Volume 24 — New York Supreme Court Reports

Appeal by tbe defendant from an order of the Special Term, setting aside and discharging a struck jury and directing the clerk to strike a new one.

<p>Appeal from a judgment in favor of the plaintiff, entered upon tbe report of a referee.</p> <p>The action was brought to recover money alleged to have been paid to the defendant under a mistake of fact.</p>

The action was brought upon a promissory note made by the defendant Fargo, to the order of plaintiff’s intestate, and signed by defendant Howard as surety. The latter defended on the ground, among others, that after the execution and delivery of the note, a material alteration was made without his knowledge or consent.

The action was originally commenced in a Justice’s Court to recover damages for an alleged wrongful entry upon the plaintiff’s premises, and for taking and carrying away a hog.

Judgment was rendered in this action April 24, 1877, for $13,083.33 damages and costs, in favor of plaintiff against the defendants. Execution was issued April 27, 1877. This execution was issued by plaintiff’s attorneys. It was drawn up and delivered to the sheriff by the junior member of the firm. The other members of the firm had no knowledge or information of the issuing of the execution.

<p>Appeal by the common council of the city of Troy from an order of the Special Term allowing a peremptory mandamus, and therein commanding the council to designate the relator’s newspaper, known as the Troy Daily Times, as an official paper for the city of Troy.</p> <p>On the 12th day of March, 1878, the common council of the city of Troy, at a reguiar meeting thereof, designated as official newspapers, for the then ensuing year, four newspapers published in said city and known as the Troy Daily Press, the Troy Morning Whig, the Trojan Observer, and the Troy Evening Standard. These newspapers and their proprietors severally accepted the. appointment, and ever since have done the city advertising. The designation by the common council of official papers for the year ending on the second Tuesday of March, 1879, was made under and pursuant to section 3 of chapter 813 of the Laws of 1873, the •city charter, which reads as follows : “ The common council shall designate not to exceed four newspapers, having the largest circulation in the city, in which the city advertising shall be done, only •on the order of the common council.”</p>

The action was on a promissory note made by the defendant to the plaintiff. The answer interposed on the day of the return of the summons was : (1.)' General denial. (2.) Payment. (3.) Set-off for property sold and delivered, and for work, labor and services.

On March 27,1876, the plaintiffs recovered two judgments against one E. A. Watrous, in a justice’s court, amounting to $307.54, and at the same date executions thereon were issued to the defendant Newton, a constable. On the same day the defendant attempted to levy upon certain property of Watrous, indorsing on the executions the time of levy and a description of the property.

This action was brought to recover for injury to the respondent, caused by the steamboat of the appellants running into a steam tugboat, of which the respondent was pilot, through the negligence of the persons in charge of the appellants’ boat. The respondent was the pilot of the tugboat William Bliss. On the 11th day of August, 1873, the boat Bliss towed the barge Harvest Homo, with an excursion party on board, from the city of Hudson to the city of Troy.

<p>Suit by trustees — when, an execution against them, personally is improper.</p> <p>Alger and Stanton, describing themselves as trustees, presented a written claim to the defendants, as administrators, stating that the claim was held by them as trustees. The claim was, by consent, referred; the answer 'of the defendants was entitled, in the name of Alger and _ Stanton, trustees, against Conger and Alger, administrators. The referee in his report stated that plaintiffs were duly appointed trustees, found against them and directed that the complaint be dismissed, with costs. Upon motion, the report was confirmed and judgment was directed “against the plaintiff Joseph E. Alger, as survivor,” for costs. Judgment was accordingly entered against him in the same form, and an execution was issued against him personally. In the title of the report of the referee, the motion for judgment and the judgment itself, the word “trustees” was omitted.</p> <p>A motion was made to set aside the execution issued against plaintiff individually, on the ground that it was unauthorized; held, that the motion was proper and should be granted. (Bockes, J., dissenting.)</p>

<p>Appointment of an assignee in banb’uptcy — avoids an attachment levied within four months.</p> <p>Plaintiffs commenced an action against the firm of Jordan & Clark, residents of Boston, bnt doing business and having personal property in Albany, by service of the summons by publication. January twenty-eighth, 1876, an attachment therein was issued to defendant and a levy was made thereunder. January twenty-ninth, the said firm filed a voluntary petition in bankruptcy, and on the ninth of February were adjudged bankrupts. On March eleventh the creditors filed a petition for a composition, under section 17 of the bankrupt act, and on March thirtieth a resolution accepting the offer of the bankrupts was passed and signed by the requisite number of creditors, and the same was, on April second, duly filed and recorded in the bankruptcy court.</p> <p>April eleventh, notice was given of a meeting of creditors, to be held on April twenty-first, to elect assignees. This notice was given because of the judge of the bankruptcy court having held that the composition would not dissolve plaintiffs’ attachment. On April twenty-first, at a first meeting of creditors held pursuant to notice under a warrant issued therefor, the same committee, appointed by the creditor’s to see to the fulfillment of the composition, were elected assignees. On April twenty-second, the composition was ratified and confirmed by the court. The assignees, on April twenty-second, demanded the property, theretofore attached, of the defendant, and thereafter conveyed all the property of the bankrupts to a new firm, the formation of which had been provided for in the composition. On demand of this firm defendant surrendered to it the property. April twentieth plaintiffs had entered judgment in their action and issued an execution to defendant to sell the property levied upon.</p> <p>In an action by them against defendant for failing to collect the execution, held, that the appointment of the assignees being within four months of the issuing of the attachment, avoided it; that the judgment entered bound only what was held under the attachment and fell with it.</p> <p>That the fact that the composition was assented to before the appointment of the assignees, and was subsequently carried into effect, did not alter the effect of their appointment upon the attachment. (Learned, P. J., dissenting.)</p>

This action was commenced in the Albany County Court on the 7th day of April, 1877, by the service of the summons and complaint on the defendant. An answer upon the merits, containing no allegations as to any want of jurisdiction in the court, was served on the 21st day of May, 1877, and a reply on the 5th day of June, 1877.

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

This action was commenced in a justice’s court, but was removed into the Supreme Court upon a plea of 'title. The plaintiff owned a right -of way across a farm occupied and owned by the defendant. The defendant erected a cider hiill upon his land, abutting and opening upon said way.

The paper admitted to probate reads as follows: “I, Jedidiah Barber, of the village of Homer, for my last will and testament, as follows: “I nominate and appoint Samuel McClelland Barber, Thomas D. Chollar and Robert II.

<p>Contributory negligence — when walking on a railroad track, constitutes.</p> <p>Plaintiff’s intestate undertook to walk along the defendant’s road, on a switch track from one street to another, in Saratoga Springs, a distance of about 350 feet. "While so doing some cars were switched thereon, came up behind him, struck and killed him.</p> <p>Held, that he was guilty of contributory negligence in walking upon the track, and that the plaintiff could not recover.</p>

The action was brought to partition certain real estate, situated in the town of Franklin. The question was whether certain' real estate, owned by Lulie S. Porter, deceased, passed under the residuary clause of her will, and not to her heirs-at-law.

The action was brought upon a policy of insurance, issued by the defendant to the plaintiff’s assignor upon his interest as lessee in a bouse at one time owned by Mullin, and conveyed by bim as security for a debt of $1,500. At tbe time of the conveyance be received back a lease for eight years at $105 a year rent, with a right to redeem tbe premises on paying tbe $1,500 during tbe term thereof.

<p>Turnpike — right of a city to lay sidewalks on, and collect the expense thereof by assessment.</p> <p>"Where the charter of a municipal corporation authorizes it to repair the streets and sidewalks thereof, and collect the amount by assessment, it may cause repairs to be made to a sidewalk along and upon land owned by a turnpike road within the limits of the city, and may assess the expense thereof upon the owners of the lands abutting thereon.</p>

October 15, 1873, the plaintiff sold to one Hammell, by written agreement, a lot situate in Elmira, for the sum of $1,350. $300 was paid at the date of the agreement, and the balance was to be paid in five equal annual payments, with interest annually thereafter. The first year’s interest, $73.50, was paid October 15, 1874.

The first action was brought to foreclose a mortgage, held by the plaintiff and others as trustees. After its commencement the second action was commenced by one of the other trustees to foreclose the same mortgage, and for certain other relief. To this second action the first plaintiff was made defendant. Both of these actions were referred, after issue joined, to the same referee, and were tried together.

The action was brought to recover on a bond of indemnity, executed by the defendants to the plaintiff, a sheriff. The bond recites a judgment and execution in favor of A. C. Yates & Co., the present defendants, against one Powell, and stated that certain goods which appeared to belong to Powéll, and which had been levied upon under said judgment, were claimed by another person.

favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried. The action was brought to recover upon a policy of insurance issued by the defendant to the plaintiff.

This action was brought by Nathaniel Gallup, in his lifetime to recover from the defendant the rent due upon a lease from him to the defendant, bearing date April 9, 1868, for the term of two years, commencing May 1, 1868. On his death his personal represented was substituted as a party plaintiff.

Appeal fz-om a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order deziying a motion for a new trial, made upon the miziutes of the justice before whom the action was tried. The action was brought to recover for the killing of plaintiff’s intestate, alleged to have been caused by the zzegligence of the employees of the defendant.

In 1855 the State made a permanent appropriation of the waters of Cazenovia lake and of its outlet Chittenango creek to the purpose of feeding the Erie canal. At that time there were two clams on the creek, one near the outlet of the lake which belonged to the State, and the other below which belonged to private parties. The State also owned the Erieville reservoir, another feeder, the waters from which emptied into the Chittenango creole between the two dams.

The complaint alleged that the plaintiff about April, 1874, purchased a farm from the defendant for $18,000, paid and secured as follows : $5,000 in cash ; $2,000 by assuming a mortgage already on the farm; $11,000 by plaintiff’s bond, secured by mortgage thereon, payable in annual installments of $1,000 each ; and that he has paid the first installment, payable December 1, 1874, of $1,000.

Tbe action was brought by the plaintiff, who was formerly an ■employee of the defendant, as locomotive engineer, to recover damages for injuries sustained by him while running as such engineer, from his engine being thrown off the track by reason of the defective condition thereof. The evidence tends to show that •at the time of the accident in July, 1872, the defendant’s road was much out of repair and in bad condition, of which plaintiff had knowledge.

The court found that William Cressey, a resident of Ellen-burgh and in possession of a farm in said town, which was the only land occupied by him at that time and up to the time of his death, executed a chattel mortgage, April 12, 1877, to John L. Carter and Freeman Yilas, whereby he granted, bargained and sold “ unto the said mortgagees, their executors, administrators and assigns, forever, the following goods and chattels, herein expressed, now remaining and being in the…

<p>When a party is estopped from asserting title to land— Necessity of pleading an estoppel.</p> <p>Defendant Camp being about to purchase certain land, and hearing that there was a dispute as to the boundary line between the then owner and plaintiff who owned the adjoining lot, applied to the latter, and stated that he would not purchase unless the dispute could be settled; that he would not purchase a quarrel. Plaintiff said if he purchased the lot and claimed to a certain wall, there would be no difficulty. The purchase was made and each party occupied up to the wall, and made imimovements on their respective lots.</p> <p>Held, that the plaintiff was estopped from claiming that any of the land on the defendant’s side of the wall belonged to him.</p> <p>Admissibility of evidence, under a general denial in an action of ejectment, to show that plaintiff is estopped from claiming possession of the land in question, considered.</p>

Tbe action was brought to recover for injuries sustained by plaintiff ;s horse. Tbe defendant kept a hotel. A short time before tbe fourth of July, 1877, tbe defendant issued cards, of which tbe following is a copy: “Fourth of July party at Casler’s Hall, Springfield Centre, N. Y., Wednesday evening, July 4, 1877, yourself and lady are respectfully invited to attend. Music by tbe Old Utica Band, Jacob Casler, proprietor.

<p>Action far money had and received— when maintainable.</p> <p>Defendant, having’ at the request of one Sohns loaded a vessel with petroleum, represented that he had put in 110 barrels more than he had in fact, and.thereby induced the master of the vessel to give a bill of lading for that amount to Sohns, who paid defendant for that amount, and sold the bill of lading to a firm in Antwerp. Upon the arrival of the vessel at Antwerp, the master was compelled to pay the consignees for the deficiency.</p> <p>In an action by the plaintiff, as assignee of the master, held, that he was entitled to recover the amount so paid from the defendant.</p>

<p>Appeal from an order of the County Court of Westchester county, denying a motion to dismiss an appeal from an order of the City Court of Yonkers, refusing to set aside a judgment entered in ah action therein, and from an order of the said County Court affirming said order of the City Court of Yonkers.</p>

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury, .</p>

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

Nickerson on the mortgages owned by them, with interest and costs, then that they must be divided and applied ratably to both.

The action was brought to recover for work and services performed and rendered upon premises belonging to defendant’s testator. during his lifetime, and for materials furnished to, and bought for him.

<p>Submission to arbitration — discontinues an action even if the submission is void— A married woman cannot make a submission under the statute — When the submission involves a claim to an estate in land in fee, it is void.</p> <p>The plaintiff brought two actions against Lester Keep, one to recover for money lent to him; the other to set aside a conveyance of certain real estate from Mm to Ms wife, a defendant therein, and to establish a lien thereon in favor of plaintiff, on the ground of expenditures made thereon upon the agreement of Lester Keep to devise it to him on his death. Keep subsequently to such agreement conveyed the x>roperty to the defendant Caroline, and thereafter married her. After both actions had been referred to the same referee, it was agreed by the Xiarties to submit both cases to him as arbitrator, and that final judgment should be entered on his awards.</p> <p>On a motion to vacate a judgment entered on awards made by him, held, that the submission, even if void, operated to discontinue both suits.</p> <p>That as to the second action the submission was void (1) because a married woman cannot submit a matter to arbitration under the statute; and (2) because the submission involved the claim of the wife to an estate in fee.</p> <p>That the invalidity of the submission of the question involved in the second action did not affect the validity of the award, as to the matters involved in the first, and that as to that the motion was properly denied.</p>

This action was brought to recover $2,500 on a policy of insur.ance issued by the defendant, by which it insured for one year from date “Margaret E. Jack, as owner, and William Graham, mortgagee, against loss or damage by fire to the amount of $2.500 on the three story frame dwelling-house, occupied in part as saloon, situate on the southwest corner or junction of Coney Island Road and Ocean Parkway, on Grand Circle, Elatbush, L. I. Loss, if any, payable to William Graham,…

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

The action was brought to recover rent falling due upon a lease of certain premises from the plaintiif to the defendant. The •defence was that the premises became untenantable by reason of the neglect of plaintiif to make repairs, and that defendant abandoned possession.

<p>Appeal from a judgment rendered by the County Court of Kings county, decreeing the foreclosure of a mortgage and tbe sale of the mortgaged premises, and directing the payment of any deficiency by the appellants.</p> <p>The bond and mortgage was made by the defendants Spiser to the defendant Day, and was by him assigned to the respondent with a guaranty of -“the payment of the amount due and to grow due thereon, in case of the failure of the mortgagors to pay the same according to the tenor thereof.”</p> <p>The answer of the defendant Day averred that the assignment was made on certain conditions, alleged that these conditions were not fulfilled, and that he was thereby released from his guaranty. On the trial the court refused to admit parol evidence offered, to prove the alleged verbal agreement, and the defendant Day duly excepted.</p>

The case was beard by the court without a jury, and a decision rendered against the plaintiff, wbicb decision is hereinafter more fully set forth.

The action was brought upon a contract reciting “that whereas said Burr & Co. are about to publish a book to be entitled “The Great Industries of the United States,” which will be sold by subscription through their authorized agents in every State in the Union and in Canada, it is agreed by said Burr & Co. that said book shall contain from 720 to 1,000 pages, octavo, and that the selling price shall not exceed two dollars and fifty cents per copy.

One Bolding Hoyt died leaving a will, which, provided, among other things, as follows : First. I order and direct that all my just debts be paid. Second. I give and devise to my grandchildren Jerome Hojd, Montraville Hoyt and Peter Van Schruyver Hoyt, children of my son William, the sum $1,500 each, to be paid to them upon arriving at the age of twenty-one years, respectively. * * * Third.

<p>Certiorari to review an order made at Special Term, upon the return to a writ of habeas corpus, remanding the relator to the custody of the sheriff. The relator was arrested under the following warrant:</p> <p>State op New York, Executive Chamber, ) Lucius Robinson, Governor of the State of New York. )</p> <p> To the sheriff of the county of Neio York, and the sheriff's constables and other peace officers of the several counties in the said State. </p> <p>Whereas, It has been represented to me by the governor of the State of Massachusetts that John Leary, James Brady, James Draper and James Grier stand charged with the crime of breaking and entering the Northampton National Bank, and stealing the moneys thereof, committed in the county of Hampshire in said State, and that they have fled from justice in that State and have taken refuge in the State of Now York; and the said governor of Massachusetts having, in pursuance of the Constitution and laws of the United States, demanded of mo that I shall cause the said John Leary, James Brady, James Draper and James Grier to be arrested and delivered to Robert A. Pinkerton, who is duly authorized to receive them into his custody, and convey them back to the said State of Massachusetts ; and</p> <p>Whereas, The said representation and demand is accompanied by a copy of this indictment, whereby the said John Leary, James Brady, James Draper and James Grier are charged with the said crime, and with having fled from said State and taken réfuge in the State of New York, which is certified by the said governor of Massachusetts to be duly authenticated, you are therefore required to arrest and secure the said John Leary, James Brady, James Draper and James Grier wherever they may be found within the State, and to deliver them into the custody of the said Robert A. Pinkerton, to be taken back to said State from which they fled, pursuant to the said requisition.</p> <p>Given under my hand and the privy seal of the State, at the city of Albany, this twenty-eighth day of June, in the [l. s.] year of our Lord one thousand eight hundred and seventy-seven.</p> <p>By the governor,</p> <p>L. ROBINSON.</p> <p>Edward Migg-ael,</p> <p> Acting Private Secretary. </p>

The relator is a foreign corporation, created under and by virtue of the laws of Massachusetts, and having its principal 11 office for transacting the financial concerns of the company ” at 93 Chambers street and 73 Reade street, in the city of New York'.

The action was brought to enforce a personal liability against the defendant as trustee of a manufacturing corporation, for a failure to file a proper report as required by chapter 40 of 1848, and chapter 333 of 1853. The plaintiff appealed from a judgment dismissing his complaint and a new trial was granted, the case being reported in 14 Hun at page 568.

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

<p>Swety — cannot set up defences personal to his principal.</p> <p>In an action to recover the amount provided to be paid by a contract of sale, brought by the vendor against the surety for the vendee, the surety cannot counter-claim damages for a breach of warranty by the vendor, or set up that the contract was procured through fraud; such defences are personal to the vendee.</p>

The action was brought to foreclose a mortgage. ■ Bancroft, being in possession of the instrument by authority of ■the mortgagor, for the express purpose of getting in his hands the .amount expressed on its face, $7,000 — authority to fill in the blanks, or to do any other act requisite to give validity to the instrument, in furtherance of this general purpose, will be implied.

Controversy submitted upon admitted facts under section 1279 of the Code of Civil Procedure. The plaintiff, as vendor, seeks to compel the specific performance by the defendant, as vendee, of a contract for the sale of real estate. The defendant claims that the title of the plaintiff is not perfect, and refuses to accept the same. John Douglass died seized of the premises in question, leaving a ■will.

Writ of error to the Court of Sessions of Queens county, to review the conviction of the plaintiff in error of obtaining goods, by false pretences.

<p>Agreement to pay money out of a trust fund — when not an assignment thereof— Smplus income of cestui que trust — how reached.</p> <p>The plaintiff was entitled to receive the interest and income of certain personal property held by the defendant Brewster as executor, during her life. One M. agreed to give plaintiff a home, and support and maintain her in consideration of receiving the income to which she was entitled under the will; in pursuance of which plaintiff gave to him a power of attorney to receive the income from the executor, which has never been revoked.</p> <p>In an action by the receiver, appointed in supplementary proceeding instituted on a judgment against M., to recover surplus income in the hands of the executor, held, that neither the agreement nor the power of attorney operated as an assignment of the income to M., and that the receiver was not entitled thereto.</p> <p>The surplus income of a cestui que trust cannot be reached by a receiver In supplementary proceedings.</p> <p>A judgment-creditor after execution issued and returned unsatisfied may maintain an action therefor.</p> <p>Campbell v. Fostei• (35 N. Y., 361), followed; Williams v. Thorn (70 id., 270), explained.</p>

The action was brought for the foreclosure of the mortgage hereinafter mentioned. The court found that on the 5th day of August, 1873, the defendant Nathaniel Conklin was the owner in fee and in possession of the lands and premises known as the “ Conklin farm,” which are the same lauds and premises described in the complaint in this action.

<p>Action against hail — execution against the person — to what county it should he issued.</p> <p>A defendant in an action for libel was arrested in Morrisania, Westchester county, where he then resided. Subsequently by an act of the Legislature, Morrisania was annexed to the county of New York. Judgment having been recovered, execution against the property of the defendant was issued to the sheriffs of the counties of New York and Westchester, and upon their return unsatisfied an execution against his person was duly issued to the sheriff of New York, and by him returned to the effect that defendant could not be found.</p> <p>In an action against the bail, held, that it was not necessary to issue an execution against the person to the sheriff of Westchester county, as at the tíme of the issuing thereof the defendant did not reside therein.</p>

<p>Appeal to County Court — when no imdei-takingt required of the appellant.</p> <p>"Where a defendant, against whom a judgment for more than fifty dollars has been recovered in a justice’s court, appeals to the County Court upon questions of law only, no undertaking need be given.</p> <p>An undertaking is only required where a new trial is to be had in the County Court, or a stay of execution on the judgment is desired.</p>

<p>Estate — w7ien vested.</p> <p>A testator devised certain real estate to his wife, to be held for the benefit, support and maintenance of herself and daughter, and provided that if the* daughter should marry, or die without leaving children, her husband, if he; should survive her, should not inherit the property; but that if she left children, living at her death the property should be theirs. The will further provided, that “ should my said daughter Margaret die without leaving any issue, then the said property shall be left to my nephew John Foley.” The testator died. in 1872, the widow in 1874, John Foley in 1877, and the dang-hter, without ever having had issue, in 1878.</p> <p>Held, that John Foley took under the will a vested estate in remainder, and that his heirs-at-law were entitled to the property on the death of the daughter.</p>

The action was brought to recover $62,300, with interest, on the several installments thereof, as license fees on cars of defendant, which fees were alleged to be due to the plaintiff. It is a well-established principle of the English and American law, that all grants of privileges are to be liberally construed in favor of the public, and as against the grantees of the monopoly, franchise or charter, they are to be strictly interpreted.

<p>Contract with the City of New York — Right of the city to charge interest on admances made while work progresses.</p> <p>Where by the terms of a contract entered into with the defendant, the contractor was not to be entitled to demand or receive any payment for any portion of the work to be done, or materials furnished, until the same should be fully completed, and the assessment to be levied therefor duly confirmed; but it was provided that advances might be made in conformity with a city ordinance, which ordinance provided that seventy per cent might be paid on certificates, “the remaining thirty per cent to be reserved until the final completion of the contract,” but required that interest on such advances should be charged from the time of making them up to the time of the final payment.</p> <p>Held, that interest should be charged on the advances up to the time of the confirmation of the assessment.</p> <p>That proof that defendant, through its departments, had for a series of years charged interest only up to the time of the completion of the work, and not until the confirmation of the assessment was immaterial.</p> <p>To render the construction given to a statute by public officers admissible as evidence of its true meaning, the usage must have been general, continued and unquestioned.</p> <p>This rule does not apply to the interpretation of contracts.</p> <p>Usage is sometimes admissible to add to or explain, but never to vary or contradict expressly, or by implication, the terms of a written instrument, or the fair and legal import of a contract.</p>

The action was brought to recover the amount of certain first mortgage bonds issued by the West Side Elevated Patented Bail-road Company, secured by a mortgage of the property of said company given to the defendant Cowing, as trustee, and by him in alleged violation of his trust, conveyed to the defendants, The New York Elevated Bailroad Company.

H. Locke to the other defendants, and 'directing them to pay the judgment in this action. 'There is nothing whatever in any of its provisions which can be fairly claimed to render the law a bankrupt or insolvent law. Reading the assignment, then, in connection with the statutory provisions to which it refers, we submit that it is, in effect, nothing more than a common law assignment. (Mayer v. Hellman, 1 Otto, 496; Geni.

This action was brought to recover from tbe defendants, who were tbe proprietors of tbe St. Cloud hotel, in tbe city of New York, tbe value of certain articles of jewelry stolen from tbe plaintiff while she was, as she alleged, a guest at that hotel. Tbe referee found in favor of tbe defendants, on tbe ground that tbe relation of inkeeper and guest did not exist between tbe parties.

<p>Appeal by the police commissioners of the city of New York from an order of the Special Term, directing that a peremptory mandamus issue requiring them to pay an unpaid balance of salary -due to the relator.</p>

<p>Appeal from an order of the Special Term, granting leave to the petitioner to bring an action against the appellant to recover a deficiency on a sale had under a mortgage foreclosure.</p>

The power here delegated by the statute to the commissioners is to be strictly construed, and, the language of the statute being plain, nothing is to be left to* the discretion of the commissioners. (Prosser v. Secor, 5 Barb.,. 607; People ex rel.

The first above entitled action was the action m which the undertaking was given. The second above entitled action was brought upon the undertaking, against the sureties thereon. The defendant Rodewald was arrested and held to bail in the sum of $10,000 in the action brought against him, which was commenced in 1869. The defendant Hildreth became one of his sureties, and executed an undertaking under section 187 of the Code.

This whole subject is covered by 1 Eevised Statutes, p. 603, § 5, and the language of that section is a complete answer to the criticism of the learned judge at Special Term, in which he limits the word “franchise” as used in this behalf in the section of the Code, relative to the writ of quo warranto, hereafter quoted; to corporate offices, and excludes from it membership in a corporation.

The cause of action arose upon an alleged broach of contract on the part of the defendant, in not converting certain scrip issued by said company into bonds. The demand for such exchange was first made of the agent in New York, and thereafter by letters written to the officers of the company in Colorado.

<p>Verbal lease for more than one year — effect of entry under.</p> <p>An entry under a yerbal lease for more than one year operates to create a tenancy from year to year.</p>

Appeal by both the plaintiff and the defendant from the judgment, rendered herein at Special Term, in favor of the defendant for $9,000.15, the plaintiff claiming that the judgment is for too large a sum, and the defendant claiming that it is for too little.

<p>Appeal from an order of reference made in this action.</p>

<p>Bond —■ what a sufficient considei’ation therefor — when a party is liable on a bond given to strengthen a bank.</p> <p>December 81,1873, the defendant executed to the Third Avenue Savings Bank a bond under seal, by which “ in consideration that the Third Avenue Savings Bank at my (his) request does continue its ordinary business, after the 19th day of January, 1874,” he bound himself to pay to the said bank, “ its successors and assigns, on the first day of January, 1883, or six months after demand therefor, the sum of §15,000.” The defendant at the time of executing the bond was, and from its organization had been, a trustee of the bank, and continued to be one until the bank was dissolved and the plaintiff was appointed receiver in 1875. At' the time the bond was given the bank was in embarrassed circumstances, and its capital was seriously impaired. In an action brought by the receiver upon the bond, held,</p> <p>(1.) That the seal was prima facie evidence of a sufficient consideration to support the bond.</p> <p>(2.) That the fact that the bank at the defendant’s request continued in business, was a sufficient considei'ation to support it.</p> <p>(3.) That the defendant could not claim that the action of the bank in taking the bond was ultra vires and void.</p> <p>(4.) That the action was not prematurely brought, as the bond became due six months after a demand made, and did not necessarily run until 1883.</p>

This action was brought to recover damages for a malicious prosecution. The plaintiff recovered a judgment for $3,500.

<p>Unauthorized use of a street by a railroad — damages recoverable therefor — when such use will be restrained by injunction.</p> <p>This action, was brought by the owner in fee of a lot and the street in front thereof, in the city of Syracuse, seeking to recover damages from the defendant for the use of a portion of the street by it for railroad purposes, and to restrain the defendant from the further use of it; or for a judgment that, if it be permitted to continue such use, it should only be on condition of paying the damages occasioned thereby. After the commencement of the action the plaintiff died, and his executors and devisees were substituted in his place.' Before the'trial plaintiffs had sold the lot abutting on the street, reserving the right to recover the damages sustained from the defendant.</p> <p>The referee found that, by reason of the construction and use of defendant’s railroad, the plaintiff’s testator sustained damage in the impaired value of his lands and the rents and profits thereof; fixed the amount of such depreciation and added interest from a date, not exceeding six years prior to the commencement of the suit. Held, that such damages were properly recoverable in this action.</p> <p>The referee further directed that if the plaintiffs tendered to the defendant a conveyance of their interest in the land in said street, and a release of their damages, except the amount awarded, the defendant should pay a further sum, . —the value of the land used by the defendant — with interest from the date of the report, and in default of such payment the defendant should be perpetually enjoined from using the street; and if such tender was.not made an injunction was denied.</p> <p>Held, that as the plain tiffs were entitled to an injunction unconditionally they only, and not the defendant, could complain of the limitation imposed upon this light by the referee.</p>

. Appeal from a judgment of the Oneida County Court, entered upon a verdict in favor of the plaintiff, and also from an order of that court denying the defendant’s- motion for a new trial made on the judge’s minutes. The action was one of trespass for taking and carrying away certain personal property of the plaintiff, as assignee in. bankruptcy of one Humphrey.

<p>Division of water — when restrained by injunction •— Ghap. 237 of 18G9 — what right to water acquirable wider.</p> <p>The plaintiff, the owner of a mill operated by the waters of the Tonawanda creek, brought this action to restrain the defendant from diverting the water of said creek'by pipes and conducting it to tanks and reservoirs to be used in supplying its engines, and to recover damages for such diversion. It appeared that the acts of the defendant materially reduced and diminished the grinding power of the plaintiff’s mill, and had damaged him to the extent of $500.</p> <p>Held, that the plaintiff was entitled to a judgment for a perpetual injunction restraining such diversion, and for the amount of the damages sustained.</p> <p>Held, further, that the question whether or not such use by the defendant was a reasonable one was immaterial.</p> <p>/Semble, that, under chapter 237 of 1869, a company is only entitled to take such surplus water of a stream, as may be taken without injuring or interfering with any domestic, agricultural or manufactux-ing purpose to which the water of the stream is then commonly applied.</p>

Writ of Error to the Court of Sessions of Allegany, to review a conviction and judgment upon an indictment against the plaintiff in error, charging him with obtaining property by false pretences.

The action was brought to obtain a partition or sale of certain premises, consisting of 800 acres of land in Lyonsdalo, Lewis county, on which was a largo tannery, owmed by the plaintiffs and the defendant Hersey, in common. Each of the three plaintiffs owned one undivided eighth of the premises, and the defendant Hersey owned five-eighths. The defendants Botchford, as partners of Hersey, claimed an equitable interest in his share.

Appeal - from a judgment in favor of the plaintiff, entered on tbe report of a referee. The action was brought to recover the amount of certain coupons attached to bonds, issued by the town of.

<p>Idem of attorneys — when not protected try the court.</p> <p>A number of actions against a railroad company were gouen up by one McCarthy, the attorney for the plaintiffs, and one Bonnell, upon an agreement to divide between them the costs, and a considerable part of the penalty to be recovered in such actions, the several plaintiffs consenting thereto, and conveying to McCarthy their rights to such portions of the penalties. After issue joined the defendant’s attorney, for the purpose of preventing McCarthy from recovering such costs and portions of the penalties, procured from each of the plaintiffs an instrument, under seal, releasing the defendant from the cause of action and the costs; and agreeing that the actions be discontinued, and that orders to that effect might be entered on filing the stipulation. Defendant’s attorney accordingly entered orders to that effect, without notice to plaintiff’s attorney.</p> <p>On a motion by the latter to set aside such orders as irregularly entered, and as entered with intent to cheat and defraud him, held, that as the causes of action were not assignable, he acquired no interest in the subject of the actions by his agreement with the plaintiffs, and that the court would not set aside the orders of discontinuance to protect his right to the costs.</p>

The motion was made upon exceptions, and upon the ground that the verdict was against the weight of evidence. The action was brought against the defendant, as sheriff of Monroe county, for levying upon and selling the contents of a retail liquor and cigar store, owned and carried on by James P. Bainbridge, the plaintiff's son. The levy was made by virtue of one or more attachments against the property of James.

MotioN by defendant for a now trial on exceptions taken at the Erie Circuit, and ordered to be beard at the General Term in the first instance, after a verdict in favor of the plaintiff. The action was brought to recover damages sustained by reason of the death of the plaintiff’s intestate, caused, as alleged, by the negligence of the defendant’s servants.

This action was brought by the plaintiff as a receiver of the property of Orrin W. Potter, a judgment-debtor, appointed in supplementary proceedings, to set aside certain transfers of his property, consisting of a house and lot and .certain chattels, made by said debtor to Sarah A. Potter, his wife, and Emma Grace Potter, his daughter, the respondents herein, csubsequently to the accruing of the indebtedness upon which the judgments were obtained on which the supplementary…

The action was commenced before a justice of the peace of said county to recover the value of a quantity of potatoes, alleged to be the property of the plaintiff and which the defendant converted to his own use.

Writ of error to the Court of Oyer and Terminer of Erie comity, to review the conviction and sentence of the plaintiff in error, of murder in the first degree.

The bank had no authority under its charter to transact the business of receiving deposits of specific articles gratuitously. (Brice on Ultra Vires, 28-34; Beaty v. Knowles, 4 Pet., 152; Pearce v. Madison, etc., R. B. Co., 21 Plow., 440; The People v. The Utica Ins. Co., 15 J. R., 358; Halstead v. Mayor of New York, 3 Com., 430; Hood v. N. Y. andN. II.B.B. Co., 22 Conn., 502; Chicago Building Society, 65 111., 458; De Graff v. Ames Lin.

<p>Appeal from an order made at Special Term, setting aside a sale under a judgment of foreclosure, entered in tbe above entitled action.</p> <p>Tbe Mills mortgage was not cut off by tbe foreclosure. (Reynolds v. Parle, 53 N. Y., 36, 41; Gaye v. Brewster, 31 id., 215; Brainerd v. Cooper, 10 id., 356; Boot v. Wheeler, 12 Abb., 294; Harries v. Beach, 3 Johns. Ch., 459; Draper v. Clarendon, 2 Yern., 517; Godfrey v. Chadwell, 2 id., 601; Moret v. Westerns; 2 id., 663; Hobart v. Abbott, 2 P. Wins., 643; Palle v. Clinton, 12 Yes., 48, 59; Bishop of Winchester v. Beaver, 3 id., 314; S. C., 11 id., 197; Sherman v. Cox, 3 Ch. Rep., 46; Gore v. Staclcpoole, 1 Dow [II. of L.], 31; Benedict v. Gilman, 4 Paige, 58; Bloomer v. Sturges, 58 N. Y., 168, 175, per Johnson, J.; Johnson v. Carrdage, 31 Me., 18; Doe v. McLoskey, 1 Ala., 708.) Being held by the plaintiff, the Mills mortgage could not be cut off unless the plaintiff had sot it forth in the complaint. The court otherwise would not have jurisdiction of the subject-matter of such mortgage. (Lewis v. Smith, 9 N. Y., 502; Bailey v. Ryder, 10 id., 363; Rome Bx. Bk. v. Bames, 1 Keyes, 588, 592; Frost v. Boon, 30 N. Y., 446; Belsey v. Western, 2 N. Y., 500, 506, 507; Approved Peck v. Mallams, 10 N. Y., 548; Fergusony. Ferguson, 2 id., 360; Crockett v. Lee, 7 Wheat., 522; In the Matter of Ilowe, 1 Paige, 125.) Or unless some defendant should' bring the matter in by way of answer. If subsequent incumbrances are not stated in the complaint, and the holders thereof are not made parties, it is a defect which any of the defendants may set up in their answer. (New Code', § 498; Haines v. Hollister, 64 N. Y., 1, 4.) If such an objection is not taken by answer, the defendant is deemed to have waived it. (New Code, § 499; Zabriskie v. Smith, 13 N. Y., 332 [see p. 336]; Pottery. Bllice, 48 id., 321; Tower v. White, 10 Paige, 395.) In the absence of an answer, the plaintiff can have no relief not supported by his statements in the complaint, and demanded by his prayer for relief. {Simonson v. Blake, 12 Abb. Pr., 331; Bailey v. Ryder, 10 N. Y., 363; Lewis v. Smith, 9 id., 502.)</p>

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

The understanding between all the parties to the negotiations was, that the contract should be reduced to writing and signed by all parties, and a guaranty signed by Haberstro. No action would therefore lie until it was so written and signed. (Boyd v. Hind, 36 Eng. Law. & Eq., 566; 25 L. J. Ex., 240; Govenor v. Fetch, 28 Eng. Law & Eq., 479; Townsend v. Hubbard, 4 Hill, 351; 2 Barb., 475; Townsend v. Corning, 23 Wend., 443; Fish v. Levine, 16 La.

The judgment of plaintiff’s assignors against the company was neither conclusive nor prima facie evidence of a debt against said company, as between this plaintiff and a stockholder. {Miller v. White, 50 N. Y., 137; Moss v. McGullough, 5 Hill, 131; Strong v. Wheaton, 38 Barb., 616; McMahon v. Macy, 51 N. Y., 155; Gonant v. Van Bchaick, 24 Barb., 87.) The plaintiff’s judgment is sufficient, competent and proper evidence to prove the plaintiff to •be a creditor of the railroad…

<p>Appeal from an order made at the Oswego Special Term vacating as irregular an order heretofore made, except as against a mortgage for $1,000 held by the Rome Savings Bank. The appeal was from that part of the order which allowed the former order to stand as regards the $1,000 mortgage.</p>

<p>Production of partnership hooks and papers — always required if asked for on a partnership accounting.</p> <p>In an action between partners for an accounting- either is entitled, at any stage of the action, to an order requiring the production of all partnership books, and the papers and accounts relating thereto, and their deposit with the clerk to be inspected and copied.</p>

The action was brought to recover damages for the non-return of an execution, delivered to the defendant as sheriff of Jefferson county, in favor of the plaintiff against the Northern and New York Iron and Mining Company.

Kelsey, deceased. The decree gave the entire fund to Jonas W. Nye, the grandfather on the mother’s side, to the entire exclusion of Cheney and Catharine Hill, the grandfather and grandmother on the father’s side of the said Norman F. Kelsey, deceased. In 1875 Norman F. Kelsey died intestate, and an infant of about seventeen years of age. He was the son of Delos Kelsey, who was the son of Cheney Hill and Catharine Hill.

The action was brought against the defendants as stockholders in “ The Black River Iron and Mining Company,” a corporation organized under the general act of February 17, 1848, for the formation of manufacturing and other corporations. The plaintiff sought to recover for his own personal services, and for the services of several persons who had performed work for the company and assigned their claims to him. The plaintiff recovered upon both claims.

The action was brought upon a policy of insurance against loss by fire, issued to plaintiff by the defendant.

After the appeal was taken the original plaintiff died, and his executor was substituted in his place. The action was brought to recover jiossession of two bonds issued by the town of Erie in the county of Chemung. The answer set up that at and prior to the 29th of June, 1871, the bonds were the property of Joseph Fellows, and that he had assigned them to the defendant.

This action was brought by a stockholder of the Sodus Bay and Corning Railroad Company, to redeem his interest in said company from a sale upon foreclosure of a mortgage, given by said company to the Farmers’ Loan and Trust Company as trustee for the holders of the bonds of said company, under chapter 502 of the act of 1853. ■ The plaintiff was the owner of one share of the capital stock of said company, which capital stock was stated in the articles of organization at…

The action was tried at the Wayne circuit, and the jury gave a verdict for the plaintiff. The plaintiff’s son had been in the employ of the defendant as clerk, and it was claimed that he had feloniously taken and carried away money from his employer.

This action was brought to recover the possession of seven cows, and damages for the detention thereof. The referee found that on March 6, 1876, one Blasier recovered a judgment against Alonzo Clark, the father of the plaintiff.

Proceedings were commenced before a justice of the peace for the town of Salina, Onondaga county, to convict the defendant of being a disorderly person. The conviction was had upon the evidence, principally, of the defendant’s wife. The defendant obtained a certiorari to review the jiroceedings which were brought before the Onondaga Special Term, where the proceedings were reversed.

The injunction restrained the defendant from “the sale and delivery of milk within the territorial limits of Syracuse and within the village of Geddes, directly or indirectly, or in any manner whatever.” The plaintiff is a corporation doing business at Syracuse, having a capital of $100,000 represented by stock consisting of shares of $100 each.

Appeal by the defendants from a judgment of tne County Court of Onondaga county, reversing a judgment of a justice of the peace. The action was brought upon a bond given by the defendants to the plaintiff, upon the defendant Garrett obtaining an attachment from a justice of the peace in an action brought by the defendant Garrett against the plaintiff, in which action Garrett’s .recorded affidavit was used to obtain the attachment, but no other written application was made.

<p>Chapter 327 of 1873 — limitation of appeals imposed by, still in force — not repealed by section 3 of chapter 49 of 1876.</p> <p>Chapter 327 of 1873 providing, among other things, that any appeal to the State assessors, “ the determination of which is not made and filed with the clerk ol the said board of supervisors, on or before the commencement of the next succeeding annual session thereof, shall be null and void, and the same shall be deemed as dismissed,” was not repealed by section 3 of chapter 49 of the Laws of 1876, but is still in full force and effect.</p>

The court at General Term said: “ This proceeding was to prove an alleged will of Cyrus Webster, purporting to have been made on the 26th day of February, 1873, by which it was claimed that the said Cyrus Webster disposed of all his estate, in substance, equally to and among all his children. The probate of said will was contested by Milton Webster, one of the said children, who claimed under an alleged prior will.

This action was commenced in September, 1877, to foreclose a mortgage given by the defendant Taggart and wife. At the time of the |1,400 payment by defendant, Samuel Christ was the general guardian of both minors, and as such held the legal title to the bond and mortgage, and his agreement to extend the same was valid. (Chapman v. Tibbetts, 33 N. Y. R., 289; Field v. Schieffelin, 7 Johns. Ch., 150; Tuttle v. Heavy, 59 Barb., 343; Sutherland v. Brush, 7 Johns.

■ Appeal from an order denying a motion made by the defendants to amend an offer of judgment and for an additional allowance. The action was brought to recover $4,442.50 as a balance due for goods sold and delivered. The answer was a general denial.

<p>Appeal by the plaintiff from a judgment dismissing the complaint as against the defendant, the Mayor of the city of New York, and by the defendant, the Police Department, from a judgment in favor of the plaintiff against it.</p> <p>The action was brought to recover the amount due to the plaintiff, under a contract for furnishing boats to remove the garbage and street cleanings from the limits of the city.</p>

Timpson, for an order directing George W. Lane and J. Nelson Tappan to pay to her the moneys deposited with the chamberlain of the city of New York to her credit, March 18, 1874, by an order of the court made in the above entitled action, brought for a partition and sale of real estate, dated December 15, 1873.

<p>Controversy submitted upon admitted facts, under section 1279 of the Code of Civil Procedure.</p>

The board of health under chapter 566 of 1871 directed the commissioner of public works to drain the lands between Ninety-second and One Hundred and Ninth street and Third avenue and the East river. The department of public works thereupon advertised for proposals and entered into a contract for building 3,328 feet of drain, and for furnishing and laying 231,000 cubic yards of earth filling.

The action was brought to foreclose a mortgage. The court below found the following among other facts : I. That on or about the 1st day of March, 1871, the defendant, Lesser Goldstein, made, executed and delivered to the defendant, Henry Goldstein, the bond and mortgage in the complaint described, which mortgage bore date the said 1st day of March, 1871, and was recorded in the office of the register of the city and county of New York on the 31st day of May, 1871. II.

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

Before a foreign guardian can exercise any rights, powers or functions virtute officii in this State, he must take out ancillary letters of guardianship in this State. (Story on Conflict of Law [6th ed.], 504«; Cooley’s Constitutional Limitations, 420-421; Schouler’s Domestic Relations [2d eel.], 442, 444; Leonard s. Putnam, 12 Am. R., 106; Morrell s. Dickey, 1 Johns. Ch., 133; Williams v. Storrs, 6 Am.

<p>Appeal from an. order* of the Special Term, overruling a demurrer to the complaint herein.</p>

<p>Appeal from an order continuing an injunction restraining the defendants from using certain quotations, furnished to them by the plaintiff, in violation of the terms of a contract between the parties.</p>

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

<p>Section, 870 of the Code of Civil Procedure — does not authorize the examination of the directors of a defendant corporation.</p> <p>The directors of a defendant corporation are not parties to the action, and an order requiring them to appeal- for examination and to produce books and papers is not authorized by section 870 of the Code of Civil Procedure.</p>

The settlement of the estate before the surrogate was a final accounting, and determined the precise amount of each child’s share. The defendant from that time became trustee for each child severally. The rule is well established that where there are several legacies, each may sue for his own, excepting residuary legatees. (Kettle v. Gravy, 1 Paige Ch., 417, see p. 270, also; Ualleit v. Hallett, 2 id., 16; 1 Dan.

<p>Appeal from an order made at Special Term, denying the petitioner’s application to vacate certain assessments.</p>

<p>Appeal from an order made at Special Term, vacating an assessment.</p>

<p>Appeal from an order sustaining a demurrer to the complaint, and directing the dismissal thereof.</p>

<p>Appeal from a judgment entered upon the dismissal of the complaint at the circuit.</p>

This action was brought by the plaintiff, as receiver of the Bankers and Brokers’ Association, to recover a loan made by it to the defendant. The defence was that certain stocks and bonds belonging to him had been deposited with the association to secure the loan, and that they had been converted by its president, oiio' Bonner.

A warrant of attachment was issued in this action, and a notice of the pendency of the action was filed in Chenango county on September 23, 1874. Judgment having been entered in favor of the plaintiff, an execution was issued to the sheriff of that county,0 requiring him to sell the interest of the defendant Brown at the time of the filing of the Us pendens.

No other application had in fact been made, and it was claimed that the omission of that statement from the affidavit resulted solely from haste and inadvertence. The appeal was taken in April, 1878, from a decree of the surrogate of New York county, admitting a will to probate ; the ex parte order, discontinuing said appeal, was entered February 14, 1879, and the order vacating said ex parte order was entered March 1, 1879. From the last-mentioned order this appeal is taken.

The action was brought to recover damages for the breach of a contract, by which the defendant was alleged to have hired plaintiff for a year, at certain wages, and the breach alleged was that the defendant discharged him before the year expired.

<p>Wrongful act of one joint owner of a vessel— when an action at law lies against him, by another owne>\</p> <p>Where two or more of the joint owners of a vessel wrongfully seize it, thereby interrupting a voyage for which she is then under charter, one or moi-e of the other owners injured thereby may maintain an action at law against them to recover the damages occasioned by their wrongful act.</p>

The order and papers relating to the examination were served upon the attorneys for the plaintiff but not upon the plaintiff himself.

78, to be applied in part satisfaction of the judgment recovered in this action against the defendant Strauss. On January 6, 1877, the defendant in this action made an assignment for the benefit of his creditors to one Louis Frank. Thereafter said assignee filed an inventory and schedules of the estate assigned to him, but was unable to procure and file the necessary bond with the sureties as required by one of the justices of the Court of Common Pleas.

The action Avas brought to recover penalties under section 32, chapter 625 of the Laws of 1871, for a failure to comply with the requirements of section 32 of the said act.

<p>Selling liquor to a minor — the fact that the minor is acting fm' an adult, immaterial.</p> <p>The plaintiff in error was convicted of selling liquor to a minor in violation of section 15 of chapter 628 of 1857, as amended by chapter 420 of 1877. The minor, a boy ten years old, testified that he was sent to purchase the liquor by an adult, one Martin, who lived in the house with him, and who furnished the money to buy it; that he brought the liquor to Martin without tasting it; that subsequently Martin gave him a drink, by reason of which he became intoxicated.</p> <p>Held, that the conviction was proper, and that the fact that the boy was acting as agent for an undisclosed principal did not relieve the accused from the penalties imposed by the statute.</p>

The action was brought to recover $75,000 of defendant, alleged to have been loaned by the plaintiff to said defendant on the 16th day of June, 1871. This case was first tried in February, 1875, when the complaint was dismissed, judgment suspended, and the exceptions directed to be heard in the first instance at the General Term; an additional allowance of $1,000 was granted to defendant. At the General Term a new trial was ordered, costs to abide event.

The court at General Term said: “The plaintiff in this case was allowed, on the trial, by the referee, to add to his reply in answer to a counter-claim interposed; and in addition to his defences in the reply contained, to interpose the statute of limitations. This was error. On the trial a referee, under the Code of Procedure, has not such power. This seems to be settled by authority. It is a new defence.