Volume 25 — Barbour's New York Supreme Court Reports

THIS was an appeal from a judgment of the Sullivan county court, reversing a justice’s judgment. The action was brought to recover damages sustained by the plaintiff by means of the defendant’s cattle entering upon his lands and destroying his crops. It appeared from the testimony returned by the justice, that the defendant owned lands adjoining the plaintiff’s land on the south and east. The defendant’s lands were unenclosed, and lay open to the highway.

THIS was an appeal, by the plaintiff, from a judgment rendered against him, in favor of the defendant Hall, upon the report of a referee. The action was brought by the plaintiff, as assignee of Aaron B. Akin, to recover a balance claimed to be due for hay alleged to have been sold by Akin to the defendants Wardwell & Bardwell and the defendant Hall.

The action was brought against the defendant Van Kirk as master, and the defendant Ashton as owner, of the schooner Benjamin Browning, for damage to a quantity of malt shipped by the plaintiff from Albany to Baltimore. The bill of lading signed by Van Kirk, the master, was as follows: “ Shipped in good order and well conditioned, by John Gr.

THIS was an appeal from a judgment rendered at the circuit. The action was tried before Justice Watson, without a jury, at the Ulster circuit, in January, 1855. The facts which were proved upon the trial were as follows: On the 8th of July, 1852, the plaintiff agreed to sell to one Lewis Suffir a vessel for the sum of $500, of which $100 was paid at the time.

DEMURRER to answer. On the 28th da,y of July, 1855, the defendant was appointed by the governor a justice of the peace in and for the town of Kortright, in the county of Delaware, to fill a vacancy made by the death of Theodore E. Langley. He took the requisite constitutional oath, and entered upon the discharge of the duties of the office. He claims that, by virtue of his appointment, he is entitled to hold the office until the 31st day of December, 1856.

THESE actions were tried at the Albany circuit, in June, 1855, before Mr. Justice Watson, without a jury.

HE plaintiff recovered a judgment in this action before a justice of the peace, for $92.44 damages, and $5 costs, which judgment the Cortland county court affirmed, on appeal. The action was tried by a jury, that was summoned at the instance of the defendant. The only points considered in the case are sufficiently stated in the opinions which follow.

The action was brought to recover about $8000 worth of promissory notes, which the defendants claimed to hold as the administrators of George Bentley, deceased. The plaintiff claimed that Bentley gave the notes to him as a gift mortis causa, in his last illness and in expectation of death, on the 20th of April, 1854. The donor died on the 24th of April, 1854.

THIS was a motion for a new trial, upon exceptions. The action was tried at the Ulster circuit, in October, 1855, before Mr. Justice Watson. The plaintiff claimed to recover the value of a horse which had been taken from his possession by the defendants. The defendants, in their answer, justified the taking, under an execution against the plaintiff.

THIS was an action of ejectment, brought by the plaintiff to remove the defendants’ rail road from one of the streets of the village of Syracuse. The plaintiff owned the fee of the lands occupied by the street, some ten rods in extent.

N the 2d of June, 1851, Solomon Aldrich, the defendant, contracted to sell to one George E. Flynt a lot of ground in the village of Binghamton, for $1000, payable in sash and blinds, out of Marsh & Flynt’s shop, as called for; one half the said sash and blinds were to be paid for in cash on delivery, and the other half were to be applied in payment on the contract.

On the second Tuesday of April, 1856, an election was held in the city of Albany, for charter officers, and among others, for a mayor, who was to hold his office for two years, commencing on the first Tuesday of May. The relator was a candidate for the office.

PPEAL from an order made at a special term, dissolving an injunction.

CONTROVERSY submitted to the court, by the parties, without action, pursuant to the provisions of the code. Gerardus Post, late of the city of New York, died October 22, 1833, leaving him surviving his only children and heirs at law, Gerardus Post, William Post, Jehiel J. Post, Susan Post, and Mary Jaggar Post.

THE action was ejectment for a piece of land situate in the town of Hornby, in the county of Steuben. The plaintiff derived title through a sheriff’s sale of the premises. On the 19th of-June, 1851, Morrow recovered a judgment for $93.38, damages and costs, before a justice of the peace of the above named town, against the defendant, and had a transcript of his judgment filed and docketed, in the county clerk’s office of said county, on the 25th of June, the same year.

PPEAL by the plaintiff, from a judgment of nonsuit. The complaint alleged the organization of “ The New York State Mutual Insurance Company,” on the 18th of June, 1850, under the act to provide for the incorporation of insurance companies ; that on the M day of May, 1850, the defendant made application for insurance; that a policy was thereupon issued, dated May 3d, 1850 ; that a note was'given for such policy so dated, as its consideration, payable in such portions and at…

<p>APPEAL from a judgment of the Wayne county court, reversing a judgment of a justice. Submitted without argument. The facts are sufficiently stated in the opinion.-</p>

<p>ÁPPEAL from a judgment of the Tates county court. The action was commenced before a justice of the peace, upon a promissory note made by H. Wood and J. H. Bruen and indorsed by the defendants. The note was dated April 15,1854, and was for the payment of §207, four months after date, at the Tates County Bank. The sum of §190 was indorsed as paid on the 27th of September, 1854. Wood and Brupn, the makers, were also sued, with the indorsers, but did not appear. On the trial before the justice, the execution of the note, and the indorsement thereof by the defendants, was proved; also protest and notice thereof. The following indorsements appeared to have been made on the back of the note, but were erased when the note was produced : “ Stokes &■ Brother—Pay W. M. Oliver, cashier, or order. J. E. Williams, Y. P.” It appeared that the note was sent by the Metropolitan Bank in the city of Hew Tork, to the Tates County Bank, for collection. Isaac W. Hartshorn testified that he had seen the note before, and had it in his possession; that a day or two after the same was protested, H. Wood came to him and told him that he and Bruen had ' a note in the bank, indorsed by Brace & Graves; that they (Brace & Graves) wanted the money, and were in a„ hurry for it, and that the makers, Wood and Bruen, were not able to pay it, but Wood was confident they would be, within ten days ; that Wood wished the witness to purchase the note and hold it as his security, for the term of ten days, when they would be able to pay it; that the witness went and saw Brace & Graves and told them what Wood had requested; that they desired him to purchase the note, and take it from the bank, and hold the same against them and Wood & Bruen, and they would continue responsible on it; or they (B. & G.) would have a new note made, on which they would be responsible, just as the witness preferred ; that the witness then went to the bank, paid the amount due upon the note, and obtained possession of the same) that he got the note as it was, at the time of the trial, except the indorsement of Oliver; the indorsement of the names on the back of the note were erased before he got it; the indorsement of $190 paid on the note was made by the witness after he got the note, and Wood & Bruen paid that sum to him. During the period of ten days that Wood & Bruen wanted witness to wait, he was in Brace & Graves’ store and they requested him to see that Wood &. Bruen paid it within the ten days, they did not want it to run along, longer than could be helped. Wood <fc Bruen did not pay it within the ten days; witness told Wood & Bruen they must not let it run over the ten days; Wood thought Brace & Graves notional in the matter, and said he would see them and get them to put it off a little longer—would satisfy them so they would rest easy; witness called on Brace or Graves again, and he said he had no objections to its running along a little longer. This was within the ten days. They were willing to stand responsible on the note a little time longer; that witness need not sue it. The payment on the note was made after this: witness afterwards sold the note to his brother William, the plaintiff, before this suit was commenced. Peter S. Oliver, the bookkeeper in the bank, testified that he knew of the payment of the note, at the bank; that it was paid on the 19 th of August, 1854, in full, by Isaac W. Hartshorn; witness ran the pen through the indorsements on the back of it, the day it was paid. The last indorsee on the note was Wm. M. Oliver, and the last indorser was J. E. Williams. He was the vice president of the Metropolitan Bank in New York city. He was the financial officer, whose business it was to transmit paper of that kind. The Yates County Bank got the note from the Metropolitan Bank of New York city. That witness had an order in his possession written. by Brace & Graves. This was in the handwriting of one of the firm. It was on the authority of this paper that the note was delivered up to Hartshorn. This order was as follows:</p> <p>“ Cashier, Yates Co. Bank: Please allow Messrs. Wood & Bruen to take up the note on which we are indorsers, without canceling the same, and without striking out our names.</p> <p>Yours, Brace & Graves.”</p> <p>That the note was not discounted at the Yates County Bank, but was sent to them for collection; that the money paid upon the note was remitted to the Metropolitan Bank; that Brace & Graves had no interest in the note, except as indorsers. Harts-horn came in with Wood to pay the note, and the witness commenced scratching off the names on the note, and Hartshorn objected to his scratching off Brace & Graves’ names ; witness objected to deliver up the note unless he erased Brace & Graves’ names, or he brought the order for the note; that Hartshorn would not take the note unless Brace & Graves would remain responsible, and the witness would not let the note go without the order.</p> <p>The justice rendered a judgment in favor of the defendants, and on appeal to the county court of Yates county, the judgment was affirmed. The plaintiff then appealed to this court.</p>

HIS was a reference of a disputed claim against the estate of Cornelius De Witt deceased, to three referees approved by the surrogate of the county of Yates, under and in pursuance of the statute. (2 R. S. 88, A 34, 35, 36.) The claim was first presented to the defendant, as administrator of the deceased, who declined to allow or pay the same ; whereupon the plaintiff and the defendant signed an agreement to refer the claim to three referees named therein.

APPEAL, by the defendants, from a judgment entered at a special term. The plaintiff’s intestate, Saloma Harris, on the 6th of May, 1850, assigned a bond and mortgage, executed by the defendant Harris, to the defendant Crittenden, “ in trust to apply the avails thereof to the necessary support and maintenance of her mother, Sarah Harris, during her natural life.” She died on the 8th of same month.

The action was brought to recover the amount of a promissory-note for $50, and interest thereon, made by one Cyrenus Holmes, and indorsed by the defendant Morris, one John S. Clary, agent for C. Holmes, and by the defendant Law. The defendants Law and Morris, only, were sued.

HIS was an action upon contract, to recover the price of thirteen head of cattle, at 3$ cents per pound, live weight, the cattle to be weighed at Canandaigua. The cattle were sold at Potter, Tates county, and were to be driven to Canandaigua by the defendant on the day of sale, and the next morning the plaintiff was to meet him there and the cattle were to be weighed and paid for at the price aforesaid.

The defendant was a stockholder in the Niagara Falls Hydraulic Company, from its organization down to the time of trial, holding 750 shares of $100 each, or $75,000 of its capital stock. He was also a director of the company during the same time.

A PPEAL from a judgment entered at a special term. The ±1 action was brought to recover the possession of personal property, and damages for the detention thereof. The defendant justified the taking under and by virtue of a chattel mortgage, executed to him by the plaintiff.

THIS action was brought upon an instrument in the following words : “ $550.

THIS was all action by the plaintiffs, as administrators of Richard Dibble deceased, to recover damages of the defendants, for causing the death of the intestate.

The action was on a policy of insurance against fire, issued to the plaintiff and his brother Joseph H. Groit, and assigned by Joseph H. to the plaintiff, after the loss. The premium was not paid until after the loss; the agent of the defendants telling the insured that it was immaterial; that he did not care to receive it until he made his returns, and he would call for it. The premium was paid to, and accepted by, the agent, the day after the fire.

ACTION for taking and converting the property of the plaintiff. The defendant justified under a judgment and execution against one Warren Pratt, alleging the property to belong to Warren at the time, and to be liable to the execution against him. The judgment was proved by the production of a copy of the docket of the justice, proved by the justice, who was a witness on the trial, to be a true copy. This evidence was admitted under objection and exception.

A CTION brought to recover several penalties of $>20 each, given -OL by the 39th section of the rail road act of 1850, for causing a locomotive engine to run and pass on the road of the defendants across a traveled public road in the county of Herkimer, without ringing a bell or sounding a steam whistle, eighty rods from the crossing.

THIS action was originally commenced in the city court of Brooklyn.

<p>APPEAL from a decision made at a special term, granting a peremptory mandamus. For a- report of the case below, see 20 Barbour, 302, where the facts are fully stated.</p>

THIS was an action originally brought in a justice’s court of Saratoga county.

mnis action was tried at the Essex circuit, in March, 1856. JL The complaint contained two counts. The first set forth a special agreement that the defendant should have the use of a certain farm in Essex county, belonging to the plaintiff, until the plaintiff should sell and dispose of the same, and that the defendant should pay the plaintiff, for the use of the same, the sum of $140 per annum.

The counsel for the respective parties signed a stipulation, embracing the following facts: 1. That the relator was, on the 18th day of June, 1844, a brigadier general of the 19th brigade of infantry, of the state of New York, duly commissioned, and had on the 13th day of May, 1847, performed military duty as such brigadier general, armed and equipped as the law directs, for more than one year within three years next preceding the 13th day of May, 1847. 2.

THIS was an action for the foreclosure of two mortgages. The complaint alleged that the plaintiffs were a corporation duly incorporated pursuant to, and in accordance with, an act of the legislature, passed April 10, 1851, entitled “An act for the incorporation of Building, Mutual Loan, and Accumulating Fund Associations.” That the defendant Epenetus Webster, for the purpose of securing the payment to the plaintiffs of the sum of $14 monthly, until the termination of their…

THIS action was commenced, and tried, before a justice of the peace of Essex county. The complaint was for the taking and converting of a cow, by the defendant. The answer was a denial, and property in the defendant. On the trial, the plaintiff offered in evidence a commission issued to James Keese, to take the testimony of one James Meighan, residing in the city of New York.

THIS action was commenced before a justice of the peace of Saratoga county. The plaintiff claimed to recover of the defendants the sum of $27, alleged by him to have been paid for the defendants, on a judgment against all the parties, in favor of one Warren S. Kelly, on a note of which the defendants were the makers and the plaintiff and others indorsers.

HIS action was commenced for the foreclosure of a mortgage, given by the Canandaigua and Niagara Falls Rail Road Company upon its rail road, track and franchises, and appurtenances, to secure the payment of $1,000,000 of the bonds of said company, issued to, and held by, different persons. The mortgage was executed in due form, and bore date March 17, 1852.

THIS action was for the speaking of words not actionable of themselves, by the defendant, concerning the plaintiff; the plaintiff alleging, by way of special damage, that in consequence of the speaking of the words, he had suffered great pain of body and mind, and had been greatly injured in his standing and reputation in the church in which he was an elder, and his private character and credit had been and was materially injured and impaired, and that he became sick and…

THIS was an action upon a policy of re-insurance. It was tried at the Hew York circuit, in March, 1857, before Justice Peabody, without a jury. The following facts were found by the court. 1. That on or about the 1st of December, 1853, the plaintiff having underwritten policies of insurance upon the ship Great Republic, then lying at Hew York, and also open policies upon her freight and cargo, for a voyage thence to Liverpool, applied to the defendants’ agent for reinsurance.

<p>APPEAL, by the defendant, from a judgment entered upon the report of a referee. William E. Leggett, brother of the plaintiff, was one of the original subscribers to the articles of association of the Bank of Sing Sing, owned twenty shares of its stock, and in January 1854, was a director of the bank. At that time he was indorser on the notes of one Thompson, for about $4000, which were discounted by said bank. Thompson died before these notes became due, leaving Leggett his executor. These notes were afterwards protested for non-payment, and Leggett from time to time paid them off, giving his note as executor, indorsed individually, for the balance due. On the 30th day of March, 1855, the last renewal note became due, and was protested for non-payment, and on the 9th day of April following, he paid $300 in cash, and gave a note for $1900, payable the 1st of August. On the 8th and 10th days of May, 1855, the plaintiff, to whom the stock had been assigned by Wm. B. Leggett, for a valuable consideration, demanded a transfer of the same, and exhibited the certificate of the stock and power of attorney to transfer. The certificate of stock reads, that it is transferable, subject to the conditions and stipulations of the articles of association. Article 5, section 3, is as follows: “ That no share shall be transferred unless the shareholder shall previously discharge all debts due by him to said association, or shall have remaining stock untransferred sufficient to cover and secure the amount he may owe to the said association.” Leggett acted as director up to April 16, 1855, and three dividends were paid to him by being credited on three renewal notes. The bank refused to make the transfer, on the ground that by the articles of association, William B. Leggett was prevented from selling or assigning the said 20 shares of stock, until his indebtedness of $1900 was paid. The answer alleged that William B. Leggett owned no other stock in the Bank of Sing Sing, except the 20 shares above mentioned, and which stock was subject to a lien of the defendants, and was held in pledge for the said sum of $1900. The referee, to whom the cause was referred, found the facts as above ; ancl his conclusions of law were, First. That William B. Leggett was personally liable to the defendants upon the $1900 note. Second. That such note not having matured- at the time of the demands severally made upon the defendants for a transfer of such stock to the plaintiff, it was not, within the true intent and meaning of such articles of association, a debt due by William E. Leggett to the defendants, of such a character as to make the $1900 a lien upon such shares of the capital stock, and did not authorize the bank to refuse making a transfer thereof to the plaintiff, at the time he demanded such transfer to be made. Third. That the plaintiff should have judgment against the defendants for $2000, besides costs. And that upon the payment of the judgment the certificate of such stock should be surrendered up to the defendants.</p>

<p>APPEAL from an order made at a special term, refusing to vacate an order of arrest.</p>

1 PPEAL from an order made at a special term, allowing XL the bond of a guardian ad litem, in a partition suit, to be filed nunc pro tunc, as of the 2d of October, 1856, the time when it should have been filed.

The plaintiffs were the proprietors and publishers of a newspaper, in the city of New York, styled “ The Sunday Courier.” The respondents, partners in trade, doing business in the city of Albany, under the name of Wilcox &■ Co., agreed to pay the plaintiffs the sum of ninety dollars for the publication of a certain advertisement in their said paper for the period of six months; which advertisement was duly published, pursuant to agreement, and the publication admitted by the…

The action was brought to try the title of the defendants to the office of police commissioners, which they claimed the right to hold and exercise, by virtue of an appointment by the govern- or and senate, under the metropolitan police act, passed April 15, 1857. (Laws of 1857, ch. 569.) The substance of the complaint is set forth in the report of the case at special term, on a motion made by the defendants, to dissolve the injunction.

THIS action was upon a draft or bill of exchange, made and drawn by the defendant at Carthagena in Hew Granada, for the sum of $2687.50, and protested for non-acceptance, by the Hew Granada Canal and Steam navigation Company of the City-of Hew York, against the drawer of said bill of exchange. The action came on to be heard and tried before Justice Davie's and a jury, on the 16th of May, 1856.

THIS was an action to compel the defendants, as executors of Samuel Leggett, deceased, to account for, and pay over to, the plaintiffs the profits received by the defendants and their testator, upon the sale of certain real estate alleged to have been held by the testator in trust for the plaintiffs.

THIS was an action for the partition of real estate. The premises sought to be partitioned were situated in the city of New York, and were formerly owned and occupied by Nicholas Kenny, since deceased.

APPEAL by the defendants from a decree of foreclosure, made at a special term. On the 13th of February, 1854, the defendant, Michael Miller, executed a bond and mortgage to W. K. Strong, to secure the payment of $5000. On the 13th of November following, he executed another bond, and a mortgage on the same premises, to the plaintiff. Palmer, to secure the payment of the sum of $5000. He was not of full age until December of that year.

HIS was an appeal from a decree of the surrogate of Hexy York, directing an account by the executors of George Arcularius deceased, in favor of William P. Sweet, administrator of Jacob S. Arcularius; and involved the construction of the will of George Arcularius, in respect to the provisions therein made for the said Jacob S. Arcularius. George Arcularius, the father of Jacob S., by his will gave to his widow, for life, the income of one-third of his whole estate.

PPEAL from an order made at a special term. The actions were brought to recover the value of goods sold and delivered to the defendant, by the plaintiffs, respectively, on a credit. The complaints respectively alleged fraud on the part of the defendant in contracting the debt, and that he purchased the goods without any intention of paying for the same, and in pursuance of a plan concocted by him, by which he intended to defraud the plaintiff out of the goods.

PPEAL by the defendant from a judgment entered at a special term. The action was brought by the plaintiff, as receiver of the Eighth Avenue Bank, to recover of the defendant the amount remaining unpaid upon his subscription to the capital stock of the bank. He was a subscriber for 340 shares, at $50 a share. Judgment was given in favor of the plaintiff, for $4914.61. The facts appear in the opinion of the court.

<p>PPEAL from an order made at a special term, dissolving an injunction. The injunction restrained the defendant from selling or offering for sale the spurious white lead mentioned in the complaint, manufactured by him, or by any other person, with the stamp or trade mark used by the defendant and described in the complaint, thereon ; and from selling any white lead manufactured by any person or body other than the plaintiffs, under the denomination of the plaintiffs’ white lead, or any denomination similating that of the plaintiffs, or put up in kegs or otherwise with the plaintiffs’ stamp or trade mark thereon, or the stamp or trade mark used by the defendant and described in the complaint, thereon; and from putting any stamp thereon, in such a manner as to be a colorable imitation of the plaintiffs’ stamp. The facts on which the injunction was granted, appear sufficiently in the opinion of the court.</p>

PPBAL by the plaintiff, from an order made at a special term, allowing a demurrer to the complaint. The action was upon a promissory note made by one James B. Townsend, payable to the order of the New York and Saugerties White Lead Company, and indorsed by that company, and by The Spring Valley Shot and Lead Company.

<p>APPEAL from a decision made at a special term, and reported ante, p. 23.</p>

<p>None but creditors of, and subsequent purchasers from, a vendor of chattels, are at liberty to allege fraud in a sale thereof made by him, which is valid as between the parties thereto.</p> <p>A party cannot avail himself of the privilege of a creditor in order to charge fraud upon others, in the sale and purchase of property, by merely claiming to hold that relation, without proving the fact, by legitimate evidence.</p> <p>His own ex parte affidavit, made on an application for an attachment against the vendor, cannot be received as evidence to establish the fact of his being a creditor.</p> <p>In a suit by a person claiming under the attachment, against one claiming to hold the property by virtue of a purchase "thereof from the former owner, such affidavit cannot be used as evidence, excepting to show that the attachment was regularly issued.</p> <p>Where a sleigh was sold in June or July, it being then several miles distant from the place of sale, and, owing to the difficulty of removing it at that season of the year, it was agreed between the parties that it might remain where it was, in the vendor’s barn, until the ensuing winter; Held that the omission by the purchaser, to take possession of the property, at thé time, was sufficiently accounted for.</p>

ACTION by the plaintiff to recover for her services rendered to Lydia Magee, the defendant’s testatrix, under 'a special contract. The trial came on at the Seneca circuit in March, 1857, before Mr. Justice Smith. Upon the trial the plaintiff gave evidence tending to prove the following agreement and facts.

i PPBAL from a judgment entered upon the report of a JTl referee. The complaint stated that the plaintiff Eyan, about the 3d of May, 1839, purchased and became seised in fee simple of certain premises and real estate therein described, situated in the village of Geneva in the county of Ontario.

The action was ejectment, for a strip of land about eight rods wide and about 300 rods long, claimed by the plaintiff as part of lot No. 38, and claimed by the defendant as part of lot No. 39, situated in the town of Addison, Steuben county. It was admitted on the trial that the title to the lot 38 was in the plaintiff, and to lot 39 in the defendant.

Upon the hearing before the surrogate, in August 1856, it appeared that on the first day of January, 1850, the testator, Hollister Lathrop, and the appellants entered into partnership, under the firm name of J. Ganson & Go.

DEMURRER to complaint. The action was brought by the plaintiff as receiver of the stock, property, equitar ble interests, things in action and effects of the Rensselaer Insurance Company.

Where a complaint alleged that the plaintiffs deposited with G. & Oo. securities of several kinds, for sale on the plaintiffs’ account,… Held: on demurrer, that there was a misjoinder of actions, against the several defendants; the causes of action being separate and distinct, and neither defendant having any legal interest in the action against the other; and each cause of action, instead of affecting all the parties, affecting only the party holding the security to which…

HIS was an appeal from an order made at special term, denying pro forma a motion on the part of the plaintiff for a new trial. The action was brought to recover the possession of 71 bales of hops, sold December 28th, 1854, by the plaintiff to the defendant McKean, for $4708, payable in cash upon delivery. The hops were delivered on board ship December 30,1854, but it did not appear on whose account the ship received them. Payment was demanded from McKean January 2d, 1855.

THIS was a controversy submitted for the opinion of the court, under section 372 of the code. The material facts are set forth with sufficient fullness in the opinion of the court.

THIS action was brought on a policy of insurance, bearing date the 5th day of September, 1854, issued by the defendants to the plaintiffs, and insuring them against loss by fire, for one year, in the sum of $3000, as follows : $1600 on their dwelling house ; $800 on their furniture therein ; $200 on their barn and shed ; $200 on their grain therein, and $200 on their hay therein. The dwelling house and furniture were burned in the night of the 16th of July, 1855.

THIS action was brought by the plaintiff, as administrator with the will annexed of John Woodruff, deceased, to recover the possession of a gray mare, which the defendant had in his possession at the time the action was commenced. It was alleged in the complaint “ that the deceased, previous to and at the time of his death, owned and was in possession of” the gray mare in question, and that the deceased raised her.

<p>Motions, in two suits, for an injunction, and the appointment of a receiver.</p> <p>These actions were brought by Daniel D. Conover—the one against The Mayor, &c., of the city of Mew York, Charles Devlin, and Farrington and Bertholf; and the other against The Mayor, &c., Charles Devlin, and James 0. Willett, sheriff of the city and county of New York. The facts involved in the present motions, with a history of the previous litigation in the same controversy, are given in the opinion.</p>

HIS was an action for the specific performance of a contract made in the state of New Jersey, for the purchase, by the defendant, of lands lying there, the defendant being a resident of that state, and the plaintiff a non-resident of this state. The cause was tried before the court without a jury.

THIS was an action by the children of Henry Lynch, deceased, to recover their alleged interest in a fund set apart by the will of their grandfather, Dominick Lynch, deceased. Dominick Lynch died in June, 1825, being possessed of a large estate, real and personal.

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

THIS action was brought to recover $150 for one year’s rent of premises near Bull’s Ferry, Hew Jersey. The lease was dated on the 23d of June, 1856, but rent was payable quarterly from the 1st of May previous.

PPEAL from a judgment entered upon the report of a referee. The complaint alleged that the plaintiffs were common carriers and a corporation under the laws of this state, and that the defendants were copartners in business in the city of New York, under the name and firm of John S. Lounsberry & Co. That during the months of January and February, 1854, the plaintiffs, as such common carriers, brought to the city of New York certain large quantities of whisky in barrels, of…

THIS was an appeal from the recorder’s court of the city of Buffalo. The plaintiff sued the defendants in the court below for negligently running their cars against the plaintiff while he was driving a span of horses and wagon in a public highway in the village of Black Rock, by means of which the plaintiff was thrown from his wagon and greatly injured.

<p>A PPEAL from a judgment entered on the report of a referee. AX Eli Hart, the intestate, died on the 31st of December, 1845, and was then the owner of one-seventh of the steam boat De Witt Clinton. At the time the supplies hereinafter mentioned were furnished by the plaintiffs, the defendant Feidler, as administrator of Hart, owned one-seventh, and one Wing owned the other six-sevenths of the steam boat. After Feidler’s appointment as administrator, and in December, 1846, he made-inquiry in relation to this steam boat, and requested his agent at Buffalo to sell his interest in her. She was run in 1846 without the direction, control or interference of the defendant Feidler, and in February, 1847, he received §1000 as a portion of her earnings in 1846. On the 12th of October, 1849, he received §147.44, and on the 26th of December, 1849, he received §36.26, which was paid him as part of the earnings of the boat during the season of 1847. The boat was run by Wing, as part owner, during the years 1847, 1848, 1849, 1850 and 1851, Wing acting either as master or clerk and in such capacity running thereon. In the year 1851, from the 6th of April to the 14th of November, the plaintiffs sold and delivered meats and provisions to the steam boat, upon the orders of the steward and cook, of the value of §347.89, and have since received in part payment §245, leaving a balance due them of §102.89. Several of the payments made on the account were made by Wing, who knew that the plaintiffs were furnishing the boat, and who promised, after the supplies had been furnished, to pay for them. The supplies were necessary for the boat, and the master knew that the plaintiffs were fur-them. The plaintiffs lived in Cleveland in 1850 and 1851, and for several years previous, and had been engaged in the business of furnishing vessels. The defendant Wing during that time resided at Monroe or Toledo, and was well known at Cleveland, and other ports on Lake Erie. Hart and the defendant Eeidler lived in New York city for several years prior to the death of Hart, and Eeidler has since continued to reside there, The defendant Wing was on the steam boat as master or clerk, when she was running, from 1849 to 1852 inclusive, and the boat was accustomed to stop at Cleveland every trip during those years. It was there understood that Wing had the entire management of her, and was a part owner. The defendant Eeidler considering that he had no authority, as administrator, to direct or participate in the direction of the running of the boat, and that his duty was to sell and dispose of the interest of Hart therein as soon as the same could properly be done, uniformly directed his efforts to effect such sale. He never consented to, or took, directly or indirectly, any part in the running of said steam boat or in incurring any bills or expenses in relation to her, and whatever was done with her, as to her management or the creation of such bills, was done without his knowledge, information or consent, except as hereinafter stated. In the spring < of 1849, h^told the defendant Wing that he would have nothing to do with the running of said boat, or in paying any expense or indebtedness of her running, and would have nothing to do with the business or concerns of the said steam boat, or with the boat itself, except to sell his interest in her if he could. This evidence was taken subject to the plaintiff’s exception. In October, 1852, the attorney for the plaintiffs called on the defendant Feidler in relation to the bill of the plaintiff and other bills against the steam boat, and to see if Feidler would pay those bills. Feidler then told said attorney that he held or owned one-seventh of said boat; that he had paid $2000 for her and should not pay any more until the claims were legally proved. After this suit was commenced and after the steam boat had been sold, and about 1853, the defendant Feidler directed his attorney at Buffalo to commence a suit for the earnings of the boat. He had before paid accounts against her, and taken assignments of the claims by the advice of his attorney.</p> <p>On these facts the referee decided, as a question of law, that neither the defendant Wing, the master, steward or clerk of the said steam boat had any authority or direction from the defendant Feidler, either express or implied, to contract for or procure the said supplies, or to bind the defendant Feidler, as such administrator, therefor. Judgment was entered for the defendant Feidler on the report, and the plaintiff appealed to this court.</p>

The action was brought upon a guaranty, by the defendant, of a promissory note. The note and guaranty were in these words: “ Lancaster, March 23, 1853. On the first day of November next, I promise to pay Martin Cunningham or bearer, seventy-four dollars with use, for value received. Jacob Anderson.” “ I guaranty the payment of the within note. Sylvester Wheelock.” The complaint contained a count for money lent. The answer was a general denial.

The action was upon a bond given by Kingsmill as the claimant of personal property, attached by the plaintiffs as the property of one Jones; and by the defendant Bush, the surety in the bond. The property was taken on attachments issued by justices of the peace in ¡Niagara county in this state. The defendant Kingsmill gave the bond, with Bush as surety, pursuant to 2 R. iS. 231, orig. § 33.

This was an injunction suit brought by Philip McDermott against the Board of Police for the Metropolitan Police District. The plaintiff alleged in his complaint that he was a tax-payer in the city of New York, and the owner of real estate therein, and, as such, was liable to be assessed and compelled to pay taxes for the support and maintenance of the police of said city. He filed his complaint as well on his own behalf as of all others similarly situated.

THIS was an appeal from an order made at a special term, making an allowance of $450, to the defendant, by way of costs. The action was in the nature of a quo warranto, and was brought to try the title to the office of comptroller of the city of Hew York.

OTION for judgment on a verdict for the plaintiff, subject to the opinion of the court. The facts were, that the Farmers’ and Mechanics’ Bank of Hartford owned certain notes made by Paul & Pritchard, to the amount of about $1600, which they sent for collection to the Canal Bank of Cleveland, (Ohio,) and the latter sent them for the same purpose to the defendant, the Farmers’ Bank of Salem, to whom they were duly paid by the makers.

F. T. Hayes and others, having obtained a judgment against John Rutter, filed a creditor’s bill against him on the 1st of November, 1842, and obtained an injunction restraining him from disposing of his property. A receiver was also appointed. On the 24th of November, 1842, Rutter made the usual assignment of his property to the receiver. Rutter, at the time of the filing of the creditor’s bill, had a claim against the defendants.