Volume 27 — New York Reports

The surrogate of the city and county of New York admitted to probate an instrument purporting to be the last will and testament of Robert L. Peck, who died at New London, in Connecticut, of which State he was an inhabitant, on the 20th of September, 1859. He left a brother of the whole blood, Frederick M. Peck, the present appellant, who contested the probate; and also two half-brothers, Ferdinand E. and Samuel N. Cary, and two half-sisters, Sarah J. Cary and Anna Gr.

Action upon a promissory note. The facts were as follows: When the note was presented to the referee,- on the trial, it was in these words and figures, viz.: “ $200. Ninety days after date, for value received, I promise to pay to the order of Origen Smith two hundred dollars, at the office of W. C. Curry & Co., Erie, Pa. Westfield, June 22, 1859.

Action in the nature of a quo warranto, brought in January, 1858, to try the title to the office of county treasurer of the county of Lewis. The action had been twice tried. On the first trial the defendant obtained a verdict, which was set aside on a bill of exceptions, and a new trial ordered.

to restrain the-defendants from using, of allowing travel or taking toll upon, a certain toll bridge erected by the defendants across- the Chenango river at Binghamton, in violation, as the plaintiffs claimed, of the exclusive right secured to them, under the act of the legislature pursuant to which their ow.n bridge over said stream was erected.

The parties united in a written statement of facts, setting forth, among other things, a clause in the will of Allen Ayrault, deceased, in which, after reciting that the trustees of Hobart College were engaged in efforts to raise money to enlarge its sphere of action, “ upon the condition that the sum of $40,000 shall, within the period of one year from the time of my decease, be raised for the purpose of endowing two professorships in said college, and paying the debts of…

This was a suit in Chan, eery, commenced in 1843, for an accounting between the firms of the complainants’ intestates, under the names of Seymour & Wood, and Seymour, Forsyth & Co., and the defendants. The business of the complainants’ intestates was that of commission merchants.

This was a proceeding under the act of April 21, 1862, entitled “ An act to facilitate the closing up of insolvent and dissolved mutual insurance companies,” to'recover the amount of a premium note made by David Kimbark, which had been assessed for losses to its full amount. The receiver, upon notice, procured the appointment of a referee, for the purpose and in the manner provided in the statute.

<p>The residence of an individual banker, doing business under the general banking law is, for the purposes of the taxation of his banking capital, in the town or ward specified as the location' of his banking office, in the certificate required by the statute.</p> <p>The actual location of his banking office is to be assumed to have been mentioned in the certificate, and, consequently, to be the place of his resi- , dence for the purpose of taxation, where the certificate itself is not in evidence.</p>

Actiok to obtain the direction of the Supreme Court respecting the disposition to be made of a sum of $7,068.46, which had been paid into the hands of the defendant Brainard, as surrogate of the county of Kings, being the proceeds of certain policies of insurance upon buildings formerly belonging to John Ricé, deceased; which money the plaintiff Herkimer, his administrator, who was also a creditor of his estate, claimed to be distributable among his creditors.

Henry W. Hasbrouck, of the city of Hew York, merchant, died intestate, October 9,1859. On Hovember 10th, 1859, the respondent was duly appointed his administrator by the surrogate of the county of Hew York, but never filed an inventory of the estate of the deceased until the 18th of October, 1861.

The action was commenced to restrain the defendants (other than the Mayor, Aider-men and Commonalty of the city of New York), from entering upon Seventh Avenue, Broadway and other enumerated streets and avenues in the city of New York, and digging up and subverting the soil for the purpose of laying and operating a railroad, and to restrain and enjoin the defendants The Mayor, Aldermen and Commonalty of New York from giving their assent to such acts, or doing any other thing…

Appeal by the defendants from a judgment of the Court of Common Pleas of the city and county of Hew York. The action was brought in February, 1859, on an alleged contract of insurance against fire, of certain engraved plates and unbound letter-press matter, for “Audubon’s Quadrupeds of Horth America,” which, it was alleged, the defendants had agreed to insure for one month, from March 4th, 1854, in the shop of the binder, at Ho. 10 Spruce street, Hew York.

Action commenced in July, 1854, in the Court of Common Pleas of the city of New York, against Martin Thompson, to recover $80,000, alleged to have been received by the defendant at Hong Kong, in China, on the sale of the ship “Mischief,” on the plaintiff’s account.

Action to recover damages for the alleged neglect of the defendant, as sheriff of that city, to keep in a secure place and deliver to the plaintiff a cargo of anthracite coal, which was taken possession of on board the schooner Calcutta, at a wharf on Bast River, by the defendant, by virtue of papers delivered to him in an action brought to recover the possession of such coal, by the plaintiff in this action, against one Lewis Hoffman, who was the master of the schooner.

The • plaintiff and the defendant in such j udgments were both defendants in this action. The appeal was by the plaintiff in those judgments. The facts are sufficiently stated in the following opinions.

Appeal by the defendant from a judgment of the Supreme Court.

Action to recover the value of a horse, killed by the defendant’s locomotive; in the unincorporated village of Grasport, in the town of Royalton, Niagara county. At the trial, these facts appeared: The village is some six miles east of Lockport, upon the Erie canal, and the defendant’s road passes through it.

The action was in the nature of replevin for one colt' and seven yearling heifers. The defendants justified under a judgment and execution in a justice’s court, in favor of one Phelps, against Horace B. Knapp, the husband of the plaintiff.

Action on a policy of insurance issued by the defendant, dated 28th July, 1853, for $5,000, on the life of John L. Fish, of Rochester, JST. Y., payable to the plaintiff.

The Hudson River Stone Dressing Company was duly organized as'a corporation, under the general manufacturing law of the State of Hew York, on the 31st day of March, 1853, and the defendants on that day became trustees of the company, and continued to be such trustees until the 18th day of April,. 1854, when they ceased, to be trustees, and 'other persons were élected in their places.

On the 11th of October, 1856, John M. Olmstead and Horace Hanford recovered a judgment against Harmon Van Burén, for $337.77, and Levi Olmstead another judgment against the same defendant, for $406.50. Both these judgments were upon confession, and they were duly docketed in Delaware county.

<p>Digging a ditch upon the land of a private owner, under the authority of the legislature, for the purpose of draining such land and that of the adjoining proprietors, is, it seems, a talcing of property within art. 1, §§ 6, 7, of the Constitution of 1846; and the act of the legislature professing to authorize such taking is so far void, unless it provides for tho payment of a just compensation, to be ascertained by" a jury or by commissioners appointed by a court of record.</p> <p>The mode, however, of apportioning and assessing such compensation and the expenses of executing the work, upon those benefited thereby, is wholly within the discretion of the legislature.</p> <p>pon a certiorari to the commissioners charged with the execution of such a work, -and the assessment of the expenses of its execution, the only question brought up is on the legality and regularity of their proceedings' in making the assessment.</p> <p>The relator's remedy for the invasion of his land is trespass or ejectment.</p>

<p>A creditor who, with knowledge of an assignment by his debtor fraudulent in law, upon its face, enters into an agreement with Ms debtor and the trustees named in the assignment for the management of the trust property and the distribution of its proceeds in accordance with the terms of the assignment — the performance of such agreement having been entered upon—is precluded from impeaching the assignment for such patent defect.</p> <p>Such agreement constitutes a good defence, and as such new matter is not available without being pleaded, an intermediate order striking it out of the answer involves the merits, and is reviewable upon. an appeal from the final judgment in the action.</p> <p>A provision that the trust property “be converted into cash, or otherwise disposed of to the best advantage” by the assignee, is authority to sell 'on credit, and avoids the assignment.</p>

Action by the assignee of one De Lachapelle. The latter had brought replevin against one Thompson, for certain personal property. The sheriff made return that the property had been concealed or removed, and an order was made for the arrest of Thompson, under subdivision 3, section 179 of the Code. The sheriff took a bond of Thompson and his sureties, in the form prescribed by sections 187, 211. The sureties being excepted to, failed to justify.

The plaintiff in error was convicted of the offence of bigamy in the Court of General Sessions of the Peace, of the city and county of New York, and was sentenced to imprisonment in a State Prison. The judgment having been affirmed in the Supreme Court, the convict procured a writ of error and brought the case here.

Writ of error to the Supreme Court. The plaintiff in error was convicted in the Court of General Sessions of the county of New York of murder in the first degree, on the 11th December, 1861, and was sentenced, on the 4th January, 1862, “ to suffer the punishment of death for said murder, on Friday the 20th day of February, 1863, and that he be confined at hard labor in state prison until such punishment shall be inflicted.” The case was taken by writ of error to the Supreme…

Action to foreclose a mortgage. The complaint set forth a bond, executed by Moses W. Eastman to George Youngs and Abel Hunt, bearing date June 4, 1849, in the penal sum of two thousand four hundred dollars, with a condition similar to that of the mortgage next mentioned.

This was a second appeal in the case reported 24 N. Y., 468. The plaintiff is there called the administratrix of an intestate, whereas, in fact, she was administratrix with the will annexed, the executor appointed by the testator having renounced.

About the 7th of November, 1860, the plaintiff, who was the owner of 130 bales of cotton, stored with Briever& Caldwell, and the New York Warehousing Company, consigned the same to Dehon for sale, and on such consignment the latter advanced to the plaintiff $7,000, „ on his note, at sixty days from date, with the agreement that on the 4th January, 1861, the plaintiff would pay to Dehon in cash, less five days’ interest, the $7,000, with one per cent commission for the loan…

This proceeding came up on appeal by the defendants from the order of the Supreme Court, at general term, in the third district, affirming an order of the special term, awarding a peremptory mandamus against the defendants, commanding them to forthwith proceed and award to the relator, and to enter into, a contract with him for the repairing and keeping in repair, in accordance with the rules and regulations of the contracting board, and with the terms of his proposal for…

The relator put his refusal to approve the bond on the ground that the canal board had no power, to appoint a collector of canal tolls to be located elsewhere than on the line of some of the State canals.

On the 2d day of September, 1857, the Hollister Bank was declared insolvent, and a receiver appointed. The receiver procéeded to close up the affairs of the bank, and on the 1st of July and 1st of September, 1858, he made dividends of all the cash in his hands among the creditors according to law. This dividend left $164,038.62 of the debts of the bank, contracted since January 1, 1850, still unpaid.

The respondents in the first above entitled cause are banking associations, organized under the general banking law of this State, and the several acts amendatory thereof, and are located and doing business in the city of New York. By the provisions of those acts, the said banks were required to deposit securities with the bank department for the redemption and payment of the bills or circulating notes issued by such banks respectively.

These actions were tried before the same referee, and argued in this court together. Though the causes of action were entirely distinct, the evidence was, in a great measure,' the same, and the questions presented for decision to some extent the same, in both actions. It is, therefore, convenient to present them together.

The plaintiff was the holder of a chattel mortgage upon the steam vessel Alida, which ordinarily ran on the Hudson river between Kingston and New York, executed by John Van Vechten, the 21st day of March, 1855, to secure the due payment, by the mortgagor, of certain promissory notes, amounting to $16,000, which had been before then made by the firm of Mills & Thompson, of which the plaintiff was a partner, for the accommodation of the mortgagor, and which had been negotiated…

<p>If a bill of exchange, payable in a specified length of time after date or on a day certain, be presented for acceptance on the day it is due, and if acceptance be then refused, no further demand of payment is necessary to charge the drawer or indorser.</p> <p>It is inadmissible to discredit a witness by contradicting him in respect to a merely collateral fact, as to which he testified on cross-examination without objection.</p>

■ Appeal from the Supreme Court. The action, which was commenced December 81, 1857, -was in the nature of trespass de bonis asportatis, for a quantity of household furniture, two wagons, &c. The defendant justified the taking, as sheriff of Kings county, under, an attachment issued by a justice of the Supreme Court, according to the provisions cif section 227 and the succeeding sections of the Code of Procedure, in an action brought by DeWitt & Hay against Robert Hall, the…

This action was brought by four persons, inhabitants of the city of Mew York, severally owning lots with valuable buildings thereon, situated upon Broadway in that city, and claiming to own the fee of the land in front of their several buildings to the centre of the street, subject only to the public easement, or right of way over it; the object of the action being to prevent by perpetual injunction, the defendants from laying a railway track in Broadway and running cars…

<p>The proceeding to vacate an assessment for a local improvement in the city of New York, under ch. 338 of 1858, though conducted before a justice of the Supreme Court, is not a special proceeding, in the sense of the Code of Procedure.</p> <p>The order made by the justice, in vacating, or refusing to vacate, the assessment, is final, and not subject to review here or in the Supreme Court.</p>

This was a motion to dismiss an appeal from the order of the Supreme Court, at general term, in the city of New York, affirming an order made at special term, denying a motion made by the plaintiff for leave to revive the action against the ' executrix of the will of Jacob H. Mott, deceased. ’ It appeared from the papers read on the hearing of the motion that the action was commenced in March, 1858, against Garret S. Mott and Jacob H. Mott, to recover ninety-six thousand…

Motion to dismiss appeal. On the 26th September, 1862, judgment was entered in the action against the defendants, and notice of such judgment was given in writing to the defendants and their attorney, on the 9th October, 1862. On the 6th December, 1862, the defendants’ attorney served notice of appeal from the judgment, which notice was immediately returned to him, with the objection thereon indorsed, that the defendants’ time to take an appeal had expired.

Motion to dismiss appeal. The defendant, P. Gr. Fox, demurred to the complaint. The judge at the. special term held the demurrer not-well taken, and gave judgment for thb plaintiff, with leave to the defendant to withdraw the demurrer and answer. On appeal to the general term, the order was reversed,. and judgment on the demurrer Was given for the defendant, with leave to the plaintiff to amend the complaint.