Volume 29 — New York Supreme Court Reports

This case came before tbe court both by a writ of error and by a. writ of cerUora/ri to the City Court of Brooklyn, for the purpose-.of reviewing the proceedings had upon the trial and conviction of the relators upon an indictment charging them with a fraudulent, consjiiracy to defraud the city of Brooklyn. During the progress of the trial the counsel for the plaintiffs in. error were notified to appear before the presiding judge after the-adjournment of the court.

<p>Infant — right of, to sue by his guardian ad litem.</p> <p>On January 2, 1873, the defendant, who had been and was then acting as attorney for the plaintiff's mother, who was the administratrix of her deceased husband, and the general guardian of his children, gave to her a receipt stating that there was due to her as guardian of her children, the sum of $1,500, and as next of kin of two deceased children, $1,000, “payable according to a decree of the Surrogate of the county of New York, interest to be paid on the money,” semi-annually. The decree directed the shares to'be paid to the general guardian of the infants. The plaintiff's mother died in 1876. On July 19, 1877, Andrew Koch was appointed general guardian, and on October 15, 1877, guardian ad litem for the plaintiff.</p> <p>Held, that the plaintifí could, by his guardian ad litem, maintain an action against the defendant to recover his share of the fund received by the latter from the plaintiff’s mother.</p>

<p>Appeal from an order of the Surrogate of Orange county, issuing letters testamentary on the will of Elizabeth Yan Wyck, deceased, to lier son, Charles H. Yan Wyck, the "executor named in. the will, without requiring him to give a bond, he being a resident of the State of Nebraska.</p> <p>The will contains the following provisions :</p> <p>“ Lastly: I hereby nominate and appoint my son, Charles H. Yan Wyck, sole executor of this, my last will and testament, and I hereby exonerate him from giving or being required to give any bond or security as such executor, for or on account of non-residence or any other reason or cause whatever, any law or statute to the contrary notwithstanding.”</p> <p>The proof showed that the executor formerly resided at Middle-town, Orange county, New York, but changed his residence to-Nebraska about five years ago. The surrogate held that he had his usual place of business within this State, as that term was used in chapter 657 of 1873, providing that “ if any person applying for letters testamentary be a non-resident of the State such letters shall not be granted until the applicant shall give a bond; provided, however, that such non-resident may receive such letters without bonds if the testator, by words in his last testament, has requested that his executor be allowed to act without giving bonds, and if ■such executor has his usual place of business within this State.”</p>

The defendant, the sheriff of Suffolk county, seized, under an execution issued upon a judgment recovered by one Gorman against-Caleb T. Smith, certain articles of personal property which were-alleged to belong to tbe latter. The plaintiff claimed to he the-owner of certain of the articles, by virtue of a bill of sale, and of' others by virtue of a chattel mortgage, executed to him by Smith, and brought this action of replevin to recover the articles seized by the defendant.

The action was brought to recover damages for an alleged false imprisonment of the plaintiff, and was commenced against the defendant Osborn by the service of the summons and complaint and an-order of arrest on September 8, 1877. The venue was laid in Kings county. On Sejitember 27, 1877, Osborn appeared in the action, and on the 29th his bail duly justified and he- ' was admitted to bail.

■and determine a disputed claim against tbe estate of Leonard S. •Carpenter, deceased. Tbe disputed claim was based upon a note of $500, dated October 1, 1872, made by Leonard S. Carpenter, and payable to tbe order ■of Hannah Carpenter, bis wife, who died since tbe death of her husband, and after tbe commencement of this action.

The affidavit, upon which alone the motion was made, was made by the plaintiffs attorney, and stated among other things “That this action was commenced by service of the summons, and complaint on the defendant herein, on November 11, 1879 that this action is brought to recover damages for certain breaches on the part of defendant, of a contract in writing, under the-hands and seals of the above-named Benjamin E. Hale and this-defendant, for the manufacture and sale,…

The action was brought by the above-named appellant in one of' the justices’ courts of the city of Brooklyn, to recover of the defendant over $50, and upon the trial a judgment was rendered in favor of the defendant. An appeal from the said judgment to the County Court of Kings-county was dismissed, on the ground of the insufficiency of the notice of appeal. From this order an appeal was taken to the General Term of the Supreme Court, where it was affirmed.

Upon the trial evidence was given tending to show that in June, 1877, the gas-pipes of the defendant being in bad condition .all along the line, they employed about a dozen men to oj>en a trench down to the main pipe, for the purpose of exposing the ••same to view and examination. This gang of men were under the control, supervision, and direction, in doing this work, of one John Hogan, who was the foreman or superintendent of the defendant in this work.

The complaint alleged that the plaintiff had been duly appointed a receiver in proceedings supplementary to execution issued upon a judgment, recovered against the defendant, Louisa Becker, ■and that she had, in pursuance of an order of the county judge, executed an assignment of all her property to him; that the said defendant was formerly the wife of one George Naumann, who died seized of certain real property at College Point, Queens county, ■consisting of a house and a…

upon the minutes of the justice before whom the action was tried. The action was brought to recover damages for the negligent killing of the plaintiff’s intestate (his son), James M. Loftus, a boy aged six years and four months.

The first codicil was rejected on the ground that the proof of its •execution was insufficient; the other two on the ground that they were procured through fraud and undue influence. Both the witnesses to the first codicil resided in New Jersey. •One of them was called and testified to its formal execution, while -the other witness thereto was present in court, being examined as to other matters.

The petition of James M. Allen and A. Stewart Walsh, two of the executors, upon which the order was granted stated, among other things : “ That on the twelfth day of September, 1874, the said John Hancock died, at the Town of Olarkstown, leaving a last will, bearing date the second day of January, 1874, which will has been duly admitted to probate by the Surrogate of the county of Rockland.

Tbe action was brought to recover damages for an alleged conversion by tbe defendant of certain wood belonging to tbe plaintiff. 'The defendant, after denying tbe plaintiff’s ownership, set up the following counter-claim: “ First. — That on tbe 28th day of September, 1811, one George ~W. Markham, then tbe owner in fee of the premises mentioned in the complaint, executed and delivered to the defendant a bond, and with Emily, his wife, a mortgage on the said premises to secure…

The action was brought to recover damages for the conversion of certain oysters which were claimed to belong to the plaintiffs. Upon the trial, the plaintiffs gave evidence tending to show that,in the month of July, 1876, the plaintiffs entered into a copartnership for the purpose of planting and raising oysters, and selected the ground described in the complaint, to plant their oysters on.

new. trial, made upon the minutes of the justice before whom the action was tried. James Powell, a bright boy about nine years old, was killed on. June 19, 1878, by being struck by an express train on defendant’s road,- while attempting to cross their track at Eishkill Landing. The railroad at the point of the accident runs north and south.

The appellant is the owner of a house and premises, known as No. -18 Fourth street, in the City of Brooklyn.

The action was brought to recover from the defendant a penalty for selling lottery tickets to the plaintiff. The order of arrest was-granted on an'affidavit setting forth the facts of the sale, and the motion to vacate was made on an affidavit, by the defendant, denying-the allegation contained in the complaint and in the plaintiff’s affidavit, and alleging that he purchased the tickets as her agent.

The action was brought to foreclose a mortgage. The referee to whom it was referred to hear and .determine the issues, ■found, among other facts: “ That the defendant, Conklin Keteham, •on May 15, 1875, executed and. delivered to his brother, the plaintiff, his bond, in the penal sum of $600, dated on that day, •and conditioned for the payment of $300 and interest, on demand; •.and that on the same day the said Conldin Keteham, with Phebe A., his wife, duly executed,…

This action was brought to enforce the specific performance of an alleged contract, or in lieu thereof to recover a specific sum as damages for the breach of the same. The defendant demurred to the complaint on the ground that the facts stated therein did not constitute a cause of action. The demurrer was sustained by this court, and leave given to the plaintiff to amend her complaint within twenty days on payment of the costs.

The justice before whom the action was tried, found, among-other things: “ That the defendant, James C. Benham, on or about May 11, 1868, executed and delivered to one Joseph Coles, a bond for $600, together with a mortgage to secure the payment, thereof, which covered the premises hereinafter referred to. “ That James C. Benham and wife, by a deed bearing date the first-day of January, 1870,-for the consideration of thirteen hundred: dollars, conveyed to Elias J. Beach a…

On the' 17th day of January, 1871, Alfred S. Perkins, by an instrument under his hand and seal, assigned and transferred unto George E. Holyoke all his right, title and interest in and to a paid-up policy of insurance for ¿ of $2,500, issued upon his life by the defendant. George E. Holyoke died at 201 Adelphi street, Brooklyn, New York, on May 7, 1875, where he had lived continuously for sixteen years prior thereto, having his office in the city of New York.

Tbe action was brought under the statute to recover tbe damages occasioned by tbe death of tbe plaintiff’s intestate, who was alleged to have been killed by tbe negligence of tbe defendant’s servants. On January 27, 1879, about 6.30 A. M., tbe deceased, a resident of Long Island City, was driving bis milk wagon along Thomson avenue in that city, in a northerly direction, toward a point where tbe avenue was crossed by three railroad tracks of the'defendant.

Controversy submitted upon admitted facts, under section 1279 of tbe Code of Civil Procedure. The plaintiff, William H. Parsons, and one Julius D. Parsons, are sons and sole devisees of William D. Parsons, deceased, and are .also the sole executors of his will, which was duly admitted to probate oh July 17, 1875. As such devisees they entered into'the possession and full enjoyment of the lands so devised to them.

<p>Appeal from a decree of the surrogate of Suffolk county, admitting to probate the last will and testament of Franklin O. Arthur, deceased.</p>

<p>Trustee — after removal from office of trustee Tie may still act as- executor — what facts will justify the cowrt in removing a trustee.</p> <p>"When a person has been appointed one of the executors of a will, and also one of the trustees thereunder, he may, upon proper cause being shown, be removed from his office as trustee, and still be left to exercise his functions as executor.</p> <p>It is sufficient to authorize the removal of a trustee, that it is shown that his relations with his two co-trustees are so unfriendly and hostile as to endanger the execution of the trust, and that the differences between them are irreconcilable, without inquiring into the causes of such hostility and differences.</p>

<p>Tax — the collector is not protected when the warrant is void — when property seized by a collector may be replevied by its owner.</p> <p>The defendant, while acting as a collector of school taxes, levied upon a cow,., belonging to the plaintiff, under a warrant for a school tax assessed against’ the plaintiff’s husband for a farm. It appeared that the farm belonged to the plaintiff, and that her husband resided with her upon it.</p> <p>In this action, brought by the plaintiff to replevy the cow,</p> <p>Held, that, as the farm was improperly assessed to the husband, the warrant-under which the defendant acted was void, and furnished no justification for’ his acts.</p> <p>That the statute, providing that property taken by virtue of a warrant for the-collection of any tax, should not be replevied, -was not applicable where-property owned by, and in the possession of, one person, was seized for the tax of another, and that it did not prevent the plaintiff from maintaining this action.</p>

Ceetioeaei to review summary proceedings instituted, before a. justice of tbe jjeace iu tbe city of Brooklyn, for tbe removal of the relator from certain premises occupied by it.

Tbe complaint alleged that Coney Island, except such parts as-have been rightfully alienated, belongs to the town of Gravesend,, and is vested in the town .or… Held: and has mot been recovered back or restored. The judgment demanded was, that the deed be set aside; that the rights of the town in and to the land be ascertained and. determined. That if the defendants own any part of it, the boundaries between, them and the property of the town may be ascertained and declared.

The complaint alleged an agreement made by the defendant and Jier testatrix, her sister, that the plaintiff should be allowed to gain title to a certain plantation in Louisiana, known as “ Live Oaks,” ■upon payment of certain mortgage notes held by the said defendant and her testatrix, the part performance of the agreement by the plaintiff, his willingness to perform the remainder, and the breach of the agreement by the defendant and her testatrix, and •demanded judgment for…

Man & Parsons, for an order directing tbat a debt,, due to them by the defendant, might be paid by the receiver appointed to collect the rents of certain real estate which this action, was brought to partition.

<p>„Agreement — when it inures to the benefit of a stranger to it — what will'authorize an auctioneer to charge commissions at more than the statutory rate — when he can recover for labor in cataloguing property not sold.</p> <p>'The plaintiff, who had given to one Ackerman a chattel mortgage, as security for a promissory note, payable on demand, subsequently entered into a written agreement with him, by which it was provided that the note and mortgage should be deemed due, without any demand being made, and that the property should be placed in the hands of the defendant, an auctioneer, who should sell the same and pay from the proceeds thereof, after deducting the expenses incurred, and his commission at five per cent., the amount due to Ackerman, and turn over the balance to the plaintiff. Held, that though the defendant was not a party to the contract, yet it furnished the authority under which he sold the property and gave him the right to retain commissions at the rate of five per cent., and relieved him from the penalty imposed upon auctioneers who charge commissions in excess of the statutory rate.</p> <p>After enough of the property had been sold to pay the amount due to Ackerman and the expenses of the sale, the plaintiff directed the auctioneer to stop the sale, leaving unsold about $600 worth of property.</p> <p>Held, that the. defendant was entitled to a reasonable compensation for his labor in including this unsold property in the catalogue which he had made for the sale.</p>

A judgment was obtained by the appellant against the respondent before a justice of the peace of the town of Wallldll, Orange-county, on July 26, 1877, for $6.23 damages and $2.45 costs, amounting in all to $8.68. A transcript thereof was filed in the Orange county clerk’s office, January 26, 1880. At the time the execution was issued there was due on the judgment, including costs and interest thereon, $10.21.

The action was brought to foreclose a mortgage for $1,500,. given by John I. Mandeville to Joseph Husson, as collateral to his-bond for the same amount. The mortgage was dated July 1,1868. On April 9, 1869, Husson assigned the bond and mortgage to one Margaret Robinson, and thereafter the title thereto became vested in the plaintiff.

Johnson, under a decree for the foreclosure of a second mortgage thereon. The sale was sought to be set aside for a defect in the advertisement of the notice thereof. The defendant’s affidavit stated that the notice was only published in what was known as the two o’clock edition of the Brooklyn Eagle; that but few people knew of this edition, and that but few copies of it were sold.

The city of Poughkeepsie claimed to be entitled to the possession ■of the mortgaged premises, under four alleged sales for unpaid city, ■county and State taxes, one made on January 18, 1877, for $50.39, one on December 27, 1877, for $55.98, one on January 8, 1879, for |)53.50, and one on January 21, 1880, for $52.02.

<p>Guardian to sell real estate of inf ant — bond of — when it shouldbe executed — tabees effect from time of its delivery — when an accounting by the guardian need not be had befoi'e suing the sureties on his bond.</p> <p>On September 18, 1867, the plaintiff being then an infant about six years old, and being seized of certain real estate, her mother signed and verified a petition asking for leave to sell the same, and proposing the name of M. V. B. Finch as a special guardian, and Henry Sproat and another, as sureties for him. On February 4, 1868, the proposed special guardian and his sureties signed and acknowledged a bond conditioned that the former “ should faithfully perform the trust reposed in him as the guardian of ” the infant. ■ On February SI the petition and bond were presented to the court, by which the bond was approved and the usual order, appointing Finch a guardian, was made. The estate was sold and the proceeds of sale were paid to M. V. B. Finch as special guardian.</p> <p>In an action upon the bond, against the sureties thereon,</p> <p>Held, that although a bond of the character of the one in question should be executed after, and not before, the granting of the order appointing the guardian, yet it was not necessarily void because signed and acknowledged previously thereto.</p> <p>That the delivery of the bond in question appeared by its approval and filing to have occurred after the application had been granted, and that the bond then took effect and became valid.</p> <p>Upon the trial of this action it appeared that, upon a petition alleging that the guardian had received and converted to his own use certain moneys of the infant, an order was made requiring him to make a full report of his proceedings and render an account of the funds which he had received, and to show cause why he should not be required to pay into court the moneys found to be in his hands. The petition and order having been personally served on the guardian, and he having failed to appear on the return day thereof, an order was made requiring him to pay into court the amount alleged to be due in the petition. He having failed to comply therewith, this action was, in pursuance of an order of the court, brought upon his bond.</p> <p>Held, that a nonsuit, ordered on the ground that there had been no accounting by the guardian before the commencement of the action, was erroneous, and that the judgment entered on such order should be reversed.</p>

Ajppeax from an interlocutory judgment entered upon a decision overruling a demurrer interposed to the complaint.

The justice before whom tbe case was tried found: “ That the defendant was, at the time and times mentioned in-the plaintiff’s complaint, a municipal incorporation, duly created under and by tbe laws of tbe State of New York.

The action was originally commenced in the Otsego Circuit Court and was certified to the Supreme Court on account of the disqualification of the county judge to hear and determine it. It was brought to recover the penally incurred by a breach of the condition of the bond given by the defendant upon applying for and receiving an inn, tavern or hotel license. The breach complained of was the suffering and allowing gambling to be carried on in his inn.

<p>.Action on policy of insurance — when an insurance company, setting up the falsity of answers in an application for a policy, will he required, to furnish a hill of particulars — how the right of the defendant to prove admissions of the deceased will he preserved.</p> <p>Sxx this action, brought by the plaintiffs upon a policy of insurance issued upon . the life of their testator, the defense was that certain of the answers made by him to tbe questions contained in the application upon which the policy was issued were false and untrue, and that the policy was thereby avoided. The answer alleged that the testator had stated in his application that he had made no other application for insurance which had been refused, ancL alleged that this was false, and that he had made such application to other-companies unknown to the defendant. It also alleged that the testator had falsely answered that he had not had bronchitis, or spitting of blood, while-in fact be had had these diseases.</p> <p>Held, that the defendant was properly required to furnish to the plaintiffs a. bill of particulars, containing a statement of the companies which the defendant expected to prove had refused to insure the testator’s life, together-with the dates of such applications and refusals, and also a statement of the particular times and places at which it expected to prove that the testator had had spitting of blood, or bronchitis before the making of the-application in question.</p> <p>The defendant alleged that the evidence upon which it relied to establish the-existence of these diseases, consisted of oral and written statements of the-testator, which statements did not specify the precise time and place at. which he had had them.</p> <p>Held, that the order should be so drawn as to provide that neither the bill, of particulars, nor anything in the order should prevent the defendant from giving evidence of any declarations or statements, oral or written,, made by the testator as to his having had the said ailments, which declarations or statements were general as to time and place.</p>

This action was brought, without leave of the court, upon a judgment recovered by these plaintiffs against these defendants, on February 18, 1876, in the United States Circuit Court for the Southern District of New York, a transcript of which judgment was, on March 20, 1876, docketed in the office of the clerk of the county of Ulster, in pursuance of section 39 of chapter 470 of 1847.

<p>Eminent domain — damages to be paid by a railroad company — they are to be determined by the detriment occasioned to the owner, and not by the value of the land to the company.</p> <p>'The road of the Troy & Boston R. R. Co. originally crossed the Hoosac river at two points. Thereafter that company bought certain land, and so turned the course of the river as to leave their road entirely on its east side. By so doing, they left a piece of land between the track and the old channel, to which there was no access either by a public or a private road. Another railroad company having applied to take a portion of this land, commissioners to appraise the damages to be awarded therefor were appointed, and ü hearing had, at which witnesses called by the petitioners testified that $50 .an acre was a liberal price, while the president of the Troy & Boston R. R. •Co. testified that, it was worth $12,000 for railroad purposes. - The land was not however of that value to the Troy & Boston R. R., their tracks having already been constructed on adjoining land. The commissioners fixed the ■damages to be paid by the petitioners at $5,000, stating that in arriving at that sum they included in it the value of the land, as situated, for general railway purposes.</p> <p>Held, on appeal by the petitioner, that the commissioners erred in so doing.</p> <p>That the damages to be paid were to be determined by the detriment occasioned to the owner of the land taken, and that the amount thereof should be neither increased or diminished by the fact that the land to be taken was peculiarly well or ill adapted to the uses of a railroad.</p>

Tbe action was brought upon a policy of insurance 'issued by tbe defendant on December 17, 1874, upon tbe life of one John O. Hill, in tbe sum of $2,000, payable in cáse of loss to tbe plaintiff, bis wife.

<p>1Receiver pendente lite — when one may be appointed in an action to set aside a conveyance of real property.</p> <p>This action was brought by the plaintiff, as the committee of one Sarah Mitchell, to have certain conveyances of real and personal property, made by her to the defendant, adjudged void and set aside, on the ground that the defendant, knowing that the said Mitchell was of unsound mind and incapable of managing her affairs, fraudulently induced her to transfer th® said property to Mm without receiving any consideration therefor. In 1878 the said Sarah Mitchell was found by an inquisition to be, and for the past eight or Mne years to have been, of unsound mind, and incapable of managing her affairs. The defendant, who was wholly insolvent and had been in possession of the property, and collected the rents and profits thereof, from the time the conveyances were made, in 1870 and 1871, denied that he obtained the conveyances by duress, undue influence, or by means of any trick, unlawful or fraudulent practice, and alleged that they were voluntarily executed and delivered by the grantor in the exercise of an unfettered will and an unclouded reason.</p> <p>Meld, that the case was a proper one in which to appoint a receiver pendente lite. (Learned, P. J., dissenting.)</p> <p>(Boches v. Lansing, 74 N. Y., 437, and Van Deusen v. Sweet, 51 Id., 378, — distinguished.)</p>

The. action was brought to recover the amount due upon certain 'Coupons attached to bonds alleged to have been issued by the defendant to aid in the construction of the New York & Oswego Midland Railroad. The bonds were claimed to have been issued under chapter 398 of 1866, chapter 695 of 1866, chapter 917 of 1867, chapter 61 of 1868, chapter 84 of 1869, and chapter 794 of 1870.

This action was brought to recover a farm of about two hundred-acres, situated at the village of M'oresville, Delaware county. Both parties claim title through one Wilson P. More, who was the owner-of the premises, April 23, 1874, and who, on that day, executed a mortgage thereon to the defendants, Gilbert and Maynard, to secure the payment of $10,000.

Judgment in favor of the plaintiff having been entered upon bhe trial of this action by the court without a jury, the defendant's counsel proposed a case on which to review the judgment herein, in which he inserted twenty-two new findings of fact, and four new conclusions of law, which he had not requested the court to pass upon before the case was decided. The plaintiff proposed .an amendment striking all these findings out.

Upon the usual affidavit, Mr. Justice Tappan of the Fourth District made an order for the defendants to appeal’ for examination before a referee; and directed that all subsequent proceedings be had before Mr. Justice Mullin, of the Fifth District, where the judgment debtors resided. The order was duly served on the defendant Turner, at Harrisville, where he resided, and on the following day he appeared and was examined before the said referee.

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon the trial of this action by the court without a jury.</p> <p>This proceeding was instituted under section 375 of the old Code. The defendant Mackey was summoned on "April 11, 1876, to show cause why he should not be bound by a judgment, entered in Tioga county, August 31, 1858, against his co-defendant and joint debtor, Emory D. Angelí. Issue was joined by an answer thereto, interposed by the defendant Mackey, in which he set up, substantially, a general denial, and the statute of limitations — the ■six years’ statute. The cause now comes into this court for the second time. It was first tried at the Broome Circuit in June, 1877, before the court, without a jury. The court found that the judgment, which was the basis of the proceeding, was invalid, and upon that ground alone ordered judgment for the defendant. But this court, on appeal from the judgment, ordered a new trial, holding that the judgment originally entered in the action was valid, and that on it the plaintiff had the right to institute this proceeding. (15 Hun, 533.)</p> <p>The second trial was had at the Broome Circuit in June, 1879, before the same judge, without a jury, who found and decided in favor of the plaintiff. On the second trial it was shown that .the defendants, Angelí and Mackey, were, on January 3, 1857, co-partners, under the firm name of Angelí & Mackey, doing business in the village of Owego, New York; that the said copartnershipcontinued until August 4, 1857; that on January 3, 1857, the defendants, by their firm name, drew their draft on the plaintiff for $200, payable to their own order, sixty days after date; that the draft was drawn in the firm name.by defendant Angelí, and indorsed in the film name by the defendant Mackey ; that the draft was accepted by the plaintiff for the defendants, and was at maturity paid by him from his own funds; that on or about August 9? 1858, the plaintiff commenced an action on the said draft against both of the defendants. The summons was served upon the defendant Angelí, in Otsego county, in this State, by a deputy sheriff, who delivered a copy of the summons to him. That the-defendant Angelí made the following admission of service, which, was indorsed on the summons in the action:</p> <p>“ I admit due personal service of a copy of the within summons. Dated August 9, 1858.</p> <p>“E. D. ANGELL.”</p> <p>No other proof was shown to have been made before the clerk, of the service of the said summons.</p> <p>That on the aforesaid admission a judgment was entered., August 31, 1858, in Tioga county, in form against both said defendants, for $220.94 damages, and $13.84 costs.</p> <p>It also appeared that the proceeds of the draft were used in the business of the firm, and for the benefit of the firm, and that the moneys so paid by the plaintiff have never been repaid. .</p>

The tax referred to was collected upon an assessment against the-petitioner as agent for $12,500, personal property, made by the assessors of the town of Ithaca, where he resided.

The action was brought by the executors of Reuben Lay, deceased, to obtain a judicial construction of certain portions of his will.

<p>Proceedings to mortgage an infant's real estate for payment of its debts — the special guardian cannot dispute the rabidity of debts he is directed to pay — when he is not protected by an order of confirmation — when he is liable for interest— order directing the mortgage, and the report of the referee, should specify the debts to be paid.</p> <p>Where an order is made requiring the special guardian of an infant to mortgage its real estate and apply the proceeds thereof to the payment of certain specified debts, he cannot, after having received the money, refuse to pay one of -the said debts, on the ground that the infant is not liable therefor.</p> <p>When such special guardian renders an account of his proceedings, and procures an order confirming his report, without notice to the debtor whose claim he has knowingly refused and neglected to pay, such order furnishes no protection to him, and the same will, on the application of the creditor, be vacated, and the guardian will be directed to pay to such creditor his proportionate share of the proceeds of the mortgage.</p> <p>In sucFa case the guardian should be required to pay interest on the amount which the creditor was entitled to receive, from the date of the order confirming his report.</p> <p>An order directing the real estate of an infant to be mortgaged for the payment of its debts should contain a statement of the objects to which the avails thereof are to be applied, and should not refer to any other paper for a specification of such objects.</p> <p>The report of the referee in such proceedings should also specify such objects, and should not refer to tbe evidence for a statement thereof.</p>

<p>Appeal from a judgment in favor of tbe defendants, entered upon the trial of this action by tbe court without a jury.</p> <p>Tbe evidence of the parol agreement was erroneously admitted. (Thompson v. Ketolvum, 8 Johns., 190; 2 Parsons on Bills, 21; 1 Greenl. Ev., §. 277 Edwards Bills and Notes, 313, 125; 1 Daniel on Negotiable Im struments, 2 ed. 512, et seq.; Hall v. Newcomb, 7 Hill, 116 :. Bucldey v. Bentley, 18 Barb., 283 ; Norton v. Ooons, 6 N. Y.y 33 ; Potter v. Tollman, 35 Barb., 182; Pa/rleer v. Qit/y of Syracuse, 31 N. Y. 376 ; Fossin v. Hubbard-, 55 Id., 165 ; HaXIÁday v*. Hcvrt, 30 Id., 171; Johnson v. Oppenlieim, 55 Id., 293.)</p> <p>The court properly admitted tbe evidence as to the par’ol agreement for the extension, of tbe time of payment of tbe note. (Edwards on Bills, 186; Sey-> mow.r v. Gowing, 1 Keyes, 535 ; Miller v. Gamble, 1 Barb., 186 Benton v. Martín, 52 N. Y., 570; Prentiss v. 'Gh'aves, 33 Barb.,. 621; Bruce v. Wrght, 3 Hun, 518; Byles on Bills, 96, note 1; Latimer v. Hill, 8 Hun, 171; Boolestamer v. Jayne, 60 N. Y., 116j Boss v. Fspy, 66 Penn., 187; Susquehanna Banle, v. Fvans, 1 Wash. C. Ct., 180 ; Johnston v. Mawtínus, 1 Halst., 111.)</p>

Appeal in the first of tbe above entitled actions from a judgment in favor of tbe plaintiffs, entered upon tbe verdict of a jury. Tbe second action came before tbe court upon a motion for a new trial, upon a case and exceptions ordered to be beard in tbe first instance at tbe General Term. Botb actions were brought to recover certain articles of personal property formerly belonging to William J. Allen and Charles D. Ubl.

<p>Atpeal from a judgment in favor of tlie- plaintiff, entered upon tbe verdict of a jury, and from an order made at a Special Term, denying a motion for a new trial made upon a case and exceptions.</p> <p>Tlie action was brought upon a policy of insurance issued by the -defendant to the plaintiff, upon the life of hor husband. The insured hung himself while temporarily confined in a jail for drunkenness. The defenses were that the policy had been avoided by the intemperate habits of the deceased, by his alleged suicide, and by reason of misrepresentation contained in the application for the policy.</p> <p>When the case was brought on for trial, four of the jurors, who were examined by the counsel for the defendant, stated that they ■considered suicide evidence of insanity. . One testified that he ¡should so consider it in some cases, and all stated that they should require other and additional evidence to establish the fact of insanity.</p>

Controversy «submitted upon an agreed statement of facts in pursuance of sections 1279-1281 of tbe Code of Civil Procedure.' From tbe statement of facts it appeared that tbe plaintiffs are individual bankers, doing business in tbe name of “ Henry D. Barto and Company’s Bank,” pursuant to tbe laws of tbe State of New York, and at tbe times hereinafter mentioned were, as such bankers, doing business with a capital of $30,000, of wliicb about $3,000 was invested in real estate…

<p>Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.</p> <p>, The action was brought by the plaintiff to recover of the defendant money loaned to him at different times.</p>

The action was brought to recover the possession of certain land which was claimed by the plaintiff as the heir-at-law of Ann Eliza Goodyear, deceased, and by the defendant as her devisee.

In February, 1878, the defendant commenced proceedings to foreclose by advertisement a mortgage given to him in 1873 by the plaintiffs. The plaintiffs claiming that the mortgage was void for usury,, thereupon commenced an action to have the said mortgage declared; void; and to procure therein an injunction restraining the defendant from continuing the foreclosure proceedings then pending.

Appeal Ay-the defendants from a judgment in favor of tbe plaintiffs, entered upon tbe decision of the court after a trial without a jury. Tbe action was in ejectment, to -recover.two-tbirds of an undivided seventh interest in about sixty-six acres of land.

Robert Ormiston died, leaving a last will and testament, which was duly admitted to probate by the surrogate of Otsego county, on December 4, 1842, wherein he devised and bequeathed his residuary estate, both real and personal, to William M. Oliver, Oliver A. Morse and Horatio J. Olcott, as executors and trustees therein named, in trust, to apply the income and interest arising therefrom, to the benefit of his son, James Ormiston, the appellant herein, and his wife, during…

Brown, by whom this action was brought in the name of the overseer of the poor. Brown complained to Jobbifct, the overseer of tbe poor of the town of Montour, that the defendant had incurred penalties for violations of the excise law. The overseer neglecting for ten days-to prosecute, Brown brought the action pursuant to sections 22 and 30 of chapter 828 of Laws of 1857, as amended by chapter 820 of Laws of 1873.

Oliver Porter resides with tbe plaintiff (who is his wife), in Union School district, number one, in the town of Homer, New York. Tbe defendant is tbe collector of taxes of said district. November 9, 1877, a tax warrant .was issued to tbe defendant, by which be was directed to collect tbe sum of $19.30 from Oliver Porter. December 20, 1877, tbe warrant was renewed for thirty days.

<p>Certiorari — decision overruling demurrer to indictment — when not reoiewdble l>y.</p> <p>A decision overruling a demurrer interposed to an indictment, and directing that judgment be given for the People, unless the accused plead over, cannot be reviewed upon a certiorari before a judgment has been entered on the decision.</p> <p>The court cannot review the decision before entry of judgment, even though the counsel for both of the parties agree that it may so review it.</p>

The action was brought to recover damages for the alleged negligent hilling of the plaintiff’s intestate by the defendant.

Appeal by tbe defendant from a judgment entered upon tbe decision of tbe court overruling a demurrer to the complaint. - The complaint alleged that in March, 1876, the plaintiff herein, recovered a judgment in this court, upon the report of a referee,, against one Samuel A. Iletfield, from which Hetfield appealed to the General Term of this court, where the judgment was, in all things, affirmed with costs, and judgment of affirmance, with $174.81 costs, was duly entered up…

Appear from a judgment in favor of the plaintiff, entered upoE the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action, was tried. The action was brought to recover damages for personal injuries-sustained by the plaintiff while in the employ of the defendant asa. night switchman.

Exceptions ordered to be beard at tbe General Term, in tbe first instance, after a verdict in favor of tbe defendants at tbe Broome County Circuit.

Tbe relator was arrested by a policeman in tbe city of Elmira, without any warrant.

a verdict directed by the court, and from an order denying a motion for a new trial, made upon the minutes of the judge before whom the action was tried.

<p>Condition, upon which a promise to accept a draft is made, must be proved— One who discounts a draft, with a bill of lading attached, acquires title to the property shipped— What allegations do not show damages to have been caused by the default of the other ■party — The failure of the plaintiff to separately state and number different causes of action is not a ground for a nonsuit — When the lorn will imply a contract, though an express one has been made — When a party dealing with a de facto corporation cannot deny its existence.</p> <p>‘The complaint herein alleged that prior to January 11, 1877, the defendants had agreed with the plaintiff, that if one Quick should purchase cattle and hogs, and draw a sight draft upon’them, for -the cost thereof, less the sum of §50 for each car load, and attach thereto bills of lading showing that such cattle and hogs were shipped to them, that then, upon' being notified ■of the shipment and of the amount of the draft, the defendants would pay the same on sight; that on January 11, 1877, the said Quick shipped to the defendants eighty-six cattle and one hundred and thirty-five hogs, and attached the bills of' lading therefor to a sight draft for $5,778, drawn by him upon the defendants to the order of the* plaintiff’s cashier; that the plaintiff advanced the money to Quick for the purchase of the cattle and hogs, and that, as it'believed, the amount of the draft was less than their cost by at least $50 on each car load; that at the time of making such advance Quick sold arid delivered the said cattle and hogs to the plaintiff and agreed that it should be and continue the owner thereof until repaid the money advanced by it; that upon presentation of the draft the defendants refused to pay the same; that they subsequently paid to the plaintiff from the proceeds of the shipment the sum of $5,249.47, and converted the balance of such proceeds to their own use, and the plaintiff prayed judgment for the damages thereby sustained.</p> <p>Upon the trial the defendants claimed that the amount for which the draft was drawn was the full cost of the cattle and hogs'shipped, and that the sum of $50 for each car load thereof had not been deducted therefrom as. agreed upon.</p> <p>Held, that to render the defendants liable upon their promise to accept and pay the draft., performance of the conditions'upon which the promise was made must be proved by the plaintiff, and that, having failed so to do, no recovery upon the draft could be had by it.</p> <p>That the plaintiff, by discounting the draft, with the bill of lading thereto attached, acquired title to the cattle to the extent of the amount so advanced by it, and that the defendants were bound to account to it for the proceeds of the property shipped, after deducting therefrom their expenses and commission.</p> <p>That Iho allegations of the complaint were sufficient to entitle the plaintiff to-recover the proceeds of the property in this action.</p> <p>The defendants, by their answer, after denying certain of the allegations of the complaint, set up, “as a second answer, defense and counter-claim,” the making of the said conditional agreement to pay the drafts for the price of the cattle, and that on the 12th day of December, 1876, the plaintiff notified the defendants that it had discounted a draft, accompanied by a bill of hiding drawn by Quick, under the said arrangement, for $5,025; that the defendants, relying on the good faith of the plaintiff in seeing that the draft was drawn only for the actual cost price of the said cattle, less $50 per car load, and believing the same to have been so drawn, paid the draft; that the cattle realized only $4,644.65, and the defendants sought to set off the $380.35 so lost on that shipment.</p> <p>Held, that the facts stated did not constitute a counter-claim, as they did not. Show that the damages, if any, sustained by the defendants, were caused by the failure of the plaintiff to see that the $50 per car load was deducted from the price of the cattle.</p> <p>When a complaint contains a statement of the facts necessary to constitute two distinct causes of action, the failure of the plaintiff to separately state and number them, cannot be urged as a ground for a nonsuit at the trial; if there be any doubt as to which cause of action the plaintiff intends to rely upon, the remedy of the defendant is by a motion to make the complaint, more definite and certain.</p> <p>The rule that where there is an express contract the law will not imply one,is only applicable to those cases in which the express contract and that implied by law relate to the same subject matter, and where the provisions of the express contract are intended to control and supersede those which would otherwise be raised by implication.</p> <p>A party who has assumed to contract with a de facto corporation by its corporate ñame, cannot afterwards, in an action brought by it upon such contract, deny its legal existence.</p>

The creditors of McKay were entitled to the benefit of the security given to Nash, at the time the mortgage was made to Nash, and Nash could not, by any act of his, deprive the plaintiffs of their equity. (Death v. Hand, 9 Paige, 432-435, and cases therein cited; Bank of Auburn v. Throop, 18 Johns., 505; EvertsonY. Booth, 19 Id., 494; Morrioe v. Harrison, 1 Eq. Oa. Abr., 93 ; Eastman v. Foster, 8 Met., 19-23; Moses v. Murgatoyd, 1 Johns.

Appeal by the defendant Alberger, from an order made at Special Term, denying a motion to vacate an injunction order granted herein.

<p>What instrument is a negotiable note — Rights and duties of a conditional vendor of property — when he is liable for the full value of the property if he retake it.</p> <p>One Nighthart, having purchased au engine from the American Engine Company, gave to it a note in the following form:</p> <p>“Fourteen and one-half months after date I promise to pay to the order of the American Engine Company $450, at seven per centum, at the Havana. ■ National Dank, at Havana, N. Y., value received, being in part payment for a portable engine, which engine shall be and remain the property of the owner of this note, until the amount hereby secured is fully paid.”</p> <p>This note having been indorsed by one Woodward, for the accommodation of Nighthart, was transferred by the company to the plaintiff, who brought this action against the defendant, with whom the note had been deposited for collection, to recover damages for its neglect to properly protest the same and notify the indorsers thereof.</p> <p>Held, that the note was a negotiable one, and that it was the duty of the defendant to demand payment thereof of the maker, and notify the indorser of its non-payment.</p> <p>Upon the trial the defendant offered to prove that, after the maturity of the note, the plaintiff, acting veder the rights reserved in the note, caused the sheriff to take possession‘of the engine, and thereafter caused the same to be sold under an execution issued upon a judgment recovered against Night-hart upon the note, and purchased the same for $68, and also offered to prove that the engine was at the time of the sale and of the trial worth $500.</p> <p>Held, that as this action was founded on the defendant’s negligence, the plaintiff could recover no more than would fully compensate him for the injury sustained thereby.</p> <p>That the plaintiff, who assumed to have and exercise the rights of the vendor of the engine, must, as between the parties, be treated as holding the engine under a chattel mortgage or pledge.</p> <p>That, as he had himself purchased the engine at the sale, the defendant was entitled to prove the value thereof, and have it applied in satisfaction of the debt.</p> <p>That the court erred in rejecting the evidence.</p>

<p>JRailroad company — when a subscription to its capital stock, made before its incorporation, is valid — when a subscriber is not released by its failure to complete the road — or by its sale on foreclosure.</p> <p>The defendant, a few days prior to the organization of the plaintiff under the general railroad act of 1850, signed an agreement in writing, by which the subscribers thereto, in consideration and for the purpose of becoming stockholders in the said company, agreed to take the number of shares of its capital stock set. opposite to their respective names, and to pay for the same in such time and manner as required by the company. After its organization the plaintiff accepted the subscription of the defendant, and made an assessment of ten per cent, upon the amount so subscribed, which assessment was paid by the defendant.</p> <p>Un an action to recover the amount of certain other assessments subsequently imposed upon the stock,</p> <p>JEelil, that the agreement of the defendant to subscribe to the capital stock of the company was valid and binding, though he did not sign the articles of associatiation, nor the subscription book kept by the company in pursuance of section 4 of chapter 140 of 1850.</p> <p>JErie ill N. Y. Gity 11. 11. Go. v. Owen, 32 Barb., 018, and Troy & Boston JR. JR. Go. v. Tibbits, 18 Id., 297, — distinguished.</p> <p>That the objection that the agreement was invalid, because the corporation was not in existence at the time it was made, was obviated by the fact that the corporation accepted the subscription after it was organized, and that the defendant ratified it by paying an assessment thereon, and that the subscription should be regarded as having taken effect at the time of such acceptance and payment.</p> <p>"What acts of a corporation amount to an acceptance of such a subscription, considered.</p> <p>The articles of association contemplated a road from the city of Buffalo, through the counties of Erie, Cattaraugus aud Chautauqua to a point in the Slate line in the southerly boundary of the latter county. The road had been built from Buffalo to a village in Chautauqua county, distant some fourteen miles from the State line, and its further construction abandoned. It did not appear that the abandonment was effected by a resolution of the board of directors or by any alteration of the articles of association, or that it was anything more than a mere cessation or suspension of the work.</p> <p>Held; that the defendant was not thereby released from his liability upon his-subscription.</p> <p>Held, further, that he was not so released by reason of the fact that the road and the franchises of the company had been sold upon the foreclosure of a. mortgage given by the company.</p>

<p>School district — may agree to build and repair a division fence — such, contract may be made before a tax to pay for it has been voted.</p> <p>A. school district has power to authorize its trustee to accept a conveyance of land to be used as a site for a public school, and to agree, as part of the. consideration for the conveyance, that the district shall build and keep in, repair the whole of the division fence between such land and adjoining land of the grantor.</p> <p>Such a contract is valid though made before any tax to build or repair the fence has been voted.</p>

The plaintiffs claimed to recover certain property as the mortgagees of one 'W’estbury. The defendant justified under -certain warrants of attachment issued to him as sheriff, against Westbury, after the execution of the plaintiffs’ mortgage, and by virtue of which he had levied upon the property in suit, which was then in the possession of Westbury. The referee held that the mortgage was void as against the attachments, and rejaorted in favor of the defendant.

After appeal brought, the case was certified to this court, because of the incapacity of two of the judges of the Superior Court to hear the appeal. The gist of this agreement is that the defendant guaranteed that the property pledged by Weppner to the bank should not be applied to any other purposes than those stated in the instrument.

Cross appeals from, an order made by a justice of this court, vacating his former order, quashing the attachment issued by him herein, and also vacating the attachment on condition that no action be brought for false imprisonment on account of the arrest. The petitioner appeals from so much of the order as vacates the attachment. The defendants appeal from the other parts of the order, including that which imposes the condition above stated.

Appear from an order of the Oswego Special Term, vacating and setting aside a settlement, release, stipulation and order of discontinuance herein, and allowing the plaintiff to prosecute the action.

,■ Motion by tbe plaintiff for a new. trial on - exceptions taken at tlie Steuben Circuit, and ordered to be heard at the General Term in the first instance. . ' - '

<p>What imbi'ummt regarded as a lease — burden of proof.</p> <p>The plaintiff, by a written instrument, dated October 18, 1873, leased to the defendant twenty-five acres of land, upon which was a bed of iron ore, for the term of five years, and for such further time as he might require to mineallthe ore therein, he agreeing to pay to the plaintiff'twenty cents for each ton removed, and to remove, at least, eight thousand tons a year; the agreement binding him to remove all ore where the vein was oyer fifteen inches in thickness, and leaving it optional with him to do so or not where the vein was of less thickness. In an action brought, to recover the sum of $1,600, claimed to be due for the year ending October 18, 1877, it appeared that the defendant had been in possession of the premises, and uncovered between one and two acres thereof, and that he had paid the, sum of $1,600 for each of the preceding years.</p> <p>Held, that as the instrument transferred to the defendant the use and occupa- - tion of the premises, at a fixed compensation to be paid annually, it was a. lease.</p> <p>That to justify a recovery by the plaintiff, it was not incumbent upon him to show, by express testimony, that there continued to be ore upon the premises during the year for which it was sought to recover rent.</p>

Motion by the defendant for a new trial on exceptions taken at' the Cattaraugus Circuit, and ordered to be beard at tlie General Term. The action was one of ejectment, to recover a lot of land in Olean, Cattaraugus county.

a verdict rendered at the Cayuga Circuit, and also from an order ■denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried; also, from an order ■denying a motion to set aside the verdict for an alleged irregularity, in respect to the possession, by the jury, of a paper containing a ¡statement of the items of damages.

The action was brought upon a due bill, which belonged- to one Christian Kiblee in his lifetime.

Lucien E. Paine was a judgment debtor against whom two judgments were, recovered on March 28, 1876, by Henry Bagley. Executions were issued on tbe judgments, and placed in tbe bands of tbe sheriff, who levied on tbe personal property of tbe said Paine, including an engine, boiler, and machinery described in the complaint herein and situated in a building upon tbe land of said Paine.

Appeal by the defendant from a judgment in favor. of tlio plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial, made upon a case and exceptions. This action was commenced November 30, 1857, to recover the damages caused by the failure of the defendant to carry out an oral agreement made with the plaintiff in 1855.

The parties were, in October, 1870, copartners in the business-of building and erecting iron bridges, &c. The plaintiff furnished the shops, buildings, steam-engines, machinery and tools, known as King’s Iron Works, at Buffalo, and the steam power necessary to-' drive the said machinery, as his part of the capital. The defendant furnished the cash capital. The plaintiff became insolvent, and was adjudged a bankrupt July 19, 1872.

The action was brought to recover damages for a breach of a covenant of quiet enjoyment contained in a deed of conveyance, which described by boundaries a piece of land, and purported to convey the same together with a right of way over adjoining land, “ with the appurtenances,” &c.

Appeal by Milly L. Coe, from part of an order distributing certain moneys paid for tbe condemnation of certain lands, known as a portion of the Mansion House, in Buffalo, for rtilroad, purposes. The only question arising here is, as to the proper construction of the will of Bela D. Coe, deceased.

<p>Covenant against incumbrances — remote grantee man/ maintain action uyonrrmeasure of damages in an action for a breach of.</p> <p>On November 2, 1871, the defendants, by a deed, containing covenants against incumbrances, and of warranty and seizin, conveyed certain premises to one WiHiams, wlio conveyed them to one Redman, who conveyed them to the' plaintiff, by deeds all of which contained covenants against incumbrances. This action was brought by the plaintiff to recover the amount she had been compelled to pay to redeem the land from sales for taxes and assessments, which were liens upon it at the time of its conveyance by the defendants.</p> <p>Held, that the plaintiff was the real party in interest, and that to avoid circuity and multiplicity of actions, she was entitled to maintain the present one.</p> <p>For a breach of a covenant against incumbrances, only the amount actually paid to relieve the premises therefrom, can be recovered, and in no event can the recovery exceed the amount of the consideration for which the deed was given.</p>

The discharge of Hack from arrest was a surrender of a security which tbe plaintiff bad obtained for tbe collection of tbe money against the principal, and a surrender of such security discharged tbe sureties. (Hesbit v. Smith, 2 Bro. Cb. 0., 579; Hays v. Wood, 4 Johns. Ob., 130; 1 Story Eq. Juris., §§ 501, 639; Mayhew v. Crickett, 2 Swanst., 185 ; Capel v. Butler, 2 Sim. & S., 457.) Any act of tbe creditor which increasestbe risk of tbe surety, discharges the surety.

jury. Mary L. .Woodward, one of the defendants in the case, originally owned the lands and premises in question, which were situate in tlie town of Allegany, in the county of Cattaraugus, and which were placed by her husband in the charge .of one William Iiowe for sale.

<p>Ratification — what is sufficient evidence of — Statute of limitations.</p> <p>This action was brought to establish the plaintiff’s title to certain premises, similarly situated to those involved in the last action. The judgment directed that the defendant render an account of the proceeds of the property received by her and that the plaintiff have judgment against her therefor, .subject, however, to the plaintiff’s-first paying the defendant the amount still unpaid to her of the purchase price of the property.</p>

Controversy submitted upon an-agreed statement of facts pursuant to section 1273 of the Code of Civil Procedure. The plaintiff, at the general election in 1879, was duly elected surrogate of Cattaraugus county, and took office J anuary 1, 1880, and a quarter’s salary became due to him as such surrogate April 1, 1880. The question submitted was, whether he was entitled to receive one quarter of $1,500 or one quarter of $1,200.

Appear by tbe defendant from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee. Tbe defendant was appointed and qualified as sole executor of Lutber Hall, deceased, wbo died August 17, 1871, leaving a farm and certain personal property in Wbitestown. Tbe plaintiff claimed to be a tenant in possession of tbe farm, and to bave certain personal property on it.

, deceased. The court, at General Term, said: “ The power of a surrogate to open his decree, on the ground of clear mistake, accident or fraud, is undoubted. But the power should he cautiously exercised, and it should never be used for the mere purpose of enabling the surrogate to review his own decision. The only appropriate method of review is by appeal. “ The appellants and moving parties in this case are the next of kin of the intestate.

This action was commenced in January, 1879, to recover the. sum of $15,000, due upon a bond executed by tbe defendant Starr and one Biker. • In August, 1879, the defendant Starr applied to* tbe Court of Common Pleas of the City of New York to be discharged from bis debts, and thereafter, and in October, 1879, procured an order directing him to make an assignment of all his property, and discharging him from bis debts.

The appellant, H. H. Morange, Jr., was fozmérly the attorney for the defendant herein. In December, 1878, other attorneys were substituted in his place in pursuance of an order which required the defendant to give a bond to pay any fees which might be ascertained to be due to Mi’; Morange. On a reference, after a hearing had before the referee, the latter made a report, by which he found that nothing was due to Mr. Morange.

The attachment was issued and a levy made on October 30, 1869, under section 227 of the Old-Code, as amended by section 7, chapter 824 of 1866. The order for the service of the summons by publication was not made until December 27 of that year. Thereafter, and in the latter part of 1874, the defendant, as it was claimed by the plaintiff, appeared in the action.

<p>Appeal from an order made at a Special Term, denying a petition to vacate an assessment.</p> <p>• In September, 1872, the mayor, aldermen and commonalty of the city of New York, by an ordinance duly adopted, directed that One-Hundred-and-Eighth street, from the Fifth avenue to the East river, be regulated, graded, &c. A profile and specifications of the intended improvement were thereupon prepared, and proposals were advertised for, the advertisement referring to the specifications, and the latter stating that the entire width of the street was to be regulated and graded in accordance with the grade as shown upon the profile map in the bureau of street improvements. This profile showed the grade as determined upon to the Harlem (or East) river at Avenue A. It also showed water flowing westward within the lines of the street to First avenue, and even for a short distance beyond it. The respondent claimed, and the appellant denied, that this'water was a part of the East river. Subsequently, upon its being ascertained that the city had no title to the street -east of First avenue, and that the property on that portion of the street would not bear an assessment sufficient to pay for the cost of the work to be there done, the department of ptifilic works and finance determined that the work could not properly be extended- beyond First avenue, and caused the amount estimated as .required between First avenue and Avenue A to be deducted from the original estimate, and the contract to be let only for -the reduced quantities. The work was completed in October, 1874, the assessment therefor confirmed February, 1876, and this proceeding commenced in June, 1S79. The matter has already been before the General Term of this department, where an order of the .Special Term, vacating the assessment, was reversed and a rehearing ordered.'</p>

The action was brought on October 13,1876, to replevy certain cutlery sold to the defendants by the plaintiff, on the ground that the sale was procured by fraud. Before the commencement of the action, the goods had been levied upon by the sheriff, under executions issued on judgments recovered against the firm, on September 29,1876.

Appeal by Mr. Paul Hoffman, from an order made at Special Term, requiring him to complete his purchase on a sale in partition. The action was brought by - the plaintiff, the widow of one-Nathaniel Harris, to procure the partition of certain real estate of which he. died seized.

<p>Supersedeas — when a defendant is not in actual custody, so as to authorize an application foi' it — Code of Civil Procedure, § 572 — how far the old practice is affected by it.</p> <p>The defendant in this action, having been arrested and given bail, his sureties neglected to justify, of which fact the sheriff had notice, but owing to some understanding between one of his deputies and the defendant, never lodged defendant in jail, but suffered him to go where he pleased.</p> <p>Held, that the defendant was not “in actual custody” within the meaning of section 572 of the Code of Civil Procedure, authorizing one in actual custody, by virtue of an order of arrest in an action, to apply for a supersedeas if the plaintiff fails to issue an execution against his person within one month after it is within his power so to do.</p> <p>Quiere, as to whether the old practice authorizing the court to .refuse the supersedeas where the execution is issued after the service of the motion papers, but before the hearing, has been abolished by the Code of Civil Procedure.</p>

Gatlin, to vacate an execution against the person, so as to make such relief conditional upon the plaintiff stipulating not to sue for false imprisonment, or to continue an action for false imprisonment already brought; also denying defendant’s motion to set off the costs awarded to the plaintiff (on his previous motion to vacate such execution) against the costs of the action awarded to the defendant against the plaintiff, and included in the final judgment herein.

On March 6, 1875, the defendants, Clark & Maynard, recovered a judgment against the New York, Westchester & Boston Railway Company, a New York corporation, upon which an execution was issued and returned unsatisfied, on March 15. On the same day an action in equity was commenced by Clark ■& Maynard, for the appointment of a receiver, and on April 10, 1875, a final judgment was rendered therein by default, appointing the defendant Seaver a'receiver thereof.

The complaint alleged the appointment and qualification of the defendant as executor of- James Leavy, deceased; a bequest by the’ will of the latter of $10,000, to be invested for his father, and mother, and that, by said will, after, .bequeathing to the defendant divers articles of specific personal property, lie gave, devised and bequeathed all his estate, both real and personal, of every nature, kind, and description, whatsoever and wheresoever the same might be situated,…

The complaint is for two hundred and.sixty-six bales of Malta colored rags, alleged to have been sold by plaintiff to .defendants, and judgment is demanded for .$4,688.10, with interest and costs. No answer has been served. The nature of the defense is that the sale was fraudulent and void, and that the goods are not what they were falsely and fraudulently represented and warranted to be. At and before purchasing I examined said goods, so far as was then possible.

<p>Appeal from order denying a motion to change the place of trial from the city and county of New York to the county of Kings.</p>

order previously entered by bim, vacating-his judgment in foreclosure; and also denying his motion for a deficiency judgment against the defendant Willis, for the full amount' of the bond, with interest and costs.

The plaintiff, brought an action against the defendant Gray alone, to restrain the enforcement of a foreclosure decree on premises No. 281 Fourth avenue, and procured a temporary injunction so restraining him and his servants and agents, with an order to show cause why the same should not be continued., Before the hearing of the motion Gray answered, setting up as a defense that he had sold the decree to Phelps, and had no interest whatever in the subject-matter of the…

The only question argued on the appeal was whether the relator was not unduly dilatory in applying to the courts to reverse and annul the proceedings and judgment, whereby the mayor assumed to remove him from office as a police commissioner of the city of Now York.

Controversy, submitted to the General Term upon agreed facts, under sectioü. 1279 of the Code of Civil Procedure. The plaintiff’s steamer Massachusetts, from New York bound for Providence, went ashore, in a violent storm, at Rocky Point, Long Island Sound, on the night of October 4, 1877, and, the efforts of the officers and crew to get her off being unsuccessful, she was in danger of becoming a total wreck.

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 .relator, for an attempt to commit an abortion.

The action was brought to procure the strict foreclosure of two mortgages executed by the defendant and her husband to one James Meinell. The mortgages were foreclosed, and a sale had in 1863, but the defendant had not been made a party thereto.

<p>Common carrier — the remedy of a person, aggrieved by its refusal to transport freight, is by an action at law, and not by.mandamus — measure of damages in action.</p> <p>Where a railroad company wrongfully refuses to receive and transport goods, tendered to it by one who offers to comply with the terms established by it in reference thereto, the remedy of the party aggrieved is by an action at law, to recover the damages sustained thereby, and as the remedy afforded to him by such action is an appropriate and adequate one, a mandamus compelling the company to receive and transport such goods will not be granted. /</p> <p>In an act^jdn at law against a common carrier for a wrongful refusal to receive and transport property, the party aggrieved is entitled to recover, as damages, the difference between the value of the property at the place where it was tendered to the company, and its value at the place to which it was to be tafeen, less the expenses of transportation.</p>

It was claimed by the appellants that another instrument, executed by the testator subsequent to the will admitted to probate, was his will, and should have been admitted to probate in place thereof.

• Tbe action was brought upon an assignment of a claim existing in favor of; tbe firm of Domett-& Niebols, a portion of -which was embraced in a promissory note for $375, made by the defendant to the order of one H. W. Domett, a member of the firm of Domett & Nichols. The claim was for overdrafts of his salary, made by the defendant, a clerk in the employ of the said firm.

city of Brooklyn, in an action brought by the Brooklyn Savings Bank against John C-Buckley and others, in which action the plaintiffs herein were defendants.

<p>.Motion to vacate an order of arrest — iohere it must be made — Code of Civil Procedure, §§ 568, 70S).</p> <p>Section 568 of tie Code of Civil Procedure, authorizing a motion to vacate an order of arrest, founded upon proof by affidavit on the part of the defendant,to be made “to tile court, or,if the order was granted bya judge out of court, to any judge of the court upon notice,” is not-in conflict with, nor does it abrogate the provisions of section 769 of the said Code, which requires all motions, upon notice, in an action in the Supreme Court, to be made within the judicial district in which the action is triable, or in a county adjoining it, except that when'it is triable in the first judicial district, the motion must be made therein.</p>

<p>Costs — when the unsuccessful pan'ty on an appeal is not entitled to the costs-of it, though he finally succeeds.</p> <p>When the Court of Appeals reverses a judgment in favor of the plaintiff, and orders a new trial, with costs to abide the event, and on the second trial the plaintiff again recovers a judgment, he cannot tax, in his favor, the costs of the reversal by the Court of Appeals.</p>

In the years 1871 and 1872, the Exchange and Deposit Bank of Knoxville placed in defendant’s hands certain bonds of the Wilcox Mining Company, he agreeing to sell them upon commission and account to the bank for the proceeds, or upon demand to return the bonds. He refused, however, to account for eighteen of the bonds, or to return the same.

<p>Foreign corporation — order for the inspection of its hooks — what it should require.</p> <p>An order for the inspection of the books and papers of a foreign corporation should not require it to produce books, kept and in constant use in its office in a distant State, before a referee in this State,- but should direct it to produce and deliver to the plaintiff sworn copies of so much of their contents as relates to the subject-matter mentioned in the order, within a reasonable time, to be designated by the order.</p>

certain arbitration, or from taking any proceedings or steps therein. The plaintiff and the defendant the telegraph company, who are: incorporated under the laws of Great Britain, entered into a business agreement which provided among other things that, in case of differences, each party should appoint an arbitrator in.

• The plaintiff commenced, on December 19, 1879, an action in this court against the defendant and Mr. Justice Charles D. Ingersoll, then presiding in the Seventh Judicial District Court, to restrain certain proceedings instituted for the purpose of removing the plaintiff from premises owned by the defendant Cummings, for npn-paymont of rent.

<p>Appeal from an order made at Special Term, staying all the plaintiff’s proceedings in the action, until he should file a new undertaking in lieu of the one heretofore filed by him, on the ground that one of the sureties thereto had became insolvent, and left the State.</p>

<p>Appeal from an order made at Special Term, denying the defendant’s motion to vacate an attachment granted herein.</p>

The action was brought to restrain the defendants from erecting n shed upon Pier No. 45, in the East River. The defendants •claimed that they had an oral permit from the department of docks ■to erect the same.

Appeal by the defendant from an order made by a justice of the Supreme Court in .supplementary proceedings, granting him until a day named to pay the judgment, and adjudging him guilty of a contempt unless the judgment be paid on or before said day.

The plaintiff was the owner of a narrow strip of land on the west side of Church street, in this city, between Cortlandt and Liberty streets, about eighty-five feet six inches in length, and about two feet eleven and three-quarter inches wide at one end, and about five inches in width at the other end.

from. taking any steps towards collecting a judgment, for costs, recovered by them in another action, brought against them by the plaintiff. ■ .. . .

<p>' Sureties to an. undertaking given, on an appeal to the Oourt of Appeals — when they are liable for all the costs of the action — Code of Civil Procedure, §§ 191, 194.</p> <p>Where, upon an appeal to the Court of Appeals from an order granting a new-trial, the court affirms the order, and renders a judgment absolute in favor of the respondents, in pursuance of section 194 of the Code of Civil Procedure, the sureties upon the undertaking, given by the appellants, are liable for all the costs in the action, and not simply for those incurred by the appeal to the Court of Appeals.</p>

The plaintiff alleged that he was the owner of a lot on the northwest comer of Avenue A and Seventy-seventh street, which was known as lot No. 22, in block 101, on the map of the city, and was assessed $525.86, for regulating, &c., Seventy-seventh street from First avenue to the East River, under an ordinance of the common council, passed December 21,1868, confirmed by the board of revision and correction of assessments, December 29, 1876, and which assessment has since been…

order made at Special Term, directing a commission to issue herein to take testimony. The action was brought to compel an interpleader respecting a fund held by the plaintiffs between the defendant Dickinson and the other defendants. Dickinson denied the right of the plaintiffs to compel him to interplead. The other defendants admitted it, and set up in their, answers the various facts which they relied upon to establish their rights in the fund.

The action was brought to recover' damages for an alleged libel, published by the defendant in his paper, on June 5, 1875. The court, at General Term, said : “We think that after the commencement of this suit the plaintiff became a non-resident, within the meaning of that term as used in those provisions of the Revised Statutes which have regard to security for costs.

Appeal by the Mayor, Aldermen and Commonalty of the city of New York from an order made at Special Term, vacating an assessment for a sewer. The contract for the sewer was let, after advertisement for proposals, to Robert McChristie, who was the lowest bidder, on November 3, 1870. All of the expenses were certified to the assessors by the commissioner of public works. The assessment was laid by the board of assessors appointed pursuant to chapter 302 of the Laws of 1859.