Volume 26 — New York Supreme Court Reports

Haberstro, as sheriff of Erie county, the defendant in the second action, and John M. Bedford and Henry H. Phillips, sureties to an undertaking given on the arrest of the defendant in the first action, from all liability, either as bail, sureties or otherwise in the above entitled actions, upon paying to plaintiff or her attorney the taxable costs in the second above entitled action, to be adjusted by the clerk of this court, and ten dollars costs of opposing this motion,…

The action was brought to foreclose a mortgage executed by Daniel Crill, the late husband of the appellant, on lands conveyed to him after his marriage with the appellant. Before the execution of the mortgage, the appellant had obtained a judgment of absolute divorce against her husband, on the ground of his adultery.

entered after a verdict assessing the value of the property in an action of replevin, directed by the court at the Jefferson Circuit, and from an order denying a motion for a new trial on the minutes. The action was in replevin to recover certain personal property, to wit, an ice house, an ice plow, etc., with damages for their detention.

When the facts are undisputed, the board of supervisors has no discretion, and if their acts are illegal, and not in conformity to the law, the courts will by mandamus compel them to act legally. (People ex rel. v. The Board of Supervisors of Qoriland Co., 58 Barb., 139; People ex rel. v. Supervisors Delaware Co., 9 Abb. [N. S.], 408; People ex rel. v. Supervisors Herkimer Co., 56 Barb., 452; People ex rel.

<p>Appeal from an order made at the Chautauqua Circuit, denying -defendant’s motion for a new trial made on the judge’s minutes.</p> <p>The action was ejectment to recover possession of a village lot in Dunkirk. The plaintiff obtained a verdict.</p>

The appellant, under the name of Henry Burk, was named in the petition as one of the owners or possessors of land to be affected by the proceedings — he was served with notice of the determination of the commissioners, and appealed therefrom.; the appeal was heard by the county court, the decision of which directly affected his interests. This appeal was first heard in October, 1878, thereafter a re-argument was ordered by the court.

Motion by plaintiff for a new trial, on exceptions taken at tne. Oneida Circuit, and ordered to be heard at the General Term, in. the first instance, after a nonsuit directed at the circuit. The action was brought to recover sheriff’s fees or poundage upon, an execution against property, issued to the plaintiff, as sheriff, upon a judgment recovered by the defendant herein against one Benjamin. N. Huntington.

<p>Land sold with reference to a map having a public square thereon — right of purehasei's.</p> <p>Where an owner of land makes and files a map thereof, on which streets and public squares are designated, and thereafter sells lots with reference thereto, the purchasers of such lots, where the public squares have subsequently been ■used as highways, acquire such an easement therein as to authorize the issuing 'Of an injunction, on their application, restraining a railroad from laying its track therein, without compensation made to them therefor.</p>

The action was brought to recover damages for injuries sustained by the plaintiff, while crossing Tonawanda street, in.the city of Buffalo. Evidence was given tending to establish that defendant, by negligently “kicking” cars across that street, near Amhurst street, injured the plaintiff; and also tending to establish the amount of damages occasioned to him thereby.

<p>JTote — when joint and several — when the testimony of one defendant in behalf of his co-defendant not excluded by section 829 of the Code of Civil Procedure.</p> <p>This action was brought upon a promissory note, made by the defendants to one Ely, the plaintiff’s testator. The note read: “ One day after date I promise to j?ay,” and was signed by both defendants. Upon the trial, the defendant, J. B. Clute, to establish the- defence of usury, called his co-defendant, and. offered to prove by him the usurious agreement made with the deceased, the offer expressly stating that the evidence was to be used solely for the benefit of the defendant, J. B. Clute, and not in behalf of the witness. Under the plaintiff’s objection, the evidence was excluded as inadmissible under section. 829 of the Code of Civil Procedure.</p> <p>Meld, that the note was, in law, a joint and several one, and that separate judgments might be rendered against the two makers.</p> <p>That as the testimony of the witness was to be used solely in behalf of his co-defendant, and-not in his own behalf or interest, it was not excluded by section 829 of the Code of Civil Procedure, but should have been received.</p>

Appeal by the several respondents above named, i. e., by all the above named corporations other than the petitioner from an order made at Special Term, confirming the report of the commissioners in the above entitled matters.

This marl was personal property, and was treated as such. (Smith y. Benson, 1 Hill, 176; Mott v. ComstooJc, 1 Comst., 564; Goddard y. Could, 14 Barb., 662 ; Hillard oh Real Property, chap. 1, § 1828, cascs'there cited; Ford v. Cobb, 20 N. Y., 344; Sheldon y. Edward, 35 id., 279; Mclntire v. Barnard, 1 Sand.

On the 20th day of April, 1876, Joseph Field made his will, devising about $450,000 in specific legacies, dividing the balance of his estate (estimated at about $1,000,000) among his three daughters, and nominated his said three daughters, and Mr. Joseph A. Eastman, as executors. On the 6th day of October, 1876, he added a codicil to this will, by which he directed the maimer in which certain of said legacies were to be paid, and the funds kept invested.

<p>Appeal from a judgment in favor of the defendants, entered "upon the trial of this action by the court without a jury.</p> <p>The acknowledgment is sufficient in form and substance. (Jackson, ex’r, etc., v. Gumaer, 2 ■Cow., 552 ; Troup v. Haight, Hopkins’ Ch., 239 ; Duval v. Covenhoven, 4 Wend., 561; Thurman v. Cameron, 24 id., 87 ; .Meriam v. Ilarsen, 4 Edw. Ch., 70; Meriam v. Ilarsen, 2 Barb. Ch., 232, affirming 4 E'dw., 70; The West Point Iron Co. V. Pernert, 45 N. Y., 703; Chauvin v. Wagner et ail., 18 Mo., 531; McIntyre v. Ward, 5 Biimey [Pa.], 296; Mantz v. Bailey, 3 Dana [Ky.], Ill; Barton v. Monis, 16 Ohio, 408; Hughes <& Cummings v. Lane, 11 111., 123; Sharp v. Hamilton, 7 Halsted '[N. J.] 110; Vaneev. Schuyler, 1 Gilman [111.], 160.) Mark H. .Sibley, although a trustee of the Ontario Female Seminary, was a competent witness to prove the execution of the mortgage. (1 Greenl. on Ev., § 333, note 4, cases cited.) The seal of a corporation, affixed to an instrument, is, of itself, prima facie evidence that it was so affixed by authority of the corporation; it lies with the party objecting to the due execution of the instrument, to show that the corporate seal was affixed to it surreptitiously or improperly. (Lovett v. The Steam Saw Mill Associ- . tion, 6 Paige Ch., 54; Flint v. Clinton County, 12 N. H., 430; Chouquette v. Barada, 28 Mo., 491; Bank of the United States v. Dandridge, 12 Wheat., 70) The magistrate, in taking acknowledgments, acts judicially. A duty is imposed on him by the law of ascertaining the truth of the matters about which he ' is to certify, and it is a legal presumption that he did his duty, and examined the witness as to all material facts in regard to the execution of the deed. (The Calumet and Chicago Canal and Dock Company v. Cornelia Russell, 68 Illinois, 426 ; 4 Edward’s Chan., 75, supra; Jackson v. Gilchrist, 15 Johns., 111.)</p> <p>The subscribing witness was a trustee and stockholder of the corporation, and, as such, was an interested witness, and was not a competent witness to prove the execution of any mortgage or conveyance to be given by such corporation. (Pack v. Mayor, etc., 3 Comst., 489; chap. 149, Laws of 1825; Greenl. on Evi., § 333; Muller v. Keep, 1 Paige, 601; State v. Cats'Icill Bank, 18 Wend., 465; 2 E. S. [6th ed.], 1146, § 35; 1 id., 369, § 5.) See section 936 of Code of Civil Procedure, showing that the law remains the same now as it was in 1824 and earlier. The affidavit or statement at the end of the instrument was wholly insufficient and did not conform to the statutes as they then existed, and the court ruled properly that it was not sufficient to allow same to be read in evidence on the trial. (Laws of 1797, chap. 18; Laws of 1798, chap. 78; E. L.,1813, pp. 369-372; Laws of 1819, p. 269; Laws of 1822, pp. 261-284; Laws of' 1823, p. 412; 1 E. S. [Edm. ed.], 714, chap. 3, § 37.) The officer must know, and of course must certify, that he knows the party not only to be the individual described in, but the same person who executed the conveyance. One without the other will not comply with the statute. (E. S., 369, §§ 1, 2; 1 id., 758, § 9; Jackson v. Cooly, 8 Johns., 128 [this was decided in 1811]; Gibbs v. Osborne, 2 Wend., 555 [this was in 1826]; Rawson v. Shepard, 2 Johns., 76 [the deed here was executed in 1793]; Watson, Executor, v. Campbell, 28 Barb., 421; Gillett v. Stanley, 1 Hill, 121; Fryer v. Rockefeller, 63 N. Y., 268; Miller v. Link, 2*N. Y. Sup. Ct. [T, & C.], 86.> There is no evidence that the corporation authorized JohnGreig, or anyone else, to affix its seal to the paper. If. not duly authorized by the certificate, it does not bind it, and is of no avail. {Mann, Receiver, v. Pentz, 2 Sand. Chan., 272, opinion; Nat. Bank v. Norton, 1 Hill, 572; Hoyt v. Thompson, 1 Seld'., 320; Field on Corporations, §§ 226, 247; Johnson v. Bush, 3 Barb. Chan., 207.)</p>

The action was brought to recover damages for the negligent killing of the plaintiff’s intestate by the defendant. At the trial the plaintiff was nonsuited. The motion for a non-suit was rested upon two grounds, viz.: That the evidence failed to establish that the negligence of the defendant produced the death of the deceased, and that the evidence failed to make out that the negligence or want of care of the deceased did not contribute to his death.

Appeal by the defendant Cutler from an order made by the county judge of Erie county, in proceedings supplementary to execution, adjudging the defendant to be guilty of a contempt, in violating an injunction clause contained in a former order restraining him from disposing of or “ interfering with any property, money, things in action, or equitable interest belonging to him, and not exempt from levy and sale on execution.” The defendant was adjudged guilty of contempt and…

The action was brought upon a promissory note, made by defendants, for $600, viz. :. “ Six months after date I promise to pay to Lewis O. Hill, six hundred dollars, at the dwelling-house of Lewis O. Hill, with interest, for value received. “ (Signed) J. DWIGHT ALVORD. “JEROME HOTCHKIN.” The defence was usury and an alteration of the note after execution.

Writ of Error to the Recorder’s Court, of the city of Oswego,, to review the conviction and sentence of the plaintiff in error of petit larceny. The property described in the indictment was rope taken from the vessel “ Mystic Star.”

Writ of Error to the Court of Sessions of Erie county, to review the conviction of the plaintiff in error of obtaining -money by false pretences. The prisoner was convicted, of obtaining a note of |200 and fifty dollars in cash, of one Cummings.

One of the causes of action stated in the complaint was on a promissory note made by the defendant. With reference to this, the court at General Term said: “ Another item of the plaintiff’s claim was a promissory note made by the defendant, dated April 17, 1867, for $775.10, payable ten days after date, with interest at six per cent.

<p>Certiorari to the Court of Oyer and Terminer to review the conviction of the appellant, of the offence of obtaining money by false pretences.</p> <p>This case came before the General Term upon the return of the Court of Oyer and Terminer, issued upon the petition, pursuant to the statute, of Benjamin K. Phelps, the district attorney of the county of New York ; the defendant having been tried and convicted upon an indictment found in the said county, upon which judgment had not been entered ; the Hon. Charles Daniels, one of the justices of the Supreme Court, before whom the trial was had, having certified that he had examined the bill of exceptions, and that, in his opinion, “there is probable cause for the same, and the same presents questions creating so much doubt as to render it expedient to take the judgment of the Supreme Court thereon.”</p>

Appeal by the defendants from a judgment, entered upon an ■order sustaining a demurrer to the second defence sot up in a supplemental answer served in the action. The plaintiff, by lease under seal, dated January 23, 1871, leased to the defendants certain premises on the corner of Forty-second street and Broadway, for the term of ten years, commencing on the 1st day of February, 1871, at the annual rent of $13,230, to be paid in equal quarter-yearly payments.

Controversy submitted upon admitted facts under section 1279 of the Code of Civil Procedure.

On May, 9, 1879, a warrant of attachment was duly granted against the property of the defendants, and a levy made. As personal service of the summons on the defendants within this State could not be effected, an order for service by publication was obtained from Mr.' Justice Lawrence on June fifth.

The action was brought for the purpose of establishing the alleged rights and interest of the plaintiff in certain real estate on Tenth and Eleventh streets, in the city of New York, and to require the defendant to convey to the plaintiff certain property: on East Broadway, New York city, and on Powers street, in-Brooklyn, and for an accounting, by the defendant. The plaintiff is the married daughter of the defendant.

The action was brought to recover upon a policy of insurance, issued by the defendant, insuring the life of Lucretia A. Stud-well, for the benefit of the plaintiffs, her children. On the 13th day of July, 1878, the said Lucretia A. Studwell died, and the policy became due and payable. At the commencement of this action an attachment was issued, and property of the defendant levied upon, which property is still held under said attachment.

The complaint alleged that the defendant Henry D. Denison entered into a contract with the plaintiff to do certain work on the-canal; that though the contract was made in the name of said Denison, yet that said Denison was, in fact, in the making thereof and the subsequent doing of the work, acting as a partner with the other defendants, who were jointly interested with him therein; that before the signing of the contract an estimate of the expense of doing the work…

<p>Appeal from a judgment, entered upon the trial of this action, by the court, without a jury.</p> <p>The action was brought for the partition of certain land formerly owned by one William Boice. It was not disputed that the premises were subject to the dower right of Betsey Boice, widow of William, who died intestate and the owner of the whole land. The plaintiff claimed to own six-ninths, being the shares of six of the nine children of William, viz., of William H. Boice, Abram Boice, Mary J. Clark, Catharine Decker, Sally Ann Rockefeller and Louisa Talbot. On the 4th of July, 1872, these six children conveyed all their interest in the property to Charles Boice, another child, and one of the defendants.</p> <p>Peggy Knickerbocker was another child; and it was not disputed but that she still owned one-ninth.</p> <p>Jacob Boice was the remaining child, and it was not disputed but that David W. Talbot owned Jacob’s one-ninth.</p> <p>On the 4th of July, 1872, Charles Boice executed a mortgage, upon the six-ninths thus conveyed to him (not including his own ninth), to Catharine Decker, to secure $188.88, recorded December 27, 1872. Catharine Decker assigned this to Peter E. N. Decker Juke 24, 1876, which assignment was recorded June 26, 1876. June 26, 1876, Peter E. N. Decker assigned this to Hiram Crandall ; which assignment was recorded June 26, 1876.</p> <p>On the 4th day of July, 1872, said Charles Boice executed another mortgage on the same six-ninths to William H. Boice to secure $464.88, which was recorded December 27, 1872. William H.' assigned this to John Crossett November 6, 1873; which assignment was recorded January 3, 1874. Crossett assigned it to Alvah Kellogg March 30, 1874; which assignment was recorded June 29, 1877.</p> <p>These two mortgages were foreclosed by advertisement, under the statute, by their respective owners ; the first publication in ■one proceeding being made June 2, 1877, and in the other June 29, 1877. And on the 21st of September, 1877, the plaintiff purchased at each of said sales, at the first for $338.42; at the second, for $601.58 the six-ninths of the premises in question.</p> <p>No question is made as to the regularity of these statutory foreclosures.</p> <p>The statutory notices were served, among other persons, on Charles Boice, Sally Ann Rockefeller and Lansing E. Hay, the administrator of Lansing Hay, and Mary J. Clark.</p> <p>It was held by the court on the trial that the plaintiff thus became the owner of six-ninths ; and that Charles Boice, Peggy Knickerbocker and David W. Talbot each owned one-ninth.</p> <p>The defendants insist that the plaintiff owns two-ninths ; that Charles Boice owns three-ninths, and Lansing Hay, one-ninth; and Peggy Knickerbocker and David W. Talbot, each one-ninth.</p> <p>The ground of their claim is as follows : At the time when Charles Boice executed his mortgages to William H. Boice and to Catharine Decker, respectively,' he also executed a mortgage of the same date, on the same six-ninths, to Louisa Talbot to secure $188.88, which was recorded December 27, 1872; and which said Charles afterwards fully paid before the commencement of this action.</p> <p>And, at the same time, he also executed a mortgage of the same date to Mary J. Clark, on the same six-ninths, to secure $188.88, which was recorded July 24, 1877; and said Mary J. Clark assigned this mortgage to Lansing Hay December 20, 1876, which assignment was recorded July 24, 1877.</p> <p>And, at the same time, he also executed a mortgage of the same date to Sally Ann Rockefeller, on the same six-ninths, to secure $188.88, which was recorded August 4, 1877.</p> <p>At the time of the execution of these five mortgages it was mutually agreed by parol between all the mortgagees that neither mortgage should have a preference over the other; but all should be equal liens ; to which agreement the mortgagor was a party.</p> <p>Decker and Crandall, when they severally purchased the Decker mortgage, gave full value therefor in cash; and had no knowledge of this parol agreement. They had no notice, actual or constructive, of the existence of the Mary J. Clark mortgage or of the Rockefeller mortgage ; and they had no actual notice of the existence of the Talbot mortgage, or of the William H. Boice mortgage.</p> <p>Crossett and Kellogg, when they severally purchased the William II. Boice mortgage, paid full value therefor in cash, and had no knowledge of this parol agreement. They had no actual or constructive notice of the Mary J. Clark mortgage, or of the Rockefeller mortgage ; and no actual notice of the Talbot mortgage and the Decker mortgage.</p> <p>No bond or covenant to pay was given by Charles Boice to accompany any of these mortgages.</p>

<p>Appeal from a judgment entered upon the trial of tbis action by the court, without a jury.</p> <p>Grodus D. Smith and Samuel W. Smith mortgaged to Matthew Owens, the premises described in th'c complaint, for $3,500. 'The mortgage was dated the 10th day of October, 1866, and was recorded in the office of the clerk of the county of Saratoga, on the 15th day of October, 1866. Matthew Owens, by written assignment, dated July 5, 1867, assigned the bond and mortgage to William C. Smith, and William C. Smith, by written assignment, dated. October 1, 1868, assigned the same bond and mortgage to the plaintiff. Neither of these assignments was recorded until the 9th day of February, 1877.</p> <p>At the time of the commencement of this action there was due and -unpaid on this bond and mortgage $1,000, with interest from the 1st of October, 1877.</p> <p>November 4, 1871, Grrodus D. Smith, being still the owner of •the mortgaged premises, executed another mortgage to Amanda W. Carpenter, for $1,200, which was recorded in said clerk’s office January 3, 1872, and on -which there was due February 4, 1876, :$700, and interest from November 4, 1875.</p> <p>A short time prior to the 4th of February, 1876, Grrodus D. Smith, being still the owner of the mortgaged premises, applied to the defendant, Van Schoonhoven, for a loan of $3,800, to be secured by a mortgage on the premises in question and other premises. Van Schoonhoven caused an examination of the records in Saratoga county to be made by the county clerk, and from this search it appeared that said mortgages to Matthew Owens and Amanda M. Carpenter were the only incumbrances on the premises.</p> <p>Van Schoonhoven had no knowledge or information that any other person than Matthew Owens was or claimed to be the owner of or interested in the Owens mortgage. Ho refused to make the loan, unless Smith would procure a satisfaction of said mortgage to Owens, showing that it was fully paid. Smith thereupon procured Matthew Owens to execute a satisfaction of his said mortgage. No payment was made to Owens when he executed this satisfaction. Van Schoonhoven thereupon loaned to ■Smith $3,800; and, as security therefor, received from him a mortgage on said premises, together with the satisfaction piece executed by Owens, and this mortgage and satisfaction piece Van Schoonhoven recorded at the same time, viz. on the 9th day of February, 1876.</p> <p>In December, 1877, Van Schoonhoven bought the Carpenter 'mortgage, being forced to do so in order to prevent a foreclosure of the same, and at that time supposed that was the only lion on the premises prior to his $3,800 mortgage.</p> <p>The plaintiff brought this action in the usual form for the foreclosure of her mortgage, making the usual allegation that the defendant,. Van Schoonhoven, had an interest or lien in the premises subsequent and subject to the lien of her mortgage. The defendant, Van Schoonhoven, answered, setting forth the above facts, and claiming priority over the plaintiff’s mortgage.</p> <p>The court held that the lien of the plaintiff’s mortgage was prior to that of both the mortgages owned by Van Schoonhoven, and directed judgment to that effect and for the usual foreclosure sale.</p> <p>Under the provisions of the recording acts of this State the mortgage of the plaintiff is clearly subject to the mortgage for $3,800 made to the defendant, Van Schoonhoven. (2 It. S. [6th ed.], 1138, § 1; 1 id., 756, § 1;, 2 id. [6th ed.], 1151, §§ 71, 72; 1 id., 762, §§ 37, 38; Vanderkemp v. Shelton, 11 Paige, 28, 37, 38; Belden v. 'Meeker, 2 Lans., 170, 175; S. C., 17 N. Y., 307.</p> <p>It is submitted that where a recorded mortgage has been assigned by the mortgagee, and the assignments are not on record, that said mortgage cannot be satisfied by the mortgagee as against the assignee in favor of a subsequent purchaser or mortgagee of the mortgaged premises without actual payment. (Green v. Warrick, 61 N. V., 226-227; Crane v. Turner, 67 id., 110-111; Campbell v. Veeder, 3 Keyes, 178; Purdy v. Huntington, 12 N. Y., 338— 339; Vanderkemp v. Shelton, 11 Paige, 29; Brown v. Blydenburg, 7N.Y, 11.)</p>

<p>Injunction pendente lite — not granted unless absolutely necessary— General Buie 21 — applicable to orden• to slum cause — what not a reasonable time within which to show cause why a party should not be punishable fc/t' contempt— Appeal from an injunction does not suspend it — costs of proceedings.</p> <p>Plaintiff and the defendant, the village of Athens, each claimed to have the exclusive right to run a ferry between the city of Hudson and the village of Athens. In this action, brought by the plaintiff to restrain the defendant from running the said ferry, the complaint alleged that the defendant had diverted business from the plaintiff, to his great loss and damage, but gave no special •details thereof: The defendant alleged that no material or irreparable damage was being done to the plaintiff, and that the defendant was abundantly responsible for any probable sum that plaintiff could recover.</p> <p>Meld, that the action was not one in which an injunction pendente lite should be granted.</p> <p>■On July seventh an order was granted restraining the defendants, The Village of Athens, and the trustees thereof, from running a ferry from Athens to Hudson. On July eighth the court granted an order, returnable on the tenth, at 10 A. M., at Kingston, requiring the defendants to show cause why they should not be punished for a «ontempt in violating the injunction. The order was served on the defendants, at Athens, at about noon of July ninth.</p> <p>Meld, that the order did not give the defendants “ a reasonable time ” witmn . which to show cause, and that the discretion of the justice fixing such time was reviewable at General Term.</p> <p>General Rule No. 21, requiring a non-enumerated motion to be noticed for the first day of the term, unless sufficient cause be shown (and contained in the affidavits served) for noticing it for a later day, is applicable to an order requiring a defendant to show cause why he should not be punished for a contempt in violating an injunction.</p> <p>An appeal from an order granting a temporaiy injunction does not supersede or authorize the defendants to disobey it.</p> <p>Where, however, defendants, in disobeying the injunction, act under the advice of counsel that it is superseded by an appeal taken therefrom, the fine imposed should not exceed the actual damage sustained by the plaintiff, together with his costs and expenses to be taxed under section three of chapter 270 of 1854-</p> <p>No counsel fee or extra allowance can be granted ■ as part of such costs and expenses.</p>

<p>JStatute rendering a sale of chattels, unaccompanied try a change of possession, fraud/ulmt as to creditors, is applicable to judicial sales — 2 M. 8., 136, § 5.</p> <p>Section 5 of 2 R. S., 136, providing that every sale made by a vendor of chattels in his possession, unless accompanied by an immediate delivery, or followed by an actual and continued change of possession, shall be presumed to be fraudulent and void, as against creditors, is applicable to a sale under an execution issued on a judgment.</p>

action was tiled. This is an action on a policy of fire insurance upon the plaintiff’s two story frame dwelling-house.” The policy refera to an application. But no application was ever signed by the plaintiff. One Cannon, however, an agent, having possession of the “ expiration book ” of the Glen’s Falls Company, which he had received from :a former agent, went to the plaintiff’s house and made inquiries .as to a house on which a policy was about to expire.

<p>Sale of chattels — agreement that title shall not pass until paid for — when bona, fide purchaser not affected thereby.</p> <p>The plaintiff delivered wagons to one Hughson, not for his use, but that he might sell and deliver them and receive the price thereof, it being agreed, however, that the title of the wagons should not pass to Hughson until he had paid the plaintiff therefor.</p> <p>Held, that the title of a bona fide purchaser of the wagons, who had-paid full value therefor, and who was ignorant of the secret agreement between the plaintiff and Hughson, was not affected thereby.</p>

A judgment was recovered on the 12th day of August, 1872, by the plaintiffs, against Edward Wall, as the survivor of a firm composed of himself and Robert R. Stevens, on which an execution was issued and the judgment partially collected. The complaint alleged that Wall and Stevens were partners ; that Stevens was dead, and that Wall was the sole surviving partner. The action was on notes alleged to have been made by the firm.

The action was brought to recover a debt due from The Stillwater Cheese Manufacturing Company to the estate of Marvin Balch, the plaintiff’s testator. It was claimed that the defendant washable for said debt as a trustee of said corporation, because-of a failure to file the report required by section 12 of chap. 40 of 1848. The debt accrued in 1867. The failure to file the report occurred in the years 1877 and 1878.

<p>Writ ok Error to the Court of Sessions of the county of Ulster, to review the conviction and sentence of the plaintiff in error of assault and battery.</p>

Motions for new trials on verdicts directed at the circuit, subject to the opinion of the court at General Term. These cases were considered together, the questions involved in each being the same.

The action was brought to recover damages sustained by the plaintiff’s intestate in falling, in the night, into a ditch, excavated in one of the streets of the city of Kingston, by a gas company, which had been negligently left unguarded.

<p>Appeal from an order of the Ulster County Court, in reference to the settlement and distribution of the estate of an insolvent firm.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and an from order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.</p> <p>The action was brought against the city for professional services rendered for the board of education, one of the departments thereof..</p> <p>The board of education was created by chapter 198 of 1849. The charter of the city, in force at the time the services were rendered, was contained in chapter 598 of 1870.</p> <p>Both of the above entitled cases were founded upon the same facts.</p>

The action was brought to have a mortgage held by the defendant declared void and canceled, as a cloud upon the plaintiff’s title.

Appf.au from a judgment in favor of the plaintiff, entered upon the r _ >rt of a referee. Held: in cases where the premises, charged with such support, were sold to strangers. (Austin v. Austin & Raymond, 9 Term. R., 420, 422; Ferguson v. Kimball, 3 Barb. Ch., R., 616, 617-618; Conant v. Stratton, 107 Mass. R., 474; Formanv.

The action was brought to recover damages for injury sustained by the plaintiff’ an employe of the defendant, in being thrown from a hand-car on which he was riding, owing to the defectivo condition of the crank thereof. It appeared that Don Brown, under whose direction the plaintiff worked, was a “section boss” on the defendant’s road. He had charge of about five miles of track, and was foreman of the men employed to keep such track in repair, working with them.

The action was brought, upon an undertaking given upon an appeal, by one Whitbeck, from a judgment for the recovery of a farm in Rensselaer county. The defendant Thomas B. Simmons-was a surety on such undertaking.

<p>Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justices before Avhom the action was tried, in each of the above entitled actions.</p>

<p> Payment by a borrower to the agent of the lender, for services rendered to him by such agent, does not vitiate the loan. </p> <p>One Elmer had certain moneys of the plaintiff in his hands to be loaned on bond and mortgage. He also held certain bonds and mortgages given by the defendant to one Crane, payment of which was then being pressed. To enable defendant to make a payment upon the.Crane mortgages, Elmer loaned him §500 of plaintiff’s moneys, and took a bond and mortgage from him therefor. Elmer charged defendant fifteen dollars for his services and for drawing the bond and mortgage. Plaintiff never received any of this fifteen dollars, nordid she know it had been paid to Elmer. Held, that the loan was not usurious.</p>

This action was commenced by the plaintiff against the defendant upon a certain draft or bill of exchange, of which the following is a copy: (Indorsed) “William Brown,” “Justus Pickering.” “Pay D. Palmer, cashier, or order, for collection account of Susquehanna Valley Bank, Binghamton, N. Y. “J. W. MANIER.” The defendant, Justus Pickering, put his name upon the aforementioned draft or bill of exchange, under the following circumstances : On the 14th day of June, 1877, the…

<p> When a verbal contract is not void, as being a contract not to be performed within one year. </p> <p>In October, 1876, plaintiff entered into a verbal agreement with the trustees of a school district, by which he was to teach for the year ending October 1, 1877, at a "fixed salary, and for a further term of one year, at the same salary, to commence on the last mentioned day, if no notice should be given by either party, at least two weeks prior to that date, that the services should then qease.</p> <p>Held, that the agreement was not void as one which, by its terms, could not be fully performed within one year. (Learned, P. J., dissenting.)</p>

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

Henry Luddington died September 6, 1842, intestate, leaving, surviving him, his widow, Jane Luddington, and ten children, among whom were the plaintiff and defendant, of whom the latter was married and had children then living; Henry Luddington was, at the time of his death, the owner of about 263 acres of land in the town of Bovina.

The action was brought to recover $5,000 damages for personal injuries received by the plaintiff from a fall from a wagon while driving on Congress street, Troy, on the 4th day of August, 1874, between five and six o'clock, p. m. The jury rendered a verdict for the plaintiff for $4,500.

” On the eighth day of February last, the certificate Avas presented to the secretary to be filed. The secretary, after examination, declined to file it, and returned it the same day. The portions of the certificate to Avhich the secretary objected are the second and sixth clauses. These clauses are as follows : II. That the objects for which said company is formed are as follows, namely, the mining of gold, silver and lead in the territory of Utah. YI.

<p>Appeal from an order made at Special Term, affirming on certiorari the proceedings before and decision of the referees, reversing the determination of the commissioners of highways, and directing a highway to be laid out in the town of Hoosick.</p> <p>The appeal was taken from a decision of the commissioners-refusing to lay out the highway.</p>

<p>Appeal from an order made at Soecial Term, denying a motion to vacate an attachment.</p>

<p> Officer executing process regular on its face, protested thereby. </p> <p>Where, after a judgment and sale in foreclosure, a writ of assistance, regular and. fair upon its face, is issued against one of the defendants therein, the officer executing the same, and those assisting him, are protected thereby, even, though the writ were irregularly issued, and the defendant would be entitled to have the same set aside on motion.</p>

Van Schaick, as guardian of Minnie F. Perkins, formerly Wilcox.

<p>.Policy on vessel — meaning of phrase “ lying at anchew ” — not applicable when the vessel is beached — when a policy is avoided by leaving a vessel unoccupied.</p> <p>This action was brought upon a policy of insurance, issued by the defendant upon the steamer “ Oceanus ” “while plying on Jamaica Bay, bay and harbor of New York, * * * or while lying at anchor, or at any bulk-head, dock or pier.” .At the time of her destruction the vessel had been beached by the plaintiff, and holes opened in her hull to allow the water to run in and out with the rise and fall of the tide. A cable from her bow was fastened to a piece of iron sunk in the beach, and another from her stern was attached to an anchor.</p> <p>Held, that the vessel was not “ lying at anchor,” within the meaning of the policy, and that it was error to leave that question to the jury.</p> <p>The policy also provided that “ if the premises should be vacated, in whole or in part, and shall remain unoccupied for the space of twenty days, * * * this policy shall be of no effect qnless the company shall be immediately notified and shall signify its assent thereto on the policy.”</p> <p>The vessel.was beached, her furniture taken out, and she was left unoccupied during the summer of 1878.</p> <p>Held, that the word “ premises ” meant the vessel insured, and that the policy was invalidated by reason of her having been left vacant and unoccupied for more than twenty days.</p>

<p>.Policy of insurance— mortgagee clause — right of the company to subrogation — when the mortgagee is not affected by the right of the company to contribution from another company insuring the same premises.</p> <p>.Plaintiff issued a policy of insurance to Floyd & Newins, as owners, “ loss payablé to Hendrickson & Whitson, mortgagees, as interest may appear.” The policy contained a mortgagee clause, providing that the rights of the mortgagees should not be affected by the acts of the owner, and that in case a loss were paid to them, for which it would not be liable to the owner, the company should be subrogated to all the rights of the mortgagees. Thereafter the property was conveyed to Ruth Grade, whose name was inserted, as owner, in the policy, and who, thereafter, both companies assenting, procured additional insurance on the property from another company, and in cage of loss it was •agreed, as between the two companies and Ruth Grade, that such loss was to be paid by the two companies in certain proportions. The property was injured by fire to the extent of $2,788.44, of which, as between the owner and the two companies, the plaintiff was bound to pay $1,507.69. The plaintiff having paid H. & W. the whole amount of the loss, as required by the mortgagee clause, took an assignment of the mortgage, and brought this action to foreclose it.</p> <p>Held, that as against the owner, and Floyd & Newins, who, as mortgagors, were liable for any deficiency, plaintiff was only bound to credit upon the mortgage its proportionate part of the loss, viz., $1,507.69, and not the amount it had paid the mortgagees, viz., $2,788.44.</p>

<p>Appeal from an order made at Special Term, directing a referee to find and report as to what, if any, amount was due to the estate of Dora Dickson, deceased, from the claimant, Hendrickson.</p>

Appeal by Louisa R. McAdams, a supposed lunatic, from two-orders made at Special Term, denying a motion made on behalf of the alleged lunatic, for an order directing the petitioner herein to pay her costs and disbursements. This Was a proceeding de lunático inquirendo, instituted by one William A. McAdams, a son of the alleged lunatic, to have her, his mother, declared insane. The petitioner failed to establish the alleged lunacy.

motion to vacate an order allowing the plaintiff to revive the action and bring in additional parties defendant by supplemental complaint. The action was brought to foreclose a mortgage on a lot in Brooklyn, made by Thomas Reilly, to secure the payment of the purchase-money to Theodore Martine, who assigned the mortgage-to the plaintiff, and in the assignment guaranteed the payment-of the same.

The action was brought to recover $150, that being the alleged salary of the plaintiff Norris, as redemption clerk in the department of arrears, for the month of December, 1878. The plaintiff was appointed cleric in the said department by the then register, Daniel D. Whitney, August 1, 1875, at a salary fixed by that officer at $1,000 a year, or $83.33 a month.

<p>Appeal from an order made at Special Term, denying a. motion to vacate an attachment.</p> <p>The attachment was granted on the summons, complaint and. an affidavit.</p>

Motion by the defendants above named for a new trial on a «case and exceptions, under section 1001 of the Code of Civil Procedure, after the entry of an interlocutory judgment herein. This action was brought by the plaintiffs as legatees and next,of kin of Andrew Hood, deceased, against Frederick Hood and Maria L. Hood, as executors, to compel them to account, and to xemove Frederick Hood from his position as such executor.

Appeals from orders of the County Court of Kings county, dismissing appeals from judgments of a justices’ court on the ground that the notices of appeal were not signed by the appellant, and also because they did not sufficiently state the grounds thereof.

Controversy submitted on agreed facts, under section 1279 of the Code of Civil Procedure. The question was whether, under /§ 1218 of the Code of Civil Procedure, the plaintiff, in a case where an infant defendant had appeared and answered by his guardian ad litem, was required to wait twenty days before entering' judgment.

On the 15th day of May, 1879, an order was made by Judge Pratt, requiring the respondent, as treasurer of Queens county, to show cause, why he, as treasurer, should not be compelled forthwith to receive the sum of $326.61 in full payment of the unpaid taxes, county and State, for the year 1877, upon the parcels of land in the town of Flushing belonging to the appellant, to mark said taxes paid, to give a receipt or receipts therefor, and to strike out the said lots from the…

Controversy submitted upon agreed facts, under sections 1279' to 1281 of the Code of Civil Procedure. On May 27, 1879, plaintiff made an agreement with defendant to sell and convey to him certain real estate, the deed to be delivered June 12, 1879. By consent the time was extended to June 18, 1879. On that day plaintiff duly tendered to defendant a deed, and demanded performance.

A demurrer interposed by the plaintiff to- a defence set up by the defendant, that she was a married woman and did not carry on any separate business, was sustained, ánd the appellant seeks to review the oi-der sustaining it, upon this appeal.

its tracks by the Brooklyn, Winfield and New-town Railway Company, the respondent. The respondent was organized under the general railroad act, on the 3d day of February, 1869. Acts of the Legislature were passed in 1869 (chap. 718), in 1870 (chap. 612), in 1871 (chap. 622), and in 1872 (chap. 705), extending its route on and through various streets in the city of Brooklyn, and conferring certain rights and privileges upon it.

The action was brought in a justice’s court, in the county of Queens, to recover from the defendant the sum of $200, the alleged value of personal property converted by him. Upon the trial of the action in the justice’s court, before a jury, the plaintiff had a verdict for $175, and from the judgment entered therein, the defendant appealed to the County Court of Queens county.

The action was brought to recover damages for the obstruction of a water-course, and judgment was asked that defendant be required to remove certain obstructions made by him, and for a perpetual injunction. The referee reported in favor of the defendant, dismissing the complaint, without costs.

the defendant. This action was brought to try the title to the office of super,'intendent of the poor of the town of Castleton, in Richmond 'County. In November, 1873, one Nathan M. Heal was elected superintendent of the poor from Castleton for five years, commencing .January 1, 1874, ending January 1, 1879. He failed to file his bond, and the supervisors, assuming that a vacancy existed, appointed John S. Neville to the office for the vacancy.

<p>JOntry of judgment on acceptance of an offer — when it bars a recovery for claims set up in the complaint but not included in the offer or judgment— Code of Civil Procedure, § 73S.</p> <p>In 1877 the plaintiffs sued Silliman & Co. for §12,000 upon various drafts and notes made by that firm, among which was a note for §2,500, made by that firm to the .order of, and indorsed by, the defendant Marks, upon which plaintiffs claimed there had been paid but §122. Silliman & Co. answered, denying that anything was due to the plaintiff on the note, and averring that it was made and .•given to the plaintiffs as collateral to claims, which had subsequently been -paid. The firm also offered to allow judgment to be taken against them, under section 738 of the Code of Civil Procedure, for the amount claimed in the complaint, after deducting that note, which offer was accepted by the plaintiff, ■and judgment was entered accordingly. Subsequently the plaintiffs brought this action upon the same note against the defendant Marks, who had indorsed it.</p> <p>Jleld, that this action was barred by the judgment entered in the former action.</p>

<p>Appeal from an order adjudging the appellant guilty of a criminal contempt, in willfully disobeying a peremptory writ of mandamus.</p>

Jeremiah H. Monarque died in 1864, leaving a widow, four daughters and several grand-children, and leaving a will which, in substance, purported to give his property, real and personal, to his widow, for life, after her death to his daughters for life, and after their deaths in fee to his grand-children.

Brewster, as executor, entered upon the trial this action by the court without a jury.

This action was brought in the City Court of Brooklyn by James Cregin, in his life-time, to recover damages for the loss of services of, and for medical attendance furnished to his wife, who, on the 21st day of August, 1875, was injured while in the act of getting off one of the defendant’s cars.

the action was tried. In March, 1877, this plaintiff rented and gave possession to William A. Homan of certain premises owned by her, and located at Spring Valley, Rockland county, New York. The terms agreed upon were $1,000 per year, payable monthly in .advance. William A. Homan was in possession four months, and paid no rent.

J. P. Barnard, one of the justices of the Supreme Court, appointing commissioners to assess the damages claimed by the appellant for the taking of her land to open a street in the village of Rhinebeck. The proceedings Avere instituted under chapter 360 of 1867.

This action was tried before Hon. A. McCue, judge of the City Court of Brooklyn, and a jury, and a verdict was rendered for the plaintiff.

<p>Policy of life insurance — condition of, avoiding it if the assured should die while violating the law— construction of such condition when a question for the jury.</p> <p>In an action upon a policy of life insurance, it appeared that, in pursuance of a preconcerted scheme, the assured and his brother attacked one Berdell in a railway depot, the brother holding Berdell from behind, and the assured attacking him in front. During the struggle, Berdell drew a pistol, whereupon the assured jumped over a counter, and had run away some thirty-three feet, crying to his brother to hold Berdell, when the latter fired at him, and inflicted a fatal wound. The policy provided that it should become void if the person whose life was thereby insured “ shall die in, or in consequence of a duel or of the violation of the laws of any Nation, State or Province.”</p> <p>Seld, that the qriestion, whether or not the affray had actually terminated at the time the assured was shot, was properly left to the jury, and that a verdict in favor of the plaintiff would not be disturbed.</p>

<p>Corporation — liability of, for tortious acts of its officers — when it is chargeable with their knowledge — what is a ratification of their acts</p> <p>The plaintiff and the National Bank of Fishkill occupied for their business purposes the same offices, and the business of plaintiff with its depositors was conducted through the latter. One Bartow was the cashier of the bank and treasurer of the plaintiff, and the active manager of both. Bartow, without the knowledge of the other officers of the bank, took from a safe deposit company in New York, certain securities belonging to the plaintiff, and pledged them to secure a loan of money borrowed for and applied to the use of the bank.</p> <p>In an action by the plaintiff, against the bank and its receiver, to recover for the conversion of the bonds held, that the bank was chargeable with the knowledge of its cashier as to the loan, and the means by which it was effected.</p> <p>That the reception of the money by it, and the application thereof to its uses, was a ratification of the acts of the cashier in borrowing it.</p> <p>That the plaintiff was entitled to recover.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.</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 being an accessory, before the fact, to the crime of arson, in the first degree.

All power and jurisdiction of a referee terminate with the filing of his report. {Sherman v. Justice, 22 How., 241; Piles v. Price, 23 id., 473 ; Goope v. Bowles, 42 Barb., 95.) When a referee has once filed his report he is functus officio, and cannot again act, even to correct a clerical error in his report, without a new order of authority from the court.

demurrer to the complaint. The action was brought to charge the defendant, a stockholder of the Secor Sewing Machme Company, with a debt due from. it. The complaint alleged, among other things, “ that during the years 3874 and 1875, one John Warburton performed work, labor and services as a laborer and servant for said company, at. its request, and at the agreed price, and of the value of $2,048.58.

February 3, 1879, an order in supplementary proceedings for the examination of the defendant was made herein, served on defendant, February 4, 1879, and the examination of defendant taken thereunder, from time to time, until February 21, 1879.

<p>Appeal by Lawrence Pike from an order of the Special Term, refusing his application to be make a party to the above action.</p>

<p>Deposit of funds by a company for the payment of coupons on its bonds — when it creates a trust for the benefit of the bondholders, and is not liable to attachment by a creditor of the company.</p> <p>The Mississippi Central Railroad Company issued its mortgage bonds, with coupons attached, and subsequently became consolidated with another corporation, payment of the bonds being assumed by the new company. On May 1, 1875, the treasurer of the latter company deposited with the defendants, Kelly & Alexander, §25,000, they signing a receipt, stating that they had received it “ in trust, to axiply the same to the payment of an equal amount of the coupons of. the first mortgage bonds and consolidated mortgage bonds of the Mississippi Railroad Conqiany * * * the said money not to be subject to the control of the said company, otherwise than for the payment of said coupons, as above described.”</p> <p>Held, that such deposit created a trust for the benefit of the holder^ of the coupons of the said bonds, and that the fund was not liable to be attached in an action brought, by a creditor of the company depositing it, to enforce a debt due from it to him.</p>

<p>Appeal from an order of the Special Term, denying a motion made by the plaintiff, to compel ap inspection of the books and. papers of the defendant corporation. t</p>

The controversy in this action is as to the right to certain moneys that, at the time of its commencement, were in the hands, of the defendants, Brown Brothers & Co., accruing as follows The plaintiff claimed to be entitled to retake certain corn which they had sold to the defendants, Baxter & Co., on the ground that Baxter & Co. had failed to pay for it as agreed.

<p>Partnership — secret renewal of lease by one partner — when it enures to the benefit of the firm— Good will — pertains to the lease — measure of damages thei'efor when one partner has had all the benefit of the lease — how determined.</p> <p>Prior to April, 1869, the plaintiff and defendant were keeping the Hoffman House in New York, as co-partners, under an agreement, by which the partnership terminated May 1, 1871, .at which time the lease of the premises also expired. During the continuance of the lease the defendant, without the knowledge or consent of the plaintiff, procured in his own name a new lease of the hotel, to commence upon the expiration of the existing lease to the firm, and claimed to be solely entitled to the benefits arising from such new lease. In March, 1870, plaintiff brought this action to have the lease declared partnership property, and to have the same assigned to the firm, and for other relief. Upon the trial judgment was given for the defendant, on the ground that the plaintiff had no interest in the lease. This judgment was affirmed at the General Term, but reversed by the Court of Appeals.</p> <p>After the decision upon the first trial, and before an appeal had been taken, the plaintiff! on March 13, 1871, brought an action to have the firm dissolved, and all the assets thereof, including furniture, goodwill, etc., sold. A receiver was appointed, who sold all the furniture, stores, etc., to the defendant, Ihe sale being confirmed by a judgment entered in the action on October 26,1871, which ■ .judgment declared that the partnership had been dissolved, and all the property converted into cash, “ except certain leases claimed to be co-partnership property of the plaintiff and defendant, which are the subjects of a former action between them, now on appeal,” and further declared that “no judgment or decree respecting them is made in this action.”</p> <p>'On appeal from a judgment adjudging the new lease to be partnership property, recovered by the plaintiff' on the second trial of this action, held, that the judgement rendered in the second action was not a bar thereto.</p> <p>'That the good will was not transferred by the sale of the furniture and personal property, but that the same pertained to, and could not be sold separately from the lease.</p> <p>'That the term of the renewal lease having expired, and the defendant having received the sole benefit therefrom, the plaintiff could recover of the defendant the damages he had sustained in the premises.</p> <p>That in ascertaining the damages, it was proper to ascertain the profits of the hotel in the past, the 'rents required by the renewal lease, and to take the opinion of experts and men experienced in the hotel business in New York, as to what the new lease, with good will and furniture were worth, over and above the rent reserved, after deducting the price received for the furniture.</p>

<p>Challenge for principal cause and for favor — when properly overruled — when juror not disqualified by reason of his having formed an opinion— chapter 427 of 1873 — Confession not inad/missible because made while the prisoner is in illegal custody — Sight to arrest one who has committed murder, without process.</p> <p>Upon the trial of the plaintiff in error, an Italian, upon an indictment for murder, a juror was challenged for principal cause, on the ground that he had formed an opinion prejudicial to the prisoner. The juror having been sworn testified, that at the time of the occurrence he had read of it in a newspaper and had then formed an opinion, which he supposed he still had ; that he knew nothing about the case, and did not suppose he had any impression on his mind which would prevent his acting fairly and impartially; that he had no doubt he could give a verdict upon the evidence that should come from the witnesses, without being influenced or biased by any opinion.</p> <p>Held, that the court properly overruled the challenge for principal cause.</p> <p>The prisoner’s counsel then challenged the juror to the favor, and requested that the examination of the juror, already taken, be made applicable thereto, which request was granted. The juror then testified, that he had some business with Italians, and was not particularly fond of them ; did not think much of them, judging from those we have here; that his opinion, as to the guilt or innocence of the prisoner, was positive and clearly marked at the time, and he thought it was still; that he had not tallied the matter over, but had probably read the newspaper to his family; that he thought the statements he read, and from which he formed his opinion, were the evidence taken on the coroner’s inquest; that he had no particular interest in the case or knowledge of its circumstance; that he would believe a contradiction if he read it in the next day’s paper; that he had an impression rather than an opinion; that he read the account casually, and it slipped out of his mind and was afterwards revived; that it would require strong evidence to remove the opinion he then entertained; that he believed he could give full'weight and effect to the evidence as though he had no opinion. The court, upon this evidence and “from observation of the appearance of the juror, his age, intelligence, his manner on the stand, and his answers to the questions,” overruled the challenge. Held, no error.</p> <p>The prisoner, after the killing, fled from the city of New York, where it occurred, finally stopping at Wheeling, W. V., where he was arrested by an officer of the New York police force, with the co-operation and assistance of the i„cal police, but without any process, put in irons and taken to New York; while on the cars he was asked by the officer if he killed his wife and said, “ Yes.”</p> <p>Held, that conceding that he was illegally held in custody at the time he made the confession, that fact did not invalidate it or render it inadmissible.</p> <p>Qu&re, whether at common law the arrest of a prisoner guilty of a felonious homicide, without process, is not lawful as ag-ainst him, wherever made.</p>

Writ ok 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 murder in the first degree. The murder was committed by Cox, after he had broken into the house of the deceased, in order to steal certain articles of jewelry from the room.

Appeal frqp two orders, one allowing a writ of certiorari and', the other directing a return to be made to such writ. On the application for a certiorari, the following opinion was. delivered at the Special Term :

The judgment was rendered on ihe return to a certiorari,. issued to review the action of the tax commissioners in assessing the relator for real and personal estate. The relator had acquired title by proceedings in foreclosure, and under the rapid transit act (chap. 606 of 1875), to the property and franchises of the West Side and Yonkers Patent Railway Company, incorporated by chapter 489 of 1867.

<p>Appeal from a part of the decree of the surrogate of Herkimer comity, made on a final accounting by the appellants as administrators of, etc., of Joseph N. Wightman, deceased. The portion of the decree appealed from related to the surcharging of the administrators with the sum of $1,014, with interest.</p>

The demurrer was interposed on the grounds : 1st. That there was a defect of parties defendant, in the omission of the widow 'of the intestate, and also in the omission of the personal representatives or next of kin of his sister, deceased, and, 2d. That, the complaint did not state facts sufficient to constitute a cause of action. - The widow is a necessary party. (Nevius v. Dunlap, 33 N. Y., 676; Penman v. Slocim, 41 id., 53; Gen. Mut. Ins.

Special Term, overruling a demurrer to the complaint. The action is against the appellant Drew, and three other' defendants, Young, McLane and Churchill. The complaint contains two counts.

<p>Motion by plaintiffs for a new trial, on exceptions taken at the Livingston Circuit, and ordered to be heard at the General Term, in the first instance.</p>

Plaintiffs are not entitled to maintain this action. It cau only bo brought by the attorney-general. (People v. Erie Pailway Co., 36 How., 129 ; Howe v. Deuel, 43 Barb., 504 ; Bangs v. McIntosh, 23 id., 591 ; 1 Kern., 243, 252; Allen v. JST. J. 8. P. P. Co., 49 How. Pr., 14; Greaves v. George, 69 N. Y., 154.) The corporation is not insolvent in fact, or within the meaning of the term as defined by the ■courts.

<p>Supplementary proceedings — title to real estate passes to receiver appointed in, without a transfer from the debtor ■— beneficial interest under a trust cannot be reached in.</p> <p>Defendant’s father died, leaving a will by which he devised to his trustees, among other property, a house and lot in Rochester, in trust to give to the defendant “the free and unrestrained use, occupation and possession thereof during the term of her natural life only,” and on her death to convey it to her-children in fee. He also directed the trustees to pay to his widow a specified, amount out of the income to arise from certain personal securities, and to-divide any surplus of such income among his children, and on the widow’s, death, to pay each daughter then living the income of a certain share of the estate during her life. The widow was still living, and in possession of the house and lot, and it was not shown that there was any surplus income to divide.</p> <p>The order appealed from required the defendant to transfer to a receiver appointed in supplementary proceedings, all her interest in said house and lot and all her right, title and interest, in possession and expectancy, of, in and to-the annual income arising from the personal property.</p> <p>Held, that so far as it required the transfer of any legal estate she might have in the real estate it was unnecessary, as all her alienable interest therein vested in the receiver on his appointment and the filing and recording of his bond and the order appointing him.</p> <p>That so far as any beneficial interest she might have in the rents and profits of the land, or the income of the personal property was concerned, only so much. thereof could he reached as was unnecessary for her support, and that only-in a direct action for that purpose.</p> <p>That the order should he reversed.</p>

The action was for trespass quare clausum fregit. The defendant in his answer alleged that the locus in quo was a public highway and justified as commissioner of highways. The only question litigated was as to the existence of the alleged highway. The action was commenced originally in a justice’s court and was discontinued there on title being pleaded.

The action was brought to recover damages sustained by the death of plaintiff’s intestate, Levi W. De Forest, whose death was alleged to have been caused by the defendant’s negligence. The selection of the facilities or appliances in the business of the employer requires the exercise of ordinary care and prudence, and whether or not this care and. prudence have been exercised is the test of the master’s liability in this particular.

the statute, of a disputed claim against the estate of Daniel Ingersoll, deceased, and also from an order of the Special Term in Monroe county, denying a motion for a new trial on a case and exceptions, and confirming the report of the referee.

<p>Execution — vihat is a sufficient levy under — the execution binds goods from the time of its delivery to the sheriff, except as against purchasers in good faith — subsequent executions.</p> <p>An execution having been delivered to the sheriff, he went to the office of the defendant, a lawyer, and found him out; he then went to the defendant’s farm, looked over certain articles of personal property and made a minute of them; he then returned to the defendant’s office, and finding him still out, he looked over his library, opened the cases, handled the books and made a memorandum of them. On the next day he saw the defendant, showed him the execution and told him he had levied on the books.</p> <p>Held, that the levy was sufficient as against a subsequent purchaser from the defendant.</p> <p>That such levy continued in force for the benefit of executions, received by the same sheriff subsequently and up to the time that the execution under which the levy was made was paid.</p> <p>Except as against a purchaser in good faith the goods of the debtor are bound from the time of the delivery of the execution to the sheriff.</p>

<p>Seneca Nation — right of Indian to lease land — act of Congress of 1875, chapter 90, confirms prior leases — it supersedes a prior treaty — when the same lot is leased to two persons the one receiving the fi/rst lease has the bettei• title.</p> <p>The act of Congress of February 19, 1875, chapter 90 of that year, authorizing the Seneca Nation of New York Indians to lease lands within their reservations, and confirming existing leases, was intended to give validity to all existing leases given by Indians to white persons, for the period of at least five years from the passage of the said act, and to render them binding upon the parties thereto, and upon the Seneca Nation.</p> <p>Even if the act of 1875 was in conflict with the' provisions of the prior treaties entered into between the United States and the Indians, yet the act superseded the prior treaties, and the consequences arising from such conflict are beyond the sphere of judicial cognizance.</p> <p>"When an Indian, prior to the passage of said act, leased the same land to two different persons, held, that the one who received the first lease had the better title.</p> <p>Powers of Congress and of the State in reference to the Indians, considered.</p>

<p>Oiiy of Syracuse — common coundl may compel milk dealers to take out licenses — 1857, chapter 63.</p> <p>The common council of the city of Syracuse has power, under its charter (chapter 63 of 1857), to pass an ordinance prohibiting any person from peddling or delivering milk in any of the public squares, streets or alleys of the city without first obtaining a license so to do from the mayor, and also the further power to authorize the mayor, within certain limits, to fix the license fees.</p>

<p>Assignment of mortgage— certificate of mortgagors as to the validity of the mortgage— when the assignee will be presumed to have relied thereon — when the mortgagors are estopped, by — when a married woman is estopped by.</p> <p>December 12, 1873, the defendants, Allen Munroe and Julia his wife, executed to an insurance company a mortgage for $40,000 upon land belonging to the ■wife. The mortgage was assigned by the company to the supezlntendent of the insuz-ance depaz-tnzent to procure the suz-z-ender to the company of $40,000 of government bonds which had been deposited by it with that depaz-tment.</p> <p>At the time the assignment was executed the said Allen Munroe and Julia his wife signed and acknowledged an instrument in which they stated that they were the owners in fee of the land described in the mortgage; that they consented to the assignment of the mortgage to the superintendent of the insurance department; that the whole amount named therein, with interest from'its date, was unpaid, and that there was “no offset to, or legal or equitable defence ag'ainst the sameJ</p> <p>In an action, to foreclose the mortg-ag-e the saidTJuiaroe and wife, and the assignee in bankruptcy of Munroe; set up the defence of usury.</p> <p>Held, that asdlie statement signed by Mmirbo and wife had been'.made to the superintendent af thp insurance depártniout,' in view of aiid for the purpose of the 'assignment'.-to'' him, and in pursuance of the usual custom shown to have been adopted by that department in taking assignments of mortgag-es, it was to be presumed that the superintendent acted on the faith of the representation as an essential element in the transaction.</p> <p>That as the certificate contained a consent to this particular assignment of the mortgage, the signers were chargeable with, and could not deny knowledge of the use which was made of it.</p> <p>That the defendants were estopped by it from setting up-the defence of usury as against such assignee. . ■</p> <p>Such a certificate signed by a married woman is to receive the same construction, and may be as much relied upon as that of her husband, by parties dealing with the security to which such certificate ora’epresentation relates.</p>

<p>Railroad company— liable for injury to its servant occasioned by its failure to provide a sufficient number of employes to perform the work — employment of additional servants after an accident — when evidence of, admissible — notice to master of incompetenoy of sei'vant — master liable if his negligence is the proximate cause of the accident, though another’s negligence contributes thereto.</p> <p>The plaintiff’s intestate, a fireman on one of defendant’s engines, was killed by ■ reason of the engine leaving the track while xoassing a station, owing to the misplacement of a switch. It apioeared that the switchman on duty at the time of the accident had heen originally employed as a baggageman and general helper, working from 7 A. M. to 11 P. M. That subsequently the force of men was reduced and he was compelled to take charge of the switches, working from twelve at night to twelve or one the next day. There were ten switches at the station, three to the west and seven to the east of it. In each day there were two local freight trains which had i¡o -be switched from one track to another; nine passenger trains which stopped at the station, and about eighty which passed it in the course of every twenty-four hours. The plaintiff claimed to recover on the grounds that the defendant negligently entrusted the duties of switching the trains to an inconqoetent and inexperienced person, and that it had failed to provide sufficient hands to discharge such duties, and had knowingly and unreasonably imposed upon the switchman labors which were too numerous and distracting for one man to perform.</p> <p>Held, that the question of the defendant’s negligence and failure to provide a sufficient number of employes should have been submitted to the jury, and that it was error for the court to direct a nonsuit.</p> <p>Upon the trial the plaintiff offered to prove that immediately after the accident the company employed an additional switchman at the station.</p> <p>Held, that it was error for the court to refuse to admit the evidence.</p> <p>Upon the trial the plaintiff offered to prove that the switchman employed at the time of the accident had complained to his superiors, that the services required of him were too much work for one man to do, and that he had not the requisite experience to perform them.</p> <p>Held, that it was error for the court to refuse to admit the evidence.</p> <p>It was claimed by the defendant that the accident was due to the negligence of the engineer in failing to observe the condition of the switch, and that for his neglig'ence the company was not liable.</p> <p>Held, that the negligence of the engineer was no excuse if the accident was occasioned by the want of sufficient servants to do the business of the company at that station, or by the incompetence of the switchman, of which the company had notice.</p>

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

<p>Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury, adjudging that the plaintiff holds the legal title to lots nine and ten, in the village of Tonawanda, in trust for the defendant and ordering her to convey the same to the defendant.</p> <p>The action was to recover possession of the two lots, and the defence was of an equitable character.</p> <p>At the time the land was contracted to be sold to the defendant,-the legal title to the lots was held by Elizer Hart, as the receiver of the. Bank of Orleans. In pursuance of negotiations conducted by the plaintiff’s husband, Hart conveyed the premises to the plaintiff by deed, dated November 18, 1859, but not acknowledged or delivered until March 20, 1860.</p> <p>The issues were tried before the Erie Circuit, and upon the findings and conclusions of law judgment was entered, from which the plaintiff appeals.</p>

Appeal by defendant, Burrall Spencer, from an order of the Munroe Special Term, denying a motion to set aside a judgment against said Burrall Spencer for certain irregularities specified, and for such “ other and further relief as may he proper in the premises.” The action was brought against Ezra Jones, Burrall Spencer, Samuel M. Spencer and Jarvis Lord.

verdict in favor of the plaintiff directed at the circuit. This action was tried at a circuit court in Cayugá county, and a verdict ordered for the plaintiff for $1,849. The defendant asked the court to direct a verdict in his favor on several grounds. The court refused and the defendant excepted. The action was brought to -recover of the defendant, as a stockholder in the Dodge and Stevenson Manufacturing Corporation, of which the plaintiff was appointed receiver.

■Motion for -a now 'trial on exceptions ordered to be heard in the .first instance at the General Term,- after a verdict in favor of the plaintiff. The action was brought upon a lease to recover rent due thereunder. The plaintiff's right to recover the rent which accrued prior-and up-to December 31,-1876, was not disputed. The contest made at the trial was in respect to the rent which accrued after that date.

<p>¿indictments — when a caption is unnecessary — Conveying property with intent to defraud creditors — what indictment thwefor is sufficient — Examination of the prisoner in supplementary proceedings — inadmissible on a criminal tidal — Code, j 292.</p> <p>"When an indictment is removed from a superior to an inferior court a caption thereto is unnecessary.</p> <p>An indictment found against the plaintiff in error alleged that ho knowingly and willfully assigned and conveyed to Ellen Loomis all his right, title and interest in and to certain lands therein described, “with intent to hinder, delay, cheat ■and defraud E. H. Myers, Duett Rogers and divers other persons to the jurors aforesaid unknown, the said E. H. Myers, Duett Rogers and the said divers •other-persons to the jurors aforesaid unknown, then and there being creditors of him,” the said plaintiff in error.</p> <p>He Id, that the indictment was sufficient, and that it was not,necessary to state in it the character of the debts, or the manner in which they arose.</p> <p>Upon the trial of an indictment charging one with conveying his property, at a particular time therein specified, with intent to defraud his- creditors, debts contracted by him after the date mentioned in the indictment cannot be proved.</p> <p>Upon the trial of an indictment for conveying property with intent to defraud the grantor’s creditors, the district attorney was allowed to prove that the prisoner . had been examined in supplementary proceedings, and that his-signature to the examination, which was produced in court, was genuine. The district .attorney then read from the examination, and asked the prisoner whether the ¡statements so read, or those which he had made upon the trial, were true. These questions were allowed against the objection and exception of the prisoner’s counsel.</p> <p>Held, that the evidence was inadmissible under Code, § 292.</p>

This action was commenced January 29, 1877. The complaint alleged that the defendants wrongfully took and converted the plaintiff’s buggy, and that the value thereof was $150. The taking and conversion and the value of the buggy were admitted on the trial, and found by the referee to be as stated in the complaint.

An alternative mandamus was issued requiring the defendant to pay $250 upon a contract made with the relator by James W. Stiles, who was the trustee of the school district No. 3. of the town of Pittsford, October 11, 1876, where the said contract for the services of the relator as a teacher was made.

Plaintiffs’ testator recovered a judgment against one Thomas Sfconey, in a justice’s court, and after having it docketed in the County Court of Monroe county, he issued an execution thereon to . the defendant, the sheriff of said county. The execution was put into the hands of a deputy by the name of Paine, December-3, 1875. The term of office of the defendant expired December 31, 1875. The execution was not paid during the sixty days it had to run.

The complaint contained all the essential averments to support an action of- ejectment: (1.) It averred that the plaintiff was. the owner in fee of the lands described. (2.) That the defendants were in possession and unlawfully withheld possession thereof, and (3.) That plaintiff was entitled to the immediate possession, thereof. The complaint then contained further averments to' the effect r (1.) That the lands were valuable oil lands.

The plaintiff, as assignee in bankruptcy, brought this action to recover of th'e defendants money which they had received from the bankrupt, in payment of his debt to them, within four months of the filing of the petition in bankruptcy.

Since the-•accounting Hannah has died, and tho respondent has been .appointed administrator, etc., in her place. April 10, 1874, Gilbert Lockwood' made his will and died, leaving his widow him surviving. He owned real estate, and had some personal property.

deceased. The testator’s will, dated December 15, 1871 was admitted te probate. The codicil is dated March 8, 1876. The surrogate decided that the testator was competent to make a will, and that the will was executed in due form, and that-neither the will nor codocil was procured by undue influence; that the evidence failed to show a proper execution of the codicilr and he, therefore, admitted the will to probate and rejected the codicil.