Volume 27 — Barbour's New York Supreme Court Reports

THIS Was a proceeding fry habeas corjpu¿} instituted by a father, against his wife and mother-in-law, to. obtain the possession of his infant child, and to have the care and custody of said child committed to him.

THIS action was brought to recover damages for the taking of §324.25 in bank bills and coin, alleged to be the property of the plaintiff. The money was taken by the defendant at the banking house of the Pratt Bank of Buffalo, (which bank was owned by the plaintiff as an individual banker,) and was money owned and used by him in the business of said bank.

<p>The general rule, in equity, is that a tenant for life must keep down the interest of any mortgages upon the life estate.</p> <p>At common law, the personal property of a decedent was the primary fund out of which all his debts were to be paid. This rule, as respects real estate subject to a mortgage, has been changed in this state ; and when such real estate descends to an heir, or passes to a devisee, the heir or devisee is to satisfy the mortgage, unless there be an express direction in the will of the testator, that the mortgage be otherwise paid.</p> <p>This provision of the statute makes the land subject to a mortgage the primary fund for the satisfaction of the mortgage; and the executor is not to be resorted to, by the devisee, for the satisfaction of the mortgage.</p> <p>The executor should not make any voluntary payments of interest upon mortgages incumbering property devised to an individual for life, unless expressly directed to do so, in the will.</p> <p>A testator, after devising to his wife for life certain premises known as “ the Mansion House,” and all the rents, issues and profits thereof, directed that all the rest and residue of his personal estate, not before disposed of, be applied in payment of his debts and liabilities (excepting such as were secured by mprtgage upon his dwelling house,) and that the remainder of his debts, over and above what could be paid thereby, should be and remain a charge upon his said Mansion House property, to be paid therefrom after the life estate of his wife therein; and for that purpose he empowered his executors, if practicable, to defer the paying of any existing mortgage on said Mansion House during the lifetime of his wife, or to make a loan or loans for the payment of the same, and to secure said loan or loans by mortgage on said premises, to be paid therefrom after the decease of bis wife. The amount of the mortgages upon the Mansion' House, at the testator’s death, was about $12,000. This was the only real estate which passed to the remaindermen under the will, and the net annual income from it was about $4000. Held, that the testator did not intend that his executors should provide for the payment of the interest upon the mortgages on the Mansion House; the language employed having reference to the remainder of the debts, viz, the principal, and not the interest to accrue after the testator’s death.</p> <p>And it was further held that the executor upon his accounting before the surrogate, was not entitled to be allowed for moneys paid by him as interest upon the Mansion House mortgages, during the life of the widow: Davis, P. J. dissented.</p>

The action was brought to foreclose a mortgage given by the defendants to Felix Tracy, upon certain real estate in the village of Moscow in the county of Livingston, upon which the church edifice of the defendants was situated, bearing date May 29th, 1835, and assigned by Tracy to the plaintiff. The defendants were a religious corporation, organized under the 3d section of the act to provide for the incorporation of religious societies, passed April 5, 1813.

THIS was an action of ejectment brought co recover possession of certain lands situate in Steuben county. The cause was referred to a referee, who found the following facts: On the 8th of August, 1850, one Flavel W. Morrow was owner of the premises in question, and on that day a judgment was docketéd in Steuben county in favor of one George-A. Bush, against said Morrow and others, for $379.69.

ITEMS is an action brought upon a bond executed by the de- . fetidant Jayne as principal, and by the Other defendants as sureties, and was given on the adjournment of an examination in a case of bastardy. The defendant Jayne was arrested on a warrant issued by E. P. Mulford, Esq., a justice of the peace of Steuben county, on a complaint before him, charging said Jayne with being the father of a child likely to be born a bastard, of which one Eliza Yost was then pregnant.

<p>By an act of the legislature, passed in 1853, the president and trustees of the village of Rome were authorized to subscribe for, and hold, stock in the 0., C. and R. Rail Road Company to an amount not exceeding $150,000, and to provide' for the payment of such stock by issuing corporation bonds. Commissioners were appointed, who were empowered to sell the bonds, or exchange them for stock in the rail road. But it was provided they should have no power to negotiate, sell, or transfer such bonds, or create any liability, except upon the express condition that $500,000 should have been first subscribed by others, to the capital stock of the rail road company; and that before negotiating or transferring any of the said bonds the commissipners should make and subscribe a certificate, in writing, that such subscription of $500,000 had been actually made, and that in their judgment and belief the same had been made in good faith, and by persons able to pay their subscriptions; which certificate was to be filed with the clerk of the village. The commissioners having made and filed the certificate required by the act; Held, in an action against the Village of Rome, upon one of the bonds issued in pursuance of the act, that the making and filing of the certificate by the commissioners, was conclusive on the parties to the suit, as to the fact stated in it; and that the defendants could not go behind the certificate and show that in point of fact valid subscriptions to the amount stated had not been made.</p>

THIS is aa action, brought previous to the code, to recover damages for the non-delivery of a quantity of butter and cheese, pursuant to a written contract entered into between the parties, and bearing date August 18th, 1845. The case was first tried before a referee, who reported in favor of the plaintiff.

THIS was an action on a promissory note, dated 24th January, 1853, made by the defendant, for $69.65, and payable to Zalmon Ruscoe or bearer, with use. It was given as a matter of compromise, settlement and agreement, of,all matters of account and difference then outstanding between the defendant and Euscoe.

THIS was an appeal to the general term, from the judgment entered in this cause pursuant to the decision of Justice Gould, who tried the same at the Albany circuit without a jury.

<p>THIS was an appeal from an order of Justice Wright, made at a special term, denying a motion for a peremptory mandamus. The object of the writ was to compel the comptroller to draw his warrant on the treasurer, in favor of the relator, for the sum of $3781, alleged to be due to him from the state for a portion of his salary as a former justice of the supreme court; and also for $8966 as interest upon the former sum to the 1st day of August, 1857. The relator’s claim arose under these circumstances, as set forth in the alternative mandamus. He was appointed a justice of the supreme court on the 28th of March, 1819, during the existence of a law which fixed his salary at the annual sum of $4500, and during the existence of a constitution which fixed his' term of office during good behavior or until the age of sixty years. This age he attained on the 12th of November, 1828. He continued to discharge the duties of his office until the 7th day of February, 1823, when he was displaced by a justice of ‘the supreme court appointed under the new judicial system inaugurated by the constitution of 1821, which in effect-abolished the former court and terminated the official career of the former incumbents, on the appointment of their successors. Before the adoption of this constitution, however, the legislature, by an act passed on the 1st of April, 1820, reduced the annual salaries of justices of the supreme court to $3500, and by afi act passed ori tíre 3d of April, 1821, to $3000. The relator claimed that these attempted reductions of his salary were null and void, under that clause of the constitution of the United States which forbids any state to pass any law impairing the obligation of contracts, and therefore sought to recover in this form of proceeding the difference between the sums paid under the later acts of the legislature, and that in force at the time of his original appointment. The comptroller returned to the writ of alternative mandamus, 1. That the relator had been paid his salary in full, and that nothing was due to him. 2. That no appropriation had ever been made by law for the payment of the relator’s claim, as required by the 8th section of the 7th article of the constitution. To this return the relator demurred. The court below sustained the demurrer, and denied the motion for a peremptory mandamus, and from the order entered thereon the relator appealed to the general term.</p>

THIS is an appeal from a judgment awarding a peremptory-mandamus against the defendants, and was entered upon the decision of Mr. Justice Gould, who tried the cause at the Schoharie circuit, in December, 1856, without a jury. An alternative mandamus had been issued to the defendants, requiring them to open a highway in Schoharie county, or show cause to the contrary.

APPEAL, by the Mechanics and Farmers’ Bank of Albany, from an order made at a special term, by Justice Harris, charging it with one half of the defendant’s costs in this action, recovered against the plaintiff therein. The essential facts are stated in the opinion of the court.

THE first of the above actions was brought for the recovery of rent accrued under three several demises in fee, of lands in Schodack, Rensselaer county, in all of which Stephen Yan Rensselaer was the… Held: claimed and enjoyed portions of the lands sued for, by virtue of warranty deeds executed by the lessor, Stephen Van Eensselaer, and wife, and ought to be made parties to this action as defendants.

<p>It is not necessary for the assignee of a thing in action, or contract, to prove that he paid, or agreed to pay, a consideration for it-, to entitle him to maintain an action thereon, in his own name, if he shows that he holds it, and is the real party in interest.</p> <p>A gratuitous assignment, if good on its face, is sufficient; for it passes the title, as between the parties. .</p> <p>An assignment of an account, for work and labor, indorsed on the hack thereof, by which the owner sells and transfers the same to another, is valid, although no consideration is expressed. And the assignee may recover thereon, in his own name, without proving the payment of any consideration.</p>

The complaint alleged that on the 27th day of March, 1856, one Jane E. Jones entered into a certain contract with the defendant, whereby it was among other things, agreed, that the said Jane E. Jones should construct, or cause to be constructed, five brick houses on the north side of Putnam avenue, in the city of Brooklyn, 80 feet or thereabouts, west of Bedford avenue, and that the said Gilbert R. Terrett would, at certain stages in the erection of such buildings, make…

ACTION to foreclose a mortgage executed by the defendant McAdam, bearing date December 10, 1852, to secure the payment of $3000, according to the condition of a bond of the same date, executed by the mortgagor. Wood-ruff L. Barnes was the mortgagee, and the plaintiff was' the assignee of the bond and mortgage.

The referee found as facts, that on the 3d of November, 1853, the plaintiff sold and delivered a horse to the defendant, under a contract between them, that the defendant should deliver to the plaintiff a good and collectible note of a third person, responsible for the same, in the sum of $200 and interest, payable to the plaintiff on the 1st day of July following.

The action was brought to foreclose a mortgage executed by the defendant to Alexander E. Shaw. The plaintiff was the assignee of the mortgage. The referee found that the Holland Land Company was seised of lot Ho. 98, and that on the 27th of May, 1834, the company conveyed in fee to one Clark Hilton a portion of the lot bounded east and west by the lines of the lot, and north by a line parallel with the south line of said lot, and 34 chains and 2 links northerly therefrom.

The action was trespass, for breaking and entering the plaintiff's close and removing his fence. The defendants were commissioners of highways of the town of Newfane, in Niagara county, and as such justified under the act of 1852, “to authorize a resurvey of a public highway leading from near the city of Eochester in the county of Monroe, to Lewiston in the county of Niagara, known as the Eidge Eoad.

APPEAL by the defendant from a judgment of the Chautauque county court, reversing the judgment of a justice. The facts, and the legal questions arising thereon, sufficiently appear in the opinion of the court,

ÍT September, 1856, the plaintiff, while walking upon the sidewalk, in Mill street, in the village of Medina, late in the evening, stepped into an opening between the planks and fell, and her leg and ankle were broken. This action was brought to recover damages for such injury.

APPEAL by the defendant from an order made at a special term, denying a motion for a new trial, upon a case and exceptions separately stated. The facts, and the questions of law arising thereon, are set forth in the opinion of the court.

riTVHIS action is for leave to redeem mortgaged premises. The -L facts out of which the questions made upon the appeal arose were these. The defendant, Enoch Coburn, by a deed bearing date July 16, 1835, conveyed by metes and bounds 10^- acres of land, situate in the village of Dunkirk, to Walter Smith, for the consideration of $10,175. Smith, to secure the payment of $5175, a portion of the consideration, executed to Coburn his bond, with a mortgage upon the premises.

COMMON law certiorari to referees appointed by the county judge of Allegany county, upon an appeal by the New York and Erie Rail Road Company, from an order made by the commissioner of highways of the town of Cuba, laying out a highway across the rail road. The writ was brought for the purpose of reversing that portion of the order laying the highway across the rail road.

THE defendant executed contracts as follows: “ For and in consideration of the sum of $2000 in cash to me paid by Richard McCleary, the receipt of which I hereby acknowledge, I hereby lease to said McCleary the two bars or saloons on the steamers Southern Michigan and Northern Indiana, for the season of navigation of 1853.

<p>The statutes of New York, passed in 1847 and 1849, giving an action for damages to the families of persons killed by the wrongful act, neglect or default of others, have no extra-territorial application, and do not authorize a suit here for an act done out of this state.</p> <p>Where the act or omission causing the death of a person occurred in another state, no action can be maintained in this state, by the peesonal representative of the deceased, to recover damages therefor, without alleging and proving that hy the law of the state where the injury was inflicted an action would lie in such a case.</p> <p>Whether an act or omission affords a right of action depends on the law of the place where it is done, or occurs.</p> <p>Our statutes cannot give rights of action for causes not otherwise actionable, arising or occurring within the limits of another state.</p>

Demurrer to complaint. The action was brought by the plaintiff, who was the widow and administratrix of John 0. Beach, deceased, to recover, under the acts of 1847 and 1849, for the wrongful act or neglect of the defendants, which caused her husband’s death. The complaint alleged that the plaintiff was, and the deceased had been, a resident of the city of New York.

<p>Where the claim of title to real estate is solely through a power it must, in order to he sustainable, be proved that such power was duly executed. If it is qualified by a condition precedent it must appear that the condition was performed, or the attempted exercise of it will prove ineffectual.</p> <p>In order to sustain a title alleged to have been acquired under statutory proceedings, all the requisite preliminaries must have been adopted, and must be proved. There is no presumption in their favor, where a change of title to real estate is attempted to be established.</p> <p>An assignee in bankruptcy has no power to sell and convey the property of the bankrupt, without an order of the court The obtaining of such an order is a substantial requisition of the statute, and must be complied with.</p> <p>A purchaser claiming under a deed executed by spell assignee, must aver and prove an order of sale. The order cannot be proved by recitals in the deed. Such recitals are only evidence of the bankruptcy, and the appointment of the assignee, and the consequent conveyance to him.</p> <p>A sale and conveyance, by an assignee in bankruptcy, of lands held adversely , at the time, made more than two years after the decree in bankruptcy, is void, and confers upon the purchaser no title to the lands, or right to mainain an action to recover them.</p> <p>After the power of the assignee, to recover the lands, has expired, a de?d from him will not revive it, in favor of his grantee.</p> <p>A title to real estate, acquired under a judicial sale, cannot be successfully assailed on the ground that one who was originally a defendant in the suit, claiming an interest in, or lien upon, the land, became a bankrupt or an insolvent during the progress of the suit, and his assignee was not made a party.</p> <p>Under the bankrupt act of 1841. it is not necessary to make assignees, appointed pendente lite, parties, in order to bind their interests.</p> <p>If there is any irregularity in a decree, in not making an assignee in bankruptcy a party, he may move, within the year allowed by the revised statutes, (2 B. S. 359,) but not afterwards, to set aside the decree.</p>

WILLIAM BAETHOP died at Kinderhook on the 20th of' October, 1838. He was a physician, horn in Nottingham, England, and on settling at Kinderhook, married the widow of an old physician, Dr. Beekman, resident there, who had two sons, John, the plaintiff, and Thomas, one of the defendants. His wife survived him. By a codicil to his will, dated October 8, 1838, he gave her a legacy of $10,000. His will hears date October 9, 1837.

PPEAL from an order made at a special term, overruling a demurrer to the complaint. The action was brought by the plaintiff to recover for services rendered by her for James Eidgeway, deceased, in his lifetime, while she and Eidgeway were living together as husband and wife, and supposing themselves to be such, in pursuance of a marriage valid in point of form.

ACTION upon two promissory notes, made by the defendant, dated April 17, 1849; one for $368 and the other for $371.24, each payable to the order of H. H. Titus & Oo.; the one in four and the other in six months after date.

ACTION for the foreclosure of mortgages. In the year 1830, the mortgaged premises were conveyed (subject to a mortgage to Abraham Bancker) by Alfred S. Pell and wife to Dudley Selden, Esq., in fee simple, for a pecuniary consideration, by deed bearing date on the 22d October, in that year.

<p>Where a cause is referred to a referee, who reports in favor of the plaintiff, hut states that before a final judgment can be entered an accounting must be had; whereupon an order is entered, referring it back to the referee, to take and state the account, judgment cannot be entered until the accounting has taken place.</p> <p>If, while such reference is pending, the defendant procures judgment to be entered by the clerk, in favor of the plaintiff, upon the report, and then appeals to the general term, his appeal will be dismissed.</p> <p>If he wishes to appeal, he should wait until after the accounting has been had, and judgment entered upon the report of the referee.</p>

THIS case involves the question of title to personal property: The action was brought against a judgment creditor of the vendors, by the executors of the vendee, to recover the value of property seized and sold under execution against the vendors. The vendors were indebted to the vendee in a large amount, for cash advanced. The property was transferred to the vendee, .partly for the debt and partly for a new consideration. The vendors were the sons of the vendee.

The action was brought to. recover the possession of personal property} with damages for detention thereof. The plaintiffs recovered only on the third count. In that count they alleged that on the 18th of August, 1853, the defendants procured goods from the plaintiffs by fraudulent representations. The defendants answered separately, traversing the whole complaint, and claiming property in the goods, and denying possession of the goods at the time the action was brought.

The complaint alleged that on the 24th of May, 1856, T. H. Bodman, receiver &c., recovered a judgment in this court for $1663.17, against the defendant Gerard B. Beekman; that an execution was subsequently issued on such judgment, to the proper county, and was returned by the sheriff unsatisfied; that the whole amount of said judgment was still due and unpaid; and that such judgment had been duly assigned to the plaintiff.

MOTION by the plaintiff for a new trial, after a judgment for the defendant on a trial before a justice of the court, at the circuit, without a jury. The action was brought for the recovery of real estate. The facts are fully detailed, in the opinion of Strong, presiding justice, and need not be here repeated.

The plaintiff, being on the 7th day of February, 1853, the owner in fee simple of the lot, house and premises known as Ho. 2 Clark street, in the city of Brooklyn, let and rented the same to Edward C. Hough, for three years from the 1st of May, 1853.

The complaint alleged that in November, 1852, the Suffolk Bank was duly organized as an incorporation for banking purposes, and that after its organization the plaintiff became the owner, and had transferred to him, ten shares of the capital stock of the said Suffolk Bank, and that on having the same transferred to him, he paid into said bank, therefor, the sum of $500; the shares being $50 each.

THIS was an action originally commenced in the county court of Washington county, for the partition of two farms. The parties claimed under the will of Thomas Bradshaw deceased. The will hore date November 30,1826, and contained ten clauses, with a codicil annexed, dated January 28, 1831. The only parts of the will material in the consideration of this case are the 6th, 7th and 8th clauses.

THIS was an action in the nature of a quo warranto, brought by the attorney general, in the name of the people, for the purpose of forfeiting the .defendants’ chapter. It was tried at the circuit in Dutchess county, upon issues which were submitted to a jury. Upon their verdict, in favor of the plaintiffs, the counsel for the people moved for judgment; whereupon the following opinion was delivered.

The complaint stated that on the 26th day of May, 1855, the plaintiff commenced an action by summons against one James M. Minier, to recover money due on contract. That on the same day he caused an attachment to be issued against the property of Minier, which was, on the same day, delivered to the defendant who was then sheriff of the county of Steuben.

THE complaint in this action contained two counts. The first count stated that on the 21st day of September,1850, the defendant made a draft which the plaintiff signed as surety for him, of which the following is a copy: “ Rochester, Sept. 21st, 1850. Two months after date please pay to the order of Ralph Lester, Esq. two thousand dollars for value received, and charge the same to the account of your obedient servant, L. B. Garlieghouse. . J. Garlieghouse, surety. Geo.

THIS action was commenced October 13th, 1856, to recover the possession of a certain bay horsé which the complaint alleged belonged to the plaintiff, and which the defendant wrongfully detained in his possession.

ACTION on a bond made by the defendant, dated 1st April, 1839, conditioned for the payment to the plaintiff of the sum of $2911, in 15 installments, the last payable in 1854, with annual interest. Defense, 1st, a denial; 2d, payment; 3d, an agreement made on the 19th of April, 1842, to reduce the bond to $2500, and payment of that sum; 4th, set-off. The bond was secured by a mortgage of same date, on a farm of 117-?,- acres, in Middlesex, Tates county.

ACTION against the defendants upon a promissory note; Merrick being the maker, and Smith the indorser. The note had been discounted by the plaintiff, at the request of Smith. The complaint alleged that at the time of the indorsement and transfer of the note to the plaintiff, and as a part of the transaction, Smith promised and agreed to and with the plaintiff, that the note should be paid by the maker at the Bank of Albion.

On the second day of May, 1846, Samuel M. Kevins executed a mortgage of certain premises described therein, to Evan Evans, to secure the payment of §600. This mortgage was afterwards assigned to the defendant, who, on the 5th of May, 1856, proceeded to foreclose the same by advertisement. The plaintiff acquired title to said premises by virtue of a sale, upon an exe* cution issued on a judgment against ISTevins, the mortgagor, on the 11th of December, 1851.

ACTION to recover the possession of real estate, situated in Monroe county. The plaintiff claimed the premises as the purchaser thereof at a sale under a statute foreclosure of a mortgage executed by one James McDermott to Samuel Owen, and assigned, by several mesne assignments, to the plaintiff. On the trial the plaintiff produced and proved proceedings for the foreclosure of the mortgage, under the statute.

<p>What constitutes a team, within the intent and meaning of the statute exempting certain property from sale on execution, must depend very much upon the. fact whether it is commonly used, and may be used, as such. It is therefore competent for a party claiming the exemption of a horse to show that he could use, and did use, the animal as a team.</p> <p>A single horse is a team, within the meaning of the statute, when it is kept and used as such.</p> <p>If a debtor has but one horse, and hires another to work with it, and the two make up the team which he usually works, his own horse, if within the prescribed value, is protected.</p> <p>Although a debtor has necessary household furniture, and working tools, in addition to his team, worth $150, or property of each separate description worth $150, it does not follow that the creditor can take the whole. It is, in such a case, the right of the debtor to determine out of which description of property he claims the exemption.</p>

THIS is a case submitted in pursuance of section 372 of the code. The plaintiff sought to recover the penalty of five dollars, given by the second section of chapter 71 of session laws of 1850, and contained in section 55, title first, chapter 18 of part first of the revised statutes.

The action was commenced in July, 1855, for the recovery of damages to the plaintiff's land and buildings, in the village of Corning, arising from the overflow of a stream, known as Monkey run. It was claimed that this overflow was occasioned by the obstructions placed in the stream by the defendant at the point where it crosses Erie avenue in said village. The cause was tried at the Steuben circuit, in June, 1857, before Judge Johnson.

<p>Although an individual elected to the office of overseer of highways, omits to file in the office of the town clerk a notice of his acceptance of the office, yet, coming into office under color of title by a lawful election, if he proceeds to execute the duties of the office, he will be an officer defacto, and his acts, as respects the public and third persons, will be valid.</p> <p>But, not being overseer dejvjre, he is not liable, in an action at the suit of the commissioners of highways, for the penalty given by statute, for his neglect of duty as such overseer.</p>

<p>In an action against a rail road company, to recover damages for wrongfully causing the death of the plaintiffs’ intestate, by the negligence of its agents in omitting to sound the whistle of the locomotive, or ring the bell, at a street-crossing, as required by the statute, it was proved that the deceased, while driving his team towards the rail road, at the crossing, was told by the witness that “ the cars were comingthat he turned his head towards the witness, and then struck his horses with the lines, and went upon the track, where he was struck by the locomotive, and killed. Held, that upon this positive testimony, unexplained and uncontradicted, the justice, at the trial, should have nonsuited the plaintiffs, on the ground of the intestate’s own negligence; and that a verdict in favor of the plaintiffs was against the evidence, and could not be upheld. Johnson, J. dissented.</p> <p>The rule of liability, in such cases, is correctly stated in Sheffield v. The Rochester $ Syracuse Rail Road Company, (21 Barb. 339.)</p> <p>Where it was proved that the person for whose death by means of á collision the action was brought, was not a stranger at the place in question, but was at work there, drawing and piling wood, and had been so engaged the whole of the previous season; and that 24 trains of cars passed that point daily, at fixed hours; it was held that it was the height of imprudence and heedlessness for him to approach the rail road track and attempt to cross the samq, with his team, about the time a train was due, until he had ascertained that it was safe to do so. And that the fact of there being a wood-pile in the way of his seeing far along the track, did not diminish, in the slightest degree, his duty to be careful, but on the contrary, imposed upon him the obligation of still greater caution.</p> <p>In such a case, a party is bound to exercise care and diligence, and foresight in proportion to the danger to be avoided, and the fetal consequences involved in his neglect.</p> <p>A verdict should not be set aside, merely because the court would have come to a different conclusion from that of the jury, on the force and weight of .the testimony.</p>

The action was brought to set aside a contract or agreement made between the supervisor and commissioners of highways of the town of Galen and the Clyde and Bose Plank Boad Company, under which the plank road company claim possession of a public highway in the town of Galen. ■ The complaint alleged that the defendant, being a corporation or association, and incorporated under and by virtue of an act entitled “An act to provide for the incorporation of companies to construct…

The action was commenced in a justice’s court, to recover the possession of a quantity of Sunday School books, alleged to have been, wrongfully taken by the defendants, from the house of worship of the Methodist Episcopal Church of the town of Pultney, such books being the property of that society.

The will was contested by the children and heirs at law of the deceased, on the ground that the same was not properly executed. The proof in regard to the execution was that the testator had received an injury to the spinal marrow, a little below the points of the shoulders, the effect of which was to paralyze the parts below; that it, in a measure, paralyzed the arms and the fingers, which made .it difficult, at least, to hold a pen.

THE poor authorities of Monroe county afforded temporary relief to certain emigrants, and the commissioners of emigration considered, but refused to allow or pay, the charges for this relief. The superintendents of that county obtained an alternative writ of mandamus, with a view to a peremptory writ, -to compel the allowance and payment of these charges.

Upon an affidavit made by the relator, stating that he was the comptroller of the state of New York; that the board of supervisors of Orange county, at their last annual meeting, refused to levy or cause to be collected any tax upon the taxable property of the county of Orange, under or by virtue of chapter 335 of the laws of 1855, entitled “ An act to provide the means to support the government,” and had ever since refused to levy the same; that the amount of said state tax…

The following opinion, given at special term, states the material parts of the pleadings, and shows the legal questions raised hy the demurrer.

The action was brought by the plaintiff as executor of Coert Horton deceased, for a construction of the last will and testament of the testator, dated May 14, 1842; and for a judicial determination of the rights of the several parties claiming interests in the estate of the testator. The testator died December 23, 1843, leaving his widow Ann Maria Horton, and three children, Jacob, Hannah Maria, (wife of the defendant L. C. Bapalye,) and Coert, surviving him.

The complaint alleged that the defendants were, from the 1st day of Hay, 1854, and from that time until after the 1st day of September of said year, commissioners of highways of the town of Kent, in the county of Putnam; that, as such commissioners it was then-duty to give directions for the repairing of the bridges, and to cause the bridges which were in said town, over streams intersecting highways, to he kept in repair; and the plaintiffs averred that the highway labor of…

<p>A party may, in a proper case, combine several motions in one, and ask to have various defects remedied on a single application. Thus a plaintiff may, upon the same motion, move to strike out sham and impertinent matter from the answer, and for judgment on the expurgated answer as frivolous.</p> <p>What statements in an answer will be struck out as sham, or irrelevant; and what defenses will he overruled as frivolous.</p> <p>A party who has executed a bond as surety for a bank, and thus admitted its existence and covenanted for its faithful performance of its contract, is estopped from denying its existence, when sued upon the bond.</p> <p>And where the principal does not take the objection, the surety is also estopped from denying his liability, after the principal has received the money of another, and the surety has covenanted for its payment to the owner.</p> <p>The canal board has power, it seems, to select the institution of an individual banker, as a place of deposit for canal tolls.</p>

THIS is an action instituted to recover damages for covenants broken. To the plaintiff’s complaint the defendant interposed two grounds of demurrer, viz: 1. That the complaint does not state facts constituting a cause of action. 2. That a defect of parties appears, in not joining two others, Oole and Crane, as plaintiffs in the action.

<p>A complaint contained counts confessedly on contract, and well pleaded; 'also a count which set forth, substantially, thaj; the plaintiffs sold and.delivered to the defendant goods to a certain aniount, on a credit of six months; that the defendant was insolvent at the time of the' sale, and purchased the goods ttithout any intent to pay for them, and with intent to defráiíd the plaintiffs of their value; and that by reason of such fraud the defendant became lia, ble to pay for said .goods immediately upon their delivery. The action w^s brought before the expiration of the term of credit; and thegoods not haying been paid for, the plaintiffs demanded judgment for the price'agreed to ' be paid, with interest. The defendant demurred, for the joinder of improper causes of action in one complaint, and for the want of any sufficient ca¡usp of action being set forth in the last count. Meld that. the '.complaint was good; and order overruling demurrer affirmed.</p> <p>Meld also, that the cause of action set forth in the last count of the complaint was upon contract; that/raroZ was sufficiently set forth to justify "a rescission of the contract; that no specific act on the part of; the plaintiffs, other than bringing the action, was necessary to be done, to manifest the plaintiffs’ intent to rescind the contract; that the facts justified the plaintiffs in making their election to sue'in assumpsit rather than tort; and that in making such election they did not thereby 'adopt the express contract," but relied ón the implied contract to p^y, arising from the delivery, and thq ¡defendants possession of the goods. w . , .. ,lit.</p> <p>The vendor, on repudiating the contract of sale, under siich circumstances, has his election between contract and tort, in respect to the form of action.</p> <p>And he may, if he thinks proper, instead of setting 'out'all the facts,' iiv his complaint, prosecute simply for goods sold and delivered; leaving the rest of the transaction to come out as a matter of evidence, on the trial.</p>

The complaint alleged that the defendant wrongfully detained and converted to his own use certain property of the plaintiff, to wit, twelve cases, containing 658 pairs of shoes, of the value of $500. The answer was a general denial. The evidence showed that in, August, 1855, at Haverhill, Mass, the plaintiff sold to Knower & Go. of Brooklyn, FT. T. twelve oases of shoes, on credit, and shipped the same by the Fall Biver Line, directed to the purchasers, at Brooklyn.