Volume 26 — Barbour's New York Supreme Court Reports

MOTION to strike out certain parts of the complaint, as irrelevant and redundant, and as to other portions of the complaint, that they he made definite and certain.

APPEAL by the plaintiffs, from, an order made at a special term, allowing a demurrer to the complaint, and ordering judgment for the defendants. The complaint stated that, in 1847, B. Tibbitts, one of the above defendants, recovered a judgment in the supreme court against Richard R. Ward, Samuel Glover and Joseph Blunt, for $2819.12, and that on the 3d of April, 1848, he filed a creditor’s bill to enforce the said judgment against the same parties.

The complaint alleged that the plaintiff was “ a corporation, carrying on the business of banking in Middletown, Connecticut, and was duly incorporated for that purpose by an act” of the legislature of Connecticut.

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

<p>In the city of New York taxes are due and. payable on the 15th of January, in each year, at which time a warrant for the collection of those remaining unpaid is issued and placed in the hands of the collector.</p> <p>A right of entry on the part of a landlord, for a forfeiture, may be suspended without being waived.</p> <p>The doctrine that the acceptance of rent after a forfeiture has occurred, is a waiver of the forfeiture, is one of intent; it being inferred from the payment and acceptance of rent, that both parties recognize the lease as still valid. But the contrary may be shown by express proof.</p> <p>In 1852 M. leased certain premises in the city of New York to S., for ten years from the 1st of May, 1852, at a specified rent; with a proviso that if the rent should be in arrear, or if default should be made in any of the covenants in the lease, M. might re-enter. S. covenanted that he and his assigns would pay the rent, and such taxes as should be imposed or grow due or payable out of the premises. In an action by M. against an assignee of the lessee, to recover the possession because of the non-payment of the taxes for the years 1853 and 1854, it appeared that on the 15th of December, 1854, the plaintiff told the defendant that unless the taxes were paid he would eject him. The defendant promised to pay by the 1st of January, and the plaintiff gave him until that day to pay. On the 8th of February, 1856, the defendant paid, and the plaintiff accepted, the rent due on the 1st of that month; leaving the taxes unpaid. Held that it was to be inferred from the circumstances, that both parties understood the right of forfeiture should not be warned but only suspended until notice to the contrary should be given; and that an action to enforce the forfeiture would not lie without proof of such notice having been given.</p>

<p>An injunction and receiver will not be granted against a corporation, at the suit of a stockholder, on the ground that the company has been dissolved, and its charter annulled by a foreign government, where the decree of dissolution is not absolute, but declares that the company shall be considered in existence for certain specified purposes; and where the company had property in this state, over which the foreign government had no jurisdiction, and it appears that it will be more conducive to the interests of all the stockholders, not to disturb the existing management and arrangements of the company, and that to grant the relief asked for, would produce irreparable injury to a majority of the stockholders.</p> <p>If the decree of the foreign government, dissolving the corporation and annulling its charter, is recognized here as binding on the company and its stockholders, and by its terms the property of the company is to be seized and held subject to the order of commissioners therein appointed, to whom all right and title to the property is intended to be passed, a stockholder could not, in the courts of such foreign country, apply for a receiver, and therefore he cannot apply for a receiver here,</p>

On the 23d of November, 1854, B. Bidwell and J. W. Banta recovered a judgment, in the superior court of Buffalo, against the Atlas Mutual Insurance Company. On the 3d of January, 1855, the plaintiffs, by virtue of an execution issued upon that judgment, levied on certain desks, and an iron safe belonging to the company. The company appealed from the judgment to the general term.

<p>Where an attachment is issued against the property of an individual as a nonresident debtor, which is served on other persons, on the ground of their having in their possession property of the defendant, and they furnish to the sheriff statements or certificates under their respective hands, denying that they have in their hands any property belonging to the defendant, the plaintiff has no right to call upon such persons to be examined, under sec. 236 of the code, until he impeaches the verity of the certificate.</p> <p>Such rights are given only in case of a refusal to give the certificate.</p> <p>But if the plaintiff establishes, to the satisfaction of the judge, by the former admissions of the party, that the persons sought to be examined have property of the defendant and that the certificate stating that they have none is untrue, such conduct may be regarded as a refusal to give the required certificate, and the individuals may be examined.</p>

The complaint alleged that the plaintiffs were partners in trade, carrying on business as commission merchants at the city of Hew York, under the style and firm of Grant, Sayles & Co. That the said defendant in the month of August, 1855, introduced to the plaintiffs one George 0.

THIS was an appeal from the decree of the surrogate of the county of Albany, admitting to probate a paper purporting to be the last will and testament of Peter Simmons, late of the town of Hew Scotland, deceased. The appellants are heirs at law and next of Mn of the deceased, who died possessed of real and personal property amounting in value to $20,000 or $25,000. Peter Simmons left at his death three testamentary papers, all duly executed and disposing of his property.

Habeas Corpus, directed to the sheriff, to bring before the judge the body of the relator, who was held in custody upon an execution against the person. The facts appear sufficiently in the opinion.

APPEAL by the defendants from a judgment entered upon the report of a referee. There was no dispute between the parties as to the principal facts in this case. In the year 1844 the defendant Wood and John Young were partners in the practice of the law, and were retained by the plaintiff to foreclose a mortgage given by Alanson Elmer.

CONTROVERSY submitted without action, by a stipulation between the parties, upon these facts : On or about the 20th day of February, 1857, several town collectors of Livingston county being in default in not paying over the several sums of money which had been collected by them for taxes, the county treasurer of said county, pursuant to the statute, issued to the defendant six warrants against sáid collectors, respectively, of the same form, excepting the name and amount, as…

THIS action Was brought to have a bond and mortgage) which is held by the defendant Mary M. Mumford, abd which is a lieñ upon the plaintiff’s farm, delivered up and canceled.

THIS was an action of ejectment, brought by the plaintiff to recover an undivided one sixth part of certain premises hereafter mentioned. The action was tried at the circuit .court held in the county of Seneca, in March, 1856, before Mr. Justice T. R. Strong, without a jury, a jury being waived by the parties.

DEMURRER to the return to an alternative mandamus. The alternative mandamus recited that the relator was appointed by the secretary of state to take the census for the town of Lima, in the county of Livingston, pursuant to the provisions of the act entitled “An act in relation to the census or enumeration of the inhabitants of this state,” passed March 12, 1855. ' That the relator thereupon entered upon and discharged the duties of such office until the same was completed,…

APPEALS from judgments on reports of a referee. Both appeals were heard together. The actions were brought to recover the amounts of two promissory notes, both dated Niagara, 0. W., January 17th, 1855, made by the defendants, each for the sum of $250, with interest, both payable at the office of Wm. Breck & Co., Rochester, N. Y., one in three months and the other in six months from date. Both notes were payable to the order of the defendant Samuel Brown.

The action was brought upon a written contract between the parties, dated November 29, 1852, by which the plaintiff sold to the defendant the timber standing upon a lot owned by him, in Steuben county, for the sum of $7500, payable in installments at different times. The action was brought to recover the last installment.

THIS was an appeal from a judgment rendered at special term, against the plaintiff, upon demurrer to the complaint. The suit was instituted to restrain the erection of a bridge across the Genesee river, in the city of Rochester, upon the plan proposed by the defendants, on the ground that the erection would obstruct the passage of the water in the stream, and set it back upon the plaintiffs’ mills.

The complaint alleged that on the 26th of September, 1854, John McElrone and Matthew Gorman entered into a contract with the defendant, by which the defendant agreed to manufacture, furnish and deliver to said McElrone & Gorman 60 barrels of beer, each and every week, from said 26th day of September, 1854, until the 1st day of April, 1855, and 90 barrels of beer each and every week thereafter, until the expiration of one year from the time said contract was entered into.

APPEAL by the defendant from a judgment entered at a special term, upon the verdict of a jury. The action was brought upon a written contract for the sale and purchase of a quantity of oil of peppermint, to recover damages for an alleged breach of warranty. The answer was a general denial of the allegations in the complaint. The court denied a motion for a nonsuit, and the plaintiff obtained a verdict for $100.

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

APPEAL by the plaintiff from a judgment entered at a special term, upon the report of a referee.

<p>Where a deed of conveyance was given by a father to his son, and a bond and mortgage executed by the latter for the purchase money, for the purpose of hindering, delaying and defrauding creditors, which bond and mortgage were subsequently sold and transferred to the plaintiff, who took the same with notice of the fraudulent object and purpose for which they were given, it was held that for all purposes of enforcing such bond and mortgage, or claiming any protection under them, the plaintiff stood in no better situation than the parties to the original fraudulent transaction. And that the law would lend him no aid whatever, in preserving his lien upon the premises, or in making the fraudulent securities available in any respect.</p>

The complaint alleged that on the 4th day of September, 1851, Jeffrey S. Barnes was in embarrassed circumstances, and being the owner of certain lands in Holley, Orleans county, with the intention of defrauding his creditors, conveyed the lands to Aaron Barnes, and took back two mortgages ; one to his wife, and another to himself; that it was the understanding that the bond and mortgage to himself, Jeffrey S. Barnes, should not be paid ; that Jeffrey S. Barnes sold and…

The defendant claimed title to the goods in controversy, under and by virtue of an assignment executed to him by one George G. Cornwell, in trust for the benefit of creditors. The plaintiff obtained a verdict, and the defendant appealed to the general term.

THIS was an appeal from an order made at a special term, granting to the claimants leave to bring an action against the estate of the lunatic. The facts are stated in the opinion of the court.

Ferrie, upon the estate of Jeanne Du Lux, who died in the city of New York, in November, 1854, intestate. The facts are fully stated in the report of the case before the surrogate, (4 Brad. 28,) as well as in the following opinion of Justice Clebke. They therefore need not be detailed here.

<p>MOTION to set aside a sale of mortgaged premises, made under a decree of foreclosure.</p>

COMPLAINT filed to recover $1366.45, the amount of a promissory note made by the defendant Ainslie, payable to the order of, and indorsed by, the defendant Hicks. The defendant Hicks claimed a payment on the note of $145.22. The defendant Ainslie made the 'same claim in his answer, and as to the balance of the plaintiffs’ claim neither of the defendants denied the same to be just.

The action was brought by the plaintiffs, creditors of the “ Mexican Ocean Mail and Inland Company,” against the defendant, a stockholder of the company, to recover the amount of their claim. This company is a corporation- organized under an act of the legislature of the state of New York, passed April 12, 1852. (See Laws of 1852, p. 302, and the amendments thereto; Laws of 1853, pp. 202, 1138.) The capital of the company was divided into fifteen thousand shares of $100 each.

A PPE AL by the defendant Wright, from a judgment entered -ljl upon the verdict of a jury. The action was brought by the plaintiff as indorsee of the following promissory note: “Apalachicola, Oct. 11, 1841.

The action was for specific performance. The complaint alleged that the parties had agreed to exchange certain parcels of real estate, setting out the agreement.

The action was brought hy Theodosius 0. Fowler and Mortimer Livingston, individually and with their wives, and also as sole surviving… Held: the whole estate of the testator was to be deemed personal from the time of his death, and the executors and trustees named were directed, in pursuance of the power to them given in said will, to convert into personal property the remaining realty of said estate, and to hold the Same, when so converted into personalty, in trust,…

Appeal in one cause from an order of the special term denying a motion for a mandamus, and motion in another cause for a mandamus, ordered to be heard in the first instance at general term. In July, 1857, the Croton Aqueduct Board of the city of Hew York advertised for proposals for the construction of a new Croton Reservoir in Central Park. Proposals were put in by a number of persons; and the three lowest were as follows :— By Dinsmore & Wood, at $524,298.97.

<p>APPEAL from a decree of the surrogate of Hew York, admitting to probate the last will and testament of Benjamin E. Hunt, as a will of personal estate.</p>

<p>MOTION for a new trial; founded on exceptions taken at the circuit. The facts are presented in the opinion.</p>

<p>Judgment against Municipal Coepoeation.— Motion to Vacate.</p> <p>The comptroller of the city of New York, being also a tax-payer and corporator, may move to have a judgment recovered against the city through collusion with the city officials, set aside, and to be allowed to come in and defend the action.</p>

<p>L., a citizen of Virginia, being the owner of eight slaves, arrived with them in a steamer, at New York, with the intention of transhipping them there for Téxas, whither he was going to reside; and meaning to remain in New York only until a vessel could be procured, to continue their journey. The slaves were landed, and the next day were brought before the court by habeas corpus. Held that under the existing laws they were free, and were entitled to be discharged.</p> <p>Comity does not require any state to extend any greater privileges to the citizens of another state than it grants to its own. As the state of New York does not allow its own citizens to bring a slave here, even in transitu, and to hold him as a slave, for any portion of time, it cannot be expected to allow the citizens of another state to do so. Per Mitchell, P. J.</p> <p>The clause of the constitution of the United States giving to congress power to regulate commerce with foreign nations and among the several states, and with the Indian tribes, confers no power on congress to declare the status which any person shall sustain while in any state of the union.</p> <p>This power belonged, originally, to each state, by virtue of its sovereign and independent character, and has never been surrendered. It is therefore retained by each state, and may be exercised as well in relation to persons in transitu as in relation to those remaining in the state.</p> <p>The power to regulate commerce may be exercised over individuals as passengers, only while on the ocean, and until they come under state jurisdiction. It ceases when the voyage ends, and then the state laws control.</p>

THIS action was tried at the circuit in Rensselaer county, in June, 1857. The facts are sufficiently set forth in the following opinion of the judge before whom the cause was tried.

<p>It is not every wrongful or even unconstitutional act of individuals, and still less of public bodies and municipal corporations, which will entitle the injured party to an injunction.</p> <p>The plaintiff was the owner of certain lots of land in the city of Brooklyn, worth not over $100 each, and unsalable. The city passed an ordinance requiring these lots to be filled up to within four feet of the street grade, for a distance of 30 feet from the line of the street, in order to support the sidewalks. The plaintiff’s lots were taxed $92 each, for filling and grading the street. The street ran past the lots and terminated in a cul de sac, at a hill 15 feet high, and the east bounds of the city. Held that in the absence of any allegation that the injury occasioned by the filling up of the lots would be irreparable, or that such filling Up would cause any damage or injury whatever, to the lots, an injunction to forbid the filling would not lie.</p> <p>Held also, that an injunction to restrain the collection of an assessment not yet laid, for the expense of such filling, ought not to be granted ; it being well settled that a bill in equity and an injunction are not the proper means to review or correct such proceedings of a municipal corporation, unless they are productive of peculiar or irreparable injury, or must lead to a multiplicity of suits.</p> <p>The party must be left to his common law remedies, in such a case.</p>

<p>Application for an order to show cause why an injunction should not be granted and a receiver appointed.</p> <p>The facts are sufficiently stated in the opinion. -</p>

ROBIHSOH was appointed receiver of- the property of the Hollister Bank of Buffalo, September 2, 1857. At that time B. B. Jones had credited to his account, as a balance of his deposit, the sum of $924. The bank held a note made by Jones and indorsed by Fish, for $391.43, dated March 3, 1857, payable six ■ months after date, at the Hollister Bank of Buffalo.

THE above entitled causes are five appeals from the decree of the county judge of Chenango county, made by him while acting as surrogate of that county, on the 29 th day of December, 1855, upon the final accounting and settlement of Lucinda Willcox, administratrix, and Elisha B. Smith and Whitman Willcox, administrators of the goods, chattels and credits of Whitman Willcox, jun. deceased.

The plaintiff and Jacob Wo,off were partners in business, at Ithaca. By an agreement, dated April 10, 1840, the partnership was dissolved.

<p>THIS action was brought by the plaintiff as assignee of Watrous & Lawrence, an insolvent firm in Ogdensburgh, to recover against the defendants, as copartners, the balance of an account for goods sold and money advanced on exchange of notes, and interest. The complaint ■ averred an assignment of the demand to the plaintiff for the benefit of creditors, and claimed to recover $491.38. The answer was 1. A general denial of the complaint. 2. An allegation that on the 7th Feb. 1855, Watrous & Lawrence ordered from the defendants, and requested them to manufacture and send them, one hundred churns of different numbers, and also twenty iron-tooth cultivators, and thirty steel-tooth cultivators; that it was agreed that Watrous & Lawrence should furnish materials therefor, and that all such materials and any other goods the defendants might purchase from Watrous & Lawrence should apply on and towards the price of said churns and cultivators; that pursuant to that agreement, the defendants purchased the goods mentioned in the complaint; that they fulfilled the order with diligence, and tendered and offered the churns and cultivators, on their completion, to Watrous & Lawrence and to the plaintiff, on the 30th of March, 1855 ; that the price of the churns and cultivators was more than the account, and the defendants requested Watroup & Lawrence and the-plaintiff to accept the same and pay the difference, which they refused to do; that said defendants still have said churns and cultivators ready for the plaintiff; and that the goods in the complaint mentioned were used in making, and form a part of, the said churns and cultivators. 3. The answer set up by way of counter claim, that before the assignment to the plaintiff, Watrous & Lawrence were indebted to the defendants in the sum of $700, for work, and labor and materials, and for divers churns and cultivators, by the defendants before then bargained and sold to Watrous & Lawrence. The plaintiff replied denying the counter claim. The cause was tried at the St. Lawrence circuit, without a jury. The judge who presided at the trial found the following facts; That, for several years previous to the 20th of March, 1855, the firm, of Watrous & Lawrence were doing business at Ogdensburgh; that they stopped payment on that day, and assigned all their property and effects to the plaintiff in trust for their creditors; that among the debts so assigned was an account against the defendants, amounting to $491.38, to recover which the action was brought; that previous to said assignment there had been mutual deal between the firm of Watrous & Lawrence and the defendants, in which work ordered from the defendants was applied on their account; that in their deal the defendants were entitled to a credit of six months ; that on the 7th of February, 1858, Watrous & Lawrence ordered from the defendants, to be manufactured and sent to them, one hundred patent churns and fifty cultivators ; that Watrous & Lawrence were to furnish, and did furnish, the zinc for the manufacture of the churns, which was received of the defendants on the 23d of March, 1855, and is one of the items charged in the account sued on, at $133.10; that the churns and cultivators were all finished and ready to be sent forward about the middle of May, 1855, and within a reasonable time after they were ordered, considering the means of manufacture possessed by the defendants ; that neither the churns or cultivators were ever sent to the plaintiff or to Watrous & Lawrence; that on the 21st of May, 1855, the defendants gave notice to Watrous & Lawrence and to the plaintiff, that the churns and cultivators were completed and ready to be sent, on receiving security for the balance which would be due them, or they would send, of the articles, to the amount of the account for which suit was brought; that the plaintiff said it was too late, he had no use for the articles, and would not receive them; that there was no proof of any previous demand of the articles or any part of them by the plaintiff or Watrous & Lawrence, nor was there any notice to the defendants from Watrous & Lawrence, or the plaintiff, not to manufacture or fulfill the order; that the defendants’ place of business was at Brasher’s Falls, where the churns were manufactured, about- 40 miles from Ogdensburgh; that the articles were very bulky and could not be tendered in kind, without great inconvenience and expense; that the value of the churns and cultivators was $647, exceeding the account by $155.62; that the churns and cultivators still remain on hand at Brasher’s Falls; that there was no express agreement that the churns and cultivators should apply on the account sued upon. Upon these facts the judge decided that the offer made by the defendants on the 21st day of May, 1855, followed by a refusal to accept, together with the bulky character of the articles, was a sufficient excuse for not tendering the articles themselves; that the insolvency of Watrous & Lawrence, after the manufacture of the articles was commenced and before they were completed, entitled the defendants to demand pay or security for the overplus, before sending the property, and that an offer to deliver sufficient to pay their account, had it been accepted, would have entitled the plaintiff to so much of the property, without assuming to pay the overplus; that the work having been performed in pursuance of the orders except when performance was excused by the circumstances of the case, the price of the manufacture became a debt against Watrous & Lawrence, which was a good set-off against the account, and a good defense to the action. The judge therefore ordered the complaint to be dismissed with costs, and the plaintiff excepted. Judgment was. entered on the finding and order of the judge, from which the plaintiff appealed.</p>

CASE raider section 372 of the code of procedure, submitting to the court a controversy between the parties, with respect to the liability of real estate of the plaintiff to the lien of a judgment of the defendant against one Almon D. Packard, the plaintiff’s grantor.

THIS was an action of ejectment, brought to recover possession of about sixteen acres of land in lot number two of the 20th allotment of the Kayaderosseras patent, situate in the town of Northumberland in the county of Saratoga. The complaint was in the usual form, and the answer set up four defenses: 1. A general denial of the complaint. 2. Title in the defendant. 3. Adverse possession for more than 30 years. 4. Alienism of the plaintiff and his ancestors.

THE plaintiff’s complaint set forth that Dennis Harder deceased was, in his lifetime, seised in fee of a farm in Chat-ham, in the county of Columbia; that at his death, in 1843, he devised the use, benefit and occupancy thereof to the defendant during his life, and afterwards to the plaintiff in fee; that the defendant took possession thereof soon after the testator’s death, and had ever since occupied the same, and enjoyed the rents, issues and profits thereof; that the…

THIS was an appeal from an order of the surrogate of Ulster county, admitting to prohate the last will and testament of William Vandemark, deceased. The will hears date the eleventh day of June, 1851, and was executed in due form of law.

THIS was an appeal from a judgment on the report of a referee. The action was brought to recover three several demands: one in favor of George Lawrence, amounting to #264.50, for carpenter’s work in building a house} another in favor of Wolford and Stephenson, amounting to #297.56, for mason’s work on the same house, and the other in favor of Thomas W. Blatchford, amounting to #58, for a physician’s bill.

THIS was an appeal from a judgment on the report of a referee. The facts, as they appear in the report of the referee, are as follows: The common council of Troy had instituted proceedings for opening a section of North Fourth street, in that city, and made an assessment upon certain lands, for the expenses of the proceedings. Among other lands assessed, was the following: “ Stephen Boss, lot E. and part of lot D., 500 feet,” assessed to pay $520.

THIS was an application for warrants to enforce an order previously made, for the delivery to Mr. Conover, by Devlin, of the books and papers appertaining to the office of street commissioner for the city of Hew York.

Motion to supersede a writ of certiorari. The certiorari in question was issued at the instance of Charles Devlin to bring into the Supreme Court for review, proceedings had before Mr. Justice Peabody under 1 Revised Statutes, 125, § 56, on an application for an order for the delivery by Devlin to one Daniel D. Conover of the books and papers appertaining to the office of street commissioner, in the city of NewYork. Those proceedings are reported, Ante 73.

THIS action was brought to recover the possession of two parcels of land, together containing about 240 acres, situate in the towns of Coeymans and Bethlehem, in the county of Albany. The facts which appeared upon the trial, are as follows : Francis Hicoll, who was the grandfather of J ohn L. Sill, died in 1817, seised and possessed of the lands in question, and other lands adjoining. He left a will, .which was duly proved on the 5th of January, 1818.

Demurrer to complaint. The plaintiff was the payee of a negotiable promissory note, which the defendant Ann Sinclair, when unmarried, had indorsed before its delivery to the plaintiff, in order to induce him to accept it.

IU 1853 the defendants, Plume & Burgoyne, were in business together as hankers in San Francisco, in California. On the 14th of October, 1853, the plaintiff deposited with them $1300, and received from them a memorandum to that effect, or as it is called a certificate of deposit, which stated the fact of such deposit, and that the sum was payable to his order on the return of that certificate with his indorsement thereon.

THIS was an appeal from a judgment rendered at the Ulster circuit, in February, 1856. The cause was tried without a jury. The plaintiff gave in evidence a receipt, as follows: “ Kingston, January 26, 1853. Eeceived from Henry J. Smith ninety-eight dollars on Methodist church, and eighty dollars cash, on account. Whiting Weeks.” Also an order as follows: “ Mr. Henry J. Smith, pay 0. F. Phillips thirty-five dollars» and charge the same to my account. January 27, 1853.

<p>Where an action is brought, before a justice of the peace, by the assignee of the lessor in a lease in fee, against the assignee of the lessee, to recover rent, and the defendant, in his answer, denies all the allegations in the complaint, the title to land necessarily comes in question, and the justice has no jurisdiction to render a judgment.</p> <p>Where it becomes necessary for the plaintiff to establish his title, in order to recover, the objection may be taken by the defendant, that the title to land comes in question; and it is the duty of the justice, in whatever stage of the trial this shall appear, to dismiss the action.</p> <p>Although in many cases betweén landlord and tenant, the latter is estopped from disputing the title of the former, yet where a stranger to the original transaction claims that he has succeeded to the rights of the landlord, it is competent for the tenant to deny his claim, and thus put him to the proof of his title. When this is done, whatever he the amount in controversy, the case is no longer within thé jurisdiction of a justice of the peace.</p>

THIS was an appeal from a judgment of the Sullivan county court, reversing a justice’s judgment. The .action was brought to recover the value of 17 bunches of shingles, which had been taken by the defendants from the possession of the plaintiff. Upon the trial before the justice and a jury, the plaintiff proved that he had purchased the shingles at a constable’s sale, under an execution against one Prosper P. Davis, by whom the shingles were manufactured.

Petition by purchaser in partition, to be discharged from his purchase. The action was for partition.

CERTIORARI, to review the decision of the hoard of police for the metropolitan police district, removing the relator from the office of policeman. The defendants having made their return to the certiorari, it was referred to a referee to take proof of the facts and circumstances and to report the same to the court, with his opinion thereon.

The application was resisted, on the ground that the relator was not a member of the police force. The facts in the case were found by a special verdict, and are detailed in the opinions which follow.

The complaint,, which was filed by the attorney general, in behalf of the people and of Charles Devlin, alleged, First, That prior to and on the 12th day of June, 1857, in the municipal corporation entitled “ The Mayor, Aldermen and Commonalty of the City of New York,” there was, and still is, an executive department created and existing under the laws of said state of New York, denominated the street department, the chief officer of which department was, and is called in…

The case presented the following facts: On or about the 27th of September, 1855, the plaintiffs agreed with the defendant that they would, on the 2d of November following, convey certain premises to him, on receiving (in addition to $1500 which they had already received as part of the purchase money) the sum of $500 and his bond and mortgage (containing the usual twenty days interest clause) on the premises for $4000, payable on the 27th day of June, 1860, with interest half…

The complaint averred that the defendants were duly incorporated and organized as a corporation in 1845. That on the 15th of July, 1846, at Columbus, in Georgia, they made a policy of insurance to the plaintiff, on the life of Ira D. Bugbee, of Florida, for the term of his life, and for the sum of #2000, for the sole use of the plaintiff. That the premium was paid, and the policy delivered to him on said 15th July.

4PPEAL from an order made at a special term, denying a . motion to vacate an attachment.

39 in favor of the plaintiffs, entered upon the report of Eichard Goodman, Esq. referee. The action was for damages arising from the non-performance, on the part of the defendants, of an alleged contract to transport a Certain quantity of flour from Hornellsville, on their rail road, to the city of Hew York, and to deliver the same at the latter place, on or before the 20th day of February, 1853. The defendants denied the contract.

W Robinson, Esq., referee. The action was upon a promissory note for $2500, made by the Chicago, St. Paul and Fop du Lac Rail Road Company, dated January 9th, 1857, and payable 180 days after date, to the order of the defendants, who, as the complaint alleges, indorsed the same by their president, Alfred Noxon, to the said Alfred Noxon, who indorsed and delivered the same to the plaintiffs. The indorsements were as follows: A. Noxon Prest. A, Noxon.

APPEAL, by the plaintiffs, from a judgment entered upon the report of a referee. The action was brought by the plaintiff Voorhees as assignee of several judgments against George. F. Leitch, and by Richard Talcott, receiver of the property and effects of the said Leitch, appointed in proceedings supplementary to execution, commenced by the said Voorhees.

<p>APPEAL from a judgment of the Chautauque county court, affirming the judgment of a justice’s court. The appellant, Gorham, was a justice of the peace of the town of Pomfret, Chautauque county. An action of which he had jurisdiction was pending before him as such justice, on the 6th July, 1855, and came on for trial on that day. On demand of the parties the justice issued a venire, and amongst others Robbins, the respondent, was duly summoned and returned as one of the jurors. He did not appear on the jury being called nor at any time during the trial of the cause. The trial of the cause commenced on the 6th of July, and was continued to and closed on the 7th. On the 9th day of July the appellant issued a summons requiring Robbins to appear and show cause on the 11th, why he should not be fined for his non-attendance as a juror in said action. This summons was persoúally served on the 10th by a constable, who made due return of such service. Robbins failed to appear on the 11th, pursuant to such summons, and thereupon the justice issued an attachment against him, on which he was attached by a constable and brought before the justice on the 13th of July, and failing to show any excuse for his non-attendance as a juror, he was fined $10, and $2 costs of the proceedings. The justice prepared a record of his proceedings and of the cotiviction, reciting the various steps, &c. and subscribed the same at the time of imposing the fine; but did not actually copy or enter the conviction in his docket. He also issued to a constable an execution, reciting the proceedings and conviction, &c. and directing the collection of said fine and costs; by virtue of which the officer levied and sold property of Robbins, and this action was brought and a recovery had against the justice for such levy and sale.</p> <p>The county court affirmed the judgment of the court below.</p>

The action was brought on a promissory note for $1000, made by the defendant Lamb, and indorsed by the defendants Dole and Hill, payable at the Albany City Bank; forty days after date, and dated February 5, 1857.

OH the 22d day of March, 1854, an action, wherein Robert D. Cheesbrough was plaintiff, and George V. House, and Caroline E. House, his wife, were defendants, was pending in the superior court of the city of Hew York, to recover $500, with interest, remaining unpaid and Unsecured, the balance of $3500, consideration money for household furniture purchased by House and wife, or one of them.

<p>The admissions of one member of' a firm are not evidence to show that the other persons sought to be made liable are also partners. They are only evidence against the party making them.</p> <p>The plaintiffs sold goods to H., and charged them to him, and afterwards took his note in payment of the account. They then sought to charge the defendant, as being a partner of H., and relied upon the fact that there had been a partnership between them, under the firm name of H. & Co., and that no notice of the dissolution had been given to the plaintiffs, and upon the declarations of H. that the defendant was still interested with him in the business, and that the name had been changed for the purpose of collecting the debts. Held, that this was not sufficient to establish the liability of the defendant as a partner when the debt was contracted.</p> <p>Held also, that after the partnership had been dissolved, no liability could be created upon its credit, unless the name of the firm was used in making the purchases.</p> <p>Dealers who, after a dissolution, but without notice thereof, trust the firm, are protected; but where the name of the firm is altered, creditors cannot hold the members of a different firm liable because they have not been notified of such dissolution.</p>

<p>The court, at general term, on reversing a judgment rendered on the verdict of a jury, or on the trial by the court or a referee, cannot render a judgment in favor of the appellant. It should order a new trial.</p>

<p>Where the maker of a promissory nóte annexes thereto a, certificate that the same is given for value, and will be paid when due, and the note is after-wards sold td a third person, for an amohnt less than shbtild have been paid for it if discounted at legal interest, the maker is estopped by the certificate, from setting up the defense of usury.</p>

<p>In an action against husband and wife, to compel the application of certain real property, standing in the name of the wife, to the payment of a judgment recovered against the husband, upon the ground that it in reality belongs to the husband, and was bought in the name of the wife, in order to defraud the creditors of the husband, the wife cannot be examined as a witness, by the plaintiff.</p> <p>The principle of the common law, forbidding husband and wife to be witnesses for each other, has not been changed by the provision of the code, allowing a party to call the adverse party as a witness.</p> <p>The wife not being a competent witness in an action against the husband alone, malting her a party to the record will not remove the incompetency.</p> <p>Nor are the admissions of the wife competent testimony, to sustain a suit against husband and wife, affecting property standing in her name. -</p>

Motion to discharge defendant from arrest. This was a civil action brought by the complainant, in the case of The People a. Lomax, supra, to recover damages from the same defendant on the same facts. The defendant was arrested at the commencement of the action, and moved, upon affidavits, to be discharged.

THIS action was brought to recover damages, under the act of 1847, on account of a death caused hy the wrongful act, neglect or default of the defendant’s testator. (Laws of 1847, ch. 450.) The cause was tried at the Rensselaer circuit, in June 1856, before Mr. Justice Gould and a jury, and a verdict was given for the plaintiff for $3000.

EJECTMENT to recover possession of a strip of land, 60 feet by 190, in the city of Bochester, in part occupied by the warehouse of the defendants, and the residue by their road tracks. There was no dispute that William W. Mumford, the plaintiff’s testator, prior to 1830 owned this land. Wm. W. Mumford died in 1848.

MOTIOH to dissolve an injunction. The motion was ordered by the judge at special term, to stand over to and be heard at, the general term. The defendant, John W. Smith, had commenced a suit against Lyman Hunger,, to set aside various conveyances, chattel mortgages and other securities, on the ground of usury, and to have the same canceled.

The action was brought to recover damages for an injury sustained by the plaintiff while riding on the cars of the defendants, under a special contract between the parties. By a stipulation between the attorneys for the respective parties, the following facts were agreed upon: First.

<p>MOTION by the defendants for a new trial, on a bill of exceptions, taken at the circuit, ordered to be heard in the first instance at the general term.</p>

<p>APPEAL from a judgment ordered at the Ontario circuit on .a verdict, .</p>

The action was brought to charge the defendants, who were directors of the Backet’s Harbor and Ellisburgh Bail Boad Company, with a debt contracted by that company, for the purchase of rail road cars; on the ground that the debt was contracted by the agency, or with the assent, of the defendants, when the company had not available means for its payment.