Volume 25 — New York Supreme Court Reports

<p>Surety — released by an unauthorized extension of time given to the prindpcSh debtor — Effect of a judgment on a joint and seveml bond — when the estate of a surety is released by his death.</p> <p>One Tong, having been arrested under an execution, obtained the liberties of th® jail limits by giving a bond to the sheriff, signed by himself, and by McNulty, the plaintiff’s intestate, by Lynch and by Thompson, as sureties. Tong having escaped, the sheriff recovered a judgment upon the bond against the principal' and sureties thereto, which he subsequently assigned to the plaintiff in the exe-> eution, who thereafter assigned it to one Hurd. The latter agreed with Tong to take notes for the amount of the judgment, signed by him and all the sureties, payable at different times in a period extending over two years. Notes were accordingly given, signed by Tong and Lynch alone, some of which were paid and others were not. McNulty had no knowledge of the giving of the notes and did not assent thereto. Subsequently McNulty died, and this action was. brought by his administrator to prevent the collection of the residue of the. judgment from his estate.</p> <p>Held, that McNulty was released by the unauthorized extension of time given to* the principal debtor.</p> <p>Semble, that although the bond was joint and several, yet the recovery of a judgment, against the principal and sureties thereon, was an election on thé part of the creditor, to regard the obligation as a joint one, and that consequently the. estate of McNulty was released by his subsequent death.</p>

<p>Borrowing money to lay out a road — chapter 323 of 1873 — trustees not required to act as a board— Power of the Legislature to authorize money to be boiTowed on the credit of a town.</p> <p>Chapter 323 of 1873 providing’ that, where a proposed road passes through an incorporated village, the consent of a majority of the trustees should he obtained, before the board of supervisors can authorize money to be borrowed on the | credit of the town to lay out or improve such road, does not require the trustees to act as a board and by vote, but it is sufficient if a majority of the trustees join in a written request to the board of supervisors, to authorize the loan to be made.</p> <p>The Legislature may authorize money to be borrowed upon the credit of a town which embraces several villages, to be used in laying out and improving roads, though they do not pass in whole or in part through any of such villages.</p>

<p>Mortgage — not covered, by the word “ conveyance” contained in an exception in a deed — A sale under a judgment is void when the judgment is in effect paid — Confession of judgment — what sufficient.</p> <p>A sheriff’s deed, given in pursuance of a sale under an execution, after deserib- ■ ing certain premises, proceeded: ‘ Excepting from and out of such sale such parts of Said premises (it any) as had been lawfully conveyed by said Cowen-hoven and others, by conveyances duly recorded in the registrar’s office of Kings county, prior to October 12, 1855.” Prior to the time mentioned the same premises, described in the deed, had been mortgaged by Cowenhoven.</p> <p>Held, that the mortgage was not a conveyance within the intention and meaning of such exception.</p> <p>Cowenhoven conveyed certain lands to one Cook, in payment of a judgment held by Cook against him, and agreed to discharge certain incumbrances thereon; Cook to hold the judgment until he Should do so. Subsequently, in an action by Cowenhoven to have the judgment satisfied, it was adjudged that Cook was entitled to enforce it as a security and indemnity against the liens and incum-brances referred to in the agreement, but for no other purpose, and a reference was ordered to ascertain the amount for which the judgment might be hold and enforced. Subsequently, and without aiiy proceedings having been had before the referee, land belonging to Cowenhoven was sold under the judgment, and a deed executed to the purchaser.</p> <p>Held, that the sale was void, as having been made, in effect, under a paid judgment.</p> <p>A confession of judgment in which the defendant states that the indebtedness “ is for a debt justly due from me to said plaintiff for moneys to that amount loaned and advanced to me by said plaintiff,” is sufficient as between tho parties and is only voidable, if at all, in a direct action or motion to vacate it by a junior judgment creditor or bona fide purchaser.</p>

The action was brought to foreclose a mortgage. In addition to the matters of defence set forth in the following opinion, the answer contained the following counter-claim.

Tbe action was brought to recover possession of certain land alleged to belong to tbe plaiutilT Phebe M. Clark. The defendants claimed title thereto under conveyances from one Warren Beeman, who entered into possession thereof in 1850.

The appellant objected to that part of the decree which adjudged that ho and his co-executor, William H. Schermerhorn, should pay to the estate a sum of $6,254.82 (viz.: $11,254.82, less $5,000 which had been returned), which had been lost.

The controversy arose principally in respect to the proper construction of section 9, title 4 of chapter 541 of the Laws of 1865, which reads as follows: “ The marshal shall possess the power and authority of a constable at common law, and under the statutes of the State, except that he shall not have power to serve any civil process issued by any justice of the peace.

<p>Embezzlement— what justifies a conviction, of, under chapter 207 of 1874.</p> <p>The plaintiff in error, Bartow, was the treasurer of the Fishkill Savings Institute, and also cashier of the National Bank of Fishkill, which latter bank x'eceived all deposits to be made in the Savings Institute, the business of the Institute being transacted at the office of the bank. February 1, 1877, Bartow, while starting for New York with ¡£3,000 in bills belonging to the Bank, received §1,500 in bills belonging to the Savings Institute, both of which amounts, less five dollars, were deposited in a bank in New York to the credit of the Fishkill bank. The §1,500 was never credited in the books of the Fishkill bank to the Savings Institute, and on the books of the Fishkill bank the New York bank was charged with only §3,000 instead of with §4,495, the amount actually deposited. The whole sum deposited was thereafter drawn out by the FishkilL bank, which subsequently failed.</p> <p>Held, that the plaintiff in error was properly convicted of embezzlement under chapter 207 of 1874.</p>

The action was upon a promissory note for $5,000, made by the testatrix, payable to the order of the plaintiff, her daughter. The defence was a want of consideration. The plaintiff gave evidence tending to show a money consideration to the extent of fifty cents, and also to establish a consideration from two other sources — the one, money advanced, and the other, money received under the will of Charles Avery, on the promise to pay it to the plaintiff.

<p>Appeal from a decree by the surrogate of the county of West-chester, entered upon the final settlement of the accounts of the respondents, as executors of Philcna Disbrow, deceased.</p>

One Theodore Stansbury, a contractor, was building a house at Pearsalls, in Queens county, for Cornelius Moore, the respondent. The contractor employed Jacob E. Cock,.the appellant, to do certain work upon the house, viz.: Tinning, roofing, putting in leaders and a pump. The work was done by the plaintiff and the price to be paid therefor was $156.80. The plaintiff has not been paid for the work done.

Reargtbient of an appeal from a judgment, entered upon an order sustaining a demurrer to the complaint herein. The action was brought to vacate an assessment imposed upon lands of the plaintiff, under the provisions of chapter 670 of 1871, authorizing commissioners to lay out Rockland avenue, and to restrain the commissioners, and their successors, from collecting or enforcing the same.

<p>MotioN for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict directed in favor of the plaintiff.</p> <p>The fact that a note made in the name of the firm is payable to the order of one of the partners, is not any indication that the paper was not drawn on partnership account and in the usual course of business of the firm. (Parsons on Partnership, *202, note c; Hcildeman v. Banlc of Middletown, 28 Penn. St., 440; Ihmsen v. Negley, 25 id., 297; Smith v. Lusher, 5 Cow., 688; Smyth v. Strader, 4 How. [U. S.], 404; Babcock-¶. Stone, 3 McL., 172.) The mere fact that a director of a corporation has knowledge of a fact does not charge the corporation with notice. (National Bk. v. Norton, 1 Hill, 572; Fulton Bk. v. New York and Sharon Canal. Co., 4 Paige, 127; Miller v. III. Cent. It. B. Co., 24 Barb., 312; Pres., etc., of Westfield Bank v. Cornen, 37 N. Y., 320; Parrel Foundry v. Bart, 26 Conn., 376; General Ins. Co. v. U. S. Ins. Co., 10 Md., 517; Terrel v. Branch Bank of Mobile, 12 Ala., 502; U. S. Ins. Co. v. Shriver, 3 Md. Ch., 381; Custer v. Tompkins Co. Bank, 9 Barr [Penn.], 27; Seneca Co. Bank v. Neass, 5 Denio, 329; Pres., etc., of City Bank v. Barnard, 1 Hall, 70; Commercial Bk. v. Cunningham, 24 Pick., 270; Fanners and Citizens' Bank v. Payne, 25 Conn., 444; Winchester v. Baltimore and Susquehanna R. R. Co., 4 Md., 231; Barnes v. Trenton Gas Light Co., 12 C. E. Gr. [N. J. Ch.], 33; In re European Bank, L. R. [5 Ch. Ap.], 358; In re Marseilles Extension Railway Co., 7 id., 161.) An association, organized under the general banking act of 1838, has all the powers incident to a banking business, even though not specifically and in express terms conferred by the act, and may purchase as well as discount paper. (Curtis v. Leavitt, 15 N. Y., 9; Leavitt v. Blatchford, 17 id., 522; Barnes v. Ontario Bank, 19 id., 152; Yerkes v. National Bank of Port Jervis, 60 id., 382; Leach v. Hile, 30 Iowa, 69; Van Leuven v. First National Bank, 54 N. Y., 671; People v. Metropolitan Bank, 7 How., 144; Pape v. Capitol Bank of Topeka, 20 Kan., 457; Tracy v. Talmage, 18 Barb., 456; First National Bank v. Harris, 118 Mass., 516; Smith v. Exchange Ban)k.pf Pittsburg, 26 Ohio. SL, 141; National Pemberton Bank v. Porter, Sup. Ct. Mass., 7 Cent. [L. J.], 324.)</p> <p>Any obligations given by one partner in the name of the firm, in payment of his own private indebtedness, or for his own individual benefit, or for any matter unconnected with the business of the firm, are void as against the other members of the firm, in the hands of any person, who took the same with notice of such fact, unless the assent of the other members is proven. (Livingston v. Roosevelt, 4 Johns., 25 L; Dubois v. Livingston, id., 261,. n; Gansevoori v. Williams; 14 Wend., 133; Livingston v. Hastie, 2 Caines, 246; PHliot v. Dudley, 19 Barb., 326; Chitty on Bills, 29-33, and cases there cited; Edwards on Bills and Notes [m. p.j, 103; Parsons on Partnership [3d ed.], *216; Foot v. Babin, 19 Johns., 154; Boydv. Plumb, 7 Wend., 309; Andrews v. Planters’ Bk., 7 Smedes & M., 192; Rollins v. Stevens, 32 Me., 454; Selden v. Bk. Commerce, 3 Minn., 166; Laverty v. Burr, 1 Wend., 529; Bk. of Rochester v. Bowen, 7 id., 158; Stall v. Catshill Bk., 18 id., 466; Williams v. Walbridge, 3 id., 415; N. Y. Fireman’s Ins. Co. V. Bennett, 5' Conn., 574; Gansevoort v. Williams, 14 Wend., 139; Joyce v. Williams, id., 141; Parsons on Bills and Notes, 140, 141; Story on Part., § 127; Parsons on Part. [3d cd.], *216; Colyer on Part., § 421; Daniels on Neg. Inst.,p. 272, § 365.) The possession and presentation for discount or sale of a note or other commercial paper, by one who is liable thereon, as drawer, maker, acceptor or indorser, is in itself notice to the party taking it from him, that all indorsements subsequent to his are for accommodation. (Stall v. Catshill Bk., 18 "Wend., 466; Bk. of Vergennes v. Cameron, 7 Barb., 143; Fielden v. Lahens, 2 Abb. Ct. .App* Dec., Ill; N. Y. Fireman’s Ins. Co. v. Bennett, 5 Conn., 574; Bk. of Tennessee v. Safferins, 3 Humph., 597; Tanner v. Hall, 1 Penn. St., 417; Mauldin v. Branch Bk. Mobile, 2 Ala. [N. S.], 513; Tompkins v. Woodyard, 5 W. Va., 216; Daniels on Neg. Inst., § 365; Wallace v. Branch Bk. Mobile, 1 Ala. [N. S.], 565; Saltmarshv. Planters' Bk., 14 id., ,668; Carlisle v. Hül, 16 id., 405; Overton v. Harden, 6 Coldwell [Tenn.], 376; Brown y. Baber, 5 Wend., 566; Hendrie v. Berko-witz, 37 Cal., 113; Le Moine v. JBlc. North America, 3 Dillon, 44; Howe Machine Go. v. Hadden, The Reporter, yol. 6, p. 136; Palmer v. Whitney, 21 Iud., 58.) The plaintiff stands chargeable with the same notice of the character of the indorsement, which Mr. Leonard, one of its directors, had. (Bank of U B. y. Davis, 2 Hill, 451; North Diver Bank v. Aymar, 3 id., 274; Nat. Security Bank v. Cushman, 121 Mass., 490; Verona Central Cheese Co. v. Murtagh, 50 N. Y., 316.) The plaintiff had no power or authority to purchase the note in suit, and such purchase conferred upon it no title which could be enforced as against these defendants. (Roy. Stat. [Banks, 6th ed.], vol. 2, p. 334, § 199 [old sec. 18]; American Life Ins. Co. v. Dobbin, Lalors Sup. to H. A D., 255, 256; N. Y. Fireman's Ins. Co. v. Fly, 2 Cow., 699; N. Y. Trust and Loan Co. y. Helmer, 19 S. C. It., 35; Farmers and Mechanics’ Bank y. Baldwin, 23 Minn., 198; First National Bank v. Pierson, 16 Alb. L. J., 319; Niagara Co. Bank Y. Baker, 15 Ohio St., 68.) No action can be maintained by a corporation upon securities taken in violation of their oi’ganic act. (Seneca Co. Bank v. Lamb, 26 Barb., 598; Bank of U. S. y. Owens, 2 Peters, 257; Utica Ins. Co. v. Scott, 19 Johns., 1; Tal-ma ge v. Pell, 3 Seld., 328; Fxparte Dysler, 2 Rose, 351 [Lord Eldox] ; Watts y. Brooks, 3 Yes. Jr., 612; Crocker v. Whitney, 71 N. Y., 16; Swift v. Beers, 3 Denio, 70.)</p>

<p>Appeal by Henry Ferris from an order appointing a referee to take proof of the facts set forth in the petition herein.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an órder denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.</p>

<p>Negotiable certificates for surplus profits issued to a stockholder— the stockholder may recover the amount thereof on giving security, though the certificate be lost.</p> <p>■Where a company has declared an extra dividend, and issued negotiable certificates therefor to its various shareholders, such certificates being payable at a time fixed therein, or sooner, at the option of the company, and the company subsequently determines to redeem the same, before the time fixed for their payment, it cannot refuse to pay the amount of a certificate so issued to a stockholder, because he has lost the certificate and is unable to surrender it for cancellation, he company must pay the certificate and protect itself by exacting full indemnity, in analogy to the practice in the case of lost commercial paper.</p>

The action was brought by the plaintiff, a private soldier stationed at Port Wadsworth, to recover damages for an alleged libelous publication by the defendant, the commanding officer thereof. The action was brought on March 13, 1878. On March 11, 1878, the plaintiff was discharged from the service, and his present whereabouts is unknown to the defendant.

<p>Mechanics’ lien filed by a sub-contractor — when, the owner will be allowed payments made to the contractor, in advance of the terins of the contract— chap. 478 of 1862.</p> <p>In an action by a sub-contractor to enforce a lien claimed to have been acquired under chapter 478 of 1862, providing a mechanics’ lien law for the counties of Kings and Queens, the owner is entitled to be allowed for all payments made to the contractor, although made in advance of the terms prescribed by the contract, if made without fraud or collusion, and before notice of the filing of a lien under said act.</p>

<p>Certiorari to reyiew proceedings bad before a justice of the City Court of Brooklyn, upon an application for the discharge of the relator on habeas corpus.</p>

<p>Chapter 482 of 1862 — what is not a maritime contract.</p> <p>Where a vessel has been launched, before completion, and thereafter, and while she is lying in tide-waters, a contract is made for furnishing her with sails, such contract is not a maritime contract, and the party making the same may obtain and enforce a lien upon the vessel for the amount due thereon, by proceedings under chapter 482 of the Laws of 1862.</p>

The action was one of quo warranto to have the defendant ousted from the office of surrogate of the county of Kings, and to have the relator declared elected thereto.

65, as required by a decree, made upon their final accounting, entered May 31, 1878, and denying a motion by the executors to open the said decree, and for a rehearing. With reference to the attachment, the court at General Term said: “We think the learned surrogate erred in ordering an attachment to issue against the executors for the non-payment of the sum ordered by the decree, on final accounting, to be paid to the respondent Whitehead.

The action was brought to foreclose a mortgage executed by the defendants. The bond and mortgage were given to secure the repayment to the plaintiff of the amount he had paid in taking up a note of the defendant Peter Hagan.

SubmissioN of a controversy, without action, under section 1279 of the Code of Civil Procedure, upon an agreed state of facts touching the construction of certain clauses in the will of John Taylor Cooper, deceased.

<p>Letters of administration — when refused — When an estate will be presumed to havebeensettled, after along lapseoftime— Term “instituted heir” intheeivil law — duties of such an heir.</p> <p>In an application to the surrogate of the county of Albany for letters of administration, -with the will annexed, of Anneke Jantz Bogardus, deceased, it was alleged- and admitted that she died in 1663, within the county of Albany.</p> <p>Held, that the letters could not be issued on the ground that the deceased was an inhabitant of the county of Albany, as it was not shown that she was an inhabitant of that county at or immediately prior to her death; nor could they be issued on the ground that she died within the county, leaving- assets therein, as it was not shown that she was a non-inhabitant of the State.</p> <p>The deceased died in 1663, and this application was made in 1878. Held, that, in such a case, where proceedings are instituted centuries after the occurrences which they are intended to revive took place, with a view to the disturbance of rights of property, long supposed to have been settled, a full compliance with all formalities should be required, and the party prosecuting such proceedings should be held to the strictest rules and requirements of the law.</p> <p>By hei' will the testatrix nominated and instituted “ as hoi' sole and universal heirs, her children,” naming- them. Held, that at the time of her death the civil law, as modified by the laws and usages of Holland prevailed in this State, and that by that system the execution of the will devolved ujion the “instituted heir,” without the issue of any letters testamentary to him or to any person as an executor or administrator with the will annexed.</p>

A short time prior to the 6th day of March, 1860, the plaintiff and his co-partners, Frederick H. Bissell and Edwin A. Bissell, entered into a verbal agreement with each other, whereby they agreed together that they would purchase a certain farm of about 190 acres of land, known as the Grover farm, for their joint account and benefit, and as between themselves that each should pay towards such purchase-price, the one-third part of so much thereof as should not he realized by…

Wells. The action was commenced in February, 1878, to foreclose a mortgage, dated December 1, 1871, and to recover a judgment for any deficiency that might arise upon a sale. The bond and mortgage upon which the action was brought was executed by Charlotte E. Wells, George H. Wells and Eoger G. Wells.

The action was brought into the Supreme Court, under the provisions of the statutes relating to claims presented against the estates of deceased persons and disputed by the executor or administrator.

The action was brought for the alleged negligent omission of the defendant to maintain fences and cattle guards, by reason of which plaintiff’s cows were alleged to have got upon- the defendant’s tracks, in the city of Cohoes, and have been killed.

<p>Obstruction of stream — one or more owners injured by, may join in an action to restrain it.</p> <p>The defendant placed piers in tlie bed of a stream running1 through his land, and thereby obstructed its natural flow and caused the water to set back upon the lands adjoining the stream further up. This action was brought by several of the owners of seiiarate parcels of the lands, upon which the waters were so set back, to abate the nuisance and restrain the further continuance thereof.</p> <p>Held, that the several plaintiffs properly joined in bringing one action, and that it could be maintained.</p> <p>Held, further, that the fact that the defendant’s piers were not further out in the stream than wore the abutments of an old bridge immediately above them, which had stood thus for twenty years, and been but recently removed, did not affect the plaintiffs rights to have the piers removed.</p>

The action was brought to compel the defendants, by mandamus, to issue to the relator certain bonds of the town of Putnam, in aid of the relator’s road. The principal question in the case was as to the effect of what purported to bo the consent of a majority of the taxpayers to the issue of the bonds, and the affidavit of one of the town assessors thereto annexed.

Appear, from a judgment dismissing the complaint, entered upon the report of a referee. In 1868 the defendant, Oscar Yernooy, brought an action in a justices’ court against these plaintiffs and one Meeker Gorham (who was also one of the original plaintiffs herein, but who has died pending this suit), to recover the amount of a promissory note given for money lent.

The plaintiff was inspector of weights and measures for the city of Albany up to May, 1878. He complained against the defendant for work, labor and services as such inspector in inspecting the scales of the defendant. It was proven that the defendant was not engaged in selling merchandize at all. It had an elevator where it stored grain, and the scales which were inspected were some of them used in weighing grain at the elevator, and some in weighing freight.

On tbe 7th day of September, 1874, Luther Bailey presented bis written complaint on oath to the defendant, wherein he alleged that certain goods of the value of more than twenty-five dollars were, on or about the 14th day of April, 1874, at the town of Jewett, Greene county, N. Y., stolen from Division No. 209, of the Sons of Temperance, “ and that the said Luther Bailey has probable cause to suspect and does suspect that Frederick Blodgett, of the town of Jewett, county of…

Appeal by the defendants from a judgment, entered upon the report of a referee. In the spring of 1871 the defendant, William H. Breese, sold two houses then owned by him, and purchased another house, taking the title thereto in the name of his wife. The two houses so sold, which furnished the money wherewith to buy the new house, constitutes the bulk of his property.

The action was brought upon a note, of which the following is a copy: BoucKVIlle, March 3, 1876. “ One year from date we jointly and severally promise to pay William W. Woodhull, or bearer, $500 for value received, with interest. “ ISAAC B. LEACH, “L. L. LEACH. “As surety: John Evans, Henry Brown, E. J. Enos.”

<p>Motion for a new trial on exceptions, ordered to be beard in the first instance at the General Term, after a nonsuit directed at the circuit.</p>

<p> Turnpike company'-^liability of, for piling stone by (he side of (he road, in such a manner as to frighten horses. </p> <p>The defendant caused a quantity of stones to be piled on the side of its road, near to a bridge, in the reparation of which they were to be used, and allowed them to remain there; horses of ordinary gentleness were more or less frightened at them, of which fact the defendant had notice. The plaintiff’s mare, which was of a kind and gentle disposition, while being driven by him in a careful and proper manner, came to the bridge, saw the stones, was seized with a sudden fright, jumped from the bridge breaking her leg, and injuring the plaintiff and his wagon.</p> <p>Held, that the defendant was liable for the damages so occasioned.</p> <p>Upon the trial of such an action, held, that the fact could be proved, that other horses of ordinary gentleness were frightened at the pile of stones, as it tended to show that it presented an unusual and strange appearance.</p>

This action was brought against Henry G. Tisdale and the Whitehall Transportation Company to recover the sum of $7,500, and interest thereon, on a note made by the defendant Tisdale, payable to the order of said transportation company, and indorsed by and discounted for said company by the First National Bank of Whitehall, the plaintiff. The transportation company did not defend. The defendant Tisdale answered separately.

The action was brought to secure the partition of certain real estate, of which the plaintiff owned an undivided nine-elevenths, and the defendants, John S. and Charles McCabe, each an undivided one-eleventh.

The action was brought to recover the damages alleged to have been caused by the negligent failure of the defendant to transmit or deliver a message, delivered to it by the plaintiff. The message was sent as a half-rate message, as it is called, and was in the following- form: No. 9. HALF-RATE MESSAGES.

On the 18th of March, 1878, the First National Bank of Whitehall, the plaintiff, recovered judgment against the defendant for the sum of $18,148.58. On the same day one Griswold, recovered judgment against the defendant for the sum of $8,055.47. On the 27th March, 1878, each of said parties recovered another judgment against the defendant, the former for the sum of' $6,737.90, the latter for the sum of $3,038.81.

The plaintiff held four life policies, issued by the defendant in 1866. In each was a clause : “ And it is agreed that this policy shall be good, after three payments, for its equitable value,” and one contained the words, “at any time,” after the word “good.” Half of the premium was to be paid in cash and half in a note.

The plaintiff lived in a house on the east side of Seventh street, Troy. Between his house and the next, belonging to one Mackey, was a passageway ten feet wide, not belonging to the public, and running eastward about 120 feet to Institute avenue, which is on a higher grade than Seventh street, so that the passageway is steep. There are springs in the rear of plaintiff’s lot. The houses on Seventh street extend back about seventy feet, leaving fifty feet of the lots open.

In August, 1872, ono John W. Borns was carrying on business as an undertaker in Troy, and had in his possession a hearse and other articles, which belonged to one Win. H. Van Every. On August twenty-fourth. Burns entered into partnership with Hebert B. Millard, and on that day Van Every, with the knowledge and consent of Burns, convoyed all the said property to M.llard, and took back a chattel mortgage thereon.

<p>Certiorari — mil not lie to a village, to review proceedings had for its incorporation.</p> <p>A writ of certiorari will not issue to a village, to review alleged irregularities in the proceedings by which ifia claimed to have been incorporated.</p>

The action was to foreclose a lien claimed by the plaintiff upon 900 shares of the stock of the Crown Point Iron Company, pledged by the defendant Sarah Elizabeth Hall as security for Edwin W. Hall. The certificate of stock held by tho pledgor was, on tho 1st of December, 1876, assigned by her to the cashier of the plaintiff.

The defendant had appealed to the County Court from a judgment recovered by the plaintiff in a justices' court. On the 24th day of December, 1874, the plaintiff, as landlord, and Stephen Mayhcw, as tenant, entered into a written lease for the occupation of certain premises in Troy, N. Y., at a fixed rent.

This action was brought to recover rent due upon a lease. The facts are not disputed, and the only question upon this appeal is, whether the facts proved made out an eviction of the defendant under title paramount, before the rent in question became due.

Tbe action was brought by the plaintiff as administrator of tbe estate of his father, Jeremiah Ceas, to recover damages alleged to have been sustained by tbe wrongful conversion of a horse belonging to tbe intestate at tbe time of his death. Tbe said Jeremiah Ceas died on the 25th of December, 1876, having this horse in his possession.

<p>Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury.</p> <p>The proceedings in bankruptcy and the assignment absolutely dissolved the attachment. (Miller v. Bowles, 58 N. Y., 253; Duffield v. Ilorton, 6 Week. Dig., 277, Court of Appeals ; West Philadelphia Banls v. Dickson, 5 Otto, 180; Risley v. Brown, 67 N. Y., 160; Stewart v. Brahall, 6 W. Dig., 507; Maas v. O'Brien, 6 id., 560; Boring v. Eager, 3 Cush., 188; Tappan v. Van Wagenan, 3 Johns., 465.)</p>

The action was for personal injuries sustained by the plaintiff May 21, 1872. The defence was a denial, and contributory negligence on the part of the plaintiff.

<p>General assignment — commissions of assignees the same as those of executors.</p> <p>A general assignment provided that the assignees were “ to pay and discharge all the just and reasonable expenses, costs and charges of executing this assignment and of carrying into effect the trust hereby created, together with a reasonable commission or compensation to the assignees for their own services in executing the said trust.”</p> <p>Held, that the assignees were only entitled to the same commissions as are by law allowed to executors and administrators.</p>

The action was brought upon a contract made by the plaintiff with the firm of Hume & Elliott, which was composed of the defendant and of Robert II. Hume, since deceased. Upon the trial the plaintiff was sworn as a witness in his own behalf, and testified that he had an interview with Elliott, the defendant, and Hume the deceased partner.

Tho action was one in ejectment. Its determination depended upon the question whether or not a trust attempted to be created by the will of Andrew Schoonmalcer, deceased, was valid.

Appeal by tbe defendants from a judgment in favor of the plaintiff, entered upon the verdict of a jury. This action was brought by the plaintiff for the alleged conversion by defendants of the plaintiff’s undivided half of a planing machine. One Platt purchased the machine of the defendants in February, 1871, without payment of the purchase-money.

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

<p>Appeal from a judgment of the County Court of Tioga county, ■affirming a judgment of a justice of the peace in favor of the plaintiff.</p> <p>The action was brought upon an undertaking given on an appeal from a justice’s judgment, which was signed by the defendants as sureties. The appeal was not heard ; but, in pursuance of a stipulation between the parties, a judgment of affirmance was entered “ upon the stipulation and condition that execution should not issue upon the judgment to be entered, under six months.”</p>

. Appeal from an order made at Special Term, denying a motion for a readjustment of costs. This case was first tried in January, 1874, and a verdict rendered for the plaintiffs, and an extra allowance was made and the costs taxed. This judgment was affirmed by the General Term but reversed in the Court of Appeals.

<p>Appeal from an interlocutory judgment, entered upon an order sustaining a demurrer interposed to the complaint herein.</p>

Sylvester Camp, at divers times during his lifetime, made advances, differing in amount, to his ten children, and at the time of making them took receipts for the amount advanced in one of the two following forms : “Received, Campville, May 27, 1867, of Sylvester Camp, five hundred dollars, as a part of my apportionment, to be deducted out of the estate of the said Sylvester Camp. “ OLIVER CAMP.” “ Or received of Sylvester Camp five hundred dollars, as a part of my…

The action was brought by the plaintiff, as overseer of the poor of the town of Catherine, to set aside certain conveyances as fraudulent.

<p>Appeal from an order made at Special Term, directing the receiver of the Merchants and Mechanics’ Bank of Troy, an insolvent banking corporation, to pay over to the Troy Savings Bank the sum of $67,642.54, being the amount of a deposit made by the said savings bank with the Merchants and Mechanics’ Bank, and held by the latter at the time of the appointment of the receiver.</p> <p>■ Ou December 31, 1877, the savings bank entered into an agreement with the Merchants and Mechanics’ Bank to deposit with it, subject to the provisions and limitations of the laws of the State of New York respecting deposits in banks and trust companies, one-fourth part of all moneys deposited with it during the next three yeai’s, the other three-fourths to be deposited in three other banks therein named. It being agreed that the deposits in the four banks should be kept as nearly equal as possible. The bank agreed to pay four per cent on the daily balances, and to pay over, at the expiration of the three years, all sums of money belonging to the savings bank. It also agreed to pay at sight all checks or drafts of the savings bank, and that it would not, during the existence of the agreement, receive on deposit or as a loan from any other person or corporation any sum less than $1,000, and pay or agree to allow interest thereon. The bank having failed the savings bank applied to have the amount it then had deposited with it paid to it, in preference to all other claims, as provided by section 48 of chapter 37 of 1875.</p>

Appeal by the defendant from an order denying a motion for a new trial, made on the minutes of the judge at the Monroe circuit, after a verdict for the plaintiff. The only questions involved arise from the assignment made to the plaintiffs, for the benefit of creditors, by Ginther and Oakley.

In 1815 Jacob Oyer, the appellant’s grandfather, died seized of a certain farm, which he devised by his will in these words : “I give and bequeath unto my three sons, namely, Theobald, John and Jacob, and unto their respective heirs and assigns forever, all my farm whereon I now live, in the town of Schuyler, * * * to be equally divided amongst them or their heirs (quantity and quality considered) ; and in case either of my said sous should die without issue, that then and…

Writ of error to the court of Oyer and Terminer of Livingston county, to review the conviction of the plaintiff in error of murder in the first degree.

<p>, Contract for the sale of land — when substantial damages are recoverable for a breach of.</p> <p>Where a husband enters into a contract for the sale of land held by him and his wife jointly, and is unable to fulfill the same by reason of the refusal of his wife to join in the deed, the vendee may recover, as damages, the difference between the price named in the contract and the actual value of the land at the time of the breach of the contract.</p>

<p>Tax receiver — can recei-ve nothing for the taxes but money — receiving a check and giving a receipt for the tax does not discharge it.</p> <p>A tax receiver has no authority to receive anything- in payment of taxes but money, and an agreement by him to receive and hold the check of one against whose property taxes are assessed, until he shall be able to pay it, is void; and an entry upon his roll that the taxes are paid, and the delivery of a receipt therefor to such person, do not amount to a payment or satisfaction thereof.</p>

<p>Action to restrain a nuisance and to recover damages■ — triable by a jury.</p> <p>An action to restrain the continuance of a nuisance, and to recover the damages ■ occasioned by it, is triable by a jury, and cannot be tried by the court unless the pai'ties consent thereto; especially is this so where the court refuses to restrain the further continuance of the alleged nuisance and only maintains the action for the purpose of giving the plaintiff damages.</p>

<p>Appeal from a judgment in favor of the plaintiffs, 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.</p>

<p>Declarations of one in possession of land — admissibility of— adverse possession — title to what land may be claimed by — Practical location of boundary line — how established.</p> <p>Declarations of a party as to the title claimed by Mm are admissible as evidence if made while lie was in possession of the premises in dispute, and it is not necessary that they should have been made wMle he was actually upon the land.</p> <p>One who has entered into possession of and occupied certain premises under a deed, and who has inclosed .the same with a substantial fence, is entitled to claim a title, by adverse possession, to the whole of the premises so inclosed, though a portion thereof is not included in the land described in the deed.</p> <p>To establish the practical location of a boundary line, it is not requisite to prove an actual agreement, but acquiescence in its location, even if erroneous, with occupation in accordance with it, for a sufficient length of time to ban an entry, will suffice.</p>

The commissioner of highways, of the town of Pavilion, made an order, and gave a notice in respect to an alleged encroachment. The defendant denied the encroachment, and a jury was summoned in the justice’s court, and certified the particulars of said supposed encroachment. The defendant appealed to the county court, which affirmed the judgment, and the defendant thereupon appealed to this court.

This action was brought to obtain a judgment ousting the defendant from the office of county judge of Niagara county, and declaring that the relator was such county judge, and as such entitled .to exercise said office, and receive and enjoy the emoluments thereof. At the general election in November, 1873, Levi F. Bowen was elected county judge of Niagara county, and entered into said office January 1, 1874.

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee in an action to foreclose a mortgage.</p>

This action was brought to recover the amount of a judgment docketed J une 2(5, 1874, in favor of one Larry Lewis and the plaintiff, against one Jolm B. Gaylord. Lewis had before the bringing of the action assigned Ins interest to the plaintiff.

<p>Appeal from a judgment in favor of the plaintiff, entered on a decision made at the Monroe Special Term,</p>

denying a motion to vacate an order of aiTest. The action was brought by the service of a summons on the defendant on the 2d day of May, 1878, and on the same day the court granted, upon affidavits, an order of arrest. May 2, 1878, the defendant was arrested and gave security to abide the orders of the court.

<p>Appeal from a decree of the surrogate of Cayuga county, made on the settlement of the accounts of the respondent as special administrator.</p>

<p>Constitution, art. 10, seat. 5 — appointment to fill a vacancy in an elective office— when the term of the appointee expires.</p> <p>In the fall of 1876 one Brown was elected superintendent of the poor in Oneida county for the full term of three years. On October fourth, 1878, he was removed from that office by the governor, and on October twenty-second the defendant was appointed to fill the vacancy. At the general election in November, 1878, the relator was elected superintendent of the poor.</p> <p>Held, that section 5 of article 10 of the constitution was applicable to this office, and that the term of office of the defendant expired on December 81, 1878.</p>

<p>Appeal from a judgment entered upon the report of a referee, in favor of the plaintiff, declaring her to be the sole owner of ten shares of stock of the Empire City Fire Insurance Company, and directing the defendant Munroe to surrender up for cancellation tbe certificate of stock held by bim, and from a judgment in favor of tbe insurance company against tbe defendant Munroe, for costs.</p>

James Marsh died in October, 1872, leaving a will which contained, among others, the following provisions : “ Second. I give and bequeath to my said wife, during her natural life, for her own maintenance and support, and for such of the children as remained at home and as aforesaid, all the income from my estate, both real and personal.

<p>Section 27 of chapter 383 of 1870 — when an assessment should he reduced wider.</p> <p>When a court should, under section 27 of chapter 383 of 1870, reduce an assessment upon lands of a party aggrieved thereby, by deducting such sum as is in the same proportion to such assessment as is the whole unlawful increase to the whole amount of the expense of the improvement, considered.</p>

On the 2d day of July, 1869, an assessment amounting to eighty-four dollars was imposed on the lands of the deceased, Edward Jones, known as lots ward numbers twelve, thirteen, fourteen and fifteen, in block number 1,286, in the Twelfth ward of the city of New York, for opening Twelfth avenue. On the 24th day o.f December, 1874, the assessment remaining unpaid, the said lots were sold at public auction for the term of 1,000 years.

CektioraRI to the court of Special Sessions of the city and county of New York, to review the conviction of the relator of an indecent assault and battery upon the person of a young girl.

In November, 1874, an action was commenced in the Marine Court of the city of New York, against Mrs. S. A. C. Hasard. The case was twice tried. After the argument of the last appeal, but before the decision ordering a third trial was announced, Mrs. Hasard died. Subsequently an order was made substituting Charles C. Egau her executor, as defendant.

<p>Recovery for services, not limited to the amount of a hill previously rendered— when the refusal of an executor to pay a claim is not unreasonable.</p> <p>The fact that an architect has presented a bill for a certain sum, as his charge for preparing plans and specifications for a building, does not prevent him from recovering, in an action subsequently brought, the actual value of such services, although it may exceed the amount specified in the bill previously rendered.</p> <p>■When an architect has presented a bill for services in preparing plans and specifications, and subsequently, it not having been paid, he presents a claim against the estate of his employer for the same services, largely exceeding the amount of such bill, a refusal of the executor to pay the same is not unreasonable, and the estate should not be charged with the costs of an unsuccessful defence before a referee appointed under the statute.</p> <p>What evidence as to the value of services rendered as arbitrator is insufficient to justify a recovery.</p>

<p>Appeal from a judgment in favor of the defendant, entered upon a dismissal of tbe complaint at tbe circuit.</p>

The action was one in ejectment, to recover possession of certain property belonging to the plaintiff, from her husband and from the tenants in possession under him. 7

The complaint alleged the making of a contract between the plaintiff and the town of Ossining for the building of a bridge in the village of Sing Sing, situated in the said town, that the plaintiff had performed on his part, until prevented by the defendant, and sought to recover the amount due to him thereunder.

The action was brought in 1878 to foreclose a mortgage of $2,900 executed in 1868 by one Jacobson and wife, to the special guardian of one George W. W. Rinchy, an infant, upon the sale to said Jacobson of certain real estate belonging to the said infant;

The premises in question were sold on the foreclosure of a mortgage executed prior to November, 1874. On the third of that month one Seaman N. Snedeker, who then owned them, conveyed them to James H. Campbell by a deed, which was recorded on June 9, 1875. On June 8, 1875, James II. Campbell conveyed the premises to Jennie, the wife of Seaman N. Snedeker, by a deed which was recorded in August, 1875.

Hall, deceased. The testator, by the eighth clause of his will, devised and bequeathed all the rest, residue and remainder of his estate “ unto my executors hereinafter nominated and appointed,” in trust, ti convert the same into money, divide his estate into as many parts ás he should leave children, with one additional part for his wife, if living, invest each share and apply the income and profit thereof to the support of his wife, during her life, and to the support of…

<p>Appeal from an order overruling a demurrer — eosts on.</p> <p>On an appeal taken under subdivision 2 of section 349 of the Code, from an order overruling- a demurrer, the successful party is entitled to tax as costs, under . subdivision 5 of section 307 of the Code, twenty dollars before and forty dollars ' for argument.</p>

Ireland, deceased. The plaintiff is the only child of the said Robert Ireland, and the defendant Anna S. Ireland is his wife. The testator died in 1866, leaving a will which provided, among other things, as follows : “ Third.

<p>Appeal from an order made at Special Term, denying a motion by the plaintiff to set aside a verdict herein in his favor.</p> <p>This action was brought by the plaintiff to recover damages for injuries sustained by him, in falling through an open hatchway on the defendant’s premises.</p> <p>On the trial of the cause before Justice Pkatt and a jury, on the 29th day of January, 1879, after the jury had retired to consider of their verdict, and in the absence of the plaintiff and his counsel, and without their consent, Justice Peatt received a written communication from the jury, and sent a written answer thereto to said jury. The following is the communication and answer : “Whether plaintiff had received his salary during the six months.” Answer : “ There is no evidence upon the subject that I remember of,— that he was paid anything while he was laid up; it was a mere gratuity if he was.”</p> <p>The jury rendered a verdict for plaintiff for fifty dollars. Plaintiff’s counsel duly objected to the verdict, and motion was made to set the same aside, on the ground that it was error for the justice to send the communication aforesaid to the jury in the ibsence of plaintiff and his counsel, and without their consent.</p>

The action was brought in the City Court of Brooklyn, and a certificate having been filed that two of the judges of that court, were incompetent to sit at the General Term of that court, the appeal was brought on for a hearing before the General Term of the' Supreme Court. The action was by a husband to recover for the loss of the, services and society of his wife, and the expenses incurred because of an injury to her.

Under a foreclosure judgment in this action, property of James Bigler, the mortgagor, was sold by-a referee, and purchased by the National Bank of Newburgh, which held a second mortgage on the same property, taken to secure a debt from Bigler to the bank. The property consisted of a dock and river front in Newburgh, upon which was a large saw mill and planing mill, containing sawing, planing and other machinery, worked by steam power.

This action was brought to recover the difference between the value of certain animals and farm implements on the farm formerly belonging to Robert W. Titus, at Westbury, at the time the defendant commenced working it on shares, and the value of the animals and farm implements on said farm when he left. Also for the partition or sale of certain articles jointly owned by the parties, and growing out of the same agreement and arrangement.

This action was brought to foreclose a mortgage. The complaint alleged that said mortgage was given by one Israel O. .Beattie, as executor of the last will and testament of John J. Scott, deceased, on certain real estate situate in the village of Middletown. That said mortgage was transferred and assigned to the plaintiff. That the mortgaged premises, through certain mesne conveyances, came into the possession of the defendant Scott.

The action was brought to recover for alleged overdrafts made by the defendant in his account with a New York city bank, of ;which the plaintiff is the receiver. The defendant’s attorney before serving a formal notice of appearance, or an answer or demurrer, demanded that the place of trial be changed to the county of New York, on the ground that both plaintiff and defendant resided therein.

■ APPLICATION to confirm the report of commissioners appointed by the General Term, under chapter 606 of 1875, to report upon the construction and location of an elevated railroad in the city of Brooklyn. Upon the application of fifty tax-payers of the city of Brooklyn the mayor thereof appointed five commissioners, to determine upon the necessity of constructing a railway therein, and to determine the route thereof.

Writ of Error to the Court of Sessions in and for the county of Westchester, to review the conviction of the plaintiff in error of libel.

<p>Appeal from a judgment in favor of the plaintiff, entered upon an order overruling a demurrer, interposed by the defendant on the ground that the complaint did not state a cause of action.</p> <p>The action was brought to recover from the city of Brooklyn certain moneys paid by the plaintiff to the collector of taxes and registrar of arrears of said city, upon the purchase of certain lots assessed for the taxes of 1862, and upon the purchase of a certain certificate of sale for the tax of 1872. The complaint alleges that the assessors’ oath was insufficient, as not complying with section 31 of title 4 of chapter 384 of 1854, as amended by section 21 of chapter 63 of 1862, and that the taxes were therefore void.</p>

<p>Appeal from an order made at Special Term, in this proceeding, denying the application made by the relator for a peremptory mandamus to compel the assessors of the city of Brooklyn to vacate and set aside the assessments of taxes, entered against the property of Henry Sears, upon their books for the years 1875, 1876, 1877 and 1878, on the ground that he was a member of the national guard, having enlisted therein on June 22, 1874.</p>

The action was brought by a stockholder, in behalf of himself and all others similarly situated, against the defendant to have it dissolved under section 38 of 2 Eevised Statutes, page 463. The complaint alleged the sale of the corporation’s property, the recovery of judgments against it to a large amount, which still remained unsatisfied, and the suspension of its ordinary business for more than three years.

A bailee having a lien upon goods, when a return thereof is demanded by the bailor, waives his lien when he makes no mention of it, and puts his refusal to deliver upon a separate, distinct and independent ground. (Winter v. Coil, 3 Sold., 288; Everett v. Saltus, 20 Wend., 268; S. O., 15 id., 474; Everetts.

<p>Writ or error to the Court of Sessions for the county of Westchester, to review the conviction and sentence of the plaintiff in error for embezzlement of the funds of the New Rochelle Savings Bank, of which he was the secretary.</p>

<p>MotioN for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff.</p>

A motion ; also made at the General Term in the first instance upon the case as settled. Probate of the will was denied, on the ground that its execution was procured through undue influence.

The will under which the executors acted contained, among others, the following provisions : “ To the children of Irene I bequeath $50,000, to be administered for them by their father, Dn. Benigno Dorado. * * * “ If after realizing all my investments and paid all my bequests, there shall be a remainder, after paying- all expenses, commissions, etc., etc., I wish the same to be divided equally between Anita, the children of Irene, the son of Isabel, and Henry the doctor.”

Appeal by the plaintiff from a judgment, entered in favor of the defendant', after a trial at the Special Term where the complaint was dismissed, with costs. The action was brought for the foreclosure of a mortgage.

Appeal by the defendants Valentine, Wilson & Knight from a judgment entered in favor of the plaintiff after a trial at the circuit, before the court without a jury. The action was brought against the firm of Macy & Co. as makers, and the appellants, Valentine, Wilson & Knight together with one Frederick IT. Macy and William IT.

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

Appeal by the defendants from a judgment, entered against tbem and in favor of the plaintiff, after a trial by the court without a jury.

<p>Trustees of a corporation — when they do not hold over until their successors are elected — Right to vote by proxy — authority must be shown — Right of corpora-tors voluntarily to meet and elect trustees.</p> <p>Under the provisions of the statute providing- for the incorporation of benevolent, charitable and missionary societies, the terms of office of the trustees terminate upon the expiration of the year for which they are elected, and they do not, in the absence of a special provision in the constitution or by-laws, hold over until their successors are elected.</p> <p>A member of a corporation is not entitled to vote by proxy, unless specially-authorized by law so to do.</p> <p>Where a corporation duly organized and existing has for several years failed to elect trustees, and there is no provision authorizing those formerly elected to hold over until their successors are chosen, or requiring the trustees or other officers to preside at or do any act in relation to the election, it is within the power of the corporators themselves, without any new legislative aid, voluntarily to meet at the time designated in the constitution and elect a new board of trustees.</p>

Appeal by the petitioners from an order, denying a motion to vacate an assessment laid for the construction of a sewer in One Hundred and Tenth street, between First avenue and the Harlem river.

Appeal by the plaintiff from an order made upon the settlement of a case on appeal by the justice before whom the action was tried, and from an order denying a motion made after such settlement to set aside the verdict of a jury, upon, issue framed and submitted to them, and for a new trial. The action was brought to foreclose a mortgage. Issues were framed and heard before a jury.

<p>Appeal from an order overruling a demurrer to the complaint, and from a judgment in favor of the plaintiff entered thereon.</p> <p>The complaint alleged that at the general election, in November, 1877, the defendant was duly elected sheriff of the county of Schuyler, and on January 1, 1878, took the oath of office and entered upon and has ever since discharged his duties as such sheriff.</p> <p>That at the request and earnest solicitation of the defendant, the plaintiff in or about the month of February, 1878, entered into a contract or agreement with the defendant, whereby in consideration that the plaintiff would rent or dispose of his residence and farming lands, and- sell off and dispose of his farm stock, tools, implements, hay, grain and farm produce, and prepare and be in readiness by the 1st day of April, 1878, to move his family into the jailor’s residence in said county buildings, and board the defendant at a reasonable price to be paid therefor by defendant, and take the care and charge of the jailor’s residence, the jail and prisoners confined and to be confined in said jail, the defendant would appoint the plaintiff jailor or turnkey of said jail, and a deputy sheriff of the county of Schuyler, and the plaintiff should have the free use of the jailor’s residence, barns and stables, and should board, feed and care for the prisoners confined in said jail, and have and receive to himself all of the proper costs, charges and fees therefor.</p> <p>That pursuant to such agreement the plaintiff disposed of his residence and farming lands, stock, produce, etc., at a great sacrifice, and was on the first day of April, 1878, prepared and ready to move into said jailor’s residence and take charge of the jail and prisoners and accept the appointment of deputy sheriff, and discharge his duties thereunder, and fully carry out the agreement on his part.</p> <p>That the defendant wholly refused and neglected to perform said agreement on his part.</p> <p>The defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action.</p>

The action was brought to foreclose the interest of a vendee in a contract for the purchase of lauds. .

<p>Purchase)' at a sale under execution — when not liable to an action by the real ownei', until demand made and refused.</p> <p>One purchasing’ in good faith, at a sheriff’s sale, under execution, goods in the possession of the judgment debtor, is not liable to an action brought by the true owner to recover the goods, or their value, until a demand therefor has been made and refused.</p>

The action was brought to recover the amount, paid by the plaintiff, of a deficiency arising upon the' foreclosure of a mortgage upon lands, one-fourth of which was sold to the defendants by the plaintiff, subject by the terms of the deed, to the said mortgagee. The plaintiff claimed that the defendants, at the time of the sale, had agreed orally to pay one-fourth of the mortgage.

<p>Appeal from a judgment in faVor of the defendant, entered upon a verdict directed by the court after a question of fact had been, by consent of counsel, submitted to the jury.</p>

. The action was brought to set aside as fraudulent a conveyanc e from one Theodore B. Evans to Jehial Evans, his father, and one from Jehial Evans to Ann Prudence Evans. Theodore Evans died in 1870, ■ intestate, and Ann Prudence Evans, his infant daughter, died in 1871, leaving her mother, the defendant Amanda Hill, her only heir at law. The conveyances in question were made on May 10 and May 11, 1870.

<p>Divorce — Final alimony — when awarded without notice — right to, and ability to furnish it at what time to he determined.</p> <p>Where an. action for divorce is commenced by the service upon the defendant of a summons alone, and he neglects to appear therein, the judgment may award final alimony, if demanded in the complaint, without any notice being given to him of the application to be made therefor.</p> <p>The right of the wife to final alimony, and the ability of the husband to furnish it, are to be determined by the situation and condition of the parties at the time of the entry of final judgment, and is not to be modified by any subsequent change in the situation of either party.</p>

John F. Smyth, superintendent of the insurance department, commanding him to pay over to Henry R. Pierson, as receiver of the North America Life Insurance Company, the sum of about one hundred thousand dollars ($100,000), held by the said superintendent under the laws of the State, as the proceeds of the sale or conversion of securities in the hands of the superintendent, under chapter 902 of the Laws of 1869, as security for the policyholders in said company, and also…

The action was brought to recover the balance due on a promissory note of $3,000, dated July 14, 1870, made by defendant, Kelsey R. Kelley, payable to the plaintiff, Mary Ann Kelley, his wife. There had been paid and indorsed on said note, for principal and interest, before the commencement of this action, about $1,400. The parties were husband and wife at the time of the giving of said note.

The action was brought to recover a penalty given by section 21 of the ordinances of the village of Deposit, which provides that “no person shall offer any goods or property for sale by public auction, except residents, unless having a license from the president of the village. The terms of such license shall be at the discretion of the president; it shall not be less than one dollar, nor more than ten for each day.

The judgment was obtained in a justices’ court, for thirty-eight dollars and fifty-six cents, a transcript filed and an execution issued and returned by the sheriff wholly unpaid and unsatisfied. Supplementary proceedings were thereupon instituted against defendant. The examination of defendant in the supplementary proceedings showed that he was the owner and in possession of a team of horses, of the value of about $150.

March 13, 1878, the plaintiff recovered a judgment against the defendant in a justices’ court for $100 damages, and four dollars costs. March 18, 1878, the defendant served a notice of appeal, but neglected to pay the costs included in the judgment, and the fees of the justice for making the return until April, 10, 1878. The justice made and filed his return April 28, 1878.

<p>Matters not pleaded in answer, cannot be proved — Duress.</p> <p>In an action to foreclose a mortgage given by a husband and wife upon land of the wife, to secure a debt of her husband, the wife alleged in her answer “ that the notes and mortgage mentioned in the complaint were obtained from this defendant by the agent of the plaintiff (and others in collusion with him) by duress of this defendant.”</p> <p>Meld, that the defendant could not prove upon the trial that she was coerced to execute the mortgage by the duress and constraint of her husband of which the plaintiff had no knowledge.</p>

Weit oe Ereoe to tbe Otsego Oyer and Terminer, to review tbe conviction of tbe plaintiff in error of murder in tbe first degree.

Appeals from judgments in favor of the plaintiffs in the above entitled actions, entered upon the trial of them by the court without a jury. Held: but such an election never was held. The whole capital stock was issued to Richard Remington in payment for mineral lands conveyed to the company. August 24, 1869, 100 shares of the stock were transferred to each of the defendants, neither paying any consideration therefor.

from an order denying a motion for a new trial, made upon a case and exceptions. The action was brought to recover $100.63 the price of goods sold and delivered by the plaintiff to the defendants. The latter set up as a counter-claim the loan by them of $200 to the firm of Klock & Walrath, composed of the plaintiff and Harlow P. Walrath, who died in April, 1873, the loan having been made in September, 1872.

The action was in ejectment to recover certain real estate situated in Elmira, in this State, to which the plaintiff claimed to be entitled as heir-at-law of his father, who had died intestate. The sole question involved was as to the legitimacy of the plaintiff, he having been born at Wurtemberg before the marriage of his parents.

<p>Discharge in bankruptcy — claim for conversion of property barren by — section 5117 of the United, States Revised Statutes.</p> <p>The plaintiffs delivered to the defendant §10,000, either to be used in purchasing’ goods for the plaintiffs, or to be returned to them. The complaint alleged that the defendant had neither purchased goods or returned the money, but had converted it to his own use. The defendant, as a defence to the action, relied upon a discharge in bankruptcy.</p> <p>Held, that though the action was in effect one for the conversion of the plaintiffs property, the claim therefor was provable in bankruptcy and was barred by a discharge therein, unless there was intentional fraud in the misuse of the plaintiffs’ funds.</p> <p>Section 5117 of the United States Revised Statutes, excepting certain debts from the effect of a discharge in bankruptcy, only applies to those created by a positive and intentional fraud on the part of the debtor.</p>

Writ of Error to the Court of General Sessions of the city and. county of New York, to review the conviction of the plaintiff in error of the crime of robbery.

The action was brought to recover for goods sold and delivered by the plaintiff to the defendants. The defendants set up as a defence a composition in bankruptcy, in which the plaintiff had joined. The plaintiff put in evidence an order for the arrest of the defendants made in this action and the affidavits in support thereof. The defendants offered evidence to show that they had ' - not been guilty of fraud, which evidence was rejected.

By the judgment it was “ ordered and adjudged that the com plaint in this action be dismissed as against the said defendants John B. Brown, Philip H. Brown, John M. Brown, Matilda G, Brown, W. J. Emmet and Cornelia Gilman.” The case was twice tried. On the first trial the complaint was dismissed. The plaintiff then applied for and obtained a new trial on the ground of newly discovered evidence. On the second trial the complaint was again dismissed.