Volume 27 — New York Supreme Court Reports

Tbe evidence offered was proper, as showing that tbe contract was made under a mutual mistake of a material act, and tliat consequently it could not be enforced. (Kerr on Fraud and Mistake, 430; Gillespie v. Moon, 2 Johns. Ch., 596; Snell v. Ins. Go., 98 U. S. [8 Otto], 89, 90; Roseveltv. Fulton, 2Cow., 129; 1 Parsons on Con., 416; Story’s Eq.

<p>Foreclosure of a junior mortgage on a leasehold estate — appointment of a receiver of the rents and profits — when a pricn' incmrdn'ancer can compel him, to pay ground rent from such rents and profits— Counsel fee.</p> <p>In an action of foreclosure brought by the plaintiff, the holder of a second mortgage upon a leasehold estate he was, with the consent of the mortgagors, appointed a receiver and directed to collect the rents of the premises, and “ out of the same to keep said buildings insured against loss or damage by fire, and in repair, and to pay the ground rent and taxes.” Subsequently one Maas, the owner of the first mortgage, commenced an action for its foreclosure, to which the plaintiff herein was made a defendant, and upon a sale had under a judgment recovered therein Maas purchased the premises for less than tbe amount due on his mortgage, upon the passage of the accounts of the plaintiff as receiver, it appeared that he had refused to pay the ground rent and taxes due and accruing upon the premises while he was collecting the rents, and claimed to be entitled to apply them upon his own mortgage.</p> <p>Held, that he was bound to apply the rents received by him in paying such ground rent and taxes, and that as Maas had been compelled to pay the same, to save the property, the receiver should be ordered to pay over any balance in his hands to Maas to apply thereon.</p> <p>’When a receiver will not be allowed to charge against the fund fees paid to counsel, considered.</p>

Appeal by W. C. Lesster from an order compelling him to complete his purchase on a foreclosure sale. This action was brought to foreclose a mortgage upon lands in the city of New York. Mary Jane Squires, the mortgagor, died seized of the mortgaged premises, February 10, 1878. She left her surviving, her husband, Richard Squires, and a daughter, Mary E. McKinley, wife of Charles McKinley, all of whom resided at Oil City, Pennsylvania, and who are defandants hi this action.

No order of arrest bad been issued in tbe action. Tbe defendant having prevailed, an execution against tbe plaintiff’s person was issued under section 1487, subd. 1 of tbe Code of Civil Procedure, tbe defendant claiming that if it bad been a natural person “ tbe nature of tbe action ” would bave entitled tbe plaintiff to an execution against tbe person.

The complaint alleged that on the 3d day of March, 1866, by an instrument in writing, under seal, executed by the defendant and Eugene Mendez, the defendant granted, demised and leased to said Eugene Mendez the whole of the building and premises known as Nos. 645 and 647 Broadway, in the city of New York, with the privilege of using the stairs of No. 647 Broadway for the purpose of carrying in and out ashes, coal, and so forth, for the term of ten years, from the 1st day of…

CoNteoveesy submitted upon agreed facts under section 1279 of the Code of Civil Procedure. In the month of March, 1879, pursuant to the provisions of the rapid transit act (chap. 606 of 1875), application in due form was made to the mayor of the city of New York, by fifty reputable house-holders and taxpayers of the city and comity of New York, for the appointment of five commissioners.

Flandrow’s petition for the payment of his alleged claim against the estate of Tunis Van Brunt, deceased. The claim of the petitioner is based upon a judgment recov- • ered by the Marine Bank of Chicago against the said deceased for $6,858.12, on the 1st day of March, 1867, and of which judgment petitioner claims to be the owner.

Appeal by tbe plaintiff from a judgment, entered upon the report of a referee. The action was brought to recover an amount alleged to' be due to the plaintiff for transporting oil belonging to the defendant, in pursuance of a contract entered into between the parties hereto. The oil had been transported by the plaintiff from Buffalo to Hunter’s Point, and was destroyed by fire while in a barge lying at the dock of the defendant’s warehouse.

The affidavit presented by the defendant showed, among other things, “that he is totally without the means to pay the debt for which he was arrested and is confined in prison, and has no property of any kind whatever, having lost all his means by unsuccessful business ; that he is unable to perform the act of payment of the said debt for which he was arrested, and is unable to endure the imprisonment, as his health is being injured by close confinement. “ Wherefore, he prays…

On the 15th of May, 1879, plaintiff recovered a judgment in this court against the defendants, to be enforced against the joint property of both, and the separate property of McAndrew. Execution was duly issued to the sheriff of New York, where McAndrew resided, and returned nulla bona.

<p>Appeal from order made by the county judge of Genesee county, denying the defendant’s motion to dismiss an order. for his examination as a party before trial, which order was granted to enable the plaintiff to frame his complaint.</p>

Appjeal from an order of the Special Term denying a motion for leave to continue this action against the executors of Court-landt Palmer, deceased.

The defendant in this action was arrested on the 20th day of September, 1879, pursuant to an order of arrest granted by lion. Chaiiles DoNOHue, on September 19, 1877. The order accompanying the summons and complaint was, in September, 1877, delivered to the sheriff of the city and county of New York, for service.

<p>Writ of Error to review the conviction of the plaintiff in error in the Court of Oyer and Terminer of the city and county of New York.</p>

This action was brought to obtain a construction of a clause in the will of Frances B. Hegeman, who died in the city of New York. By this will the testatrix gave her executors so much of her estate as would enable them to comply with the provisions of the will, among which was a clause in this language : “ Seventh.

MotioN to compel a further return to a writ of certiorari issued herein. February II, 1879, a writ of certiorari was issued to tho respondent to review alleged errors in an assessment for constructing a sewer in the city of New York, which had been confirmed by the board of revision and correction of assessments on December 31, 1877.

Culver, under section 452 of tbe Code, to be made a party defendant to this action. This action was commenced to foreclose a mortgage, and tbe complaint and notice of pendency thereof were filed with tbe clerk of tbe city and county of New York, the county in which the venue is laid, on the 10th day of February, 1879.

<p>Appeal from an order of a judge of the Supreme Court, denying a motion to vacate an order made in supplementary proceedings.</p>

The complainants’ affidavit charged that tbe defendants had property and rights in action which they unjustly refused to apply to the payment cf a judgment recovered against them belonging to the complainants ; that they have assigned, removed and otherwise disposed of some of their property with intent to defraud their creditors, and that they fraudulently contracted the debt respecting which tbe suit was brought.

Habeas corpus issued by the presiding justice-of the General Term to inquire into the detention of the relators. November 1, 1873, the New York Guaranty and Indemnity Company of the city of New York commenced an action against the relators, in the New York Superior Court, to recover money alleged to be due and owing from them to the plaintiff.

The action was brought upon a policy of insurance issued by the defendant.

<p>CertioraRI to the Court of Sessions of the county of Albany, to review an order quashing a certiorari issued to the police justice of Watervliet, to review the conviction and sentence of the plaintiff in error at a Court of Special Sessions for petit larceny, and affirming the said conviction and sentence.</p>

(For the opinion in the court below, see 56 How. Pr. R., 500.) The action was brought to foreclose a mortgage, made by the defendant George Martin to the plaintiff, on property which Martin had subsequently conveyed to the defendant Mary Delia Burdick. The deed to her contained a clause by which she assumed the payment of the mortgage, and under this clause the .plaintiff sought to hold her liable for any deficiency that might arise on the sale.

The complaint was as follows : “ The above named plaintiff complains of the above named defendant, and alleges upon information and belief that the said Henry Watkins is, and has been for the space of three years last past, assignee in bankruptcy of George W. Sisson, Thomas L. Greene and Miner H. Greene, and of each of them ; that, as such assignee, the said defendant is indebted to the plaintiff for work and labor done by plaintiff for defendant at defendant’s request, for…

The action was brought against the sheriff of Cortland county to recover damages for an alleged unlawful levy made by one of bis deputies, under an execution against the present plaintiff, upon property claimed to have been exempt from execution. The plaintiff was nonsuited on the trial.

Tho action was for an assault and battery. The defence was that the plaintiff was trespassing on the premises of tho defendant, and refused to leave upon request, and that the defendant thereupon attempted to remove him therefrom, using no more force than was necessary to effect that object.

The action was brought to recover the price of goods consisting of sash and doors, sold by the plaintiff through his agents, Rogers & Pratt, to the defendant. The latter put in an answer claiming that be bad bought tbe goods from tbe firm of Rogers & Pratt, consisting of George Rogers and William Pratt, and denied that tbe said firm were acting or sold tbe goods as tbe agent of tbe plaintiff.

The defendant having placed on record in the office of the county clerk an affidavit showing, as required by law, the circumstances of the sale is bound by it. He cannot be allowed to impeach or contradict it.

The plaintiff in error was indicted at the September Court of Sessions of the county of Albany, and arraigned for the violation of an ordinance of the city of Albany passed by its common council. The defendant demurred to the indictment, that the facts alleged were not sufficient in law, etc., to which a joinder was interposed by the People and the demurrer was overruled by that court.

This action was commenced in March, 1879, to compel the sjoecific performance of a contract. The complaint alleges that in March, 1866, one Adaline Brooks, now deceased, was the owner in fee and in possession of certain real estate described therein. That in said month she entered into a contract in writing for the sale thereof to James II.

The action was brought upon a contract for the publication of the reports of the decisions of the Court of Appeals of this State, made in pursuance of chapter 224 of 1848.

<p>Board of town auditors — must pass specifically upon the items of which a bill is composed.</p> <p>Where a claim, consisting of separate items, is presented for audit to a hoard of town auditors it is the duty of the said board to examine each of the items separately, and allow or disallow the same accordingly as it shall be found correct or incorrect.</p> <p>It is error for the board in such a case to deduct a gross sum from the amount of the claim, without passing upon or specifically altering any of the items of which it is composed.</p>

Tbe action was commenced in a justice’s court upon a promissory note for $87.26, made by tbe defendant. Tbe defences were that tbe note was void for usury, and that it was included in a second note given by tbe defendant, wbicb was then outstanding. Tbe plaintiff recovered a judgment in tbe justice’s court from wbicb tbe defendants appealed to tbe county court, where a new trial was bad and a verdict rendered for tbe defendants.

<p>Code of Civil Procedme, §829 — when the next of kin may testify as to personal transactions and communications of the deceased — right of the appellate court in equity cases to disregard en'ors in excluding evidence.</p> <p>In an action by an administrator to set aside an assignment of a mortgage made » by his intestate, the next of kin, though interested in the event of the action, and claiming their rights through the plaintiff, are not prohibited, by section 829 of the Code of Civil Procedure, from testifying, in his behalf, as to what they had noticed and observed in the conduct and actions of the intestate, and as to persona,! transactions of his with which they had no connection, and also as to communications made by him to others in their presence without any inducement, suggestion or participation on their part.</p> <p>Quaere, as to the right of an appellate court to disregard, in equity cases, the erroneous exclusion of evidence offered by the appellant, on the ground that the result would not have been changed had such evidence been received.</p>

<p>Burned cheek— bond of indemnity need not be given to the d/rawer— 2 B. /S'., 406, §§ 75, 76, only appliable to lost checks — Presentment of check excused, when impossible — A subsequent promise to pay is a waiver of a failure to present a check — A drawer of a check is not discharged unless he is injured by a failure to present it.</p> <p>The defendant, being- indebted to the plaintiff on a promissory note, mailed to him his check on a bank for the amount thereof, on receipt of which the plaintiff returned and surrendered the said note to the defendant. On the morning of the day after the check was received it was accidentally burned and destroyed. The defendant on being informed of its destruction promised the plaintiff to pay him, but subsequently refused so to do.</p> <p>In this action brought by the plaintiff to recover the amount due to him, held, that he was not required to tender to the plaintiff a bond of indemnity, as the statute requiring such a bond (2 R. S., 4Ü6, §§ 75, 76) only applies where a check or note has been lost, and not where it has been destroyed.</p> <p>That as the destruction of the check rendered it impossible for the plaintiff to present it for payment, he was excused from so doing.</p> <p>That in any event the subsequent promise of the defendant to pay the check when informed of its destruction was a waiver of any defence that might arise from the failure of the plaintiff to present it for payment.</p> <p>That as the check did not operate to discharge the debt evidenced by the note until it was paid, laches of the plaintiff in presenting it for payment would not discharge the defendant from liability for the debt, unless it was shown that the defendant was injured by such laches.</p>

The deceased died at the age of sixty-three years, never having been married, and leaving three brothers her only heirs-at-law and next of kin, who opposed the probate of the will. By the alleged will the deceased devised all her property, both real and personal, to Sarah A. Schoonmaker, one of the appellants herein, and appointed her executrix, and her husband, the other appellant herein, executor thereof.

Appeal by the plaintiff from a judgment entered upon the trial of this action by the court without a jury. The action was brought for the foreclosure of a bond and mortgage made by Nancy Fisher and Charles J. Fisher to the plaintiffs, December 21,1869, to secure the payment of $15,000, with interest. On the 19 th of April, 1871, the Fishers conveyed the premises to Henry W. Fuller, subject to this mortgage, which Fuller assumed as part of the purchase money.

<p>Order far the inspection of books, as also an order to sham cause why an answer should not be stricken out because of a failure to comply with such ai-der for inspection, may be served on the attorney — Code of Civil Procedure, § 799.</p> <p>In this action, brought against a domestic corporation, which had appeared by an attorney and served an answer, an order requiring it to allow the plaintiff to inspect its books, or show cause at a time and place therein specified, was made and also served upon its attorney.</p> <p>The order having been made absolute on the return day against the opposition of the defendant, a copy thereof was served .on its attorney. Upon proof of such service, and of the defendant’s refusal to obey the order, an order to show cause why the defendant’s answer should not be stricken out was made and also served upon the said attorney.</p> <p>Upon an appeal from an order striking out the answer, held, that under section 799 of the Code of Civil Procedure, the orders to show cause were properly served upon the defendant’s attorney, and that it was not necessary to serve them upon any of its officers.</p>

It appeared that Gravesend avenue was opened and constructed from the city of Brooklyn, through the towns of Gravesend and New Utrecht to Coney Island, the expense thereof being assessed upon the owners of adjoining lands. The appellants owned their lands for cemetery purposes since 1850.

Tbe action was brought against the defendant Jewett, as Receiver of the Erie Railway, to recover damages for injuries sustained by the plaintiff’s horse, at a crossing of tbe said railway at Port Jervis.

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

of the plaintiff, entered upon the trial of this action by the court without a jury. On the 30th of April, 1873, the plaintiff and one William Brady purchased tickets and took passage on board defendant’s cars at St. Louis, Mo.,, for Dennison, Texas. Plaintiff had with him a valise containing his' wearing apparel and articles known as baggage, and a packing-box, or trunk, containing the merchandise specified in a schedule annexed to the complaint in this action.

On September 10, 1874, the commissioners of highways of the town of Cornwall, Orange county, laid out a certain highway in that town. One Charles Stillman, conceiving himself aggrieved, appealed to the county judge from a portion of the commissioners’ determination.

<p>Appeal from an order made at Special Term appointing commissioners to appraise damages, in an application of the New York and Brighton Beach Railway Company to acquire title to certain lands,</p>

The action was brought by the plaintiff, a judgment-creditor of the defendant George E. Wing, to set aside as fraudulent a conveyance made by him to his wife.

This action ivas brought to charge the defendant with personal liability for a debt of a corporation of which he was a trustee, for faffing to file, in 1875, the annual report required by law; and for making a false report.

The plaintiff and defendant are gas companies, both duly organized under the general gas laws of this State, and located in the city of Poughkeepsie, and authorized by the common council to lay their gas-mains under the surface of the streets and avenues of said city. ■ In 1873, II. G. Eastman was the owner of certain lands in said city, on a part of which he made what is known as “ Eastman Terrace,” and erected thereon ten first-class dwelling-houses.

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

This action was brought to recover 115,000 damages alleged to have arisen from injuries received by plaintiff while a passenger in defendant’s car. It appeared that on January 2, 1878, at mid-day, the plaintiff took one of defendant’s cars as a passenger. The car was one of the line which passes from Atlantic avenue, northerly, through Boorum street to Fulton avenue, in Brooklyn.

The motion to remove the case was based on chapter 196, Laws of United States of 1867 (sub. 3 of § 639 of U. S. Revised Statutes), allowing a removal in suits between citizens of different States, when the applicant for removal believes that from prejudice or local influence he will not be able to obtain justice in the State court. Chapter 196 of 1867 was not repealed by chapter 137 of 1875.

It appeared that the relator was held in custody by the respondent, the sheriff of Dutchess county, by virtue of a com-mittment from the recorder of the city of Poughkeepsie, on a charge of petit larceny; that the relator offered to give bail, but that the recorder refused to take it, and held him for trial before him on the said charge; that the relator appeared in person and by attorney, and offered to give bail to appear at the next court having cognizance of the offence…

Appjeal by the plaintiff from an order made at Special Term, denying a motion to vacate an order requiring the plaintiff to appear and be examined as a witness on behalf of the defendant. The application for the order of examination was made by the defendant after the service of an amended complaint. The affidavit set forth fully the object of the action and the relief sought, and also, in detail, the various matters alleged in the complaint.

The- referee found that on or about the 28th day of December, Henry M. Cutter, a member of the firm of H. M. Cutter & Co., cotton brokers, in New York, stated and represented to the plaintiff, who was a dealer in cotton in said city, that his (Cutter’s) said firm had an order from the Freeman Manufacturing Qpnpany, of North Adams, Massachusetts, to purchase for them 100 bales of cotton.

This action was brought in the month of July, 1877, to foreclose a mortgage made by one Ebenezer H. Brown to one John Sudlow, dated 1st of May, 1867, to secure the principal sum of $7,000 upon four lots of land in the city of New York. The bond and mortgage was duly assigned to plaintiff before the commencement of this action.

The action was brought to recover from the defendant, as executrix of the last will and testament of Richard P. Gibson, deceased, the rent of certain premises in the city of New York which Gibson held under a lease for a term of years at the time oí' his death.

<p>Burden of proof— upon whom it rests — gift causa mortis from husband to wife — when the mere taking possession thea'eof by the wife does not establish the gift.</p> <p>This action was brought by the plaintiff to recover certain bonds, claimed to have been the property of his intestate at the time of his death, which were held by the defendant, and which she had refused to deliver upon the plaintiff’s demand. The answer admitted the plaintiff’s appointment as administrator and that the intestate owned the bonds in his life-time, but averred that prior to his decease they became the property of the defendant by a donatio mm’tis causa, and that she then took and thereafter continuously kept possession of them.</p> <p>Held, that the defendant held the affirmative, and that the burden of establishing the alleged gift rested upon her.</p> <p>Th.e defendant, who was the widow of the intestate, testified that a few days before his death she took possession of the bonds, and kept continuous possession thereof until after his death, when she deposited them with a friend.</p> <p>Held, that this evidence failed to show, as between a husband and his wife, a change of the title to the bonds, or in any legal sense a change of his possession thereof, and was insufficient to establish a gift from the husband to his wife.</p>

CONTROVERSY submitted upon admitted facts, under section 1279 of the Code of Civil Procedure. The defendant refused to accept a deed of certain lots which they had agree.d to purchase of the plaintiff, on the ground that the title was defective, in that the land was charged with the payment of certain legacies contained in the will of one Alexander C. Poillon, who owned the premises at the time of his death.

Writ of Error to the Court of General Sessions of the city and county of New York, to review the conviction and sentence of the plaintiff in error for an attempt to procure one Waitzfelder to commit perjury.

Exceptions ordered to be heard in the first instance at General Term, after a verdict in favor of the defendant directed at the circuit.

<p>Tax —not a lien until confirmed — when a lot used for the erection of a church becomes exempt from taxation — action to vacate a tax sale — when maintainable.</p> <p>In the fall of 1868, the plaintiff commenced the erection of a church upon a lot in the city of New York, and in December of that year the corner stone thereof was laid. The land was conveyed to it in Juné, 1869. In January, 1869, the initiatory steps to impose a tax upon the land were commenced, but the proceedings were not completed and confirmed until September, 1869.</p> <p>The premises having been sold under the tax so levied, held, that the tax did not become a lien upon the lot until the tax list containing it had been confirmed. That the property was exempt from taxation from the time the plaintiff entered into possession of the land and commenced to erect the church.</p> <p>That as the tax was not void upon its face the plaintiff might maintain an action to have the sale vacated.</p>

<p>Judgment — motion to cancel it, after the judgment debtor’s discharge in bankruptcy — when not granted so as to affect its lien on real estate.</p> <p>October 22, 1873, the plaintiff recovered a judgment against the defendant, which was docketed in "Westchester county at ten a. m. the following morning. At the time of docketing the judgment the defendant was seized in fee, as a tenant in common, of certain land in said county; at four P. M. of that day a deed was placed on record, dated and purporting to have been executed in August, 1S72, conveying the defendant’s interest therein to his brother. Subsequently the plaintiff brought an action to have the said conveyance set aside as fraudulent. Thereafter, and while the said action was pending, the defendant having procured a discharge in bankruptcy, moved, under section 1268 of the Code of Civil Procedure, to have the said judgment canceled.</p> <p>Held, that the judgment should be allowed to stand so far as was necessary for the purpose of enabling the plaintiff to enforce any lien created by it upon any real, estate owned by the defendant at the time it was docketed.</p>

By the terms of the advertisement for bids, and of the contract itself, the price to be paid for such rock excavation as might be necessary was fixed and determined, and the competition therefore only extended to the price to be paid for the remainder of the work to be performed.

<p>Flagging of the sidewalk is a “’pavement" within chapters 335 and 757 of 1873.</p> <p>The flagging of the sidewalk of a street is a “ pavement,” within the meaning of that term as used in chapters 335 and 757 of 1873. (Davis, P. J., dissenting.)</p>

<p>Appeal from an order made at Special Term vacating an assessment for paving Twenty-first street, between Sixth and Seventh avenues in the city of New York.</p>

<p>A debtor imprisoned for fraudulently disposing of property, is not entitled, to a discharge on compliance with Mev. /St., part 2, chap. 5, tit. 1 of art. 6.</p> <p>A debtor who bas been imprisoned for removing’ and disposing of his property, with, intent to defraud his creditors, is not entitled to a discharge under the provisions of the Revised Statutes relating to voluntary assignments.</p>

Wbit of Errok to the General Sessions of the city and county of New York, to review the-conviction and sentence of the relator for causing the death of one Sarah Y. Conners, by employing some instrument upon her with intent to produce an abortion.

On September 25, 1879, the appellant Cummings leased to tbe respondent Armstrong a furnished bouse, known as No. 149 West Forty-fifth street, New York city, for tbe term of one year, at tbe yearly rent of $1,500, payable monthly in advance. All of West Forty-fifth street is contained within tbe seventh judicial district in tbe city of New York.

<p>Lease made by a general guardian— Ms ward may recover rent falling dme wider, after he comes of age, and may institute swnmary proceedings.</p> <p>Whalen, the general guardian of one Davis, leased certain premises belonging to the latter to the relator for the term of one year from May 1, 1878. On December 4, 1878, Davis came of age.</p> <p>Held, that a grantee of Davis, claiming under a deed executed subsequently to the termination of the lease, could institute summary proceedings against the relator as a tenant holding over after the expiration of his term.</p> <p>Semble, that Davis was entitled to receive and collect the rents falling due on the lease after he came of age, and to institute summary proceedings to dispossess the tenant.</p> <p>That his right so to do was not affected by the fact that he was indebted to his guardian for over-payments made to him, and that the latter had forbidden the tenant from paying the rent to him.</p>

The complaint alleged : That in or about the month of May, 1867, the bark Flora, whilst on a voyage from Rio de Janeiro to Baltimore, with a cargo of coffee, was so greatly and seriously damaged and disabled by the perils of the sea that she was obliged to put back into the said port of Rio de Janeiro for the pux-pose of refitting and repairing, and to enable her to perform her said voyage. “That the said bark, having been so damaged and disabled, returned to and reached the…

The action was brought to recover dividends declared by the defendant’s bank upon certain shares of its stock to which the plaintiffs claimed to be entitled. The action was brought against the bank and was continued against its receiver.

Ceetioeaei to the board of police commissioners of the city of New York, to review a judgment convicting the relator of conduct unbecoming an officer, and removing him from his office as a captain of the police force.

<p>Appeal- from an order made at Special Term, denying a motion to vacate an order of arrest.</p>

<p>Resolution for paving — when it authorizes the pavement of the streets which hound, at each end the portion of the street improved —• Error in the amount of an assessment — when it may he corrected on petition, under chapter 312 of 1874.</p> <p>A resolution directing- “ that Madison avenue, from Forty-second to Eighty-sixth streets, be paved with Belgian pavement, and that at the several intersecting streets and avenues cross-walks Joe laid,” etc., authorizes the paving of Eighty-sixth street as being one of the intersecting streets. (Brady, J., dissenting.)</p> <p>Where, under a resolution directing the pavement of Madison avenue, from Forty-second to Eighty-sixth street, the latter street was paved, and the petitioner’s lot, situated on the north-west corner of Madison avenue and Eighty-sixth street, was by mistake assessed, not only for its proportionate part of the paving done at the intersection, but as though it were situated wholly within the area of assessment, held, that the error could be corrected on a petition to vacate the assessment under chapter 312 of 1874.</p>

In 1873, J. N. Merriam & Son were a firm doing business in Boston, and Francis P. Merriam resided in that city. On March 13, 1873, George H. Thayer, a member of the firm of South worth, Thayer & Co., a firm doing business in Memphis, Tenu., drew ou said firm, in Memphis, a draft for $2,500, payable in forty days after date, to the order of J. N. Merriam & Son.

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

By the sixth item of her will, Gertrude Cutting devised and bequeathed a share of her estate to her “ executors in trust to receive the rents and profits thereof during the life of my son, Fulton Cutting, if ho survive me, and to apply the same to the use of my son, Fulton Cutting, during his life; and, upon his decease, to assign and convey the capital to such person or persons, and in such manner as he, by his last will and testament (and not otherwise), may direct and…

<p>Limited partnership — 1 JR. 8., 766, §§ 20 and 21 — when a mortgage given by a special partner is void under.</p> <p>This action was brought by the plaintiffs, as creditors of a limited partnership, known as Vose, Dinsmore & Co., composed of Yose as the general, and Palmer and Dinsmore as the special partners, to set aside a mortgage given by Palmer upon his individual real estate to the defendant Grant. The money received upon the mortg'age was used by Palmer in paying individual debts, .among which were a debt due to Grant, the mortgagee, one due to Grant's sister, the amount of which he received as her agent, and one due to a firm of which Grant was a member.</p> <p>The complaint alleged that at the time of giving the mortgage Palmer had by his acts become liable as a general partner, that he was insolvent, and that the mortgage was executed with the intent to give the said Grant, his firm and sister, a preference over the firm creditors^ and that it was received by Grant with knowledge of such facts and intent.</p> <p>Upon a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, held, that the mortgage was a violation of sections 20 and 21 of 1 Revised Statutes, 766, and void as having been executed with the intent to give to the individual creditors of the special partners a preference over the firm creditors.</p>

partition, as adjudges that the plaintiff is entitled to a one-fourth instead of a one-fifth interest in the real estate described in the complaint in the action.

The said eighth clause was in the following words: “ Eight. I direct my said executors to pay the one equal half of the net income of the residue of my estate to my sister Margaret E. Campbell during her life, and at her death to pay the one-quarter of the principal of such residue to such person as she may have appointed to receive the same ; and in default of such appointment, to such person or persons as would be entitled thereto by law as her heirs or next of kin, and…

This action was brought by the plaintiff to recover the sum of $500, alleged to have been deposited by him with the defendant, a national bank, at its banking-house, in Elmira, on the 21st day of February, 1867.

<p>Statute of frauds — what is not a sufficient delivery and acceptance to malee valid an oral contract of sale — When a subsequent part payment will not malte valid the prior oral contract.</p> <p>The plaintiff and defendant being- together, near to two stacks of hay belonging to the former, and in sight of one of such stacks, entered into an oral contract for the sale of the hay, defendant agreeing to pay to the plaintiff §190 therefor and §10 more if he should do well with it. The plaintiff then said “ the hay is yours,” and the defendant said “ yes.”</p> <p>Held, that there was no delivery or acceptance of the hay sufficient to take the cáse out of the statute of frauds.</p> <p>Subsequently the plaintiff called on the defendant for payment on “that hay,” and the latter promised to see one Bush to obtain money with which to make such payment. The next day the defendant came along the road with his team, beckoned the plaintiff to come to him, and handed him §25, saying that he had not seen Bush, but had sent word to him and learned that he was not at home; that if hay did not do better than it was then doing he should have a pretty tough bargain. Nothing further was said as to the previous bargain.</p> <p>Held, that the payment was not made at the time of entering into the contract as required by the statute, and did not render valid the prior oral agreement.</p>

The complaint herein was served on the 1st day of August, 1879, and the answer on the 6th day of September, 1879. Notice of 'trial for the October Circuit was duly served by mail, by the defendant's attorneys, on the 20th day of September, 1879, anda note of issue was duly filed on the 24th of September, 1879, for .the circuit beginning on the 6th day of October, 1879.

The original plaintiff died after the trial and before the decision of the referee, and the original defendant died after the perfecting of the appeal from the judgment herein.'

The referee found, among other things, that on or about the 4th day of March, 1865, one Stow and other persons owning a farm' conveyed a portion thereof to the Albany and Susquehanna Railroad Company, upon a portion of the land so conveyed was a spring from which the owners of the farm were accustomed to conduct water to supply the farm by means of wooden pipes.

The action was originally commenced in a justices’ court. The complaint alleged: “That the defendants are co-partners in trade, and are also common carriers, carrying on and doing business under the firm name and style of Romer & Tremper ; that they carry on and do business at the city of Kingston, Ulster county, N. Y.; that said firm of Romer & Tremper (defendants) are the owners of a freighting line between New York city and the city of Poughkeepsie, and Newburgh and…

The action was originally commenced in a justices’ court, where the plaintiff had a verdict. The 'defendant then appealed to the County Court of Greene county for a new trial. The action was brought to recover excessive and illegal charges for ferriage, demanded and received of the plaintiff while crossing the Hudson river on the ferry between Athens and Hudson.

The action was brought against one William Gould (since deceased), to recover damages for an alleged malicious prosecution and false imprisonment of the plaintiff. The jury brought in a verdict in favor of the plaintiff for forty-five dollars. After the entry of the judgment herein, and the perfection of this appeal therefrom, the defendant Gould died, and his widow, his executrix, was substituted in his place.

The case originated in a justices' court in the town of Whitehall, and was tried before a justice of the peace, and a jury, on the 12th day of May, 1879, the plaintiff recovering a judgment of $25.48 damages and $7 costs, in all $32.48.

<p>Reservation of a right of way over the grantors land — construction of.</p> <p>The plaintiff’s grantor owned a lot about fifty feet wide and one hundred and twenty feet deep, situated on the northerly side of a street; on the westerly portion of the lot was a house about twenty feet, six inches wide, and seventy feet deep; on the easterly portion thereof was another house about fifty-six feet deep, which covered all the rest of the front of the lot, except a space of about eight feet lying between the two houses; through which space alone access could be obtained to the rear of the westerly house. The westerly house and lot was conveyed to the plaintiff by a deed containing the following provision : “ “With the right to the use of the carriage or alley-way situate between the premises hereby conveyed, and the building east thereof, owned by the grantor, for ingress and egress upon the rear of said premises hereby conveyed.” Subsequently the remainder of the lot was conveyed to the defendant.</p> <p>In the winter season the rear of the defendant’s premises had been used for carriages and teams as convenience dictated; but in the summer in the rear of his house only a path some three or four feet wide, and lying wholly in his lot, was kept open.</p> <p>This action was brought to restrain the defendant from erecting a barn on the rear of his lot, within two feet nine inches of the east line of the plaintiff’s lot, but which left a space of over fourteen feet between its south-west corner and the north-east corner of the plaintiff’s house.</p> <p>Held, that the alley or easement reserved to the plaintiff did not extend from the street back to the rear of the defendant’s lot, but only so far back as was necessary to enable the plaintiff to get upon his premises directly in rear of his house, as it stood at the time it was conveyed to him.</p> <p>That the action could not be maintained. (Learned, P. J., dissenting.)</p>

The facts sufficiently appear in the following opinion of the county judge, which was approved and adopted by the General Term.

On the 11th day of March, 1878, proceedings were commenced under article 1, title 10, chapter 8, part 8 of -the Revised Statutes, before the county judge of Franklin county, by the plaintiff, James H. Pierce, against the defendants, for an alleged forcible entry and detainer, and upon the complaint of Pierce the county judge issued a precept for a jury, returnable at his office at Malone, N. Y., upon Saturday, the 16th day of March, 1878, at which time the parties appeared…

Lawrence comity, adjudging the appellants Darius A. Moore and Emily Moore guilty of a contempt, and directing an attachment to issue for their refusal to be sworn and to testify at the instance of the administrator of Mary Ann Beebe, deceased, upon an inquiry instituted by him under chapter 394 of 1870.

<p>Malicious prosecution — proof of the guilt of the accused is conclusive evidence of probable cause — when a defendant may show the adwice given to him by his attorney.</p> <p>In an action for malicious prosecution, proof of the actual guilt of the accused is conclusive evidence of probable cause, and if such proof be made, no action can be sustained by the said accused, however plainly malice may be shown, or however improper may have been the motives of the person instituting the prosecution.</p> <p>Upon the trial of an action for malicious prosecution, the defendant oifered to prove that, before applying for the warrant, he stated all the facts within his knowledge, touching the charge subsequently made, to one Horton, who was an attorney and counselor-at-law, and also a justice of the peace, and sought to show the advice received from him. This evidence was rejected.</p> <p>Held, that the evidence was improperly rejected, and that the fact that Horton was the justice of the peace, to whom the application for the warrant was subsequently made, did not render its rejection proper.</p>

<p>Contrast that a person will pay by his will far services rendered to him — what is a breach thereof— when, the right of action is barred by the statute of limitations.</p> <p>From 1855 to 1859 the plaintiff resided with his father as one of his family, and rendered services to him in pursuance of an alleged verbal agreement by which his father was to pay him for the said services by a devise or bequest in his will in plaintiff’s favor. In 1859 the father discharged the plaintiff from his service, ordering him to leave the house, and saying to him: “ You have . got all you ever need to expect here ” The father died in 1878, and the iffain-tiff then presented his claim for the services so rendered.</p> <p>Held, that the act of the father in driving the plaintiff from his house in 1859, and refusing to allow him to render further services, was a breach of the contract, and gave to the plaintiff an immediate right to sue to recover the value of the services rendered, and that the action was, therefore, barred by the statute of limitation.</p> <p>Quackenbush v. JShle (5 Barb., 469), criticized and distinguished.</p>

the report of a referee. This was an action of replevin, brought by the plaintiff against her husband, to recover certain articles of household furniture and wearing apparel which belonged to her. The parties hereto were married in September, 1867, and lived together until April 17, 1871, when the plaintiff, without so. far as appeared any good cause, left her husband and weiit to her father’s house, where she has since resided, living separate and apart from her husband.

In April, 1873, the defendant sold and conveyed to the plaintiff certain real estate in the city of Troy, consisting of a dwelling-house and lot, for the sum of $10,500, “with the appurtenances,” the deed whereof contained the following covenant: “And the said William Collins doth hereby covenant and agree to and with the said party of the second part, her heirs and assigns, that the premises thus conveyed in the quiet and peaceable possession of the said party of the second…

<p>Application to the county court to have erroi'S in an assessment roll cometed — ' may be made when the assessors have no jurisdiction over the pi'opei'ty assessed — chap. 855 of 1869 and chap. 695 of 1871.</p> <p>Chapter 855 of 1869, as amended by chapter 695 of 1871, empowers the boards of supervisors, on the recommendation of the county court of any county, “ to correct any manifest clerical or other error in any assessment,” and to refund any tax illegally or improperly assessed or levied.</p> <p>Held, that the said acts authorized an application to the county court to have an assessment stricken from the roll, where there was an entire want of jurisdiction in the assessors to assess the property in question, e. g., the surplus profits of a savings bank wholly invested in United States bonds. (Learned, P. J., dissenting.)</p>

At 9 a. m., on the 18th day of May, 1874, one Jabez H. Fountain entered a judgment in the office of the clerk of the county of Chemung, in an action wherein he was plaintiff, and the relator, Daniel C. Scudder, was defendant, the judgment being for the recovery of certain real estate situate in the city of Elmira, in the said county of Chemung, and of which the relator was in the possession, the judgment being entered upon the verdict of a jury.

Appeal by the plaintiff from a judgment adjudging an assignment made by one Elisha Comstock to the defendant, Abijah Comstock, to be fraudulent and void as to the former’s creditors, and allowing to said Abijah Comstock certain payments made by him. The judgment -was entered upon the trial of this action by the court without a jury.

to be beard in the first instance at the General Term, after a verdict in favor of the plaintiff, rendered at the circuit. The action was brought to recover damages occasioned by the leaking of water from a conduit, or race, running across the plaintiff's lands, which race it was claimed that the defendant was bound to repair.

<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 a new trial, made upon the minutes of the justice before whom the action was tried.</p>

The actions were brought to foreclose a mortgage on Congress Hall, a hotel situated at Saratoga Springs. The mortgage was executed to three trustees by Henry H. Hathorn and wife, and- was dated September 1, 1866, being given to secure the payment of certain bonds, thereafter to be executed and issued by the said Henry H. Hathorn, and which were to be countersigned by one of said trustees and were not to exceed $400,000 in amount.

On the 15th day of June, 1876, the plaintiff, William Gilmore, was a resident of Broome county, N. Y., and on the same day the defendant was a resident of the county of Chenanago, N. Y. On Said 15th day of June, 1876, the defendant, Barnett, being in the city of Binghamton, Broome county, N. Y., the plaintiff, Gilmore, commenced an action against him by short summons, before a justice of the peace of the said city, on an affidavit stating that the defendant was a…

Vanderbilt to consent to the termination in part, of a trust created by said William H. Vanderbilt.

On June 9, 1877, the plaintiff commenced an action to foreclose a mortgage given to him by Mary J. and Amos Tenny, upon premises which had been subsequently sold to the present defendant, who assumed the payment thereof. To that action the Tennys and the present defendant were made defendants.

The work was done under and in pursuance of chapter 528 of the Laws of 1873. The objection was that no ordinance of the common council authorizing the work had been passed, and that there had been no advertisements for bids or proposals, the work having been done by day’s work and not by contract.

This is an appeal from an order made at Special Term, denying a motion for leave to renew a former motion and to set aside the judgment entered in this action. The action was brought upon a promissory note made by the defendants, and judgment for $9,964.85 was entered by default on November 24, 1877.

order made at Special Term, requiring the plaintiff to deposit with the court certain contracts and statements of account. This action was brought by the plaintiff as assignee of Lucy D. Fisk, as executrix, etc., of James Fisk, Jr., deceased, to recover moneys alleged to be owing by the defendant under a contract, alleged to have been made by him with the testator in his life-time.

Appeal by the defendant from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury. Administrators and executors cannot purchase the estate under their charge to administer, or any portion of it. (Perry on Trusts, §§ 204, 206; JDavoue v. Fanning, 2 Johns. Ch., 252; Van Epps v. Van Epps, 9 Paige, 237;'' Ward v. Smith, 3 Sand.

Tbe action was brought upon several promissory notes, made by tbe defendant to tbe order of one Duryee, for whom they were discounted by tbe plaintiff.

Writ of Error to the Court of General Sessions for 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 uttering of a forged check. In the Court of General Sessions John C. Richardson was indicted as principal of the crime of forgery in the third degree, and the plaintiff in error was charged in the same indictment as accessory before the fact.

Appeals from orders made at a Special Term denying motions for leave to amend an execution, and from an order in proceedings in habeas corpus discharging the defendant from arrest. December 23, 1879, a judgment was docketed against the defendant, on which an execution against his property was duly issued, upon the return of which unsatisfied an execution against his person’ was issued on January 15, 1880.

Certiorari issued to review a summary proceeding had before William H. Kelly, as Justice of the Sixth Judicial District Court in the city of New York, in which Laura A. Delano, as landlord, made application for the removal, from premises No. 341 Pifth Avenue, of Jacob and Ann Duchardt, as tenants, on the ground of non-payment of rent, and in which a decision was rendered in her favor.

The order was simply one “for the payment of money,” and the only process which the court had jurisdiction to issue 'for its enforcement was a commitment or precept under 2 Revised Statutes, 534, title 3, section 1, subdivision 3, and Code, section 14, subdivision 3; and the subsequent order, at least so far as it imposed a fine on Clark or otherwise exceeded the power which the court possessed under that subdivision, was without jurisdiction.

<p>Appeal from an interlocutory judgment, entered upon an order overruling a demurrer to tbe complaint.</p> <p>The complaint alleged that the plaintiff was the owner of a lot and building situated in the city of New York. “Thatthe said defendants, on the 10th day of July, 1873, through one G. S. P. Stillman, an attorney-at-law, and the attorney of the said defendants thereunto duly authorized by them, as this plaintiff is informed and believes, filed, or caused to be filed, in the office of the clerk of the city and county of New York, a notice of pendency of action 11X30)1, and referring to the comxilaint in a certain action then XDcnding in the Court of Common Pleas, for the city and county of New York, wherein the said defendants were xiarties xilaintiff, and this xilaintiff and others were made xiarties defendant, wherein and whereby it was, among other things, alleged in said notice that said action had been commenced, and was xiending to recover the interest of this defendant's husband, Alxiheus F. Smith, in the premises hereinbefore described, and which was the xii'oxierty of this xilaintiff, and the comxilaint in which action, which was filed in the office of the clerk of said court, and was the same comxilaint referred to in said notice, alleged and declared the said xiremises to be the xu'oxierty of her said husband, Alxiheus F. Smith, and that her title to the same was fraudulent as against the said defendants, who claimed to be creditors of her said husband.</p> <p>“That the said defendants, through their said attorney, well-knowing the xiremises, and maliciously and without reasonable or probable cause, continuing to cause it to be susxiected that this Xilaintiff did not own said lot of land, and the building thereon, and that she was a fraudulent owner and holder thereof, and to prevent this xilaintiff from effecting a sale thereof, if she so desired, wrongfully caused said notice to be so filed as aforesaid, giving notice of the matters therein, and in the said comxilaint set forth to all the world.</p> <p>“That the statements and allegations contained in said notice, so filed as aforesaid, and in the comxilaint to which the same referred, charging this xilaintiff with not being the owner of said lot of land, and the building thereon, and that her ownership) of the same was fraudulent and void as against the creditors of her husband, was and are wholly false, .and were made maliciously and with the intent to injure the said lot of land and building, as well as this Xilaintiff, and to prevent her from selling the same.</p> <p>“ That thereafter, and on'the 27th day of June, 1874, the said notice of xiendency of action was, by order of the said Court of Common Pleas, canceled of record on the axi]ilication of the said defendants, through their said attorney, as she is informed and believes, whereby the same was wholly ended.</p> <p>“That in or about the month of August, 1873, and after the filing, as aforesaid, of the said notice, and before the same was canceled, this plaintiff bad a bona fide offer, and conld have sold the said lot of land, and the building thereon, together with the furniture therein contained, for the sum of $130,000, to one A. B. Band, but that in consequence of said notice, and the filing thereof, and the matters so set forth in said complaint so referred to, the said A. B. Band refused to purchase the said lot and building, and this plaintiff was prevented from effecting a sale thereof.</p> <p>‘ ‘ That by reason of the premises, and of the wrongful and malicious act of the said defendants in so filing said notice, this plaintiff lost the sale of the said lot and building erected thereon, and in consequence thereof suffered damage in the sum of $50,000.</p> <p>1 ‘ Wherefore said plaintiff prays judgment against said defendants for the said sum of $50,000, besides the costs and disbursements of this action.</p> <p>This action cannot be sustained on the ground of slander of title, because the communication is absolutely privileged. (Addison on Torts, § 1092 [Wood’s ed.] ; Marsh v. Ellsworth, 50 N. Y., 309, 311.) An action for damages dor the malicious prosecution of a civil action is not maintainable. (Addison on Torts, § 863 ; Baville v. Roberts, 1 Ld. Baym., 380 ; Purton v. Honnor, 1 Bos. & Pul., 205 ; Ootterell v. Jones, 11 C. B., 726; Polls v. Imlay, 1 South [N. J.], 330.</p> <p>This is an action orí the case. It cannot be strictly called an action for malicious prosecution, or for slander of title, but rather an action on the case, for abuse of process, and having some of the elements of both of the former kinds of action. Bebinger v. Sweet, 1 Abb. [N. C.], 263; Closson v. Staples, 42 Vermont, 217; Whipple v. Fuller,11 (Jonn., 581; Bumpy. Betts, 19 Wend., 421; Woody. Purnell, 17 Am. L. Beg. [N. 8.], 689; Churchill v. Sieger, 3 Ellis & Black. Bep., pp. 929, 937; B. S. [6th ed.], 969, § 3.) This action is analogous to an action for wrongfully suing out an attachment against property in a civil action. The party may proceed with his action, without attachment, or lis pendens ; these ai’e not necessary to the success of the action; but if he wrongfully issues either, or abuses the process of the court, whereby a defendant has sustained damages, he is liable. (Bump v. Betts, 19 Wend., 421; Bebinger v. Sweet, 1 Abb. [N. C.], 263 Churchill v. Sieger, 3 Ellis & Blackburn’s Bepts., 929, 937.) An action on the case lies whenever injury is effected by regular process of a court of competent jurisdiction. (Chitty’s Pleadings, vol. 1, p. 133, and cases cited in note ; Swanv. Sadlemier, 8 Wend., 676 ; Brown v. Feeter, 7 id., 301; Churchill v. Sieger, 3 Ellis & Blackburn’s Bepts., 929, 937.)</p>

The complaint, after alleging ownership and possession in the plaintiff of a farm at Westwood, in Bergen county, in the State of New Jersey, alleged that on or about the 4th of October, 1877, the defendant “wrongfully, unlawfully and maliciously trespassed •upon, said farm, and took forcible possession thereof, without even a color of right, and has continued in possession thereof until the present time,” and demanded judgment for the damages caused by these wrongful acts.