Volume 24 — Barbour's New York Supreme Court Reports

APPEAL by the defendant from a judgment entered at a special term, after a trial at the circuit, before a justice of the court, without a jury. The action was brought to recover the value of a quantity of brick taken by the defendant from premises occupied by the plaintiffs.

<p>MOTION to quash proceedings in forcible entry and detainer.</p>

MOTION by the plaintiff to set aside a nonsuit, and for a new trial; ordered to be heard at the general term in the first instance. The action was tried at the Cayuga circuit in October, 1855, before Justice Strong and a jury.

<p>The admission of leading questions, in the examination of a witness, is always in the discretion of the court, subject, however, to be reviewed, and will not be regarded as error unless the discretion has been abused.</p> <p>A witness will not be allowed to testify as to a conversation in which a previous witness was engaged, for the purpose of impeaching him, unless such previous witness has first been interrogated upon the subject of that conversation.</p> <p>The declarations of an agent may be proved, as binding upon his principal, only when they constitute a part of the res gestee.</p> <p>The admission or declaration of the agent, in order to bind the principal, must accompany and relate to some authorized act of the agent, et dum fervet opus.</p> <p>If made after the time for the performance of a contract has expired, and after the rights of the parties have become fixed, and the duties of the agent, as such, are at an end, they will not bind the principal.</p>

<p>Where the act incorporating a mutual insurance company declared that all persons who should insure with the corporation should thereby become members thereof, during the period they should remain so insured, and no longer; Held, that the fair interpretation of this provision was that persons insured by the company should respectively remain members of the corporation during the time their policies, by their terms, were to continue; and that such membership would not be terminated by a total loss of the property insured. Smith, J., dissented.</p> <p>It was accordingly held, that a premium note, given by a person, on becoming a member of a corporation, was liable to assessment, during the life of the policy, although the property insured had been destroyed by fire before the assessment was made.</p>

The plaintiff brought his action, before the justice, to recover from the defendants $100, being two quarters’ rent due on a lease executed by the plaintiff and the defendant Percy, dated May 26,1854, by which the plaintiff leased to the said Percy certain premises therein described, for the term of five years from the 30th day of June then next, and by which also Percy covenanted to pay the plaintiff $200 a year rent for said premises during the said five years, to be paid…

<p>Where the heirs at law of a person dying seised of a tract of land, which descended to them as tenants in common, caused the same to be subdivided into nine lots, and a map of such subdivision to be made, by a surveyor, and partitioned the same among themselves, by mutual conveyances and releases of the lots, to each other, which mentioned and referred to the said map, on which a road was laid down as running through'the center of the tract; and subsequently two of the heirs sold and conveyed their respective lots to purchasers, by deeds referring to the map and to the road so laid out upon it; Held that the map was part and parcel of the several conveyances, and that such conveyances were to be taken and deemed as subject to, and controlled by it. That the road being laid out, upon such map, and the lots bounded by it, each grantee was entitled to the enjoyment of the easement thus conveyed, and that he and his grantees could recover damages for its obstruction by the others, or by persons claiming under them.</p> <p>Held also, that this right of way was a servitude to which each lot was equally subject, and was of the same character and force as if created by express grant. And that by virtue of the release and conveyance of a lot to either of the heirs, by its number, on the making of the partition, the grantee became entitled, as part of the grant, to a right of way over the road laid down on the map, as an easement; which, being appurtenant to the land, passed to the grantees of such heir.</p> <p>Held further, that in case either of the lots in the subdivision was so situated that there was no access to it by any public road or any other means, without passing over the lands of other persons, a right of way passed to the grantee, over the land of his grantors, as a way of necessity, incidental to the grant, and without which the grant would be useless. And that such right, being appurtenant to the land, would pass to persons deriving title from the original grantee.</p> <p>An easement acquired by deed can never be lost by non-user. To be thus lost, it must have been acquired by use.</p> <p>In an action for obstructing a right of way, the plaintiff is not to be limited to the recovery of nominal damages.</p>

<p>APPEAL from a judgment entered upon the report of a referee. The action was brought to recover the possession of a horse, and damages for the detention. The cause was referred to a referee, and tried before him. He reported in favor of the defendants, and judgment was entered in accordance with such report. The facts are sufficiently stated in the opinion which follows.</p>

THIS was an appeal from an order made at a special term, overruling the demurrer of the plaintiff to the third answer of the defendant. The action was for the recovery of the possession of real property; the plaintiff claiming to own the same in fee. The plaintiff, in his complaint, stated his title to have been derived from Everard Peck, to whom the premises had been conveyed in trust by Maltby Strong. That Peck conveyed to the plaintiff on the 22d of ¡November, 1853.

On the 7th day of November, 1812, Charles Carroll and Daniel Carroll, then of the city of Washington, executed and delivered to Charles Carroll of Carrollton, of the city of Annapolis in the state of Maryland, their joint and several bond in the penalty of $11,266.88, conditioned for the payment of $5,633.44, with interest.

The complaint alleged that on or about the 1st day of April, 1850, the defendants being partners in business, under the name of W. S. & D. W. Shuler, and being the payees mentioned in the promissory note hereinafter set forth, indorsed to said plaintiff said promissory note, of which the following is a copy, viz : “ Rutland & Burlington Rail Road Company. No. 253. #1000. Boston, April 1st, 1850.

THIS action was brought against the defendant Stephen H. Thayer, as executor of Cynthia Havens deceased, to recover a legacy of $1000 given to the plaintiffs by the will of the deceased, which was dated November 17,1846. The testatrix died June 7, 1851. .The residuary legatees were also made defendants. The cause came on to be tried at the Suffolk circuit on the 9th day of October, 1856, before Mr. Justice Strong.

<p>The responsibility of the stockholders of a rail road corporation, for the debts of the company, under the 10th section of the general rail road act of 1850, was an original responsibility, and was that of general partners. Like the responsibility of partners, it entered into the essence of every credit given to the company, and was a part of the contract by which the debt was incurred. And the credit was given, and the creditor trusted, as well to the personal liability of the stockholders, as to the responsibility of the corporation.</p> <p>But it was the intention of the legislature, by the 10th section of the act of April 15, 1854, amending the act of 1850, to repeal the provisions of the 10th section of the act amended. And as respects debts contracted since the passage of the amendment, the stockholders are corporators merely, and not partners; and as to such debts, an action cannot be maintained against them, by a creditor, after the return of an execution, issued against the company, unsatisfied, to render them personally liable.</p> <p>The repealing clause, however, of the act of 1854, so far as it relates to rights of action existing at the time it was passed, was unconstitutional, as interfering with vested rights; and those rights remain untouched by it.</p> <p>In an action by a judgment creditor of a rail road company, against stockholders, to enforce their personal liability, the mere proof that a judgment has been obtained by the plaintiff, against the company, and an execution returned unsatisfied, is not enough. The plaintiff must also prove that the debt, for which the judgment was recovered was of the sort named in the statute. And when this is done, the amount due on the execution is the rule of damages.</p> <p>Such actions may be brought by all persons employed in the service of the company—whether as engineers, master mechanics or conductors—who have not a distinctive appellation, such as officers or agents of the company. The servant who employs and pays the man working with him, is entitled to the benefit of the maxim, qui facit per alium facit per se.</p>

O. trial at the circuit. The complaint alleged that on the 13th day of June, 1849, the defendant made, executed and delivered to the plaintiff an agreement in writing, in the words and figures following, viz: “ For and in consideration of the sum of one dollar to me in hand paid by Elizabeth Brinckerhoff, of the city of Albany, the receipt whereof I do hereby acknowledge, I do hereby agree to sell and convey unto the said Elizabeth Brinckerhoff, all that lot, piece or parcel…

ACTION to set aside an assignment made by James C. Forsyth, of his property, in trust for the benefit of his creditors.

<p>MOTION for a new trial, upon exceptions taken at the trial, and ordered to be heard at the general term. The action was brought to recover the possession of real estate. The plaintiffs gave in evidence a conveyance including the premises, executed by Wilhem Willink and others to John Livingston, dated June 15,1816 ; also a deed from Livingston and wife to Isaac Chandler, dated March 9, 1818 ; also a deed from Isaac Chandler and wife to Josiah Y. Chandler, dated , September 14, 1828. These deeds were duly recorded. The quantity of land conveyed was 175 acres. Josiah Y. Chandler entered under the conveyance from Isaac. He died in October, 1828, in possession, leaving Clinton Y. and Adula his only children and heirs at law, the former less than one year old and the latter less than three. In June, 1844, Adula intermarried with the plaintiff Joseph W. Phillis. The land claimed in this action was about 20 acres of the 175 acres, and no portion of it was cleared or fenced. The defendant gave in evidence a warranty deed from Clark Dart and wife to Joseph Northrop, dated April 10, 1830, of the 20 acres. Also a deed from Thayer Northrop, Benjamin Northrop, George Northrop and John Northrop, dated April 19, 1851, of the 20 acres. Joseph Northrop entered into possession of the land more than 20 years prior to the trial, and continued in possession until his death, some six or seven years before the trial. The grantors in the deed to Stephen Northrop, the defendant, were the heirs at law of Joseph. The defendant Stephen entered under the deed to him, and was in possession at the time this action was commenced and at the time of the trial. The defendant rested, and the plaintiff then proved that the 175 acres deeded to Livingston had for thirty years past been known as the middle part of lot two. That Livingston was in possession of the house, and had improved a portion of the 175 acres at the time he conveyed to Chandler. The plaintiff rested, and the defendant asked the court to direct a verdict in his favor, on the ground that the plaintiff had not shown any title in Josiah V. Chandler. That the only title Chandler had was a naked possession of premises adjoining the lands in controversy; that the defendant and his grantors had been in the actual possession of the premises for more than twenty-five years, under a deed; that upon the whole case the defendant was entitled to a verdict. The defendant also asked that the plaintiff be nonsuited. The court refused to give such direction, and denied the motion for a nonsuit, and the defendant excepted. The defendant then gave in evidence a deed of the 175. acres, executed by William Northrop, as administrator,' and Alina Chandler as administratrix, of the goods, &c. of Josiah W. Chandler, deceased, to Clark Dart, dated October 16,1829. This deed was given in pursuance of an order made by the surrogate of Erie county, directing the sale of the premises, and contained the usual recitals. The bill of exceptions contained the proceedings before the surrogate, resulting in the appointment of Mrs. Chandler and William Northrop, administratrix and administrator; also the proceedings resulting in a sale of the real estate, and a confirmation of such sale, &c. The records of the proceedings in the surrogate’s court did not show that any guardian was appointed for the infant heirs of Josiah Y. Chandler. The defendant proved by a witness who was a clerk in the surrogate’s office in 1828, at the time the proceedings were had, that he remembered the proceedings had before the surrogate for the sale of the real estate; that at about the time the proceedings were commenced, Mrs. Chandler was at the surrogate’s office and had her little children with her. This witness stated that previous to 1840, the record books and papers in the surrogate’s office were kept in a negligent and disorderly condition, without much system. The defendant rested, and the plaintiff called Elvira Pierce, who was the widow of Josiah Y. Chandler, and mother of the plaintiffs Adula and Clinton. She stated that she had some recollection of the proceedings before the surrogate to sell her husband’s land to pay debts; that she did not recollect of any guardian being appointed for the children, to protect their interest in the proceedings; that she was at the surrogate’s office two or three times; th.inks her children were not with her; that she told the surrogate about them and their ages; that she trusted the business to Northrop, now dead, and the surrogate, who is also dead. The evidence being closed, the defendant’s counsel insisted that the defendant had shown a good title; that enough had been shown to give the surrogate jurisdiction. He asked the court to decide that if the plaintiffs claimed that no guardian had been appointed by the surrogate for the infant heirs, the burden of proof was upon them to show that fact; that the law would presume a guardian had been appointed ; that at any rate the defendant had a right to have that question submitted to the jury, under the evidence. The court decided that the plaintiffs were' entitled to a verdict, and so directed; and the defendant excepted.</p>

<p>Appeal from an order of the special term.</p> <p>The facte in the case are fully stated in the opinion.</p>

CASE submitted for the opinion of the court, under the code.

THE parties submitted a controversy existing between them to arbitration; and in the submission provided, pursuant to statute, (2 R. S. 541, § 1,) that a judgment of this court should be rendered upon the award made pursuant to such submission. The arbitrator made his award in favor of the plaintiffs, and judgment was entered up thereon in their favor, at a special term of the court held in Dutchess county.

<p>Before suit can be brought by an individual to recover the possession of lands conveyed by him during his infancy, he must make an entry upon the lands and execute a second deed to a third person; or do some other act of equal notoriety in disaffirmance of the first deed, such as demanding possession, or giving notice of an intention not to be bound by the first deed.</p> <p>Under the present system of pleading, this act of disaffirmance must be averred in the complaint, and is necessary to be proved.</p> <p>The conveyance of an infant will not be ratified by a bare recognition of it, or a silent acquiescence in it, for any time less than the period of statutory limitation.</p> <p>If it appears from the complaint that the plaintiff'has suffered twenty years after he arrived at his majority to pass by before bringing suit to recover possession of land conveyed by him during infancy, it seems this is an objection to be taken advantage of by answer, and not by demurrer.</p> <p>Where an infant conveys one tract of land by deed to one person, and another tract by a separate deed to another person, and the latter has granted portions of the land purchased by him to several purchasers, the infant, after becoming of age, cannot bring a joint action against both of his grantees and against the purchasers from one of such grantees, to recover possession of the premises.</p>

<p>MOTION, by the defendant Comstock, to dissolve an injunc-11 tion. Early in 1853, an action was brought in this court, by Eckerson &> Dominick, who were judgment creditors of Gottfried Yallmer, having an execution on their judgment returned unsatisfied, against Gottfried Yallmer, and John A. Yallmer and his wife. Gottfried Yallmer did not answer in the action, but John A. Yallmer appeared and answered, and the cause was referred. The referee, after hearing the testimony, made his report, finding that Eckerson & Dimick were such judgment and execution creditors of Gottfried Yallmer. That Gottfried being, on the 30th of June, 1851, the owner of a farm of land in Deer Park, Orange county, on that day conveyed the same by deed, in which his wife united, to Samuel <fc John P. Fowler. That this deed was made for the purpose of securing an indebtedness of about $1000, then due from Gottfried to the Fowlers, and with an express agreement between the Fowlers and Gottfried, that on Gottfried’s paying that indebtedness, the Fowlers should convey the premises to him or to any person whom he might appoint. That on the 21st of July, 1851, Samuel Fowler and wife and John P. Fowler conveyed said lands to John A. Yallmer, at the request of Gottfried Yallmer, and pursuant to the agreement so made between him and said Fowlers. That to secure the said debt so due to the Fowlers, John A. Yallmer, at the time of the conveyance of the farm, gave back his bond and a mortgage on the farm to said Fowlers for $1000, that being the amount of their debt; John Yallmer’s wife joining in the mortgage. This mortgage has been assigned to the present defendant, Daniel P. Bacon¡ and the action of Bacon, hereinafter mentioned, was brought for the purpose of foreclosing that mortgage. The report further found as .a fact, that Gottfried Vallmer procured John A. Vallmer to take, and John A. Vallmer did take the conveyance from the Fowlers, with the fraudulent purpose of hindering and delaying Gottfried Vallmer’s creditors, in the collection of their just debts against him ; that the lands were, at the time of the conveyance to John A. Vallmer, worth much more than the incumbrances then on the property, including the mortgage to the Fowlers. That John A. Vallmer,- after the conveyance to him, entered into the possession, and received the rents, issnes and profits thereof; that after taking possession, he paid a mortgage on the lands, subject to which they had been conveyed to the Fowlers and to him; and also made various repairs and permanent improvements on the premises ; and that after deducting the rents and profits of the lands which he had received, there was still due to him on these accounts the sum of $2062.55, which he was entitled to have reimbursed to him. The report then proceeded to adjudge and determine that John A. Vallmer stood seised of the lands as trustee for the plaintiffs in that action, and other creditors of Gottfried Vallmer. That a receiver of the property be appointed, to whom John A. Vallmer and wife should convey the lands ; that the receiver should sell the lands at public auction, and out of the proceeds pay, first,- the costs and expenses of the sale, and his own fees and commissions ; second, that he pay to said John A. Vallmer the said sum of $2062.55, being the balance due him for his advances in taking up the mortgage aforesaid and in making the improvements and repairs on the premises ; that he take John A. Vallmer’s receipt for the payment and file it with his final report; third, that he pay to the then plaintiffs, Eckerson and Dimmick, the amount of their judgment against Gottfried Vallmer, with their costs in that action; and that he bring the remainder of the money into court, and deposit it with the clerk of Orange county, to abide the order of the court.</p> <p>At a special term held at Newburgh, on the 3d of July,1854, this report was confirmed, and judgment in pursuance of its findings and determinations was entered; the present plaintiff, Charles H. Winfield, being in that judgment appointed the receiver of the lands in question. Pursuant to that judgment, and on the 30th of November, 1855, John A. Vallmer and wife conveyed the premises to Mr. Winfield as receiver; who, on the 19th of February, 1856, sold the lands under the judgment, at auction, for $8100. Before the receiver could pay over to John A. Vallmer the $2062.55, due to him under the judgment, one Boehringer, claiming to be a creditor of his, and to have an equitable lien on these moneys, applied to be made a party defendant in the suit of Eckerson v. Dimmick, and to obtain those moneys; and procured an order staying the payment by the receiver to John A. Vallmer of this sum of money. This stay was not terminated till the 8th of April, 1856, when the general term, upon appeal, affirmed an order made at special term, denying to Boehringer leave to come in, and dismissing his application.</p> <p>On the 30th of March, 1856, Daniel P. Bacon, one of the defendants in this action, commenced an action to foreclose the mortgage for $1000, given by John A. Vallmer to Samuel and John P. Fowler, on their conveyance to him, in July, 1851, as above stated. In his complaint in this action, Bacon claimed to be the assignee of that mortgage; he made Winfield, the receiver, one of the defendants, and claimed to have the mortgage satisfied out of the moneys in his hands as receiver. He also prayed for an injunction to restrain the receiver from paying over any of the moneys awarded to John A. Vallmer, till his claim to the moneys upon his mortgage was passed upon. That injunction has been issued, and is still in force.</p> <p>On the 8th of January, 1855, Benjamin W. Davis recovered a judgment in this court against John A. Vallmer for $356.89, on which an execution was issued and returned unsatisfied; and upon supplementary proceedings, Nathan Comstock, jun., the other defendant in the present suit, was appointed receiver of John A. Vallmer’s property and effects. On the 14th of April, 1855, John Lutz also recovered a judgment against John A. Vallmer, for $810.44. Similar proceedings were had, and Mr. Comstock was appointed receiver of the property and effects of Vallmer in that case. also. Thereupon Mr. Comstock, as such receiver, obtained leave of the court to sue, and in May, 1856, he brought an action against Mr. Winfield. In his complaint he set forth the proceedings by which he was appointed receiver of John A. Vallmer, and claimed to be vested, as such receiver, with all John A. Vallmer’s rights. He then set forth the proceedings in the case of Eckerson v. Dimmick, the appointment of Mr. Winfield as receiver in that case, the sale of the farm and the receipt by Winfield of the price of it, $3100, of which $2062.55 was thus awarded to John A. Vallmer. The complaint then claimed judgment for this sum against Winfield, with costs, and prayed also for an injunction to restrain Win-field from paying over any portion of the moneys, during the pendency of the suit, or until the further order of the court. An injunction was issued in -pursuance of that prayer, which was served on Mr. Winfiel 1 and was still in force. To this complaint of Oomstock, Winfield answered, and the cause was at issue, undetermined. At this time Mr. Winfield became the actor, by commencing the present action against Bacon and Comstock. In his complaint he set forth, in substance, the facts above stated as to his own appointment and' rights, and the claims and suits of Bacon and Comstock against him. He also stated 'that before the commencement of either of those suits, and by virtue of orders made in the original suit of Eckerson and •Dim-mick against the Vallmers allowing and directing him so to do, he made various payments to Eckerson and Dimmick, and their attorneys, for the costs and judgment in that action, and to some other persons as judgment creditors of John A. Vallmer. These payments amounted to about $1400, and there remained in his hands about $1700; which sum, or whatever upon a fair accounting should be found in his hands as receiver, he was ready and willing to dispose of, according to the direction of this court. He further stated that he was ignorant and had no means of ascertaining with safety to himself, whether the moneys in his hands as receiver, belonged to Bacon as assignee of the mortgage, or to Comstock as receiver; and that, being restrained by injunction, upon the prayer of each of them, from paying any of the money to the other, he could not pay it to either of them, but he offered to pay the money into court, after deducting his fees, commissions and expenses, in order that the claimants might interplead and settle their claims among themselves ; and he prayed that he might have the judgment of the court respecting the manner in which the moneys should be applied. After denying collusion with the defendants in bringing the suit, the complaint prayed for an injunction to restrain the defendants from taking any further proceedings, against the plaintiff in their' respective actions against him for the moneys, till the further order off the court; and that the defendants might interplead and settle their claims to the money between themselves; and the plaintiff offered to pay into court the balance in his hands as receiver, as soon as he could do so, in view of the orders of injunction which prevented him from parting with the money. There was also a prayer for general relief.</p> <p>An order of injunction was granted according to this eom- . plaint. And the present motion was by the defendant Comstock to vacate that injunction, so that he might proceed with his suit against Winfield. The defendant Bacon was not brought before, the court on this motion.</p>

This action was brought by Morris L. Samuel and Edwin M. Dunn against Albert Berger and others. The complaint sought an injunction to restrain defendants from the use of a trade-mark which plaintiffs claimed as assignees ; and the plaintiff now moved for an injunction pending the suit. Other facts, which appeared upon the motion, are stated in the opinion.

<p>Taxes.—Mandamus.—Power of Supervisors.</p> <p>After the taxes are assessed in the city of New-York, and warrants are issued and delivered to the Receiver, the Board of Supervisors have no further control over the assessment rolls, and cannot thereafter strike a name from them.</p> <p>A mandamus will not be granted when it would be unavailing from a want of power in the defendants to perform the required duty. e</p> <p>The power of the supervisors of New-York, upon application made to them within six months after the tax-rolls are delivered to the Receiver, to remit or reduce a tax, is discretionary with them; and they are the judges of the cause shown.</p> <p>If an affidavit is furnished-to the supervisors (pursuant to 1 Rev. Stats., 416, § 9), by a corporation, showing that it is not in receipt of any profit or income, it is the duty of the Board to strike the name of such corporation out of the assessment rolls; and a mandamus lies to enforce this duty.</p> <p>But if such affidavit is not furnished, the assessment of such corporation is conclusive evidence that the corporation was liable to taxation, and was duly assessed.</p>

THE complaint charged that in May, 1854, the defendants were commissioners of highways of the town of Kent, in the county of Putnam. That it was their duty as such commissioners, to repair or cause to be repaired the bridges in said town, and the plaintiff averred that from the sources mentioned in the complaint the defendants had, or might have had ample and sufficient means to keep all the bridges in said town in repair.

THE plaintiff’s testator and the defendants, on the 1st day of May, 1852, entered into a written agreement as follows: “ Memorandum of an agreement made this day between Howes, Scofield The defendants were glass manufacturers at the Dunbarton Glass Works, Oneida county.

<p>An interruption of the enjoyment of a privilege conferred by a lease, by physical means adopted by the landlord, constitutes an eviction, and suspends the rent of the demised premises, and the remedy of the lessor, for the recovery of the possession.</p> <p>Accordingly, where the use of a rail road, together with a rolling mill, furnace, &c., was leased to the defendant; such use being necessary to the full enjoyment of the premises; and rent was to be paid for such rail road, as an appurtenance of the other demised premises; and after the defendant had taken possession thereof, the lessor tore up the rails of the rail road, it was held that this amounted to an eviction of the tenant, which barred an action for the recovery of the possession of the premises on the ground of non-payment of rent.</p> <p>Held also, that the fact of the tenant having recovered damages of the lessor, for the breach of the covenant for the use of the rail road, did not alter the case; the covenant being a continuing covenant.</p> <p>Held further, that it being obvious, from the cpnstruction of the whole lease, according to its true meaning, that the use of the rail road was intended to be secured to the lessee, during the term, as a part of the demised premises, the fact that such use was granted in the form of a covenant, and separate from the formal demise, did not exclude the enjoyment of the rail road from forming a part of the demise.</p>

Motion to continue a preliminary injunction. This action was brought by Fernando Wood, as a tax-payer in the city of New York and a corporator thereof, against Simeon Draper, James Bowen, James W. Nye, Jacob Cholwell, and James S. T. Stranahan, who had been appointed police commissioners under the Metropolitan Police Act, passed April 8, 1857.

THIS action was brought by the plaintiff, as receiver, to recover one-half of an alleged subscription of the defendants to the capital stock of the Atlas Insurance Company. That subscription bears date November 8, 1855, and was for $1000, payable in six and twelve months, less five per cent, and this suit was brought to recover the sum of $475, due thereon May 11,1856.

<p>The corporation of the city of New York, by its charter and the powers conferred upon it by the legislature, has the right to regulate the uses of the basins and slips in the city; and its regulations are binding upon all, provided they do not interfere with the rights of the owners to receive and collect their wharfage.</p> <p>Subject to this right, the corporation may direct the use of any particular slip or wharf to be appropriated exclusively for any particular craft or class of vessels ; and in reference to its own wharves and piers, may grant the exclusive use to any person, for any particular craft or class of vessels, and may do the same, with the consent of those entitled to wharfage, in reference to any basin, slip or pier.</p> <p>The general authority of the state and city governments, in reference to the locating of ships and vessels, and the uses of the wharves, piers and slips, is exercised through the dock masters, as to the public or corporation basins, piers and wharves, and through the harbor master, as to private basins, piers and wharves.</p> <p>The jurisdiction of those public officers is co-extensive with every legal and legitimate use of the basins, piers and wharves.</p> <p>The occupation of basins and slips by a balance dock, for the repairing of vessels, is an occupation for a lawful and legitimate commercial purpose; and if sanctioned by the proper officers, and assented to by the owners of the piers and bulkheads, and under lease from those who are entitled to collect and receive the wharfage and cranage from the premises occupied, no other person has a right to complain of such occupation, or to restrain the same by injunction.</p>

Trial by the court. This action was brought by Daniel Eawson as assignee of a demand for services as counsel rendered to the corporation of the city of Hew York, under employment by a special committee of the Board of Aldermen. The facts were, that in 1855 the Board of Aldermen of this city resolved to institute an investigation into the affairs of the police department, and appointed a committee to conduct the investigation.

IN March, 1856, an act was passed, entitled “An act to authorize any town in the counties of Schenectady, Schoharie, Otsego, Delaware, Chenango or Broome to subscribe to the capital stock of the Albany amd Susquehanna Bail Boad Company.” (Laws of 1856, ch. 64.) The act provides among other things, that the commissioner in any of the towns in the counties aforesaid, shall borrow on the faith and credit of such town, provided the consent in writing of two-thirds of the tax…

APPEAL by the defendants, from a judgment entered at a special term. The action was upon a promissory note, by indorsees against an indorser. The facts will be found in the opinion of Peabody, J.

ON the 22d of April, 1857, the plaintiffs applied for a temporary injunction to restrain the defendants from paying the interest to become due on the 1st of May ensuing, on certain bonds issued by the corporation of the city of Albany, under an act of the legislature passed in March, 1854.

Motion to dissolve an injunction. This was an action in the nature of quo warranto, brought by the People on the relation of Fernando Wood, against Simeon Draper, and four others, appointed police commissioners under the Metropolitan Police Act, passed April 8,1857. The action grew out of the same facts with the suit brought by the relator in his own name against the same defendants, proceedings in which are reported, Ante, 322.

<p>In an action brought to recover damages for injuries done to the plaintiff’s house, grounds, fruit trees, Sic., by water alleged to have been turned on to the plaintiff’s land by the defendants, in constructing a rail road, it is proper to charge the jury that the rule of damages in that class of cases, is the difference between the value of the plaintiff’s premises before the injury happened, and the value immediately after the injury, taking into the account only the damages which have resulted from the defendant’s acts.</p> <p>But it is erroneous to charge, in such an action, that the plaintiff, after the water was in her cellar, was bound to use ordinary care and diligence to prevent her house being injured thereby, and only ordinary care and diligence; and that if the damages to the house, complained of, or any part thereof, resulted from a neglect to use such care and diligence, the defendants are not liable for the damages thus resulting.</p> <p>The owner of the house, under such circumstances, is bound to use reasonable care, skill and diligence, adapted to the occasion, to save her house from being injured by the water, notwithstanding it came upon her premises by the fault or negligence of the defendants; or suffer the loss herself.</p>

THIS was a motion- for a new trial, founded on exceptions taken upon the trial at the circuit. The action was brought against the defendant as sheriff of Saratoga county, for not executing and not returning an execution, against property, delivered to him to collect.

APPEAL, by the defendant, from a judgment rendered on a verdict recovered at the circuit. The action was to recover damages for the non-fulfillment of an executory contract by which the defendant agreed to purchase from the plaintiffs 223 shares of stock in a corporation called “ The Association for the exhibition of the industry of all nations.” The stock was to be delivered within six.months from the date of the agreement, which was made April 13, 1854.

APPEAL by the plaintiff from an order allowing an amendment of the defendants’ answer, to conform it to the facts found by the referee, and ordering a new trial before the same referee. The action was upon a promissory note. The defense set up in the answer was usury. The usury was proved. There was a variance between the proof and the answer as to the parties to the usurious contract.

- The action was commenced by the plaintiffs, who were co-partners, as creditors of the limited partnership doing business under the name of Edward T. Haclcett, in the city of New York, on behalf of themselves and of all others, creditors of the said limited partnership, who should unite with them therein, or who should come in and prove their debts under the judgment to be made therein,- to restrain the defendants from disposing of the property and effects of the…

ON the 8th of April, 1846, the defendant drew a draft on McBurth, which was accepted by him, as follows: “ On demand after date deliver to the order of John A. Bush one hundred gross of inlaid mosaic knobs, worth five dollars per gross, and charge same to the account of, respectfully, T. B,.

<p>In an action to recover damages for an unlawful conversion of the plaintiff’s property, the rule of damages is, the highest value of the property at any time between the act of conversion and the day of trial. Roosevelt, J., dissented.</p> <p>In such an action the plaintiff cannot recover as special damages the costs and expenses of an unsuccessful suit against a person to whom the defendant had delivered the property.</p>

<p>The duty of a treasurer is to keep the moneys of his principal distinct from his own, unless it is otherwise agreed, and to pay any balance due, on de- " mand.</p> <p>And even if it be the rule that he cannot be indebted until a demand be made of him, an allegation in the complaint, that he is indebted, with a statement of the items of moneys received by him, is an allegation that all that is essential to malee him indebtedness been done; and consequently that a demand has been made.</p> <p>In such a case, the summons is a sufficient demand; and the averment of demand is sufficient, on demurrer.</p>

THIS was an action upon a promissory note for §3650, made by the defendant, dated the 1st day of July, 1854, payable, ydth interest, to the defendant’s own order, at the Eighth Avenue Bank, six months from date, and indorsed by him, belonging to the assets of said bank, of which the plaintiff was receiver. The Eighth Avenue Bank was a banking association, organized under the laws of 1838, and the subsequent acts amendatory thereof.

APPEAL by the defendants, from a judgment rendered at a special term. On the 1st day of October, 1851, the defendants Schuyler, composing the firm of R. & Gr. L. Schuyler, held by assignment from T. W. Ludlow, the person therein named, a receipt or certificate, of which the following is a copy: “ Office of .Illinois Central R. R. Co. New York, May 1,1851.

<p>THIS action was brought to recover certain rents alleged to be due from the defendant to the plaintiff. It was tried at the Albany circuit, in October, 1853, before Mr. Justice Parker. Upon the trial, the plaintiff gave in evidence a lease in fee from Stephen Van Rensselaer, his father, to Samuel Combe, jr., dated February 23,1797, for lot 74, in the town of Rensselaerville, containing 160-g acres, and reserving certain rents. Also, a similar lease to Andrew Speckerman, for lot 75, in the same town, dated February 10, 1803, the lot containing 153J acres. The reservation of rent in the last mentioned lease was as follows: “Yielding and paying therefor, yearly and every year, during the continuance of this grant, unto the said Stephen Van Rensselaer, his heirs or assigns, the yearly rent of 28 skipples of good, clean, merchantable winter wheat, and four fat fowls, to be delivered at the now mansion house &c., and perform one day’s service with carriage and horses.”</p> <p>It further appeared that Aaron Chadwick, the father of the defendant, in his lifetime, became the assignee of the lessee of lot 75, a part of lot 74 and also parts of three other lots, making together a farm of 315 acres; that he died in 1838, and his farm descended to the defendant and his brother John Chadwick, as heirs at law ; that the two brothers made partition between themselves; that John Chadwick conveyed to the defendant 142 acres of lot 75 and 15 acres of lot 74, and the defendant conveyed to John the residue of the farm. These deeds bear date the 4th day of March, 1841. In each of the deeds it is stated, that the grantee is to hold “ subject to the claims of Stephen Van Rensselaer, Esq. proprietor of the soil.” The rent had been paid up to the year 1838. The amount due upon that part of lot 76 conveyed to the defendant, from 1838 to 1853, with interest, was $480.48, and on that part of lot, 74 conveyed to the defendant, $52.88. These sums included $25 charged for the day’s service with carriage and horses.</p> <p>The defendant also gave in evidence a deed from the plaintiff and his wife to John Chadwick, dated August 19, 1842, whereby for the consideration of $632, the plaintiff, who was admitted to be the devisee of the rents reserved upon the lots in question, released to John Chadwick, his heirs &c., all his estate, right, title, interest <fcc., in and to the farm conveyed to him by the defendant. The testimony being closed, the counsel for the defendant insisted that the rent in question was a rent charge, and that by releasing 20 acres of lot 75 from the payment of rent, as the plaintiff had done by his deed to John Chadwick, he had extinguished the rent upon the whole lot, and that consequently the plaintiff could not recover for any rent upon that part of lot 75 held by him, since 1842.</p> <p>The counsel for the defendant also insisted that, inasmuch as it appeared that one day’s service with carriage and horses had been paid, the plaintiff was not entitled to recover any thing on account of such services. The court refused so to hold, and decided that the plaintiff was entitled to recover the whole amount claimed as the proportionate share of rent chargeable upon those parts of the lots held by the defendant, amounting to $533.36. Upon this decision judgment was entered, and the defendant appealed to the general term.</p>

By an act of the legislature, entitled “An act to provide for building a bridge over the Boeliif Jansen’s kill, in the town of Livingston, in the county of Columbia, and for the payment of the expenses thereof,” passed April 5, 1853, (Laws of 1853, p. 198.) the commissioners of highways of the town of Livingston were required to build a bridge over the Boeliif Jansen’s kill, upon or near the site of the old bridge over said kill, near where the block factory stood in said…

THIS action was brought to recover rent. It was tried at the Albany circuit, in April, 1854, before Mr. Justice Harris. The plaintiff gave in evidence a lease in fee executed by Stephen Van Rensselaer, his father, to Samuel Rider and Elihu Gifford, bearing date the 15th of February, 1799, for lot number 15 in the town of Rensselaerville, reserving a rent of 22J bushels of wheat, four fat fowls and one day’s service with carriage and horses.

DEMURRER to complaint. The plaintiff stated that in May, 1852, the defendant Was duly licensed to run a skiff ferry, for ferriage, from the city of Troy to West Troy, across the Hudson river, for the period of three years, and that, up to the 13th of October, 1854, he continued to hold said license, and to run said skiff ferry, by his lessee, and by persons acting and ferrying under said license, and that, being such ferryman, John Maher was taken, as a passenger for…

The complaint stated that the defendants, in 1823, were incorporated, with power to make, construct and forever maintain, a canal, &c., substantially as stated in the 8th section of the act of incorporation ; that under such power, the defendants had proceeded to construct a canal of such width, depth and dimensions, as they had determined to be suitable arid proper, and that the same was completed in or before the year 1835; that in 1849 they commenced enlarging their canal…

THIS was an appeal from an order of the special term overruling a demurrer to the complaint.

<p>MOTION for a new trial. The action was brought to recover the amount of three drafts drawn by Joy <fc Monteath, as agents of the defendants, upon Alfred Hoyt, another agent, together amounting to $9500. The drafts were drawn at the request of the cashier of the Canal Bank of Albany, and for the accommodation of that bank. The plaintiffs discounted the drafts upon the application of the cashier of the Canal Bank. For a further statement of the facts in the case, see 17 Barb. 171. The new trial which had been ordered was had at the Albany circuit, in October, 1854, before Mr. Justice Harris. The testimony being closed, the counsel for the defendants moved for a nonsuit, upon the ground that Joy & Monteath had exceeded their authority in drawing drafts for the benefit and accommodation of the Canal Bank, and that the drafts appearing upon their face to have been drawn by procuration, the plaintiffs were chargeable with knowledge of the agents’ want of authority, and could not claim protection as bona fide holders. The judge denied the motion for a nonsuit, and directed a verdict for the plaintiff for $14,248.79, the amount of the drafts, with interest. To these decisions the counsel for the defendants excepted. An order was made that the motion for a new trial, upon the exceptions, be heard in the first instance at the general term, and that the entry of judgment be stayed until such hearing.</p>

The defendants are a manufacturing corporation, organized for the purpose of manufacturing linen goods, &c. Having a store of goods which they had been engaged in retailing to customers, and particularly to those employed in their manufacturing establishment, on the 29th of January, 1853, they agreed with the plaintiff to sell out to him their entire stock in trade, for $3445, of which $1000 was to be paid in cash, and the remainder in six, nine and twelve months, with…

<p>Where, upon the sale and purchase of a horse, a bill of sale was executed by the vendor, specifying the price and acknowledging its receipt, it was held that the instrument was to be construed as being a mere receipt for the purchase money, and not as a contract, whose written terms could not be varied by parol; and that parol evidence of a verbal warranty was therefore admissible."</p>

THIS was an appeal from a judgment of the Bensselaer county court, affirming a judgment of the Troy justice’s court.

<p>MOTION for a new trial. The action was brought against the defendants as innkeepers, to recover the value of a valise and contents, belonging to one Stephen Barker. The cause of action had been assigned by Barker to the plaintiff. The action was tried at the Rensselaer circuit, before Mr. Justice Wright. Upon the trial, it appeared that the defendants had for many years been the proprietors of a hotel in the city of Troy, known as the Mansion House, and that Barker, when visiting Troy, had been in the habit of stopping at this hotel. He resided in the county of Washington. On the morning of the 27th-of June, 1852, he arrived at Troy, from the west. Upon leaving Rochester, the evening before, he had placed his valise in the baggage car and received for it a check. The valise, besides some wearing apparel, contained $2000 in bank bills. As the ears passed down River street, in Troy, they stopped in front of the Mansion House, and Barker there got out. He handed the check to Calvin Blake, whom he met there, with a request, as Blake testified, that he should get out his valise for him. Barker testified that he did not recollect whether he said any thing to Blake at the time. Blake received the valise from the baggage master and placed it upon the sidewalk. Barker testified that when he saw Blake approaching him he turned and went to the mansion house. Blake testified that Barker stood facing him when he set down the valise. Barker, without observing what had been done with his valise, proceeded to the Mansion House, where he, after a few minutes, asked for a room, and upon being asked what baggage he had, then, for the first time, missed his valise. It had been stolen. Blake, at the time, was in the employ of the proprietors of a line of stages running between Troy and Bennington, as an agent and runner. The office of this line of stages was kept in the room occupied as the office of the hotel. Blake boarded at the Mansion House, and, with the knowledge of its proprietors, had been in the habit of soliciting guests for the house. Barker testified that just as he turned to go to the Mansion House, the cars started on. Blake having deposited the valise upon the walk, stepped upon the platform of one of the cars and went on with the train, for the purpose, of procuring passengers for his line of stages.</p> <p>The' judge charged the jury that the primary question to be determined upon the proof was, whether or not, at the time of the loss of the valise, the relation of innkeeper and guest existed between the defendants and Barker: that if, at that time, Blake was in the actual employment of the defendants, or if, though not actually in such employment, he was acting there with the knowledge and approbation of the defendants, they were liable for his acts in that capacity, and the baggage received by him of Barker, was within the custody of the defendants as innkeepers. That if the jury should find that Blake was in fact the servant of the defendants, or that the defendants were to be regarded as his masters or principals, then they were to inquire further, whether Barker was guilty of gross negligence in his control and disposition of the property claimed to be lost; that if they should find that he was, the defendants would not be liable, though they should be satisfied from the evidence, that the relation of innkeeper and guest, as between Barker and the defendants, had been assumed, and existed at the time the property was lost.</p> <p>The counsel for the defendants asked the court to charge the jury that an innkeeper is not responsible for a large sum of money of his guest, contained in his baggage, when the guest neglects or omits to inform the innkeeper of the fact that the baggage contains money. The court refused so to charge, and the defendants’ counsel excepted. The defendants’ counsel also asked the court to charge the jury, that if they should find that Barker was guilty of gross negligence, either in not disclosing to Blake the fact that the valise contained money, or in treating it as mere baggage, at the time it was taken from the cars, the loss must be his, and the defendants were not liable. The court declined so to charge, but charged the jury that a guest was not bound to inform the innkeeper of the contents of his baggage to enforce a liability against the latter for Its loss, although a guest may be bound to the exercise of ordinary care and diligence in the control and preservation of his baggage. The counsel for the defendants excepted. The jury rendered a verdict in favor of the plaintiff for $2050. The court thereupon directed the exceptions to be heard, in the first instance, at a general term.</p>

The action was brought to recover a balance claimed to be due the plaintiffs upon a contract with the defendants for tanning hides. The trial was had at the Ulster circuit in February, 1856, before Mr. Justice Gould. The facts which appeared upon the trial were substantially the same as are stated in the report of the case in 1 Kernan, 170.

THIS action was brought by the above plaintiffs on behalf of themselves and all other makers of premium notes in the Utica Insurance Company, to set aside an assessment made by the receiver of said company, and for other relief. The first cause of action in the complaint alleged the following facts.

<p>In an action against the continuator of a private nuisance originally erected by another, to recover damages for the injury sustained thereby, the plaintiff must prove a notice to the defendant, of its existence, and a request to remove it.</p> <p>Where two letters are written simultaneously, signed by the same individual, containing the same words, and addressed to the same person, one being sent to the person addressed and the other retained by the writer, each is an original, and the one retained may be given in evidence without proving any notice to produce the other.</p> <p>Where the plaintiff offers evidence, at the trial, which is received without any objection on the part of the defendant that the proper foundation was not laid for it in the allegations of the complaint, the objection cannot be raised after-wards, but will be considered as having been waived,</p>

The action was brought upon a promissory note for $100, made by the defendant on the 1st of May, 1849, -and payable to the plaintiff, Elizabeth R. Smart, or order, on demand. The complaint alleged that the plaintiff was the lawful owner and holder •of the note, and that the defendant was indebted to her thereupon. The answer contained a general denial of the allegations in the complaint.

The action was commenced before a justice of the peace, by a summons issued on the 16th day of July, 1855.

-HL The action was brought by the plaintiff against the defendants, who were the assessors of. the town of Plainfield in the county of Otsego, for wrongfully and unlawfully assessing or causing to be assessed the lands of the plaintiff, whereby and in consequence whereof the plaintiff was obliged to pay an illegal tax of about $12. The action was commenced by warrant issued by a justice of the peace of the town of Winfield, Herkimer county, and was tried in that town.

THIS action, was tried at the Otsego circuit in December, 1856, when the plaintiff obtained a verdict against the defendant for $500, damages, The defendant made a bill of exceptions, and the judge who presided on the trial, made an order staying the plaintiff’s proceedings on the verdict, and directed that the defendant’s motion for a new trial, on his exceptions, be first heard at the general term. Two causes of action are set out in the complaint.

The complaint alleged that on or about the first day of February, 1853, the defendants, claiming to act under their charter, represented to the plaintiff, that cer-' tain persons,, being one-third of the owners of the lands in North-Seventh street, in said city, between the East river and Union avenue, had petitioned for the improvement hereinafter mentioned, and that the defendants had taken the necessary proceedings to authorize them to make such improvement under the…

<p>Where a party, on appealing to the county court from the judgment of a justice of the peace, for the purpose of staying execution of the judgment, executes an undertaking, with sureties, conditioned that “ if judgment shall he rendered ” against the appellant, and execution thereon be returned unsatisfied in whole or in part, the obligors will pay the amount unsatisfied, and the county court reverses the judgment of the justice, and on appeal to the supreme court, that court, at general term, reverses the judgment of the</p> <p>county court and affirms that of the justice, with costs, the sureties are liable, not merely for the amount of the judgment in the county court, but for the amount recovered in the supreme court.</p>

ÁPPEAL from a judgment of the county court of Dutchess county reversing the judgment of a justice’s court, in summary proceedings for the removal of the defendant from the possession of demised premises.

In 1851 the Legislature of the State of Hew York passed an act to amend the charter of the city of Rochester, in which, among other provisions, authority was given to the Common Council of the city… Held: and the city having made a subscription for $800.,000 of the stock pursuant to the act, they subsequently made a contract with Freeman Clarke, plaintiff in this action, to sell to him the stock subscribed for, upon his paying certain amounts at certain specified times.

<p>APPEAL from a judgment entered at a special term, upon the report of a referee. The action was brought to foreclose a mortgage given by M. W. Eastman to George Youngs and Abel Hunt, on the 4th of June, 1849. The mortgage expressed a consideration of $2400, and contained the following condition : “ Provided always, and .these presents are upon the express condition, that if the said Moses W. Eastman, his heirs, executors or administrators, shall well and truly pay and save harmless and indemnify the said George Youngs and Abel Hunt, and each of them, of and from all liabilities which they or either of them may have at any time heretofore contracted to and for the said Moses W. Eastman, either as surety, indorser, guarantor or otherwise, whether now due or yet to grow due, and shall save harmless the said George Youngs and Abel Hunt, and each of them, of and from all damages, costs and charges on account of the same,” &c. The referee before whom the cause was tried found that the plaintiff George Youngs had paid, as surety for the defendant Eastman, debts and liabilities intended to be secured by the bond and mortgage set forth in the complaint amounting to $775.55, which amount was due to him in his own right, with interest; and that the plaintiffs George Youngs and Abel B. Hunt, as executors of Abel Hunt deceased, were entitled to recover for liabilities incurred by Abel Hunt in his lifetime, and for which they were liable as executors, the sum of $314.99 with interest; which liabilities were secured by the said bond and mortgage. And a judgment was entered, for the foreclosure of the mortgage, a,nd directing the mortgaged premises to be sold; for the payment of the amount so adjudged to be due to the plaintiffs, with costs. From this judgment the defendants appealed.</p>

<p>The possession of a rail road passage ticket is prima facie evidence that the holder has paid the regular price for it, and of his right to be transported, at some time, between the places specified thereon, on some passenger train. And if it is unmutilated, the presumption is, that it has never been used for that purpose. It is therefore evidence of the agreement or undertaking of the corporation to transport the holder to the place mentioned, on its passenger cars, for a consideration by him paid.</p> <p>The words “ good this trip only," upon a passage ticket, will not limit the undertaking of the company to any particular day, or any specific train of cars. They do not relate to time, but to a journey; and if the ticket has not been previously used, it entitles the holder to a passage on a subsequent day, as well as on the day it bears date.</p>

The action was brought to recover the balance remaining unpaid on a subscription by the defendant, for twenty shares of the capital stock of the Lake Ontario, Auburn and New York Bail Boad Company. The subscription was to the original articles of association. The defendant, and seven other individuals, agreed between themselves to subscribe the articles of association for twenty shares, each, and all made such subscription. The shares were $50 each.

CERTIORARI, to remove proceedings had before the county judge of Cayuga county, upon habeas corpus. The habeas corpus was sued out by Azubah Rhoades, for the purpose of having the custody of her infant child delivered to her. The child was less than six months old. and had been taken from the mother by its father, Uriel M. Rhoades, and put in charge of his mother, Sophia Rhoades. The county judge ordered and decreed that the child be delivered over to its mother.

<p>APPEAL from a judgment of the Monroe county court. The action was commenced before a justice of the peace, and was brought to recover rent claimed tobe due upon a lease. The justice rendered a judgment in favor of the defendant, which was affirmed, on appeal to the county court. From the latter judgment the plaintiff appealed to this court.</p>

<p>Where the cause of action alleged in a complaint, is one accruing to the plaintiff by the unlawful conversion of property when he was the owner of it, and not one which accrued tp a former owner of the property, by a conversion during his ownership, and which has been assigned to the plaintiff, the plaintiff cannot avail himself of a conversion by the defendant while another person was the owner, and before the sale of the property by him to the plaintiff.</p> <p>A refusal to comply with a demand is only evidence of a conversion where an ability, at the time, to comply with it, is proved.</p> <p>A demand of property after the sale thereof to the plaintiff by the former owner, and the disclaimer, by the person of whom the demand is made, of any knowledge of the property, and his omission to deliver it, it having been previously lost or stolen, and he not having possession thereof at the time, is not evidence of a conversion.</p>

<p>A PPEAL from a judgment entered at a special term, after a _OL trial at the circuit. In November,' 1854, the plaintiffs, being hankers in Livingston county, sent by the United States Express Company, of which the defendant was president, a sealed package of bank bills, directed on the cover, to “People’s Bank, 178 Canal street, New York.” The agent of the express company, on receiving the package in Livingston county, gave the following receipt:</p> <p>“ United States Express Company,</p> <p>Office No. 82 Broadway, New York, n Nov. 18, 1854.</p> <p>S. Sweet & Co. has delivered to us one package money, marked as follows: People’s Bank, 173 Canal street, N. Y., and said to contain twenty-eight hundred and ninety-two dollars, which we undertake to forward to New York, or to the nearest agency of this company only, perils of navigation excepted. And it is hereby expressly agreed that said United States Express Company are not to be held liable for any loss or damage, except as forwarders only; nor for any loss or damage of any box, package or thing, for over $150, unless the just and true value thereof is herein stated; nor for any loss or damage by fire ; nor upon any property or thing unless properly packed and secured for transportation ; nor upon frail fabrics, unless so marked upon the package containing the same; nor upon any fabrics consisting of or contained in glass.</p> <p>For the proprietors, W. W. Finch, Agt.</p> <p>Contents unknown.”</p> <p>This action was brought to recover damages for the non-delivery of the package. The answer admitted the receipt of a package from S. Sweet & Co.,directed to the “People’s Bank, 173 Canal street, New York,” on the day aforesaid, but denied any knowledge or information of its contents, and put in issue the residue of the complaint. The -defense set up in the answer was, in substance, 1. That the defendants were not common carriers, but express forwarders; that their undertaking was evidenced by the receipt delivered by them at the time of receiving the package; that such paper created an obligation only to transport to New York, which was done, but not to deliver the same at the bank, or to the officers thereof, and averred a delivery. The cause came on for trial at the Livingston circuit, before Mr. Justice Johwson, and a jury, on the 9th of October, 1855. The plaintiff proved the receipt of the package by the defendants; that it contained bank notes; that the plaintiffs had not received the package or the proceeds thereof. It was ■ also proved that the express company forwarded the package to their office in New York. On its arrival, (on 20th November,) a person named Messenger, in the employ of the People’s Bank, called for it, received it there, and gave a receipt for it in the book of the company. The book showed that he had thus received and receipted for the bank, every package directed to it, and carried by the company during that month; this being the tenth in number. It was further shown that this Messenger had received, for the six previous months, more than half of the packages intended for the bank; that this mode of delivery to him was adopted at the request of the officers of the bank ; that it was for their accommodation, and not for that of the express company ; that packages so delivered had been regularly credited by the bank, and no exception taken. This package thus delivered to Messenger, was stolen from him before he got to the banking house. The bank then, for the first time, disowned the agency of Messenger, and indemnified the plaintiffs.</p> <p>The counsel for the defendants offered to show that John J. Messenger was in the habit of receiving from the defendants packages of money addressed to the bank, and did such other acts out of the bank; that a delivery to him at places other than at the bank was a good delivery to the bank. The counsel for the plaintiffs objected to any evidence of the acts of Messen- , ger at places other than at the bank, or of a delivery to him at such places, by the defendants, of packages of money addressed to the bank as a delivery to the bank, unless they showed it was with the knowledge and authority of the bank. The court overruled the objection, and held that the defendants could show the nature and character of Messenger’s employment and acts for the hank outside the banking house, and could in this cos-» nection show 'the' delivery by the defendants to Messenger at places other than at the banking house at No. 173 Canal street, at different times, of packages of money addressed to the People’s Bank, 173 Canal street, and which afterwards came into the possession of the bank, and were treated by it as regularly received and delivered, and it would be a question of fact for the jury to determine on such evidence whether the same was with the knowledge and authority of the bank, and if so, it was a good delivery to the bank; to which rulings of his honor the judge the counsel for the plaintiffs excepted. The witness W. A. Countryman then testified, subject to the said exception of the plaintiffs’ counsel, that he had met Messenger in Wall street and at different banks acting for the People’s Bank in making exchanges and collections ; had seen him carrying large packages of money, receiving and paying out the same ; he usually carried the money in a little trunk; the packages when delivered at the bank were not always delivered to Mr. Mayhew, but were usually so delivered j some of the oEcers of the bank employed in the bank found fault that they got the packages too late for their exchanges, and told him that he might leave the packages at 92 Broadway, where the bank had an agency for the purpose of receiving deposits from down town dealers; that Thomas Sproull, a clerk of the bank, attended at this agency a part of the time; that he instructed the witness, who was in the employ of the express company as city messenger for the delivery of money and valuable packages, to give packages addressed to the People’s Bank, to Messenger, whenever he should meet him.</p> <p>At the close of the testimony, the counsel for the plaintiffs requested his honor the judge to charge the jury, 1. That the duty of the defendants was to deliver the package at the bank, as directed; and they were not authorized to deliver the same to any person, at any place, other than at the bank. 2. That neither .the bank nor the defendants were authorized to change the mode "of delivery of the packages, without the consent or the knowledge of Sweet <fe Co. And such change, if made without their knowledge or consent, would not discharge the defendants 3. That there was not sufficient evidence submitted on the part of the defense to show an authority from the bank to Messenger to receive the packages from the defendants, so as to discharge them from their liability in this action. 4. That the evidence showed that Messenger, in receiving the packages at places other than at the bank, acted as the agent of the defendants. The judge refused so to charge, and the counsel for the plaintiffs excepted. The judge then charged the jury that the defendants were common carriers of the package of money in question, and liable as such for.its safe carriage and delivery to the People’s Bank, to which it was addressed. That they were bound to make such delivery as would make the consignees liable to the owner for the contents of the package. That such a delivery would be either at the banking house or office where the business of such bank was carried on, to some person in charge of the business; or to some person elsewhere in the city duly authorized by the proper officers of the bank to receive packages of this description. That such delivery in either case would discharge the defendants from their liability. That if the delivery was made at any place other than the bank, it was incumbent on the defendants to show that the person to whom it was delivered was authorized by the bank to receive it, and was its agent for that purpose. That a delivery to an agent of the bank duly authorized to receive packages of this description forwarded in this manner, would be delivery to the bank, and discharge the defendants. That the authority of Messenger, to whom the package in question was delivered by the defendants, to receive it for the bank, might be established by evidence of direct authority from the proper officers of the bank, or it might be inferred from evidence of repeated and continued acts of Messenger as agent, of the same character, with the knowledge and assent of such officers, and without any objection on the part of such officers, or notice to persons known to them to be thus dealing with him as such agent. That an authority from Sproull to deliver to Messenger was not sufficient, unless it appeared satisfactorily that such authority was at the instance or with the assent and approbation of the officers aforesaid. That as there was no evidence of direct authority to Messenger, it was a question of fact for the jury to determine, from all the facts and circumstances, and the manner of transacting this kind of business, whether the officers of the bank knew that Messenger was holding himself out as their agent and professing to act as such; and whether, in fact, he had any authority from them thus to act, or was professing thus to act without direct authority, but with their knowledge and consent. That in either case, if they should find such to be the fact, the delivery was good, and the defendants discharged. The jury brought in a verdict for the defendants.</p>

<p>Although, under the code, the allegations of the complaint, not specifically denied, are to be regarded as admitted, yet where there are several answers, an admission made in one is not available against the others. Each answer must stand hy itself as a complete defense, and" the plaintiff must recover upon the whole record.</p> <p>An implied admission, in one of several answers, therefore, will not conclude the defendant, or estop him from showing the matters of defense set up in another answer.</p> <p>The statute (Laws of 1850, ch. 278) requiring a contractor with the state for the performance of work upon the canals to execute a bond conditioned that he will pay all laborers employed hy him, and the general rail road act, containing a similar provision, in respect to laborers employed in the construction of rail roads, were designed to secure the payment of the actual laborers; those who do the work on canals and rail roads. They were not intended to include contractors or jobbers, or sub-contractors of portions of the work.</p> <p>Accordingly held that a sub-contractor, in respect to a portion of the work contracted to be performed by another, upon a canal, could not maintain an action upon the bond given by the contractor, to the state, in pursuance of the statute, to recover a balance remaining due to him from the contractor.</p>

<p>APPEAL by the defendant from a judgment entered at a special term, upon the report of a referee, after a new trial had been granted. See S. C. 19 Barb. 128, where the facts are fully stated. On the second trial, the referee reported in favor of the plaintiff for $780.60 damages, and $227.07 costs.</p>

THIS action was brought upon a warranty, alleged to have been made by the defendant B. Bradley, upon a, sale of notes belonging to him and the other defendants, Pettibone and Woodruff, composing the partnership firm of B. Bradley & .Co,, to one Simon Gallinger. The cause of action had been assigned by Gallinger to the plaintiff. On the trial, Gallinger was examined as a witness for the plaintiff, and proved the material facts alleged in the complaint.

The complaint alleged that the firm of Osborn, Turnbull & McDonald, a produce firm in New York, was insolvent on the 17th January, 1856, and that the cashier of the defendant knew that fact; that on the 14th of January, drafts on the firm, accepted by them, and on which the defendant had advanced money, came back protested far non-payment, and remained unpaid, which was also known to the defendant’s cashier, but all these facts were unknown to the plaintiff.

The relator represented that he had been duly licensed to practice as a physician and surgeon in this state. That at a regular meeting of the Medical Society of the County of Erie, held in January, 1850, he was duly admitted a member of the society.

ACTION for partition. It appeared from the report of the referee, that Moses Clark died intestate, in September, 1855, seised in fee of the premises, and his wife died a day or two after. Ensign M. Clark, Sophia S. Clark and Lucy F. Cutter, wife of Chauncey F. Cutter, were the children and only heirs at law of Moses Clark. In August, 1856, Lucy F. Cutter died intestate, leaving Clifton H. Cutter and Alice Cutter her infant children and heirs at law.

The wife of the appellant, Lucius C. Brown, was one of the heirs at law of the testator, and the respondent, Harvey W. Torrey, was the executor named in the will.

<p>Motion for an order for the delivery of the books and papers appertaining to the office of street commissioner of the city of New York.</p>

THIS was an action brought by the plaintiff against the defendant to recover damages for the seduction of the plaintiff’s daughter, Temperance S. Travis.

<p>THIS- action was brought upon an award. The submission was by a writing under seal; and it was provided therein, that a judgment in the county court of Otsego county might be rendered upon the award made in pursuance of the submission. The award was that the defendant should pay to the plaintiff $56.50, within three days after the date thereof; and it was dated the 12th day of September, 1855.</p> <p>The defense set up in the answer and insisted on upon the trial was, that no judgment had been rendered upon the award, and that no term of the Otsego county court had been held after the publication of the award, before the commencement of this action thereon. The issue in the action was tried at a special term held in Otsego county in' July, 1856, by Mr. Justice Shankland, without a jury. He gave judgment for the plaintiff on the award, with costs. The defendant appealed from the judgment to the general term.</p>

<p>A father is not liable for articles of clothing furnished to his minor child without his consent, in the absence of any proof that he had neglected to supply such child with clothing necessary and proper for his condition in life.</p> <p>After books of account have been introduced in evidence, tin a trial before a justice, they become the property of both parties, as evidence in the cause, and the party producing them cannot be allowed to withdraw them from the consideration of the jury, without the consent of the opposite party.</p>

PPLIOÁTION- for warrants to commit Charles Devlin to jail until he should deliver up the books and papers pertaining to the office of street commissioner of the city of New York, and directing the sheriff to search for said books and papers and seize them, in order that t-he same might he de- . livered to the applicant, D. D. Conover.

CASE submitted for the opinion of the court, upon the construction of a will. The facts upon which the question arose are stated in the opinion of Justice Strong.

<p>THIS was a certiorari^ directed to Henry A. Moore, Esq., late county judge of the county of Kings, to remove proceedings had before him upon a petition presented by Garrit Stryker, an insolvent debtor, and certain of his creditors, under and in pursuance of article 3d, title 1, chapter 5, of part 2d, of the revised statutes. A return having been made to the certiorari, by the county judge, of the proceedings had before him, terminating in the discharge of the insolvent, the same was argued before Justice Emótt, at a special term. One of the objections urged was that the schedule annexed to the insolvent’s petition did not contain “ the true cause and consideration of the indebtedness” to one of the' creditors, Isaac G. Hatfield, as required by the statute. (2 R. S. 17, § 5, sitbd. 4.) The nature of the debt was thus stated, in the schedule : “ Note of insolvent’s, made Eeb. 3, 1853, for accommodation of insolvent.” It was also objected that the affidavit of Hatfield, accompanying the petition, did not state “the general ground and consideration of such indebtedness,” as required by section 4 of the statute. (2 R. iS. 16.) The affidavit was, that the sum annexed to Hatfield’s name, subscribed to the petition, was justly due to him from the insolvent, “ for the amount of a note of said Stryker, dated February 3. 1853.” It was also objected that no certificate was produced before the county judge that the assignment executed by the insolvent had been recorded in the office of the county clerk, as required by section 29 of the statute. (2 R. S. 21.)</p> <p>The following opinion was delivered by Judge Emott, on deciding the motion at the special term.</p> <p>Emott, J. “ There is a marked difference between the provisions of the present insolvent act, (2 R. S. paid 2, c/t. 5, tit. 1, art. 3,) and those of the act of 1817, under which the earlier cases were decided. By the act of 1817, the debtor was not only required to set forth clearly in his schedule the true cause and consideration of every debt, but the failure to do so was made expressly to avoid the discharge, as fraudulent in law. (Laws of N. Y. vol. 4, p. 46.) The cases of Taylor v. Williams, (20 John. 22,) Slidell v. McCrea, (1 Wend. 156,) and McNair v. Gilbert, (3 id. 344.) arose under this statute, and the duty of the court was confined to the construction of the words of the act. When it was determined what should be regarded as a sufficient statement of the cause and consideration of a debt, then it only remained to see if that could be found in the schedule in the instance of every creditor named, and if it did not, the statute pro facto, and without more question, pronounced the discharge fraudulent and void. But in the insolvent act revised in 1830, (2 R. S. 16,) although every petitioning creditor is required by section 4 to state the nature of his demand, with the general ground and consideration of the indebtedness, and by section 5 the debtor is required to state in his schedule the true cause and consideration of every debt, still there is no provision that a failure to comply with either of these requirements shall of itself render the discharge void. After the officer having jurisdiction in the premises has determined that the statute has been complied with, and the proceedings have gone on to a discharge, this discharge cannot be avoided or impeached, either when it is set up in an action or upon certiorari, except for the causes specified in the 35th section. (2 R. S. 23.) The framers of the present statute intended that willful and material false statements, and fraudulent omissions and concealments of the petitioner should avoid a discharge, and might be shown against it. But the rigor of the former statute is relaxed in reference to the consequences of not complying with its mere directions in regard to the statement of the debts. This view of the present statute was taken by this court in the case of Hurst, on certiorari, (7 Wend. 239,) where the objection to the discharge was that in the original proceedings, before the commissioner had permitted them to be amended, the consideration of some of the debts was not stated at all; and, therefore, it might be urged the officer never acquired jurisdiction. The court held that the commissioner had a right to permit the amendment, and that this cured the defect; but the chief justice, in giving the opinion, adverts to the alteration of the statute, and expresses the opinion, distinctly, that the defect pointed out, even if not cured, was not, under the present act, sufficient to avoid the discharge. In Ayres v. Scribner, (17 Wend. 407,) the insolvent had stated in his schedule that he was indebted to the plaintiff on three notes, in a certain sum ; the fact being that he was indebted to him on four, notes, and for a larger amount. This was not held sufficient, per se, to avoid the proceedings, but the facts were submitted to the jury to determine whether the misrepresentation was willful. So in the recent case of Small v. Graves, (7 Barb. 576,) which was very well considered, it was held that the omission to insert the name of any creditor, or the misstatement of the amount due to any creditor, will not of itself vitiate the discharge. It must be an intentional and fraudulent act of deception or concealment, to have such an effect.</p> <p>The rule of the statute, as interpreted by these authorities, and indeed, even without the aid of judicial construction, is clear and simple. The question in all cases is, whether the concealment or misrepresentation is fraudulent, that is, willful and designed. All the specific acts enumerated in section 35, either of which will vitiate the proceedings, absolutely, are acts which are necessarily and irresistibly proofs of a fraudulent design; which are, in short, of themselves, and by their necessary consequences, frauds upon the law itself. But acts or omissions which may he accidental and innocent, are not to destroy the validity of the proceedings, unless they are determined to have been done with a fraudulent purpose. And although in some cases the misstatement's may be so gross, or the omissions so glaring, as to afford conclusive evidence of fraud, yet the question is always one of fraud in fact, and these defects, which under the former statute were legal cause to avoid the discharge, now are only, at the most, the evidence of the intention of the insolvent!</p> <p>The defects which are specified in these proceedings are, that the true cause and consideration of the principal petitioning creditor’s debt is not stated with that particularity which was held to be necessary in the cases in 20 John, and 1 Wend, in analogy to the statute regulating the confession of judgments, and the construction it had received. But it was not contended that there was any thing more in the present case than a failure to observe the strict injunction of the statute. No misrepresentation was shown, if, indeed, any could be shown in the present proceeding. And I am unable to see how any violent, not to say irresistible presumption, of fraud arises from the imperfect statement of the debt of Hatfield, which is described in the petition and affidavit of the creditor as a note made by the insolvent, and in the schedule of the debtor as a note made by Stryker to Hatfield for Stryker’s accommodation. These are loose and inaccurate statements of the cause and consideration of the debt, and certainly would not sustain a confession of judgment; but they do not, to my mind, clearly and conclusively import a fraudulent purpose of either the insolvent or this creditor. The relator, or any other creditors of Stryker, may have this question passed upon by a jury when the insolvent’s discharge is pleaded in answer to a suit for any of his debts; but this court cannot, in the present proceeding, upon what I have here before me, presume the proceedings fraudulent and the discharge void.</p> <p>Another objection to the proceedings—that there is no proof that the assignee ever took the oath required by the statute— needs but little consideration. The statute entitles the debtor to his discharge, upon producing a certificate that he has executed the assignment required of him, and that it has been recorded. Then, before proceeding to the discharge of any of their duties, the assignees are required to take an oath that they will faithfully execute their trust. It is unnecessary to determine what effect their failure or refusal to take this oath might have upon their own acts, or when, at farthest, it must be taken. It is sufficient to say that there is nothing to be found in the statute, or in the reason of the thing, justifying the conclusion that their neglect can prejudice the insolvent, whose trustees they are made, not by his own choice or nomination, but entirely by the appointment of the officer granting the discharge.</p> <p>The proceedings of the county judge must be affirmed.”</p> <p>It was thereupon ordered that the writ of certiorari be quashed, and the discharge confirmed, with costs. From this decision the relator appealed.</p>

PPBAL by the defendant from a judgment entered at a special term, upon the report of a referee. The action was upon a promissory note for the sum of $105 and interest, made by the defendant on the 28th of April, 1848, payable to Job D. Tanner or hearer, on demand. The referee reported in favor of the plaintiff for the amount of the note, with interest.

PPEAL by Peter Townsend and Wm. H. Townsend from an order made at a special term, appointing commissioners to appraise the damages of the appellants, as owners of land required by the Morris Canal and Banking Company, for the purpose of a reservoir for their canal.

<p>[This caséis reported," ante, p. 174. The following opinion of Justice Bacon was not received in time to he embraced in the report of the case there. It is thought worthy of preservation, and is therefore inserted here.]</p>