Volume 28 — New York Supreme Court Reports

<p>When a removal of a body from the grave is not an offense — 3 JR. &, 6 Bd., 965— action, for malicious prosecution — when questions of probable cause and malice are for the ¡jury.</p> <p>The defendant brought an action against one Beelard, to recover for services rendered by him, as a physician, in treating a child of Beelard’s for a fracture of the thigh-bone, in which action Beelard set up malpractice on the part of the defendant as a defense. During the pendency of the action the child died and was buried. Subsequently the father, acting under the advice of his counsel, directed and allowed the plaintiff, a physician, to cause the body of the child to be exhumed, and a portion of the thighbone to bé removed, in order that it might be used in evidence on the trial of the question of malpractice. After the bone was removed the body was returned to the grave. The defendant having caused the plaintiff to be arrested for removing the body from the grave, the latter brought this action to recover damages for a malicious prosecution.</p> <p>Held, that the plaintiff had not removed the body from the grave “for the purpose of dissection or from mere wantonness,” as these terms were used in the statute (3 R. S., 6 Ed., 965), for a violation of which he had been arrested, nor had he committed any offense against public decency or the spirit, of the statute.</p> <p>That the questions of probable cause and malice were, under the circumstances of this case, properly left to the jury, and that a verdict in favor of the plaintiff would not be disturbed.</p>

favor of the.defendant, entered upon the report of a referee. To establish an estoppel in such a case, it must be shown that the party sought to be estopped has been silent when he ought to have spoken. (Bigelow on Estoppel [2d ed.], 452, et seq.; Taylor v. Ely, 25 Oonn., 250, 260; 2 Smith Lead. Cas., 138; Herman on Estoppel, §§ 409, 419, 421.) That he acted or made the representation with knowledge of the fact, or that he kept silence with such knowledge.

<p>Motion to dismiss an appeal from an order of the County Court of Monroe county, denying a motion for a new trial.</p>

<p>A justice of the Supreme Court cannot act as a referee — Const., art. 6, sec. 25— a party cannot waive the prohibition contained therekr — nvhen a case may be sent back to a referee after his term as a justice of the Supreme Court has ceased.</p> <p>In July, 1877, a claim against the estate of a deceased person was, pursuant to the statute, referred to J. L. Angle, Esq., to hear and determine. The trial was commenced on the 4th day of September, 1877, and continued by adjournments until December 22, 1877, when it was suspended without day. On December 20, 1877, the said J. L. Angle was appointed a justice of the Supreme Court, to fill a vacancy therein, and on December 22 he accepted the said office and entered upon and continued to discharge the duties thereof until the expiration of the term for which he was appointed, viz.: December 31, 1878.</p> <p>On August 10, 1878, the said J. L. Angle, as referee as aforesaid, made and filed his report in the case. Upon an appeal from an order denying a motion to vacate the report, on the ground that the referee was incompetent to act as such while holding the office of a justice of the Supreme Court.</p> <p>Belli, that the prohibition contained in sec. 25 of art. 6 of the Constitution, was absolute and peremptory, and prevented any justice of the Supreme Court from acting as a referee.</p> <p>That the facts that the trial of the action had been commenced before he was appointed a justice of the said court, and that he acted without malting any charge-for his services, did not relieve him from the said prohibition.</p> <p>That the provision could not be waived by any stipulation or acts on the part of the defendant.</p> <p>That as the referee had since ceased to be a justice of the Supreme Court, his report should be set aside, and either party should be allowed to proceed with the reference on the evidence and proceedings as they stood on the 22d day of December, 1877.</p>

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial made upon tbe minutes of tbe justice before whom tbe action was tried.</p>

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

The action was brought by the plaintiffs, as executors of, etc., of Leopold Schwartz, deceased, to recover certain moneys collected by the defendants upon a judgment recovered in a suit brought by them as the attorneys of one Levi, upon a promissoiy note indorsed by one Seymour.

Willett and Henry Raynor, mortgagees and grantees of Richard Raynor, not baying been served, the foreclosme as to them was simply void. ( Watson v. Spencer, 20 Wend., 260; Feed v. Marble, 10 Paige, 409.) The trust assignees of Willett and Henry Raynor were not made parties; nor was it necessary, because that assignment was never recorded. (See Laws of 1844, p. 529.) Therefore they were cut off, and that trust extinguished.

The action was brought by certain tax-payers of the town of Greenwood, Steuben county, under chapter 161 of the laws of 1872, for the cancellation of certain bonds, purporting to have been issued by the said town, under the town bonding acts, in aid of the construction of the Rochester, Hornellsville & Pine Creek Railroad Company, and for an injunction, pendente Ute, restraining all proceedings for the payment of the said bonds.

The defendant was convicted of administering poison to the wife and children of one Taft, with intent to kill. Taft lived in Clarence. He was away from home on Sunday, the 26th of January, 18J9. On the evening of that day a woman delivered at Taft’s house a letter, ptu’porting to have been written by Taft to his wife, inclosing some small packages, purporting to contain potions of medicine, and instructing her to administer them to herself and her children.

The action was brought to foreclose a mortgage, given as collateral to a bond, executed by one Levi, to the plaintiff, and conditioned to save “ Ackerman harmless from any and all indorsements he has made, or may hereafter make, for the said Levi, or the firm of Levi & Miller, up to the amount of six thousand dollars.” The bond and mortgage bore date March 2, 1874, and the mortgage was recorded March 3, 1874, in the Onondaga county clerk’s office.

Little, deceased, which will bad been duly admitted to probate by tbe said surrogate. At tbe time of her death sbe resided in Perry, Wyoming county, New York. On January 6. 1873, letters testamentary were issued, to PageJ as sole executor. Alter the expiration of eighteen months he petitioned for citations, and for a' final accounting, he stating in his petition that all the creditors of the deceased had been paid, according to the best of his knowledge and belief.

The action was brought to enforce an oral trust, upon which, it was claimed, a farm had been conveyed to the defendant. The referee found that the defendant was a trustee ex maleficio, and ordered a conveyance to the plaintiff of an undivided tenth interest in the lands described in the complaint, subject to the dower of Catharine Moyer, and subject to her life estate in three thirteenths, and subject to an equivalent portion of an outstanding mortgage of $1,500.

The action was brought to recover rent alleged to be due from the defendants to the plaintiff, upon a lease of two dry-docks. The lease was dated July 15, 1871, and was for the term of five years. The demised premises were therein described as “ the two dry-docks situate on the Oswego canal, in the city and county aforesaid (of Oswego), opposite to and wrest from the lower lock, being the same docks built by said A. 0.

August 16, 1873, the defendant issued a policy of insurance to the plaintiff by which it insured her against loss or damage by fire or lightning, in the sum of two thousand dollars, for the term of three years, as follows : $400 on Dwelling-house and Wood-house if attached. $250 “ Household Furniture therein. $150 “ Provisions and.'Wearing Apparel therein. $100 “ Butter and Cheese in House and Milk House. $250 “ Barn No. 1, and Stable. $300 “ Produce therein. *1u ( Farming…

- Appeal from a judgment dismissing the plaintiff’s complaint^ entered upon the trial of this action at a Special Term. The action was brought to procure the construction of the will of William Wager, deceased, which had been duly admitted to probate by the surrogate of Livingston county. No evidence was given upon the trial, the court dismissing the complaint, upon the pleadings, upon the ground that it had no jurisdiction over the action.

plaintiff, entered upon tbe verdict of a jury, and also from an order denying a motion for a new trial, made by tbe defendant upon tbe minutes of tbe justice' before whom tbe action was tried. Tbe action was brought by tbe plaintiff, who claimed to be the widow of William Clark, deceased, to recover her dower in four hundred and nineteen acres of land, whereof be died siezed.

<p>Appeal from a judgment in favor of tlie plaintiff entered upon a verdict of a jury, and from an order pi tlie judge at tlie circuit, denying a motion for a new trial made on his minutes, on the ground' of surprise and upon the merits.</p>

<p>Building contracts — agreement that the engineer's certificate shall he final and conclusive — such a certificate can only he attacked for fraud, or had faith on the fart of the engineer.</p> <p>Where, from the terms of a contract for the construction of a dam, it appears that the parties have agreed upon and adopted the decision of an engineer, therein named, as a final and conclusive arbitrament of all disputes and litigations that should arise in respect to the kinds or quantity of the several parcels or kinds of work to be done, and have by express stipulation made the certificate of the engineer a condition precedent to the right of the contractor to demand and recover, and to the liability of the other party, to pay the compensation therein provided, such certificate is, in the absence of fraud, or bad faith, final and conclusive, and it cannot be attacked or impeached on the ground that the engineer erred in deciding the questions submitted to him.</p>

<p>Appeal from a judgment in favor óf the defendant, entered upon an order dismissing the complaint at the circuit.</p>

The objections to tbe assessment were that it bad never been .confirmed by the common council, and that upon tbe sale under tbe assessment, interest was charged from the date of the confirmation of the assessment on November 22, 1871, instead of from the date of the entry of the title' of the assessment in the record of the titles of the assessments confirmed, and kept in the office of the clerk of arrears, which last date was January 10, 1872.

Appear from a judgment in favor of tbe defendants, entered upon a verdict directed at tbe circuit. This case bas already been before tbe General Term, the decision on that appeal being reported in 13 Hun, 492.

.Appeal from a judgment in fav.or of tbe plaintiff, entered upon tbe trial of this action by tbe court without a jury. This action was- brought to revive and continue a former action brought by Margaret Greene, executrix of David Greene, deceased, against Theodore Martine, deceased, in which both the original parties have died. ' Dr. David Greene died on October 19, 1856, leaving a will, in which he appointed his widow, Margaret Greene, executrix.

Writ of error to the Court of Oyer and Terminer of the city and county of New York, to review the conviction of the plaintiff in error of the crime of forgery.

This action was commenced in 1866, by one Josephine Allen, to recover the possession of certain land, in the city of New York, claimed to be wrongfully withheld from her by the defendant. The present plaintiff, who is the assignee in bankruptcy of the said Josephine Allen, was substituted in her place by an order made on the 30th day of April, 1878.

Appeal by Charles Faendler, from an order discharging the relator, John Lampert, on a habeas corpus, and by Henry Wehle, said Faendler’s attorney, from an order charging him personally with the costs of the said application; and also from so much of another order in the same proceedings as so modifies the taxation of costs- thereon, as to allow the sheriff the sum of $12.75 as fees upon the arrest.

<p> An accord and satisfaction must be executed to bar a new action. </p> <p>The plaintiff having brought an action against the defendants, upon a doubtful/ claim for a large amount, it was verbally agreed between the parties that the defendants should pay to the plaintiff $150, in consideration of his agreeing to discontinue and settle the suit. The plaintiff thereafter tendered his consent to the discontinuance of the suit, together with a release, but the defendants failed to pay the $150 as agreed. The release and discontinuance were never accepted, nor were they left with the defendants or them attorney.</p> <p>The plaintiff then brought this action to recover the $150, averring mutual promises, with fulfillment on his part and a breach on the part of the defendants.</p> <p>Held, that the agreement to settle the pending suit, being entirely unexecuted, was not binding upon the plaintiff, and would have been no bar to the original suit, unless executed by the acceptance of the $150.</p> <p>That there was, therefore, no consideration for the defendants’promise to pay the $150.</p> <p>That the action could not be maintained.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered on a verdict directed at the Circuit.</p>

This action was brought against the Mechanics’ and Traders’ Bank of New Orleans upon a bill of exchange for $10,000 dated New Orleans, March 17, 1879, drawn by it upon M. Morgan’s Sons, New York, payable to the order of the plaintiff, a national bank, located in New Orleans, at sight, which was presented' for payment on the 26th of March, 1879, and payment thereof having been refused, it was, on the said day, duly protested for non-payment, and notice thereof given.

Appeal by tbe defendant Underhill, from a judgment entered against him, upon a verdict directed by the court in favor of the plaintiff, and from an order denying a motion for a new trial, made upon the minutes of the judge before whom the action was tried. The authority of one partner to bind his copartners is strictly and without exception limited to transactions within the scope of, and pertaining to the business of the partnership.

. The proceeding was originally instituted by three brothers of the deceased, his nearest next of kin, except two children, one nine and the other thirteen years of age, against “ Calvary Cemetery, John Kelly, Hugh Moore, and James O’Rorke, Trustees and officers of the said corporation, exercising the duties and functions of such officers, and being the committee on cemeteries of such corporation, as sucli officers, Trustees, and committee,” but by stipulation of counsel and…

<p>Defense that the plaintiff is not the owner of the judgment sued on — what evidence is admissible to establish it — property held by a banlc as trustee does not pass by an assignment of its assets.</p> <p>This action was brought upon a judgment recovered by the Rochester Bank against the defendant and others, and which the plaintiff claimed to own, by virtue of an assignment from tiro bank, and because he was the sole stockholder thereof at the lime it ceased to do business. The judgment was recovered on a note made by and discounted for the defendant. The defenses set up in the answer herein were that the plaintiff never became the owner of, or paid value for the judgment; that, if any judgment existed, is belonged to one Clark, and that the plaintiff was not the real party in interest.</p> <p>Upon the trial the defendant offered to prove by one Bid ridge, one of the indorsers of the said note, and one of the judgment debtors, that lie. had paid the note to the president of the bank, tlie plaintiff, and requested him to bring the action against himself, the defendant and'another, in order that he might avail himself of the judgment to collect the amount thereof from the other parties. The testimony was rejected, on the ground that it was immaterial, and tended to contradict a record, the witness having allowed a judgment by default'to bo recovered against liim on'the note.</p> <p>Ifeld, that it was error to exclude the evidence.</p> <p>That it did not tend to contradict the record, but only to show an independent agreement affecting the ownership of the judgment.</p> <p>That the fact that the particular defense sought to bo established was not set forth in the answer, was immaterial, as the evidence was not.rejected on that ground.</p> <p>That it was also admissible as tending to show that the bank held the judgment as a trustee for the benefit of Eldridgo, and that it did not, therefore, pass to the plaintiff, under tlie assignment, as part of tiie assets of the bank.</p>

The order in question was made on February 13,1880. On the hearing of the motion to vacate this order, it appeared that the defendant had already been examined in this action, under an order made on June 17, 1872, that such examination had been finally concluded, and p, receiver duly appointed.

<p>Appeal from a judgment in favor of the defendants, entered upon an order dismissing'tlte complaint made at a Circuit.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon a verdict' directed at the Circuit.</p>

The respondent, Donnell, commenced his action against the defendants, Williams & Birnie, as copartners, to recover a debt due from them, by the service of a summons personally on the defendant Birnie. Thereafter he procured a warrant of attachment against the property of the defendants as non-residents, under which copartnership funds belonging to the defendants were attached by the sheriff.

This was an equitable action for an accounting, and for other relief connected therewith, growing out of a written agreement entered into between the plaintiff and the defendant on December, 21, 1871, and a subsequent oral agreement concerning the printing, agency and sale of a German-American Cyclopedia called “ Deutsch-Americanisches Conversations Lexicon,” which was then being published in numbers by the plaintiff.

The action was brought to recover money deposited with the defendant, by one Susan Boone.

<p>Execution against the p&rson — when it maybe issued, upon a judgment for costs recovered in an action for a tort.</p> <p>In an action to recover damages for a conversion of personal property, the costs exceeded the verdict recovered by the plaintiff, and a judgment for such excess was entered in favor of the defendant.</p> <p>Held, that as the judgment was recovered in an action for a tort, the plaintiff could be imprisoned under an execution against his person, issued thereon.</p>

<p>Gounte/r-cla/kn — when, striclcen out because not based upon a contract — the liability of a trustee for the debts of a company, occasioned by his failure to flea report, is not based on a contract — Code of Civil Procedure, § 501.</p> <p>In an action by the plaintiff to recover for services rendered to the defendant, the latter set up, as a counter-claim, that the plaintiff was a trustee oí a manufacturing corporation, and that, by reason of his failure to file the annual report required by law, he had become personally liable for the debts of the company, some of which were held by the defendant at the time of his default, which debts he sought to set off against the plaintiff’s claim herein.</p> <p>Meld, that the counter-claim was not based upon a contract, as required by section 501 of the Code of Civil Procedure, and that it should, be stricken out.</p>

The action was brought to foreclose a bond and mortgage executed and delivered by William N. Tiall to the Mutual Protection Life Assurance Society, on June 29, 1871, and recorded in Kings county, July 8, 1871.

The action was brought by the Board of Excise of the city of Yonkers, to recover the penalty incurred by the defendant in selling liquor without a license.

(Oh. 459 of 1862, as amended by ch. 814 of 1867.) The parties are owners of farms in Queens county, situated on the opposite sides -of a public highway. On the morning of May 24, 1879, a mare belonging to the appellant slipped her halter, and ran across the appellant’s farm into and upon the highway. She was followed by -her foal.

. Appeal from an award made by two of the three commissioners appointed to ascertain the compensation to be made to the respondent, John W. Somarindyck, for about one and one-sixth acres t)f land, taken by the appellant for railroad purposes.

Appear from an order denying a motion for a new trial and for a resettlement of the findings in this action. The action, which was brought for the partition of certain real estate, was tried before the court without a jury.

On January 24, 1872, at New York city, the julaintiff and defendant entered into an agreement under their hands and seals, of which the following is a copy: a Memorandum of agreement made and entered into this 24th day of January, 1872, between C. W. Alcott, of the City, County and State of New York, and O. IL.

Tbe action was brought in tbe Westchester County Court, tbe plaintiff claiming for goods, wares and merchandise sold and delivered, and for tbe rent, of certain premises occupied by tbe defendant, which claims amounted in all to the sum of $156.08. Tbe defendant answered, alleging payment, and setting up a counterclaim of $271.68. On tbe trial tbe plaintiff proved tbe whole amount of bis claim, and tbe defendant proved $113.20 of tbe counter-claim set up by him.

, The action was brought to procure the reformation of three polieies of insurance, issued by the defendant to the plaintiff, upon a stock of paper and other hazardous merchandise, and to recover, upon the policies as so reformed, damages occasioned by a fire, amounting in all to $16,500.

The plaintiff, is a corporation, created under the general law (Laws of 1850, ch. 140) for the formation of railroad companies. Under this law, by purchase and by the proceedings for condemnation authorized therein, it has acquired lands for the purposes of its roadway in the counties of New York, Westchester and Putnam, of which it has taken possession, and upon which it has nearly completed its railway.

<p>Appeal from a judgment dismissing the complaint, entered upon the report of a referee.</p> <p>The action was brought to recover the damages sustained by the plaintiff by partially falling through a hole in a bridge.</p> <p>The referee found, among other things, “ That the defendant is a municipal corporation duly created under the laws of the State of New York, and that the Common Council thereof possesses all the powers given by law to the Commissioners of Highways of towns, in respect to the bridge hereinafter mentioned.</p> <p>“ That in or about the year 1821 a bridge was constructed across the Bronx river (which was then and now is an unnavigable stream), and that in or about the year 1856, the said bridge was rebuilt by the Commissioners of Highways of the town of Yonkers, the abutments of the second bridge occupying the same spaces as the abutments of the first bridge, erected about the year 1821, the Highway Commissioners of the adjoining town of East Chester, at the same time building another span of about the same length over a marshland or swamp, then being in the town of East Chester ; that the said Commissioners of Highways of the respective towns of Yonkers and East Chester, as between themselves, and with reference to 'the expense of constructing both of the said spans considered them both as constituting one bridge, but the said Bronx river has always flowed in its present channel, which is wholly between the abutments of the said westerly span of the said bridge.</p> <p>“ That on the thirteenth day of December, 1878, the plaintiff, then being an inhabitant of the village of Mount Vemon (an incorporated village in the said town of East Chester), while crossing the westerly span of the said bridge, which is intersected by the Bronx river, without fault or neglect on her part, partially fell through a hole, about six inches in width by about three feet in length, thereby receiving painful if not permanent injuries.</p> <p>“ That the said hole in the bridge through which she partially fell, was outside of the corporation limits of the city of Yonkers, being over the line of the middle of the channel of the Bronx. river at least five and onedialf feet, and was in the town of East Chester; and that the boundary line between the said city of Yonkers and the town of East" Chester is the middle of the channel of the said Bronx river ; and that, for the purpose of connecting the said town of East Chester with the said town or city of Yonkers, the said westerly span was the whole bridge over the said Bronx river.</p> <p>“That the said city of Yonkers was, by the charter thereof, declared to be one of the towns of Westchester county except as is otherwise provided in the act of incorporation of the said city; and that the maintaining or keeping of the said bridge in repair is not provided for in the said charter; but that the Common Council of the city of Yonkers, by the said charter, were made Commissioners of Highways within the limits of the said city, and, as such Commissioners of Highways of the said town of Yonkers, it was also their duty, and also the duty of the Commissioners of Highways of the said town of East Chester (under the statutes), to keep and maintain the said westerly span of the said bridge in proper repair at the joint expense of both towns.</p> <p>“ That the said defendant, or the said Common Council, or Commissioners of"Highways, had no notice, actual or constructive, of the existence of the said hole in said bridge, but were ignorant of the same without fault on their part.”</p>

Upon tlie application of the defendant, an order was made requiring tbe plaintiff to appear and be examined as a witness before tbe trial of tbe action, at tbe Court House in tbe city of Brooklyn.

<p>Action to remove a cloud upon title — when it will not lie — chapter 858 of 1867— as to whether notice to redeem, from a sale under ■must he given — when sale cannot he attacked for an error in the description of the land — 1867, eh. 858, § 10. —1855, ch. 437, § 34.</p> <p>The plaintiff, claiming to be the owner of a lot in the city of Syracuse, brought this action to have a deed thereof, executed by the County Treasurer, upon the sale of the lot for unpaid taxes, set aside, as a cloud upon hep title, upon the ground that no notice to redeem had' been given to the owner or occupant thereof.</p> <p>Meld, That, if section 13 of chapter 858 of 1867 (the act under which the sale was made) did not make applicable to proceedings under it, the provisions of the general laws of the State relating to the giving of a notice to redeem after a sale for taxes (1855, eh. 437, §§ 68-75), then no such notice was required, as the act of 1807 contained no provision requiring such notice to be given, and the defendant’s deed was valid.</p> <p>That, if the provisions of the general laws on that subject did apply, then the plaintiff’s right to redeem was still perfect, and as the defendant’s deed would not entitle them to recover possession of the land without the production of the treasurer’s certificate, showing a failure on the part of the owner or occupant to redeem after due notice had been given, the plaintiff had no occasion to come into a court of equity for relief.</p> <p>That, in either event, this action could not be maintained.</p> <p>Section 10 of chapter 858 of 1867 renders the deed conclusive evidence of the regularity of the sale, and prevents its validity from being attacked by proof of a misdescription of the land in the notice of sale.</p> <p>Under section 84 of chapter 427 'of 1855 the validity of a sale is not affected by any error in the description of the land in the printed notice of sale. Qusere, as to the constitutionality of these provisions. ■ _</p>

<p>A defendant who fails to pa/y over to the plaintiff money to enable her to carry on a suit for divorce, as ordered, is liable to arrest — his inability to pay it is no defense to an application for his commitment — 2 S. S., 538, § 20, is only applicable to those actually imprisoned.</p> <p>Where a defendant, in an action brought against him by his wife, for a limited divorce, fails to comply with the terms of an order, requiring him to pay a certain sum of money to her attorney to meet the expenses of the suit, he is guilty of a contempt for which the court may issue a precept committing him to jail.</p> <p>Upon the return of an order, requiring the defendant to show cause why he should not be committed for failing to comply with the terms of such an order, he cannot show, in opposition to the motion, that his pecuniary circumstances are such as to render him unable to pay the moneys thereby required to be paid.</p> <p>An application, under 2 R. S., 538, § 20, for relief, on the ground of the applicant’s inability to comply with the requirements of the order, must be made to the court, upon notice to the adverse party.</p> <p>Bernble, that the remedy afforded by the said section was intended for those only who are actually imprisoned. (Per Smith, J.)</p>

<p> One seeking to rescind a contract, for fraud, must restore what he received under it. </p> <p>This action was brought by the plaintiff to recover damages for an alleged breach by the defendants of an agreement to replace certain United States bonds loaned by him to them in 1805. The defense was that the plaintiff had for a valuable consideration released the defendants from all liability for his claim. Upon the trial it appeared that in March, 1873, the plaintiff had a claim against the defendant bank, for forty-four United States bonds, of $1,000 each, loaned to it, and a claim against- its cashier, one Starin, for eleven similar bonds belonging to him, which had been converted by Starin to his own use, and also for certain other matters, amounting in all, including the forty-four bonds loaned to the bank, to $93,502.43. The bank had furnished its cashier, Starin, with funds wherewith to replace the bonds borrowed from the plaintiff, which funds he had converted to his own use. The bank denied its liability to the plaintiff for the bonds borrowed by it, as well as for those taken by Starin. On March 1, 1873, the plaintiff’s claims were finally adjusted and settled by Starin’s paying to him $30,000 in cash, and giving to him his check for $116.08, and his note for $63,000, dated on that, day and payable on demand. Starin also deposited with one Woodruff, to secure the payment of the said note, certain securities and property of the nominal value of $77,975, being substantially all his property. Of the $30,000 paid to the plaintiff in cash, $25,000 was furnished by the bank to Starin, upon the discount of -notes for him, which notes were understood to be, and were in fact worthless; it was also agreed as part of the settlement, that Starin should remain in the . bank as cashier until the following July, and that no bankruptcy proceedings should be instituted against Starin which the bank or the defendant Beardsley could prevent. At the time of the settlement Starin owed the bank over $20,000. The plaintiff thereupon executed an instrument releasing the defendants from all liability arising from the borrowing of*the said bonds. The agreement made by the bank was -fulfilled by it, and from the securities deposited to secure.the payment of the said note some $680 had been realized and paid to the plaintiff.</p> <p>Upon the trial the plaintiff sought to avoid the effect of the settlement by showing that he had been induced to enter into it by certain false and fraudulent representations made to him by the defendants.</p> <p>field, that as he had not restored or offered, to restore what he had received as the consideration of the settlement, he could not rescind the same, and that the action could not be maintained.</p> <p>That ho could not retain the moneys received by him from the bank, as the consideration of the settlement and release, and treat them as payments made on account of the debt due from it to him.</p>

<p>Appeal from an order of tbe Onondaga Special Term, and the judgment entered thereon, sustaining a demurrer to the answer to the complaint herein.</p>

Upon the trial the judge found among other things that some few weeks prior to March 4,1872, certain of the defendants, having offered the Homestead Farm of James Upton, deceased, for sale, the plaintiff and the said defendants entered into negotiations for the purchase thereof by the plaintiff; the plaintiff went upon and examined the farm, and the external boundaries thereof were correctly pointed out to him.

<p>When the assignee in bankruptcy of an insolvent bank cannot recover from a stockholder a dividend paid to him when it was insolvent — the lien of a creditor upon the assets of an insolvent corporation is only enforceable in equity.</p> <p>This action was brought by the plaintiff, as the assignee in bankruptcy of an insolvent banking association, organized under the general act of 1838 (cli. 260), to recover the sum of $400, paid to the defendant’s testator, a stockholder of the bank, as a dividend upon his stock, on the ground that at the time it was paid the bank was insolvent. It was conceded that, at the time the dividend was paid, neither the testator nor the officers of the bank knew that it was insolvent, unless they were chargeable in law with such knowledge by reason of their respective positions as a stockholder therein and as officers thereof.</p> <p>Held, that the action could not be maintained.</p> <p>The lien of the creditors of an insolvent corporation upon its assets in the hands of its stockholders, or of.other persons, is a purely equitable one, and can only be enforced in an equitable proceeding.</p> <p>The provisions of the Revised Statutes relating to moneyed corporations do not apply to banking associations organized under the general act of 1838.</p>

<p>When an accounting by the guardian is not a prerequisite to an action against his sureties — when no demand is necessary before bringing an action.</p> <p>An accounting by a guardian is not a prerequisite to an action against the sureties upon his bond, in those cases in which the extent of his liability has been otherwise as definitely determined as it could be by an accounting. Where a guardian wrongfully converts tire money of the ward to his own use, no demand is necessary before bringing an action against the sureties upon his bond.</p>

<p>Appeal from a judgment entered on tbe report of a referee, dismissing tbe complaint on tbe ground tbat tbe pendency of certain proceedings before tbe surrogate of tbe county of Genesee, compelled an abatement of tbe action.</p>

<p>Evidence to prove the intent is admissible, though it show the accused to have been guilty of another offense — comparison of handwritings, when admissible— what evidence admissible, to discredit the testimony of the accused.</p> <p>Upon the trial of the plaintiff in error for an assault alleged to have been committed upon one John G-. Hoster, with a deadly weapon, with an intent to MU him, the prosecution was allowed, against the objection and exception of the plaintiff in error, to show that he had, shortly before the alleged assault, forged the name of the said Hoster to two promissory notes, which notes he had in his possession up to the time of committing the assault.</p> <p>Held, that the evidence was properly received.</p> <p>That it tended to establish a motive for the commission of the offense, and was not rendered inadmissible by the fact that it also tended to show the commission of a distinct offense other than that charged m the indictment.</p> <p>The prosecution put in evidence, without objection, a promissory note, bearing the genuine indorsement of the said Hoster. and also an account book, kept by the plaintiff m error, in which he had written the said Hosier’s name. Subsequently witnesses called by the prosecution were allowed to compare the signatures alleged to have been forged with the genuine signature and the one written in the accouut book.</p> <p>Held, no error.</p> <p>The plaintiff m error claimed that the notes were given to him by Hoster in consideration of an indebtedness due to him for borrowed money, exceeding in amount that of the two notes.</p> <p>Held, that evidence tending to show that tbe defendant was at that time embarrassed in lus pecuniary circumstances, and pressed by numerous creditors whom he was unable to pay, was admissible, as tending to show that he then had no money to lend.</p>

<p>Appeal from an order made at a Special Term, denying a motion made by the defendant for leave to renew a motion to set aside the judgment entered herein, and to set aside such judgment in case such leave should be granted.</p> <p>The motion to vacate the judgment was improperly denied, when first made. It was an abuse of Rule 37, not an application of it; to hold that it covered the case of a judgment entered without the shadow of a right. {Jackson v. Smith, 16 Abb. Pr. 201, 203; Winnebrenner v. Fdgerton, 30 Barb., 185; Kellogg v. Howell, 62 Id., 280; Mcvrguat v. Mwl/oy, 9 How. Pr., 460.)</p> <p>A conclusive answer to the defendant’s application and to this appeal is the fact that the answer proposed to be served is palpably frivolous. That answer sets up a discharge in bankruptcy. Tlie action was brought against the defendants for an indebtedness arising in a fiduciary capacity, and the discharge in bankruptcy is no defense. The plea was properly treated as a nullity, not -being adapted to the action. (1 Burrill’s Practice, 180 ; Ycm Veehten v. Cowell, 1 Hill, 203 and eases cited; Bump on Bankruptcy, § 5117, p. 730, 9 ed.; Whitaker v. Cha/pman, 3 Lans., 155 ; In re Seymour, 6 Blatchf., 292.) The order is not appealable. {Hank of Hara/na■ v. Morse, 5 Hun, 626 ; 34 N. Y., 555 ; 35 Barb., 650 ; 44 N. Y. Super. Ct., 144.)</p>

<p>Appeal from an order confirming the report of a referee, appointed to hear and determine a claim made against the estate of the defendant intestate, and denying a motion for a new trial, and also from the judgment entered upon the said report.</p>

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

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

<p>Vendor's lien on real estate — what a waiver of — when destroyed Iry taldng a collateral agreement to secure the purchase-money.</p> <p>A vendor of real estate waives his lien for the unpaid purchase-money, by taking the note or obligation of a third person therefor,, or by taking from the vendee an agreement to pay the amount due, in some commodity other than money. -</p>

<p>Appear from an order vacating a judgment heretofore entered in this action, in so far as it affected Henry C. Sutcliffe or his estate, and reviving and continuing the action against Horace T. Cook, public administrator of Cayuga county, as administrator of the said Henry C. Sutcliffe.</p> <p>This action, brought by the plaintiff, a receiver appointed in supplementary proceedings, against Henry C. Sutcliffe, and William Sutcliffe, his son, was tried at the Cayuga Equity. Term in March, 1875. The action was brought to charge certain real estate and the improvements thereon with the lien of a judgment, obtained by one Ferris against Henry 0. Sutcliffe. It apjseared on the trial that during the pendency of an action brought by Charles T. Ferris against Henry C. Sutcliffe, the latter paid for certain real estate, the deed to which was taken by his son William. That at the time Henry C. Sutcliffe was carrying on .an extensive business as a brewer, and that after the conveyance of the said land, valuable improvements were placed oirthe land by the defendant William, with money furnished by his father. It was claimed that the court had found in that action that the said land was so conveyed, and the said improvements were put on it and paid for with an intent by the said defendants to cheat and defraud the creditors of the. said Henry C. Sutcliffe, and especially the said Charles T. Ferris, but that owing to an inadvertence and omission of the court in drawing the findings and decree, the decision, while it stated that the conveyance was made and received for the purpose of defrauding creditors, omitted to state that the improvements were placed thereon and paid for, with such intent to defraud.</p> <p>The defendant, William Sutcliffe, appealed from the said judgment, which was entered in July, 1875, and the same was affirmed by the General Term in an opinion reported in 10 Hun, page 453. On an appeal to the Court of Appeals the judgment was reversed, that court holding that a receiver in supplementary proceedings could not maintain an action to enforce a resulting trust, and granting a new trial; the court holding that while the improvements could be reached in this action if placed thereon with a fraudulent intent, yet that the findings and judgment did not show that intent sufficiently.</p> <p>Henry C. Sutcliffe had in the meantime died, and the plaintiff moved this court to continue the action against his administrator, whom the creditor had caused to be appointed, and to open the judgment against Henry C. Sutcliffe, so as to be able on a new trial to show the fraud of both the father and the son in placing the said improvements on the premises.</p> <p>- From the order granting this motion, this appeal was taken.</p>

<p>•When an order of a County Court is not appealable to the General Term— Code of Civil Procedure, § 1342.</p> <p>An appeal will not lie to the General Term of the Supreme Oourt from an order of the County Court made in an action commenced in a justice’s court, and brought into the County Court by appeal.</p>

This action was originally commenced in a justice’s court by the plaintiff, a minor, by his guardian, to recover upon a guamtnim meruit, for work, labor and services rendered by him to defendant.

<p>Appeal by the plaintiff from an order of the Oneida Special Term refusing to confirm the report of a referee, and setting aside the report and ordering a new trial before another referee. The plaintiff presented a claim to the defendants as administrators of Nathan Foreman, deceased, and they rejected it and entered into a stipulation to refer it, which was approved by the surrogate of Jefferson county and filed with the clerk of that county, and thereupon an order of reference was made. The referee heard the parties and made a report in favor of the plaintiff, which was set aside.</p>

<p>A witness camnot testify as to the impression produced, on his mind ~by a conversation — impeaching the general character of a witness for veracity — what questions cannot he put to the witnesses called, to do so.</p> <p>Upon tho trial a witness, called by the plaintiff to testify as to a conversation he had had with the defendant, said that he could not say what the defendant had stated in it. Subsequently he was asked what impression that con: versalion made upon his mind. Held, that the question was properly excluded.</p> <p>Upon the trial of this action the defense called one George Morse for the purpose of impeaching the plaintiff’s character, he having been sworn as a witness. Morse having testified that the plaintiff’s general character for truth and veracity was bad, was asked, and allowed, against the plaintiff’s objection and exception, to answer in the affirmative the following question: “Did Mr. Wilder (the plaintiff) state to you in a certain conversation that he regarded it as no wrong to swear falsely against such a man as Albert Morse ?”</p> <p>Held, that it was error to allow the question to be put and answered, as it called for a specific declaration upon a collateral matter to which the attention of the plaintiff had not been called on his cross-examination.</p>

Appeal by Sarah A. Leach from an order of the Onondaga Special Term, refusing to award dower, and dismissing proceedings instituted by her for its admeasurement. In 1852 Caroline W. Leach, the wife of James S. Leach, purchased a house and lot on South Salina street, in the city of Syracuse, and continued to reside therein with her husband, until in 1856, when she died intestate, leaving her husband and three children her surviving.

<p>Will — the witnesses thereto should sign after the testator — one named therein as executor is a competent witness in behalf of the proponents — the validity of its execution may he established against the evidence of the witnesses thereto.</p> <p>The subscribing witnesses to a will should sign the same after it has been subscribed by the testator.</p> <p>One named as an executor in a will is a competent witness in behalf of the proponents thereof, to establish the validity of its execution.</p> <p>The due execution of a will may be established by other evidence, than or in opposition to the testimony of the subscribing witnesses.</p>

The action was commenced in November, 1878, for an assault and battery. The defendant answered, setting up a general denial and a justification. On May 7, 1879, the plaintiff’s attorneys notified the defendant that they had a lien upon the cause of action for costs and. disbursements, and .that they would disregard any settlement of the suit made without their consent.

Writ of error to the Court of General Sessions for the city and county of New York.

Scott, Esq., 'as attorney for the defendant, Ida Heidelberg. The action was brought to foreclose a mortgage, and the appellant was joined as a defendant with her husband, Carl Heidelberg; the latter being the owner of the equity of redemption.

Appeals from judgments entered in favor of the defendants against the plaintiff, upon the trial of the above entitled actions by the court without a jury. These two actions were brought against the sureties to an undertaking given in an action brought by one Westermann against the present plaintiff.

Writ of error to the Court of General Sessions of the County of New York. The plaintiff in error was jointly indicted with one Louisa Jeke for the larceny of a quantity of money from one Isabella Hollis, on January 28, 1880. She was tried in the Court of General Sessions on February 18, and convicted of grand larceny.

<p>When the right to sue for goods sold is merged in a subsequent agreement — agreement to prove a fact to the satisfaction of apeo'son named — what proof is . required to justify a recovery upon it.</p> <p>The plaintiff having- applied for a discharge in bankruptcy, entered into a composition with his creditors by which he paid fifty-five per cent, of his debts, and procured a discharge. In negotiating with the defendants, to whom he was then indebted, he asserted a claim for certain zinc of the value of $132.07, which he claimed to have sold to them, which claim they disputed. It was finally agreed that this claim should be withdrawn from the compromise, the defendants stipulating that in case theplaintiff pi-oved to the satisfaction of Mr. Gould’s sons' that the zinc was received by them, they would pay to him fifty-five per cent, of the $132.07.</p> <p>This action was brought to recover for goods, wares, &c., consisting of the said zinc, claimed to have been sold by the plaintiff to the defendants. Held, that the notion should in any event have been brought upon the agreement, ¡ nd not lor the goods sold.</p> <p>That to recover upon the ‘agreement the plaintiff should have shown that they had proved the delivery of the zinc to the satisfaction of Mr. Gould’s sons, or at least that they liad produced evidence which should have been satisfactory to them, and that, not having done so, they could not recover.</p>

The original plaintiff died after the trial of this action, and the present plaintiff was substituted in his place.

<p>Bill of particulars — when one will be ordered in an action for slander — Code of Givil Procedure, § 531 — what allegations in the complaint are insufficient to authorise the admission of evidence of special damages. ‘</p> <p>This action was brought by the plaintiff to recover the. damages occasioned by an alleged slander. The complaint charged that the defendant “did, sometime during the month of September, 1879, at the city of New York, falsely, wrongfully and maliciously speak, utter and publish the following false, defamatory and actionable words of and concerning the plaintiff, in the German language, in the presence and hearing of divers persons all of whom understood the same; ” it then set forth the language in German and English, and alleged that by reason of the speaking of such words the plaintiff “ was greatly injured in his fame, reputation, and good name as a physician, and in his earnings, profits and income as such,” and that he had sustained great damages.</p> <p>Upon an application by the defendant for a bill of particulars, Held, that the plaintiff should be required to furnish a bill of particulars specifying at what place or places, and in the presence of what person or persons, the words were claimed to have been spoken.</p> <p>That as-the allegations as to the injury to the earnings, profits, and income of the plaintiff as a physician, were not sufficient to allow him to prove special damages in particular instances, upon the trial, it was unnecessary to order a bill of particulars in those respects.</p>

The action, which, was commenced December 6, 18Y9, was brought to recover from the defendant the sum of $4,210.04, alleged to have been fraudulently embezzled, misappropriated and taken by him, while acting as bookkeeper for the plaintiff.

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

<p>What scheme amounts to a lottery — 1 S. 8., 665, § 22 — 1 i?. 8., 667, § 32— when double the amount paid for a lottery ticket map he recovered — international comity does not compel this State to allow lottery tickets issued hy a foreign government to he sold within its limits.</p> <p>The plaintiff purchased of the defendant, in this State, an instrument called an Austrian Government Bond, by which that government promised to pay to the holder thereof a fixed sura of money, therein named, with interest thereon at the rate of five per cent., together with an additional premium of twenty per cent., and also agreed, in case the number of the bond should be drawn as one of the prize numbers, in drawings to be held as prescribed in the said bond, that then the holder thereof should receive an additional sum of money as a prize or bonus.</p> <p>Meld, that tbe scheme proposed by the Austrian government was a lottery, within the meaning of the statute (1 R. S., 665, § 22) prohibiting all lotteries in this State.</p> <p>That the sale of the said bond was the sale of an interest or ticket in a lottery, within the meaning of section 32 of 1 R. 8., 607, and that the plaintiff was entitled to recover thereunder, double the amount he had paid to the defendant on the purchase thereof.</p> <p>That his right so to do was not affected by the fact that the bond was issued by a'foreign government.</p> <p>That the fact that the statute virtually deprived the Austrian Government of the privilege of disposing of its bonds in this market, did not violate the international comity existing between the United States and the Austrian Government, or render the statute inoperative and void.</p>

This action was brought against Samuel O. Thompson, Frederick F. Thompson, Demás Barnes, Jacob Silberman, Lazarus Rosenfeld and John W. Ellis, as stockholders of the Lake Mahopac Improvement Company, a corporation organized under chapter 117 of 1853, ■ entitled “An act to authorize the formation of corporations for the erection of buildings,” and the amendatory act of 1870, chapter 773, by which the purpose for which the corporation might be formed was extended to “the…

This action was brought in 1876 to restrain the defendant from laying its tracks in portions of West street in the city of New York, on the ground that, under its charter, it had no right to place them there. The Christopher and Tenth Street Railroad Company had already brought an action for the same purpose against the same defendant, and had been defeated therein, and also upon an appeal taken by it to the General Term.

<p>JEkceeutor — when he is not personally liable to a legatee for a failure to pay oner the legacy.</p> <p>The mere failure of an executor to pay go a legatee the full amount of his legacy will not, in the absence of proof that he has become personally liable for the residue thereof by reason of some illegal or improper conduct, or that he himself claims (o be entitled thereto, authorize an action to be brought against him individually to recover the same.</p>

<p>Appeal from a judgment entered upon an order sustaining a demurrer to the complaint.</p>

Writ of Error to the court of General Sessions to review the trial and conviction of the plaintiff in error of the crime of petit larceny. The plaintiff in error, Martin McNally, Bernard Fallon, Lawrence Bowe, and Henry Muller, were indicted for larceny and receiving stolen goods, to tvit: a quantity of cotton, the property of one George C. Hartick.

<p> An infant is not liable to an action for a breach of a promise to marry. </p> <p>An action for a breach of a promise to marry will not lie against an infant, even though the plaintiff may, by reason of such promise, have been induced to allow him to have connection with her.</p>

Tbe referee to whom it was referred to report as to tbe facts in tbe action found, among other things, tbat on March 3, 1878, tbe plaintiff Johannes Ruger was married to tbe defendant Theresa Heckel, in the city of New York, and that thereafter they lived together as man and wife, from tbe said March 3, 1878, to December 18, 1878, and tbat on December 18,1878, the said Theresa, without tbe consent or permission of tbe said plaintiff Johannes Ruger, left bis home, and tbat…

* The action was brought upon a bill of exchange made by the master of the defendants’ vessel, and an alleged contemporaneous agreement between the master and the plaintiff, as the charterer of the vessel, providing that the differences between them in reference to the construction of certain clauses in the charter-party should abide the event of the decision of the “ United States Court at Charleston,” in the case of the barkentine Kiota.

Appeal by the Mayor, &e., of the City of New York, from an order of the Special Term, vacating an assessment for regulating, grading, &c., One-Hundred-and-Eifty-fifth. street, from Ninth Avenue to the Hudson River.

<p>Power of the court to allow a judgment to he entered against a party after Ms death — when an application to amend a judgment should he denied on account of the laches of the applicant.</p> <p>This action was commenced in November, 1869, to foreclose a mortgage, the plaintiff praying for a judgment for any deficiency that might arise upon a sale, against the defendant Griswold, the mortgagor, and against the defendant Coe, upon an independent guaranty executed by him. Coe died on January 9, 1870. On January 20, the court directed the usual judgment of foreclosure and sale to be entered, as of January 6, 1870, nunc pro tunc. This judgment contained no provision charging the defendant, Coe, with' any deficiency.</p> <p>Upon a sale, had in 1877, a large deficiency arose, the premises being purchased by one Wm. H. Grant, who was,. upon the death of the original plaintiff, in 1878, appointed his executor. Thereafter, and on December 24, 1879, he, as such executor, moved to amend the said judgment, nunc pro tunc, as of January 6, 1870, by inserting therein a provision charging the said Coe witli any deficiency that might arise upon the sale.</p> <p>Beld, that tbe court.had no power to grant the motion,, as the application, though in form one for leave to amend the. judgment, was in reality one for leave to enter an original judgment, by default, against Coe, some ten years after his death.</p> <p>That even if the court had power to make the order, it erred in exercising it in this case, as no excuse was given for the long delay in making the application.</p>

<p>Trial by a Court of Special Sessions — unanimity of the magistrates composing it is not essential to a conviction — an infant may elect to be tried by the Special Sessions.</p> <p>Where one charged with petit larceny elects to be tried by a Court of Special Sessions, it is not essential to the validity of a conviction that all the magistrates should concur therein; the judgment of the majority is the judgment of the court.</p> <p>An infant accused of petit larceny may waive his right to a trial by jury, and elect to be tried by a Court of Special Sessions.</p>

On March Id, 1879, Edward Cooper, as Mayor of the city of New York, sent to Sidney P. Nichols, then one of the Police Commissioners thereof, a communication in writing, stating the existence of certain facts, which, in the judgment of the Mayor, warranted the removal of Mr. Nichols from office.

Appear from an order made at a Special Term denying an application to vacate an assessment. The assessment was laid for the expenses of regulating, grading, curbing, flagging and guttering Fifth avenue, between Ninetieth and One-Hundred-and-Twentieth streets. The application of the petitioners to have it vacated, so far as it affected their property fronting on the avenue, was denied.

Appeal by tbe defendant Schreyer, -from a judgment of deficiency entered against him, as a guarantor of the bond, accompanying the mortgage to foreclose which this action was brought.

This action was brought to recover the damages caused by a fire which destroyed certain stock and materials which were claimed by the plaintiff to have been insured, at the time of - the- fire, by the defendant. The fire occurred at Nos. 315 to 321 East Twenty-second street, in New York city, on April 18, 1877, in a large five-story building, in the • third story of which the plaintiff manufactured fans.

This action was brought to recover a balance of an account for goods sold and delivered, after crediting thereon a payment of $187.09. The answer alleged that the payment of the $187.09 was in full of all indebtedness, and of all claims and demands whatever, and denied any indebtedness to the plaintiffs.

Tbe work was completed in April, 1869, and tbe assessment confirmed in September of tbat year. On December 27, 1876, this proceeding was commenced, to vacate the assessment, on the ground that the ordinance directing the work to be done had not been advertised before its adoption, as required by the charter, and that an assessment for a prior pavement of the street had been laid on the lot, and paid. No proofs were taken in the matter until April 10, 1878.

This action was brought to restrain the defendants from publishing and selling certain copy books.

<p>Appeal from an order made at a Special Term, denying a motion to vacate an order directing the service of tbe summons herein to be made by publication.</p>

Appeal by tbe plaintiff from a judgment in favor of tbe defendants, entered upon a trial had at a Special Term. This action was commenced by the firm of X).

' Appeal from an order denying a motion of- one Isabella I). Lyon for leave to intervene and defend this action. This is an action for divorce on the ground of adultery. The complaint alleges that the defendant committed adultery with Isabella D. Lyon. The summons was issued for service on December 23, 1879. The defendant, having left the State, was served out of the State under an order for service by publication.

Appeal in the action from an order made at a Special Term, denying a motion by tbe plaintiff to cancel tbe sheriff’s return upon an execution against the person of the defendant, and to remit the said execution to the said sheriff. Appeal in the special proceeding from an order made on habeas corpus, discharging the defendant in the action from the custody of the sheriff.