 1866, and died December 11, 1874. In his will he gave his wife, Elizabeth Hillis, a legacy of $1,000, besides the use of a portion of his real estate during her life-time, and declared the legacy to be a lien upon, and to be paid out of his real estate, and that it should be received and accepted by her in lieu of dower.

One Stephen Baker was born in Lower Canada and resided there till 1873. In that year he went to Moriah, in New York, and engaged there in the business of keeping a hotel and livery stable, and resided there. While a resident of Moriah he executed to the plaintiff, a resident also of Moriah, on the 9th day of March, 1875, a chattel mortgage for $850 on property, including the span of horses in question.

Motion by defendants for a new trial on a case and exceptions, pursuant to section 1001 of the Code of Civil Procedure, after a decision of the court without a jury, directing the entry of an interlocutory judgment in favor of tbe plaintiff.

The action was in trespass for a wrongful entry upon defendant's land. The question involved was the ownership of the land upon which the entry was made.

Writ of error to the Court of Oyer and Terminer of Chenango county, to review the conviction and sentence of the plaintiff in error of burglary.

county, admitting to probate the will of Titus M. Mitchell, deceased. The will was properly executed as a will of real and personal estate. (Willis v. Mott, 36 N. Y., 486, 496, 497; Jauncey v. Thom, 2 Barb.

1 Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the Circuit. Xavier Misselbeck and Mary, his wife, executed and delivered to Davis L. Carroll, defendants’ testator, tbeir bond conditioned to pay the sum of $1,200, with their mortgage accompanying the same. Thereafter Xavier and Mary conveyed said real estate to Charles Windbiel, this plaintiff, subject to the lien of this mortgage, he assuming the payment of the same.

The action was brought to recover damages for the breach of a written agreement, signed by the parties hereto in pursuance of an award of arbitration, and as a final settlement of all differences between the parties. Upon this appeal it was insisted that the judgment was erroneous as to Philinda Webster, because she had no separate estate, and because it did not relate thereto, and because the instrument did not charge the same with the payment of damages.

The action was commenced before a justice of the peace, on the 8th day of November, 1877. The plaintiff, in his complaint, alleged that the defendants were indebted to him in the sum of $125, with interest, for two months’ rent of premises No. 96 Ewen street, from the 19th day of April to the 25th day of June, inclusive, in the year 1877, at $62.50 per month. The defendants Lippman and Shilberg answered by a general denial.

The judgment appealed from was rendered at Special Term, on a hearing had upon a writ of certiorari, and the return of the State Assessors thereto.

On the 21st day of April, 1875, the appellants issued a policy, by which they, “ in consideration of the sum of thirty-seven 50-100 dollars do insure, according to the conditions of this policy, against loss or damage by fire, Van Tuyl <& Oo., as interest may appear, to the amount of tioenty-five hundred dollars on briolc buildings Nos. 526 and 528 Water street, running through and being Nos. 273 and 275 Oherry street, city of Nexo York.

<p>Writ of Error to the Court of Sessions of Kings county, to review the conviction and sentence of the plaintiff in error of larceny.</p>

The action was brought in the Supreme court to recover on two promissory notes and two checks. One note for $1,100, one note for $450, one check for $300, and one check for $65, made by one Alfred Gilman, the general agent of the defendant, and delivered for value to plaintiffs’ intestate by said agent, except the $1,100 note, which was indorsed by one Edward Freedman, and transferred to plaintiffs' intestate through such indorser.

The relator is one of the superintendents of the poor of the county of Rockland, and on the 8th day of April, 1878, his co-superintendents, Richard B. Marks and James Coates, made a draft in his favor on D. D. Demarest, county treasurer of Rockland county, for $27.11, without stating the object or purpose for which the money was to be used.

<p>Action by a judgment-o'editor— to compel the foreclosure of a mortgage given to the deceased debtor, in his lifetime, by his executor.</p> <p>Where a mortgage given by an executor to his testator, prior to the latter’s decease, is the only asset of the estate, and the executor refuses to pay the same, a judgment-creditor of the deceased may maintain an action to compel the sale of the mortgaged premises, and the payment of his debt from the proceeds of sale.</p>

This action was brought in the Supreme Court for the purpose of enforcing an equitable contribution from the estate of Phebe Cowenhoven, deceased, to the plaintiff, in respect to certain moneys paid by him upon the joint obligation of himself and Mrs. Cowenhoven. The plaintiff and Mrs. Cowenhoven became, on March 9, 1868, sureties upon an undertaking on appeal in an action in this court, brought by one Mackay.

Purser, the purchaser at the sale made under a judgment of foreclosure and sale of mortgaged premises, to complete his purchase, etc The action was commenced by filing the complaint and notice of pendency of action in the Westchester county clerk's office, and making personal service of summons on Sarah P. Scribner and Patrick Kelly, two of the defendants, on the 17th day of September, 1877 ; followed by subsequent service on the other defendants.

The action was brought to partition certain lands in the town of East Hampton, Suffolk county, known as Montauk. The lands are owned by a large number of persons, exceeding 120 in number, who are known as proprietors. The title was derived from the Indians, who it was claimed had certain interests in the lands paramount to those of the proprietors.

These proceedings were instituted by thg relator, the assignee of a lease for one thousand years of certain property in Brooklyn, purchased by one Wheeler at a tax sale. Upon the return day an affidavit was filed by the defendant alleging the invalidity of the sale, and denying the material allegations of the affidavit filed by the relator.

This was an action of trespass against defendants, for damages for breaking down a fence upon plaintiff’s farm. They set up by their answer that at the times in the complaint mentioned they were commissioners of highways of and for the town of Oyster Bay, and that the said fence stood upon one of the highways in said town, and that they acted in the premises according to law.

<p>Submission to arbitration — when void — appealability of judgment.</p> <p>■ This action was brought to set aside a conveyance of real estate, which was claimed in fee by the plaintiif, and also by the wife of the defendant, she being a party defendant herein. After a reference of the action it was agreed, in writing, that all matters in dispute should be submitted to the referee as arbitrator, and that judgment should be entered on his award. Judgment having been entered on the report of the referee, defendants appealed.</p> <p>Upon a motion by plaintiff to dismiss the appeal, held,, that the submission being void, because made by a married woman, and because the subject of it was a claim in fee to real estate, the judgment was appealable the same as any other.</p>

<p>Ceoss-Appeals from a judgment entered upon the trial of this action by the court without a jury. The action was brought to obtain a construction of the will of Ilcnry Shields.</p> <p>Henry Shields, the testator, died in March, 1874, leaving a will, which provided, among other things, as follows, viz.: “I give my beloved wife, Catharine Shields, the dwelling-house now belonging to me, known as No. 106 (one hundred and six) Second avenue, in the city of New York, that she now occupies; to have and to hold the same unto my said wife during her widowhood, and if said dwelling-house and lot on which it stands should be sold by my executors, with her consent in writing, the proceeds thereof shall be held and invested by my executors, and the income thereof applied to her use during her widowhood, and upon her death or remarriage, I devise the same in equal share to my then surviving children, and the then surviving issue of any who shall have died in fee simple as tenants in common, the issue of any deceased child to take the share its parent would have taken if surviving. If I shall dispose of said dwelling-house before my death, then, in lieu thereof, I give to my -wife the income of a principal sum equal to that at which I shall have so disposed ofthe same, to be enjoyed during her widowhood, the principal to be held and invested by my executors for this purpose. I give and devise to my executors in trust the sum of $30,000, * * * to be held and invested by them, and the income * * * thereof shall be applied by them to the use of my dear wife during her widowhood. The provisions contained in this will for the benefit of my wife are in lieu of all dower or thirds in my real estate. I give all my household furniture * * * to my dear wife to be hers forever. * * # I direct that my executors shall set apart, out of the residue of my estate, real or personal or both, excluding that hereinbefore mentioned, several sums of five thousand (5,000) dollars, or property in their judgment of equivalent value, according to the number of my children surviving me, which sums, or property of equal value, shall be in trust by my executors, and set apart, one for the benefit of each one of my children surviving me in the manner following: * * * And in the event that any one of my sons shall die before attaining the age of twenty-five years, and without issue surviving him, or if any daughter shall die without issue surviving her, the said principal shall fall into my residuary estate and be disposed of as such. As to all the rest, residue, and remainder of my estate, both real and personal, not hereinbefore well and sufficiently disposed of, I give and devise the same in equal shares to my children who shall survive me, to be their’s forever; the issue of any child who shall die before me to take the same share its parent would have taken if surviving me. I appoint my said wife the guardian of the persons of my infant children during their respective minorities. * * # I authorize my executrix and executors, or those who shall act for the time being, to sell all, or any part of my real estate, cither at public or private sale, for such prices as they shall think fit,' and to give good and sufficient deeds of conveyance therefor in fee simple, and until such sale they shall receive the rents and profits thereof for the purposes of this will. They are authorized to sell and convey all, or any part of said real estate, and they are also authorized to keep the building in good order and repair, and insured against loss or damage by fire, and to use moneys received from insurance companies for loss for the purpose of rebuilding, if, in their judgment, beneficial to my estate; also to compound and compromise all claims in favor of or against my estate.”</p> <p>The action was brought to obtain a judicial construction of the will. The justice before whom the action was tried found, among other things, that said Henry Shields was married to the defendant, Catharine Shields, on the 20th day of November, 1848, and that he had by her eight children, four sons and four daughters, all of whom were still living, and seven of whom were at his death infants; that said Catharine Shields, the widow of Henry Shields, deceased, accepted the provisions of the will in her behalf; that since the testator’s death a claim was made by one Jane Shields, or Jane Valentine, that she was the widow of said Henry Shields; that a demand for dower was made by her in the real estate of the testator, and an action was commenced by her for the recovery of such dower against all the parties to this action, and a judgment was obtained by her in this court on the 26th day of May, 1876, for a sale of testator’s real estate, and for the payment to her of a gross sum of money in lieu of her dower in said real estate; that an order was entered in said action for the compromise and settlement of said judgment, and the same was after-wards settled, and said judgment satisfied of record; that the defendants, Catharine J. Bonner and William B. Shields, are children of the said Jane; that said Catharine was born in the year 1840, and said William B. was born in the year 1848, and that three other children of Jane died without issue and intestate prior to the year 1863; that actions were commenced by said Catharine J. Bonner and said William B. Shields, in the City, Court of Brooklyn, against said executors and executrix, to compel a recognition of their claims to be children of Henry Shields, deceased, and beneficiaries under said will, which actions are still pending; that the defendants, Henry L. Bonner, Paul Bonner, Mary E. Bonner and Jennie Bonner, are infant children of said Catharine J. Bonner; that at the time of the execution of said will the dwelling-house and lot No. 108 Second avenue, in the city of New York, in said will mentioned, was clear of mortgage; that the testator subsequently borrowed from the Bank for Savings of the City of New York, the sum of $10,000, and executed his bond, together with a mortgage, covering the said premises, 108 Second avenue, bearing date May 15, 1872, and payable one year thereafter, which mortgage was duly recorded and is still due and unpaid. The justice further found that the testator did not in his will refer to, or intend to provide for, the said William B. Shields or the defendant Catharine J. Bonner or her children, and that the testator’s wife and children, mentioned and referred to in said will, are the said Catharine Shields, his widow, and the eight children above named, the issue of his marriage with said Catharine Shields; and, as conclusions of law, that the defendants, William B. Shields and Catharine J. Bonner, and the children of said Catharine J. Bonner, have not, nor has either of them any rights or interests in the real. or personal property of the testator, the said Henry Shields, deceased; that the defendant, Catharine Shields, is the person referred to in said will as the wife of the testator; that during her tenancy for life or widowhood on the premises, 108 Second avenue aforesaid, she must keep down and pay the interest on the mortgage thereon of $10,000 tm it becomes due, and the animal taxes and water-rates on said premises ; that she must keep said promises in repair and free from waste, and pay the annual premiums for insurance thereof against fire; that the widow, Catha-rine. Shields, is not entitled, as testamentary guardian of the persons of the minor children of said Henry Shields, to receive the rents, income or property of such children. That in order to pay the taxes in arrears, the unpaid claims and the costs and expenses of this action, a sufficient portion of the testator's real estate should be sold and conveyed by the executors and executrix.</p> <p>In all wills and devises the words “heirs” and “ children” mean legitimate heirs and children only, and before a court will construe a will to include, under the general term, “children,” illegitimate children, the intention of the,testator must bo clear, unequivocal and positive, and the names of each must be specifically stated. (Gardner v. Hyer, 2 Paige, 11; Beachcroft v. Beachcroft, 1 Macld. Chy. [English]; Barrett v. Hodman, 37 N. Y., 58; Gollins v. Hoxie, 9 Paige, 88; Oartwright v. Vaudry, 5 Yesey, 530.)</p> <p>widow of Henry Shields, and her children. The intention of the testator, if not inconsistent with the rules of law, must govern, and this intention is to be ascertained from the whole will. (Brad-hurst v. Bradhurst, 1 Paige, 343; Oovenhoven v. Shuler, 2 ich, 130; jRathbonev. Dyclcman, 3 id., 26; Hmvev.- Van Schaiclc, 3 Barb. Chy., 506; Roome v. Phillips, 24 N. Y., 463; 4 Hun [11 Sup. Ct. Rep.], 363; Van Hostrand v. Moore, 52 N. Y., 21; St. Luke's Homey. Association for Indigent Females, 52 id., 191; Lefemer v. Lefever, 59 id., 440; Holmes v. Mead, 52 id., 322; Gardiner v. Heyer, 2 Paige, 11; 1 Jar. on Wills, 330; 1 Redf. on Wills, 691, § 42, pi. 40; id., 695, pi. 49.) Mrs. Catharine Shields, the testamentary guardian of the infant defendants Shields, is appointed such guardian by article eighth of the will of testator, and as such guardian would be entitled to have the custody and management of their personal property and the profit of their real estate by statute. (3 R. S. [5th eel.], 243; R. S., part II, tit. 3, eh. 8; People ex rel. Brooklyn Industrial School v. Kearney, 31 Barb., 430; 3 R. S. [5th ed.], 2, §§ 5, 6.)</p> <p>It is the duty of Mrs. Catharine Shields, as tenant for life or widowhood of the premises in Second avenue, to keep down and pay during her tenancy the 'interest on the $10,000 mortgage on these premises, and also the taxes, water-rates, repairs and insurance premiums. (The Estate of Miller, 1 Tucker’s Sur. Rep., 346; Gairns v. Ghabert, 3 Edw. Chy., 312; 2 Brad. Sur. Rep., 77-311; 4 Kent’s Com., 75; 1 Story’s Eq. Juris., § 488; Mosely v. Marshall, 20 N. Y., 200.) Mrs. Catharine Shields, as testamentary guardian under this will, has no right to receive the rents and income of her minor children. (Accounting of Ira Scickett’s Estate, 1 Tucker’s Sur. Rep., 84; Accounting Estate of Frederick A. Biolly, 1 id., 422.)</p>

The action was brought to recover of the defendants as guarantors of one Woodruff the amount of certain advances made by the plaintiff to said Woodruff.

<p>Appeal from a judgment, entered upon the trial of this action by the court without a jury.</p>

The action was brought to set aside a conveyance made by the defendant Baker to the defendant Benneville. as fraudulent. The case has already been before the General Term, the decision being-reported in 10 Hun, at page 39.

This action was brought to foreclose a bond and mortgage for $5,500, dated the first day of November, 1856, payable one year after date, with interest, executed by the respondents, Alexander Acker and wife, to the plaintiff, Sarah M. Acker. When this bond and mortgage was given, Sarah M. Acker was a married woman, the wife of J ames Acker. J ames Acker died on the 8th of September, 1866.

This action was brought in the Westchester County Court to recover for goods, wares and merchandise sold and delivered. The defendant appeared by his attorney, and answered on the merits. On the trial, after a jury had been impanneled and sworn, a motion was made by defendant’s counsel to dismiss the complaint, on'the ground that it did not state upon its face that the defendant was a resident' of the county of Westchester, which was granted.

The action was brought to charge the defendant, personally, with the payment of rent accrued upon a lease executed by her deceased husband. Her husband left a will giving to the defendant all his estate, both real and personal, and appointing her sole executrix thereof.

The action was brought to recover for legal professional services performed for the respondent as administratrix of her husband’s estate, in and about the collection of a claim due to the said estate, in filing an inventory and in accounting before the surrogate. The complaint described respondent “ as administra-trix,” etc., and demanded judgment against' her as such.

The service of the affidavit and order upon the defendant’s attorneys, only, was not a sufficient service to compel the attendance of the appellant to punish her, as for a contempt in not appearing.

The action was brought to charge defendants (as stockholders of the New York and South American Gold Mining Company) with an alleged indebtedness of the company to plaintiff, under the statute (§ 18, chap. 40 of 1848), holding stockholders of certain corporations liable to servants and laborers for the value of services rendered by them to such corporations.

On December 9, 1876, one John Moody conveyed a lot on the south side of Flushing avenue, in Long Island City, to Mary M. Moody, the plaintiff, who went into possession of the premises thereunder; she and her husband at the same time executing to said John Moody their bond and a mortgage on the premises, to secure a portion of the purchase-price.

<p>Appeal from a judgment setting aside a discharge under the insolvent act, granted by the city judge of Brooklyn.</p> <p>On the 12th day of June, 1860, the appellant obtained from the then city judge of Brooklyn, a discharge from his debts under the two-thirds act of this State. Among his debts, existing at that time, was one merged in a judgment in favor of Charles Storrs, the assignor of the respondent. The statute at that time required, as it now requires, as a preliminary to the granting of the discharge, that notice should be given either personally or by mail of the application, therefor to all the creditors, and that proof of the service of such notice should be made before the officer entertaining the proceedings. (Laws of 1847, chap. 366, p. 470.) ^</p> <p>The proof of this service of notice was made by producá -g a paper in the following form :</p> <p>“ City op BrooklyN, )</p> <p>County of' ISings, (</p> <p>“-, being duly sworn, doth depose and say that he served a printed notice, of which the following is a true copy, on each of the following named persons, on the days and in the manner next herein specified, that is to say ******</p> <p>“ W- B. BOWER.</p> <p>“ Subscribed and sworn to before me, ? this 12th day of April, 1860. (</p> <p>“W. W. Fowler,</p> <p> “Notary Public.” </p> <p>Á certiorari having been granted to review the proceeding before the city judge, the case came on to be heard before Mr. Justice Prati, and he, after hearing all parties, gave judgment for the relator, setting aside the discharge.</p> <p>The writ of certiorari was the proper remedy in this case. (2 R. S., pt. 2, tit. 1. chap. 5, art. 8, § 47, pp. 49 and 50; Moorehead v. Hollister, 6 N. Y., 309.) The case was properly heard at Special Term. (Rule 53 of the Rules of Practice of the Courts of Record, adopted November 24th, 1874; Courtney v. Baleer, 60 N. Y., 1.) If the judge grants the discharge without proof of service of notice of hearing having been given, it is granted without jurisdiction, and is void. (Lewis v. Faye, 8 Abb. [N. S.], 200; Marrow v. Freeman, 61 N. Y., 515; Stanton v. Filis, 16 Barb., 319; see, also, Small v. Wheaton, 4 E. D. Smith, 306.) When the statute says proof must be given, it means legal proof. Nothing else is known to the law. It must be such proof as can be made the foundation of judicial proceeds ings. (Stanton v. Ellis, 16 Barb., 322; Brown v. Huchman, 9 Johns., 75; Vosburg v. Welch, 11 Johns., 175.) The paper is mj^an affidavit. The essential elements of an affidavit are that some one should make oath before a proper officer duly authorized to something, and that this officer should certify that the person had so made oath before him to such facts. (Ladow v. Groom, 1 Denio, 429; Burrells’ Law Dictionary, Title affidavit; Bouvier’s Law Dictionary, Title affidavit.</p>

<p>Certiorari to review an assessment of the board of assessors of the city of Brooklyn, in respect to the personal property of the relator. ■ ‘</p>

<p> lAability of a bank receiving a note foi• collection. </p> <p>The plaintiff, a customer of defendant, deposited with it for collection a note, payable January 27 at the Lowville Bank. The note was by defendant forwarded for collection to that bank, and at maturity paid, and on the following day it .sent to the defendant a draft on a bank in New York for the amount thereof. On the same day the Lowville Bank failed and made an assignment. The draft was never paid, though duly presented. In an action by plaintiff to recover from the defendant the amount thereof, the court directed a nonsuit.</p> <p>Held, that the defendant was liable for any neglect or misconduct on the part of the Lowville Bank, its agent, and that the court erred in granting a nonsuit.</p>

<p>Stockholders of corporation — liability of, for wages of servants — action must be against each separately or against all jointly.</p> <p>Where a servant of a corporation seeks to enforce the joint and several liability-imposed upon its stockholders by section 18 of chapter 40 of the laws of 1848, he must sue each stockholder separately, or join them all in one action. After bringing an action, to which all the stockholders are made parties defendants, he cannot thereafter discontinue as to one defendant without the consent of the others.</p>

Tbe action was brought to foreclose a mortgage. The referee found that on the 11th day of December, 1873, the defendant Richards and Caroline, his wife, executed and delivered unto one Emanuel Lobenstein the bond and mortgage set forth in the complaint; that on the 13th day of December, 1873, Lobenstein duly assigned the said bond and mortgage to Caroline Richards; that on the 28th of May, 1874, the said Caroline Richards assigned the said bond and mortgage to the…

The action was brought to foreclose a mortgage. The defense was usury. The defense was founded upon the fact that at the time of the loan an usurious bonus thereon was received by one of the trustees.

Tbe action was brought to recover damages for tbe death of plaintiff’s husband, who was killed by tbe explosion of a locomotive engine upon tbe defendant’s road. Tbe intestate was in the defendant’s employment as a fireman.

<p>Certiorari to review a discharge granted to one Charles Schubert upon the return to a writ of habeas corpus.</p>

The defendant Ferris was president of the village of White Plains, on and prior to April 26, 1878, having been elected in 1877.

The action was brought by the plaintiff to recover damages sustained by the failure of the defendant, a tenant by the curtesy of certain land, of which the plaintiff owned the estate in remainder, to keep down the interest on a mortgage existing thereon.

The action was brought to compel the defendants to fence so much of a railaoad as ran through the plaintiff's farm, and to compel them to excavate and make, under the track of the road, a passage for plaintiff's cattle, in order that they might obtain water from a neighboring stream.

-The action being on a bond given to the people, and assigned to the creditor by order of the surrogate, must be in the name of that creditor, who is the only party in interest after such assignment. (Laws of 1837, ch. 460, § 65, 524; Code, § 113; see note at bottom of page 294 of The People v. Laws, 4 Abb. Pr., 294; 3 icT., 452; Reclfield’s Surrogate’s Practice, 427, 428, 430; Thayer v. Olarlc, 48 Barb, 243; affirmed in Court of Appeals in same case and note; 4 Abb.

No pleading can be called frivolous which sets up matter which, if true, constitutes a defense to the action. (Richter v. McMurray, 15 Abb., 346; Davis v. Potter, 4 How., 155; Temple v. Murray, 6 id., 331; Metropolitan Bank v. Lord, 4 Duer, 630; Caswell v. Bushnell, 14 Barb., 393.) It is not the motive of putting in the answer which is in question on a motion to strike out as frivolous, but the frivolousness of the defense. If the defense is good, the motion should be denied.

The action was brought to recover damages for the conversion of certain mirrors and gas fixtures in a house in Brooklyn, which plaintiff claimed by virtue of a bill of sale from one of the former owners of the house; and defendant, under a mortgage upon the house, executed by a prior owner. The question presented was whether these articles were fixtures or personal property.

<p>Order for examination of party before trial — powers of county judge.</p> <p>An order for the examination of a party before trial -was made by the county judge of Richmond county in an action in the Supreme Court pending in that county.</p> <p>On application made at a Special Term of the Supreme Court to vacate the same, held, that the application wag properly denied, as the county judge for the purposes of the order and examination possessed co-ordinate powers with the justice at Special Term.</p>

The plaintiffs are sureties upon an undertaking given to discharge an attachment; and this action is brought to have the undertaking sui-rendered and canceled, upon the ground that it was obtained from them by a fraud; and also to have the judgment that was recovered in the action in wrhich the attachment was issued declared fraudulent as against them, upon the ground that it was recovered by collusion between the parties to the action, in pursuance of a conspiracy formed…

<p>Action tofweclose a mortgage — right of a defendant holding a prior as well as a subsequent morigags.</p> <p>Where, in an action to foreclose a mortgage, one having a subsequent mortgage is made a party defendant, and such party is also the owner of mortgages prior to that of plaintiff, he may answer in the action and ask to have such prior mortgages paid out of the proceeds of sale before applying any portion thereof to the satisfaction of the plaintiff’s mortgages.</p>

<p>Action — when upon contract, and not for tort.</p> <p>In an action by an executor tbe complaint set forth his official character, alleged that the defendant had obtained from the testator various sums of money, amounting to $8,305.67, that no part thereof had been paid, that they had been procured through false and fraudulent representations of the defendant, and demanded judgment for $8,305.67, with interest.</p> <p>Held, that the allegation as to the fraudulent representations was improperly inserted in the complaint; that the action was one upon contract, and should be treated as such.</p>

The action was brought to recover damages claimed to have been occasioned by the upsetting of a wagon driven by plaintiff, whereby his leg was broken. The accident was caused by a pile of gravel placed on the side of the road by direction of defendant’s foreman.

The action was upon a promissory note made by the defendant Enoch B. Avery, and signed also by the defendant Enoch Aveiy, his father — the son being the principal debtor. The father defended and set up the statute of limitations. The interest had been paid on the note for several years by the son, and the plaintiff claimed that some of these payments were made by the father himself, and others by the son, acting under his direction.

The notice of appeal stated as the grounds thereof, “ that the amount of the claim for which judgment was demanded by the plaintiffs in their pleadings in this court exceeded fifty dollars, and a new trial is hereby demanded, according to the provisions of section 352 of the Code; that the judgment was against law and evidence.

<p>Appeal from a judgment in favor of the defendant, entered on the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.</p> <p>The defendant is the owner of a block of ground in East Wil-liamsburgh, Queens county, upon which he has carried on the business of manufacturing fire-works. Previous to September 16, 1877, the defendant had a powder magazine upon his premises. On Sunday, September 16, 1877, while no work was being done on said premises, and when said magazine had not been open for two weeks, an explosion took place from some unknown cause, which scattered the bricks of said magazine over a portion of plaintiff ’s property, and damaged plaintiff’s house. The plaintiff commenced this action to restrain defendant from carrying on the business of making and storing fire-works upon defendant’s premises, and to recover damages for the explosion of said powder magazine, but did not allege that the defendant carried on said business negligently, or that said explosion occurred through any negligence on the part of the defendant. The court charged the jury that the verdict must be for the defendant, unless the jury found that the defendant carelessly and negligently kept the gunpowder on his premises. The jury found for defendant, and plaintiff appealed.</p> <p>The judge erred in charging the jury, “that they must find for defendant, unless they found the defendant carelessly and negligently kept the gunpowder on his premises.” (Wood’s Law of Nuisance, § 142; Hay v. Gohoes Company, 2 N. Y., 159; Tremain v. Cohoes Company, 2 id., 163; Aldred’s Case, 9 Coke, 58.) Under the rule laid down in the case of The People v. Bands (1 Johns., 78), and cases involving questions of public nuisance, the doctrine in Hay v. ■Cohoes Company (2 N. Y., 159), has been followed and approved in many cases since, especially in Pixley v. Ciarle (35 N. Y., 523).</p>

The strip of land proposed to be taken by these proceedings is in the centre of a public highway, called Gravesend avenue, which had been opened and graded by commissioners, pursuant to chapter 531 of the Laws of 1873, and an act amendatory thereof, being chapter 276 of 1874. The company did not seek to extinguish the fee, but to acquire the easement for railroad purposes.

The law is well-settled that a holder of commercial paper, offering it for sale, is bound to disclose any knowledge he may have of any facts materially affecting and depreciating its value. (Brown v. Montgomery, 20 N. Y., 287; and, see, Lancey v. Clark, 64 id., 212; Kerr on Fraud, p. 94, 95; Addison on Torts, p. 399; Olark v. Banner, 2 Lansing, 67; 2 Kent, 483; Rawdon v. Blatch-ford, 1 Sandf.

This action was brought to recover tbe value of oranges and lemons shipped by tbe plaintiffs at New York, 27th of January, 1872, to St. Joseph, Mo., by tbe “Red Line,” under an agreement calling for tbe carriage through of tbe goods in a “ refrigerator car,” and which agreement was broken by tbe transfer of the goods from a refrigerator car to an ordinary box-car, and by delay in performing tbe carriage, so that tbe goods arrived at St. Joseph frozen, and worth not more than…

. Appeal from an order reducing an assessment on the petitioner’s lots for regulating and grading One Hundred and Thirty-fifth street from Eighth avenue to the Harlem river, in the city of New York, from $752.25 to $450 on each.

The action was brought to recover the amount of certain coupons attached to bonds issued by the defendant to the Chicago and Southwestern Railroad Company, which was the successor of the Platte City and Fort Des Moines Railroad Company of Missouri. The answer, among other things, put in issue the allegation that the plaintiff was the lawful owner and holder - of the coupons.

This action was commenced in this court by the plaintiff’s predecessor, now deceased, against the defendant, to recover the amount of three promissory notes, given by him to the United States Glass Company in payment for stock of said company, and which the defendant in his answer says he was induced to purchase by means of false and fraudulent representations, made to him by the president of the company as to the financial condition of the company ; he further alleges that…

The action was brought to procure a construction of certain portions of the will of John H. Power, deceased.

<p>Usurious mortgage — when a guaranty of the mortgage is void- — when the guarantor is not estopped from, setting up the defense of usury.</p> <p>One Hoyt, desiring to raise money, gave Ms bond and mortgage for $5,000, to defendant who at Hoyt’s request executed an assignment of the same, and guaranteed the payment thereof. Plaintiff subsequently purchased the same from an agent of Hoyt’s for $4,000, out of which Hoyt paid the agent $250 for his services. There was no consideration for the mortgage given to Hoyt by the defendant, though plaintiff had no knowledge of that fact.</p> <p>In an action upon the defendant’s guaranty; held, that the bond and mortgage were usurious and void.</p> <p>Held,, further, that defendant’s guaranty of the payment thereof did not estop him from setting up its invalidity.</p>

<p>Appeal from an order made at tbe New York Special Term, denying an application to reverse the proceedings under which the relator was removed from the office of Commissioner of Accounts of the city of New York, and dismissing the writ of cer-tiorari issued to review the same.</p>

The action was brought to have a chattel mortgage given by plaintiff to defendant canceled, on the ground that it was given to secure an usurious loan. The loan was made to the plaintiff’s husband.

The relator made an affidavit stating that he was “ the secretary and treasurer of the Walker Glass Importing, Silvering and Manufacturing Company.

Appeal by tbe defendant from an order of the Special Term overruling a demurrer to the complaint. The action was brought upon policies of insurance issued by the defendant upon the life of John Gr. Yose, deceased. The first count in the complaint set out the issuing of a policy for $20,000 to him on October 28, 1869 ; that on or about the 4th clay of November, 1872, for a good and valuable consideration, the said John.Gr.

The referee found, among other things, that the Crawford County National Bank, being indebted to the plaintiffs, made its draft upon Culver, Penn & Co., who were bankers and brokers in New York, to the order of the plaintiffs for $6,000, dated March 22, 1866, payable at sight, and delivered it to the plaintiffs.

<p>Pledge to semvre loan — irregular sale of, under execution — effect of, when the ¡pledge is bought in by the pledgee.</p> <p>Interest to the amount of $829.53 being due to plaintiffs, upon a bond and mortgage given by defendant, it was agreed that a noté made by one M. W., secured by two shawls, should be taken in payment thereof, which was accordingly done. The note not being paid judgment was recovered against the maker and an execution issued, under which the shawls were levied upon and sold at plaintiffs’ store, and bidden in by them for $150. This action was brought to recover the balance of the interest from defendant, on the ground that M. W. was insolvent when the note was given, of which fact plaintiffs were then ignorant. The plaintiffs were nonsuited, on the ground that the sale of the shawls under the execution was irregular.</p> <p>Held, that this was error; that even if the sale were irregular it simply left the shawls in the hands of plaintiffs as pledgees, and only entitled the defendant to have the full value of the shawls applied upon the debt.</p>

The board of police justices, acting under section 12 of chapter 538 of 1873, on February 7, 1876, appointed the plaintiff janitor of the fifth district police court, at an annual salary of $1,500, payable monthly, at the end of each month. The plaintiff, under his appointment, rendered services as janitor during the month of March, 1877.

<p>Tonnage of vessel — not limited to statute ton of this State.</p> <p>A policy of insurance issued upon a vessel in the city of New York contained the following provision: “Warranted not to load more than her registered tonnage with lead, marble, coal or iron on any one passage.” The registered tonnage of the vessel was 916 tons.</p> <p>Held, that the word ton, as used in the warranty, was not limited to that prescribed by the statute of this State (chapter 134 of 1851) to wit, to 2,000 pounds, but meant such weight as was recognized by the laws of Congress, or by established commercial usage at the time.</p> <p>Held, further, that loading the vessel with 901 11-20 tons of coal, at the rate of 2,240 pounds to the ton, was not a breach of the warranty.</p>

The action was brought to recover $3,000 in gold coin on the acceptance by the defendant of a bill of exchange, drawn payable to the order of the drawer thereof and indorsed by him.

Appeals by Adrian Isolin from an order denying his motion to be relieved from his purchase on a foreclosure sale, and from an order requiring him to complete such purchase.

Cross-appeals from a judgment, entered upon tbe trial of this action by tbe court, without a jury. Tbe plaintiff appealed from so much of the judgment as limited tbe set-off provided for in tbe judgment to tbe sum of $500. Tbe defendants appealed from each and every part of the judgment.

The action was brought to procure the cancellation of a tax, on the grounds that the laws under which it was levied were unconstitutional. The question was whether or not the acts creating the board of estimate and apportionment, in the city of New York, were constitutional. The acts creating the board and authorizing the board of supervisors to levy a tax are chapter 573 of 1871, chapter 779 and chapter 335 and chapter 757 of 1873.

the justice before whom the action was tried. The action was brought to enforce the payment by one of the stockholders, individually, of a claim against the Columbian Insurance Company.

This was a suit in ejectment, brought to recover a tract of land on and under tbe Harlem river, within tbe city of New York, extending from near tbe Third avenue to a short distance beyond Lexington avenue.

The complaint in this action alleges the due appointment of the plaintiff as receiver of the Bond Street Savings Bank; that in the year 1870, and continuously down to February, 1876, the defendant was a trustee of that bank; that in 1873 the defendant was the owner of a lot of land upon the corner of Bond street and Bowery; that in April, 1873, the defendant conveyed this lot of land to the bank for $89,500; that thereafter the bank erected a building upon the lot in…

Writ of error to the New York Court of General Sessions to review a conviction of the plaintiff in error of the crime of grand larceny. Plaintiff in error was jointly indicted with Louis Diehl and Samuel Schuster for the larceny of 501 sacks of'malt on the 10th of March, 1875. There were two counts in the indictment: One for larceny of the malt, and the other for receiving the malt knowing it to have been stolen.

<p>Check — when barred by the statute of limitation.</p> <p>April 1, 1S65, defendant drew a check upon a bank for §430.49 to the order of, and delivered the same to, Stephen A. Shepard, who on the same day indorsed and transfered the check to one Heed. It remained in the latter’s possession until April, 1875, having- been mislaid, when it was presented to the bank and payment refused. In an action upon the check against the drawer, field, that it was barred by the statute of limitations.</p> <p>"Whether or not the drawer had funds on deposit in the bank at the time the check was drawn, or within six years thereafter, held to be immaterial.</p>

The action was brought to recover damages, for the alleged negligence of the defendant’s sciwant, whereby the plaintiff’s intestate received injuries of which he died. The intestate was injured by being struck and run over by a locomotive engine of defendants, while he was in the act of crossing the defendants railroad trades at their intersection with Sophia street, in the city of Rochester.

<p> Specific performance not enforced, where a wife not a party to a contract to sell land refuses to join in the deed thereof. </p> <p>In an action to compel the specific performance of a contract to convey land entered into by the defendant, the court found in favor of the plaintiff’, and directed that the wife of the defendant join with him in executing the deed, and that if she refused the value of her inchoate right of dower he retained out of the purchase-inice, and the balance paid to the defendant.</p> <p>Held, that a court of equity will not comx>el specific performance of a contract to convey land where a wife, not a party to the contract, refuses to join in the deed, and that plaintiff must either take the title subject to the claim of the wife, and pay the stipulated price, or resort to his legal remedy for the damages sustained by the defendant's breach of the contract.</p>

The charter of the city of Syracuse confers upon the common council ample authority to make regulations of this character, and the ordinance in question is, therefore, valid. (Charter of Syracuse, §§ 4, 6, 9, tit. 4.) If authority to pass the ordinance in question cannot be inferred from the specific powers granted by the charter, it is amply conferred by this general provision. (Dillon on Man. Corps., §§ 93, 250 — 264; People ex rel.

The action was brought to recover a claim, resting in simple contract, for certain moneys alleged to have been received by the defendant in the lifetime of the plaintiff’s intestate for the use of the latter. The intestate and the defendant were domiciled in the State of North Carolina, whore, on the death of the intestate, letters of administration upon his estate wore issued to administrators, who were then, and now are, residents of that State.

The action was brought to recover damages sustained by the plaintiff, by reason of his horse stopping into a hole in the covering of a culvert while being driven in Pleasant street in the city of Utica. The centre of Pleasant street is the boundary line between the city of Utica and the town of New Hartford.

The respondents set up, as a bar to the proceeding, an agreement in writing made on the 1st November, 1872, between the Sodus Point and Southern Railroad Company, and the Lake Ontario Shore Railroad Company, by their respective presidents, respecting the crossing referred to.

The plaintiffs recovered a verdict, and the defendant moved for a new trial on a case. The motion was argued and submitted at a Special Term hold by a justice of this court, who did not decide it, but subsequently ordered that it be reargued before another judge, and it was so reargued at a subsequent term, and the motion ivas denied. The clerk on taxing the costs alloAved the plaintiff tivo argument fees, to which defendant objected.

The defendant was a resident of the State of New Jersey. The summons was served upon him personally, within that State, on the 13tb of June, 1878. Such service was made in pursuance of an order granted by the special county judge of Oneida, upon an affidavit, which stated that the defendant resided in New Jersey, but did not show that service of the summons could not, with diligent effort, be made upon him within this State.

The attachment was issued upon the ground that the defendant had made a fraudulent disposition of his property.

The proceedings were instituted by the respondent against the relator, to remove her from certain premises purchased by the respondent at a mortgage sale under a statutory foreclosure. On March 3d, 1877, the justice rendered judgment in favor of the present respondent, and issued a warrant by virtue of which the relator was put out of possession. No appeal was taken to the county court. On 12th August, 1878, the relator obtained the writ of certiorari.

Tbe action was brought to set aside, as to the plaintiff, a compromise signed by tbe plaintiff and other creditors of tbe defendants, by which they agreed to take seventy-five per cent of their respective claims in full, and also a release by the plaintiff of his debts, on the ground that the plaintiff was induced to sign such compromise and release by fraudulent representations made by the defendants.

<p>Nuisance — action to restrain — when a 'party is not estopped, by acquiescence or laches from maintaining it.</p> <p>The plaintiff was the owner of a farm, through which ran a stream, upon which, adjoining plaintiff’s farm and situated above it on the stream, defendants had a cheese factory. Defendants discharged into the stream refuse washings and whey, so as to render the water unwholesome, offensive, and unfit for the uses of plaintiff’s farm. Upon the trial of an action brought to restrain such use of the factory, it appeared that plaintiff knew, when the factory was built, that it was customary for factories in that part of the country to discharge the surplus whey into streams, and that he made no objection when the subject of such discharge was spoken of.</p> <p>Neld, that he was not thereby estopped from maintaining his action.</p> <p>The factory was put in operation in the spring of 1874, during which season, and that of 1875, plaintiff patronized it, and made no objection to the whey being discharged into the stream. In December, 1875,'defendants bought the factory, and operated it in 1876 substantially as before. This action was brought in the spring of 1877.</p> <p>Held, that as the plaintiff had not induced the purchase by any act or representation, he was not estopped from maintaining this action against the defendants.</p>

• The defendant on the trial excepted to the order directing the verdict for the plaintiff, and also to the refusal of the court to submit certain questions of . fact to the jury, and each party also took exceptions to the rulings of the court, under which certain evidence was admitted.

The indictment is clearly and fatally defective in not describing the money alleged to have been embezzled, and in not averring that it had any value. It is not sufficient to charge the offense in.the language of the statutes, but the acts must be described. (Arch. Cr. PL, 24; 1563 Chitty Cr. L., 24, 980; 2 Hawk. P. C., book 2, chap. 25, § 113.) The property embezzled or stolen must be described so that it can be identified. (2 Bishop Crim.

<p>Proof of will— deposition of uyitness not affected by the subsequent filing of objections.</p> <p>Upon the return day of citations issued upon an application to admit a will to probate, the appellant, two of the heirs-at-law and the petitioner appeared before the surrogate, and the formal depositions of the subscribing witnesses were taken before him and filed in his office. Afterwards, on the same day and before the decree of probate was entered, the appellant appeared and asked leave to file objections and contest the probate of the will, which was granted.</p> <p>Upon an adjourned day, the contestant claimed that the proofs, taken before he filed Ms objections and asked leave to contest, were no longer evidence and asked that the proponent be required to produce the subscribing witnesses and examine them.</p> <p>Held, that as the depositions were taken before the surrogate in open court, they were proofs as prescribed by the statute, and that they did not cease to be evidence by reason of the subsequent filing of objections by the contestant. Collier v. Idley’s JSxr. (1 Brad. Sur. it., 94), distinguished.</p> <p>That the proponent was not obliged to recall the witnesses, and again prove the due execution of the will.</p>

<p>Code of Civil Procedure — an a/ppeal does not lie from an orda' sustaining or overruling demurrer.</p> <p>Under the Code of Civil Procedure an appeal does not lie to the General Term from an order overruling- or sustaining a demurrer. Judgment either final or interlocutory must be entered, and the appeal be taken therefrom.</p>

<p>When the grantee of premises assuming a mortgage thereon is not estopped from setting up usury — when a party is not a “borrows)',” and not entitled to affirmative relief.</p> <p>Cross & Wilson being- partners in business, and owning- as tenants in common certain real estate, one Smith agreed to loan them §4,500 on receiving a bonus of §500. Wilson accordingly conveyed his interest in the real estate to Cross, who executed a bond and mortgage to Wilson for §5,000, which bond and mortgage were assigned to the plaintiff who paid §4,500 therefor. Thereafter Cross conveyed the property to one Maltby, by a deed absolute on its face, but which was in fact a mortgage to secure indorsements, the deed containing no reference to the mortgage. The notes being paid, Maltby reconveyed to the wife of Cross, inserting without their knowledge a clause by which the wife assumed and agreed to pay the mortgage.</p> <p>In an action to foreclose the mortgage, held, that as Maltby was under no liability to pay the mortgage, the clause inserted in his deed did not enure to the benefit of the mortgagee, and that the grantee was not estopped from setting up the defense of usury.</p> <p>Both husband and wife set up the defense of usury, and asked for affirmative relief. .Held, that it could not be granted without a tender of the principal with legal interest, as to the husband, because having parted with the title he ceased to be a “borrower-,” and as to the wife, because she was not a “borrower” but a grantee.</p>

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

Appeal irom an order made at tbe Monroe Special Term, denying a motion for á new trial, made after a nonsuit directed at tbe Circuit.

<p>Appeal by certain land owners from an order made at the • Special Term of tbe Superior Court of the city of Buffalo.</p>

<p>Coimter-elawn — cannot he stricken out as frivolous.</p> <p>A counter-claim cannot be stricken out or disregarded as frivolous; the remedy is by demurrer, or by motion to make it more definite and certain.</p>

<p>Policy of insurance —warranty against future inewrhrances — what not a violation of.</p> <p>This action was brought upon a policy issued by defendant, insuring, for specific amounts, plaintiff’s dwelling-house, wood-shed, barn and certain articles of personal property respectively. At the end of one paragraph of the policy there was a provision that the company should not be liable for any loss, “if without written consent hereon, the property shall become incumbered in any way.” The answer set up as a defense that this provision was violated by the recovery of a judgment against the plaintiff by one Ansel A. Harris. The judgment was, in fact, recovered by one Sally A. Harris.</p> <p>Held, that, as the defense was a purely technical one, it was to be technically construed, and that it was properly overruled.</p> <p>(1.) Because the alleged incumbrance was improperly described.</p> <p>(2.) Because the provision against incumbrances referred by its terms to the whole property insured; and that, as the judgment was an incumbrance upon only a portion of the property insured, viz., the house and barn, the warranty was not broken.</p> <p>Qv&re, as to the true construction of the word “ incumbrance ” in such a provision.-</p> <p>Owen v. The Farmers’ Joint Stock Ins. Co. (57 Barb., 518), distinguished and criticised.</p>

<p>Notice to limit ajypeal wider Code, § 332 — limits appeals by one defendant against his co-defendant.</p> <p>In this action, brought by a judgment-creditor of one defendant to set aside as fraudulent a conveyance made by him to another defendant, the plaintiff recovered a judgment, which was entered and notice thereof served, under section 332 of the Code, upon the attorney who had appeared in the action for all the defendants.</p> <p>Held, that the service of the notice limited the time to appeal, not only as against the plaintiff, but also as to an appeal by one defendant as against his co-defendant.</p>

<p>Chattel mortgage on vessel — sufficient, if recorded as required by the act of Congress.</p> <p>A chattel mortgage on a vessel, which is duly recorded in the office of the collector of customs of the port where the vessel is registered, as required hy the act of Congress, is valid, although the formalities required hy the State laws, as to the execution and recording of such instruments, have not heen complied with.</p> <p>Nor is the validity of such a mortgage so recorded affected hy the fact, that hy the laws of the State where the parties reside or the vessel is registered, a failure of the mortgagee to take possession, within a specified period after default has heen made, renders the mortgage fraudulent pei• se.</p>

<p>Policy of insurance — -when condition against ineimbrances violated — when company bound by the knowledge and acts of Us agent.</p> <p>“While plaintiff was engaged in building a house an agent of the defendant applied to him, at the house, to insure it. The agent filled out the application. Among other questions put by the agent to the plaintiff, he asked if there was any incumbrance on the property. Plaintiff said no, but that he owed for materials, etc., and said he was going to incumber it to payoff these debts; and in answer to the question “how much,” said “he really did not know; not less than @1,000.” The agent inserted in the application that it was incumbered for $1,000, and the policy contained the same statement, and a condition avoiding it, if the incumbrances were increased without the company’s consent. The application was not read over to plaintiff. Subsequently plaintiff gave a mortgage on it for $1,200.</p> <p>In an action on the policy, held, that it was to be presumed that defendant meant, by its policy, to allow plaintiff to incumber the property, when the house was completed, for $1,000, and that the giving of a mortgage for a greater sum avoided the policy.</p> <p>Held, further, that even if the plaintiff were to be allowed to mortgage the property to an amount sufficient to pay the debts incurred in building it, it must be shown that such debts amounted to $1,200.</p> <p>The knowledge of a general agent of an insurance company is the knowledge of his principal.</p>

<p>Commissioner of excise — Ms failure to file a bond does not, ipso facto, vacate the office.</p> <p>At a town meeting held on February 8, 1876, one Bellinger was elected excise commissioner for the term of three years, the other two commissioners holding over (one being elected each year under the statute), March 11, 1876, he filed his bond, which was approved by.the tow clerk, instead of the supervisor as required by law. May, 1876, Bellinger met with the other members of the board, and adjourned for a year. At the town meeting in February, 1877, one Bliss was elected to fill the place of a commissioner whose term then expired, and one Kinne to fill the place of Bellinger, whose office was claimed to be vacant, by reason of his failure to file the bond required bylaw. Subsequently Bellinger presented his bond to the supervisor by whom it was approved. In March, 1877, Kinne and Bliss met as a board of excise and issued licenses.</p> <p>In an action to recover the penalty imposed by statute for selling liquor without a license, brought against one claiming to have a license from Bfiss and Kinne, held, that the failure to file the bond did not ipso facto work a forfeiture of Bellinger’s office, and that there was no vacancy to fill, to which Kinne could be elected.</p> <p>That as Bellinger had acted at the meeting held on May 1, 1876, he was a commissioner both de jure and defacto, and that licenses issued by Bliss and Kinne were wholly void.</p>

<p>Appeal from an order granting a new trial, upon a motion made on a case containing exceptions.</p>

The defendants should have appeared and resisted the confirmation of the referee’s report at Special Term. They cannot consent to the confirmation and then appeal to the General Term in the first instance. (Boyd v. Bige-low, 14How., 511; Flukes. Van Wagner, 54N.Y. R., 28; Radley v. Fisher, 24 How., 405; Smith v. Velie, 60 N. Y. R., 119; Van SioJoler v. Graham, 7 How., 208; Summerville v. Croolc, 9 Hun, 666.)

The action was brought upon a bond given by Byron H. Wilson as administrator, against the defendant, James R. Wilson, who was a surety on said bond. The bond was filed in Steuben county and letters of administration granted by the surrogate of that county. On the 3d of November, 1864, the surrogate, upon the application of .the surety, granted an order removing the administrator and revoking the letters. No successor or new administrator was appointed.

The plaintiff was indicted in December, 1876, for falsely pretending that certain lands in tbe town of Georgetown, and county of Madison, were free and clear from all encumbrances, and thereby obtaining the signature of one Benjamin Kinne to a conveyance of lands owned by him in the town of Carrolton, and county of Cattaraugus; whereas, at the time of the making of such pretences December 30, 1873, the lands in Georgetown were encumbered by judgments recently recovered…

Appeal by defendant from a judgment entered upon the report of a referee. The action was upon a policy of insurance issued by defendant June 23, 1873, for three years, covering a dwelling-house to the amount of $1,000, and household furniture, etc., to the amount of $300.

92, and directing payment thereof to respondent — less $800 allowed for costs. The administrator presented his account and his individual claim against the estate, and the contestant filed objections thereto, and a reference to an auditor was had, and his report was presented to the surrogate, who took some further proofs and heard the parties, and modified the findings of the auditor, and made the decree appealed from.

A motion to vacate the order has already been before the court, and is reported in 54 Howard, 97, and in 20 Now York Supreme Court Reports (13 Hun), 579. September 4, 1877, a chamber order was granted directing substituted service of the summons in this action.

Writ of error issued to the Court of General Sessions of Onondaga county.

Appeal by the defendant from judgment, entered upon the trial of this action by the court at Special Term, in favor of the plaintiff. The action was brought to foreclose a mortgage made by defendant to secure his bond, dated October 1, 1866, given to S. Hubble Reynolds, for $1,000, covering lands in Oswego county, where the defendant resided and now resides; it was payable in this State. The mortgagee died in Galesburg, Knox county!

The action was brought upon a promissory note for sixty dollars. The answer denies the making of the note sued upon. The issue was referred to a referee and the trial had before him, and he reported in favor of the plaintiff, and upon his report a judgment was entered against the defendant, from which an appeal ■was taken. The note was lost after the commencement of this action and prior to the hearing before the referee.

Tbe maiden name of Mrs. Proctor was Mary J. Clark. On tbe 25th of May, 1873, Miss Clark executed a last will, whereby sbe disposed of a large personal estate and valuable real estate among a few of ber relatives, and tbe pai't not given to them was given to divers incorporated religious bodies and to charitable and pious uses. ■ Soon after tbe execution of tbe will sbe went with ber father to Europe, and remained there one year, when sbe returned to this country.

The action was brought to compel the defendant to account for certain moneys received by him as trustee for William E. Carr, deceased, the plaintiff’s intestate, and to pay over to the plaintiff any balance of such moneys which may be found in his hands. In the fall of 1861 Edson Carr, of Canandaigua, in the county of Ontario, died, leaving a last will in and by which he devised to the defendant, one of his sons, a certain promissory note and certain books.

Iu April, 1856, John Morris was the owner of a farm situated in the town of Frankfort, in the county of Herkimer, subject to a mortgage for $16,250 given by Morris and wife to Betsey Nurse. On the 8th December, 1859, proceedings to foreclose said mortgage were instituted, and the sale was to be made March 5, 1860. The farm was incumbered by several judgments that had been recovered against Morris.

Cektioeari to review proceedings upon the return to a writ of habeas corpus, had before the county judge of Wayne county. Section 18 of chapter 628 of 1857 reads as follows : “ § 18.

The plaintiff recovered a judgment in the Supreme Court against the defendant, Patrick O’Dougherty, on the 24th of April, 1873, for $2,822.40, upon which an execution was issued and various parcels of real estate sold by the sheriff of Jefferson county on the 12th day of December, 1874, and bid off by the plaintiff at various prices, set forth in the schedules annexed to the complaint, and the said execution was* thereupon returned satisfied and a certificate of sale- issued…

The action was for a libel. The plaintiff, an assistant inspector of the board of health, on or about October 19, 1874, made an official report to Dr. W. D. F. Day, sanitary superintendent, on the subject of street pavements, in which he “ highly commended the pavement made and furnished by the Grahamite Pavement Company as a pavement of great excellency.” This report was published in the City Record on October 24, 1874.

<p>Divorce for physical incompetency — the fact that the action was not commenced in two years must he pleaded in the answer.</p> <p>Section 33 of 2 Revised Statutes, 133, providing- that a suit to annul a marriage, on the ground of physical incompetency, “ shall in all cases he brought within two years from the solemnization of the marriage,” is a statute of limitation, and tlie action is not barred by the lapse of that time, unless that objection is set up in the answer. (Davis, P. J., dissenting.)</p>

<p>Liability of the obligor for deficiency on a forecloswe— when he is not bound, to pay taxes and assessments.</p> <p>Defendant executed to plaintiffs a bond and mortgage upon premises owned by iim, in the usual form, containing however no covenant for the payment of taxes and assessments. Subsequently he conveyed the premises, the grantee assuming and agreeing to pay the mortgage. Thereafter the grantee paid the interest accruing on the mortg-age and continued so to do after its maturity. The premises, after the maturity of the mortgage, became incumbered by taxes and assessments.</p> <p>In an action to foreclose the mortgage and hold defendant liable on his bond for any deficiencies, held, that he was not bound to pay taxes and assessments upon the premises after his conveyance, and that it was error in determining the deficiency with which defendant was to be charged to deduct their amount from the proceeds arising upon the sale.</p>

<p>Barrings bank— liability of, for the acts of its president.</p> <p>A savings bank, having taken certain shares of stock to secure a loan made by it, resolved that it be sold by the president for the best interest of the bank. The president sold a part of the stock and directed the plaintiff, a broker, to sell the remainder at a price named, which he did, and so advised the president. ■Whereupon the latter informed him that he had, himself, previously sold the stock; plaintiff being unable to deliver the stock was compelled. to pay the purchaser §4,110.</p> <p>In an action against the receiver of the bank to recover the amount so paid, held that the bank was liable to the plaintiff for the damage occasioned by the act of its president.</p> <p>That the liability of the bank was not affected by the fact, that it was forbidden by statute to loan money upon personal security.</p>

Appeal by the defendant from a judgment entered in favor of plaintiffs, after a trial by the court at Special Term.

Quackenboss, Esq., counsel for the respondents, out of the funds in his hands as such receiver, $275 in lieu of costs.” The receiver had made a claim against the estate, which had been .referred to an auditor, and by him rejected as barred by the short statute of limitation.

The plaintiff obtained an attachment against the defendants as non-residents, upon filing the usual bond required by the Code. The defendants thereupon appeared and filed a bond, as required by statute, to discharge the attachment, the sureties duly justified, the bond was approved and an order was entered by defendants discharging the attachment. Defendants now moved that plaintiff's bond, given to obtain the attachment, be increased.

& N. McEwen. The complaint alleged that as such they had indorsed a promissory note. On August 10, 1878, on proof of service of the summons and complaint on Nathaniel McEwen, judgment was entered against both, to be enforced against their joint property, and the separate property of Nathaniel McEwen.

Jackson, which was alleged to have been lost or destroyed after his death., The execution of the will of the alleged testator was shown.