Volume 3 — Abbott's Court of Appeals Decisions

I. September, 1862. Motion to dismiss appeal on the case served, upon the ground of irregularity. The facts appear sufficiently in the opinion.

Jarvis W. Lake sued the Artisans’ Bank, in the supreme court, to recover an amount which plaintiff had paid as indorser of a note held… Held: on the authority of Spencer v. Ballou, 18 N. Y. 327, 333, that defendants were under no obligation to notify Bates, because they were the owners of the note; and that plaintiff knew he had not been charged as indorser, except by the notice handed him, more than a fortnight after the dishonor of the note, and he then voluntarily gave…

Moses Gr. Lamoreaux sued Michael O’Rourk and Hiram H. Weatherwax, in the supreme court, for forcibly taking and converting to their own use a colt, the property of the plaintiff, of the alleged value… Held: the defendants, O’Rourk and Wether wax, and one William H. Denison, were elected as trustees of the district, and Robert Onderkirk-as collector.

Maltby G. Lane, as assignee of a judgment against Lutz, Doll & Germann, brought this action, in the supreme court, in the nature of a creditor’s bill, against Lutz, Doll & Germann, and one Lambrecht… Held: that as the receiver appeared to have acted both for the plaintiff and the mortgagee, the share of the latter was chargeable with commissions and expenses.

Laura C. Lathrop brought this action, in the supreme court, against the city of Buffalo, to have an assessment it had laid upon her real property, for expenses of a local improvement, declared… Held: that the petition and certificate were not within section 20 of the act of 1856, and section 19, title, 8, of the city charter, because the petition and certificate embraced the construction of the cross walks, sewers and receivers, together with the grading of the street.

John G. Latimer sued H. Hill Wheeler, in the Brooklyn city court, to recover chattels, claimed by plaintiff to belong to him, and which he alleged defendant had become possessed of and wrongfully detained. The answer denied that defendant had become possessed of them, or wrongfully detained them from plaintiff, and also denied the ownership of plaintiff, and claimed that defendant was the owner, though not in possesssion.

Benoni Lee, executor, &c., of C. If. Potter, sued Demetrius Chadsey, J. R. Craig, and J. H. Leeds, in the supreme court, on a promissory note, made by Chadsey, January 11, 1859, to order of Craig, at six months, for three thousand dollars, and indorsed by him and by Leeds. Leeds did not defend.

Alfred Lee, as assignee of one Shannon, sued Simon Decker, in the supreme court, to recover eight hundred dollars on the following contract: “ April 1, 1859. “ Settled all acc. up to this date, and found due S. Decker^ $600 on the purchase of a house and lot, this day deeded to Hiram Decker for $1,400, leaving due to AT.

Hazard Lewis (for whom, on his death pending the action, his executors, Frederick L. Lewis, Horace S. Griswold and Clinton T. Page, were substituted as plaintiffs), brought this action, in the supreme court, against Joseph S. Ingersoll and John C. Miller, trustees-of the estate of William Bingham, deceased, to have a bond and mortgage adjudged paid and satisfied, and to have the mortgage satisfied of record. The defendants claimed that a sum remained due thereon.

Peter J. Like sued William. H. McKinstry, in the supreme court, for slander of title. The plaintiff having hired the defendant’s farm from April 1,1861, to April 1, 1862, had, in the fall of 1861, sown rye on the farm, and he claimed that the crop was his; that he had the privilege of harvesting the rye, and of using the hay-press to press the straw, and of gathering from the farm slat-wood wherewith to inclose or bind the straw when pressed.

Supplementary proceedings, under the Code, were instituted in the supreme court, against Truman G. Mabbett, upon an affidavit made by Isaac Mott, as attorney for Ira Locke, setting forth the recovery of a judgment in favo»’ of Ira Locke, against Truman G-.

John McClelland sued George Remsen, sheriff of Kings, in the supreme court, for trespass in seizing plaintiff’s goods. Held: that the instrument was a mortgage, as distinguished from a general assignment in trust, and, therefore, was not void as to creditors; and observing the same distinction, it was within the power of one partner to make it, without the concurrence of the other. They accordingly ordered judgment for plaintiff.

Gideon 0. McClune sued Josiah H. Cain, George Ward, Rodes Cole, and James H. Lyon, in the supreme court, for the conversion of plaintiff’s property. The facts were as follows: In 1856, William G. McClune, the father of the plaintiff, being in indigent circumstances, James McClune .(his son) started him in the business of a grocer. The purpose was to give him employment and enable him to support himself and family.

Melinda J. McClure sued the Board of Supervisors of the county of Niagara, in the supreme court, to recover from the county damages under the statute (L. 1855, c. 428, 3 B. 8. 5 ed. 874), for her property, destroyed by a mob.

<p>In respect to the facts upon which to give its decision, this court is restricted to the return of the court .below; and facts stated in the opinion of the court below or elsewhere, but not found in the return cannot be regarded.</p> <p>When a remittitur from this court is sent down, it is the duty of the-court below to carry out the judgment as therein directed, and it has no power to add any new and independent direction.*</p> <p>On the return of a remittitur from this court, reversing a judgment “ without costs,” it is error for the court below to add a direction that the respondent pay to an appellant his costs of the appeal.</p> <p>No appeal from a judgment can be brought to this court until the court below has finally disposed of the whole matter before it, including the right to costs, as well as other rights of the parties ; and when its final decision has once been given, it has no further power over the case except to carry out the j udgment of the appellate court.</p> <p>On an appeal from a surrogate’s order granting or withholding letters testamentary, the costs are in the discretion of the court.</p>

James McGregor died in February, 1853, leaving a will and codicil, the last dated 1844, by which three of his sons, -James, the respondent; Duncan, the appellant; and Gregor, were named executors. Gregor died before probate of the will. The probate was contested before the surrogate, and a long litigation ensued, during which, James, the respondent, who was born and had always resided in this State, removed to and became a resident of the State of Iowa.

John McIntyre filed a bill in the late court of chancery against Halsey Rogers and Ephraim Eewland, to open the accounts settled between the parties, as partners, at various times between December 20, 1830, and April 27, 1839. Pending the suit, all the parties died, and it was continued by Lucy McIntyre, executrix and plaintiff, against William H. Warren, the administrator of Rogers, and John B. Eewland and others, executors of Eewland.

<p>John McKeon sued Robert L. Tillotson, in the supreme court, to foreclose a mortgage on lands in Dutchess county, made and executed by the defendant to the plaintiff, bearing date March 1, 1856. The execution of the mortgage was admitted, and the defendant set up various matters in avoidance of the mortgage, and to show that there was nothing due upon it. It was conceded that the mortgage was given to the plaintiff to secure a debt due by the defendant to the United States, and that the plaintiff was a mere naked trustee. The answer set up that in and prior to the year 1838, there was an association of persons, of whom the defendant was one, who were the owners of the pre-emption title to certain lands in the western part of this State, then occupied by the Seneca nation of Indians, and known as the Buffalo Creek reservation, the Tonawanda reservation, the Cattaraugus reservation, and the Allegany reservation, and that association had also the preemption title to another reservation, known as the Tuscarora reservation, then occupied by the Tuscarora nation of Indians. That the interest of the defendant therein was one-twentieth; that the legal title to said lands was in Thomas L. Ogden, and Joseph Fellows, as surviving trustees for the said shareholders, subject to the Indian right of occupancy. That on or about January 15, 1838, a treaty was made between the United States and the said Seneca and Tuscarora nations of Indians, by which the said Indians agreed to remove from the State of Kew York to certain lands set apart for them by the government of the United States, in the territory west of the State of Missouri, in consideration of said lands so set apart for them, and of certain apropriations to be made by the government and applied under the direction of the president. That annexed to said treaty, and duly recognized and approved therein, was a deed of conveyance, bearing even date therewith, from the said Seneca nation, their chiefs and head men, duly assembled in council, and acting on behalf of said nation, to the said Ogden and Fellows, conveying to them the said four reservations, in consideration of the sum of two hundred thousand dollars. That annexed to said treaty, and also duly recognized and affirmed therein, was another deed of conveyance bearing even date with said treaty between the sachems and chiefs of said Tuscarora Indians, conveying to said Ogden and Fellows, in consideration of nine thousand six hundred dollars, the said tract of land known as the Tuscarora reservation.</p> <p>That by the terms of the treaty and of said conveyances, the said Ogden and Fellows, as trustees for said pre -emption owners, were entitled to the immediate possession of the said several tracts of land. That said treaty was duly ratified by the senate of the United States, and duly approved and proclaimed by the president on April 4, 1840. That said treaty contained no provision as to the mode or manner in which the removal of the Indians, or the surrender of said reservation should take place. The answer further stated, that prior to the year 1840, the United States had commenced an action, against the defendant, as surety on a bond for Samuel L. Gouvernenr, then late postmaster of the city of Uew York; that a trial was had in the action which resulted in a verdict for • defendant. That Mr. Butler, the United States district attorney, threatened an appeal, and that, as a compromise of any claim which the United' States had against the defendant upon said lands, as well as to settle the matter in controversy, the defendant agreed to execute to said Butler, for the benefit of the United Stales, a mortgage upon his individual interest, in the land in said Indian reservations. That said mortgage was dated July 18,1840, and was given to secure the payment of a bond hearing even date therewith, conditioned to pay the sum of ten thousand two hundred and seven dollars and eighty cents, with interest at the rate of seven per cent.; and the defendant averred in his answer, that said mortgage was executed upon the express understanding and assumption, on his part, that the debt thereby secured should be paid from the proceeds of the lands thereby assigned and released under said treaty, and that the government of the United States would in good faith execute the provisions of the said treaty, and give the pre-emption owners of the said reservation lands possession thereof That said bond and mortgage was taken by said Butler, as trustee for the United States, and that he paid nothing on account thereof and had no personal interest therein. Defendant averred that said treaty was not executed by the government of the United States, that said Indians refused to give possession of the lands ceded by them under said treaty, and released and conveyed by said deeds, and that said government, although requested to carry into effect the provisions of said treaty, refused so to do. That in 1841, Ogden, as general trustee, with the view of obtaining possession of said lands, applied to John Bell, Esq., then secretary of war, for an execution of said treaty, stating to him that said pre-emption owners were prepared to pay the consideration money for said lands, provided a surrender of said lands by the Indians should be made. That said Bell replied that the government would do nothing, and that said owners must get possession of said lands through the instrumentality of the courts. That subsequently another application was made to John C. Spencer, Esq., then secretary of war, who also declined executing said treaty, and giving possession to said pre-emption owners of said lands, unless they would consent to re-convey said Cattaraugus and Allegany reservations. That in consequence of the refusal of said Indians to surrender possession of said lands, and the refusal of the government of the United States to execute said treaty, the said pre-emption owners did not receive possession under the same of any part ox said lands. That on May 20, 1842, a new treaty was made by and between the government of the United States and the Seneca nation, which, after referring" to the treaty of 1838, and the deed of conveyance to Ogden and Fellows, and to the differences which had arisen between the parties, declared in article 1, that Ogden and Fellows, in consideration of the agreements mentioned, stipulated that the Seneca nation might continue in the enjoyment of the Cattaraugus and Allegany reservations, the same as before the conveyance; and in article 2, the Seneca nation agreed to release and confirm to Ogden and Fellows, the two remaining reservations, the Buffalo Greek and the Tonawanda. Article 3 provided for reducing the amount of the purchase money, so as to correspond with the relative value of the two reservations released to the value of the former fixed in the treaty of 1838. Article 4 provided for the appraisal of the lands and improvements in the two reservations then confirmed to Ogden and Fellows, and a report of the proceedings to the secretary of war and to Ogden and Fellows, one appraiser to be appointed by each. Article 5 provided that the possession of the two tracts then confirmed should be surrendered up to Ogden and Fellows, as follows: the unimproved lands, within one month after the report of the appraisers should be filed with the secretary of war, and the improved lands, within two years after the filing of such report, provided that the amount of the value of said improvements should be paid at the time of such surrender to the president of the United States, and the consideration of said release and conveyance of said lands should, at the time of the surrender thereof be paid or secured to the satisfaction of the secretary of war. Article 7 provided tliat the modifications in the treaty of 1842 should be a substitute for that of 1838, and to that extent should be deemed to repeal it.</p> <p>The treaty contained no provision as to the mode of the removal of said • Indians, or the surrender of the reservations. That said treaty was duly ratified by the senate of the United States, and approved and proclaimed by the president, August 26, 1842. The defendant further alleged that in consequence of the refusal of the government of the United States to execute the treaty of 1838, the pre-emption owners were obliged to submit to the propositions contained in the treaty of 1842, and that in consequence thereof, they lose the right to the Cattaraugus and Allegany reservations, which had been conveyed to them by the deed of 1838, and the possession of which was fully guaranteed to them by the government of the United States by the treaty of 1838. That under the provisions of the treaty of 1842 the award of the appraisers, therein provided for, was filed in the war department on the April 1,1844, and the amount awarded to be paid by said pre-emption owners was paid to the secretary of war for the benefit of said Indians in the year 1844, and the defendant paid his proportion, amounting to the sum of six thousand six hundred and eighty-eight dollars and four cents. The defendant averred that the treaty of 1842 had not been executed by the government of the United States; that said pre-emption owners had applied to the government to execute the treaty and to remove said Indians from said lands, and to give said pre-emption owners possession thereof; but that said government had refused so to do; that said Seneca nation had refused to surrender the possession of the Tonawanda reservations, but still retained possession of the same.</p> <p>That in the years 1844, 1845, and 1846, the said owners, without any aid from the government of the United States, obtained by degrees the surrender of the lands in the Buffalo reservation, and the same was not finally made until the year 1846. That such possession was obtained at a large expense, and the delay in acquiring the same subjected the defendant and the other owners to large expense and great pecuniary loss. That the proportion of the. value of the Tonawanda reservation greatly exceeded in value that of the Buffalo Creek, owing to the superior value of the lands. That the mortgage, given to said Butler, was subject to prior liens upon the interest of said defendant in said lands. That all the lands belonging to the share of this defendant, in the Buffalo Creek reservation, had been sold by the trustees, and that the proceeds of such sales had been applied to the payment of said prior liens, with the exception of the amount paid on said mortgage to said Butler, and that the defendant had received nothing therefrom over and above such payments. The defendant then set forth a payment, in March, 1845, of seven thousand dollars, on account of said bond and mortgage, in February, 1846, a like payment of two thousand dollars, and in July, 1840, a further and like payment of one thousand dollars. That said mortgage to said Butler, being a lien on the interest of said defendant, in the lands of Buffalo reservation, and it being necessary, on the sale of said lands, to make a clear and free title thereto, an arrangement was made between the defendant and the United States, by which the latter agreed to cancel the mortgage to said Butler, upon the defendant executing and delivering the mortgage mentioned in the complaint in this action, as, and for the balance due on said mortgage to said Butler, and which was ascertained to be, on March 1, 1856, the date of said bond mortgage, the sum of seven thousand four hundred and forty-six dollars and four cents, and that on the third of September, 1856, the defendant paid, on account thereof ths sum of one thousand one hundred and seventy-five dollars. The answer alleged that as the defendant had paid, on account of said indebtedness, the sum of eleven thousand one hundred and seventy-five dollars, a sum greater than the original principal named in said mortgage to said Butler, he has paid the whole principal of said debt, and that the sum now claimed as due on said mortgage was for interest thereon.</p> <p>The defendant alleged that said pre-emption owners had no means of enforcing the provisions of said treaties; that they could not obtain the possession of said lands by legal proceedings in the courts; that the United States government, by becoming parties to said treaties, guaranteed to said pre-emption owners the possession of said land so conveyed by said Indians, and that the omission to give such possession by the government was a fraud upon the rights of this defendant. That in consequence of the making of said treaties, and of the undertaking of the government to enforce the execution thereof, the said pre emption owners had paid large sums of money for the consideration of said lands, and had lost the interest on the same; that the sum paid to the government, in 1844, on account of said Tonawanda reservation has remained in the hands of the government ever since, and it had deprived the defendant of the use and enjoyment thereof. The defendant alleged that by the refusal of the government to execute said treaty of 1838 he had sustained a loss for interest alone, upon his proportion of the lands of the Buffalo Creek and Tonawanda reservations, of not less than ten thousand dollars. That in consequence of the said pre- emption owners being compelled to submit to the provisions of the treaty of 1842, and thereby losing the possession of said Buffalo Creek and Tonawanda reservations, this defendant had sustained a great loss, in all of not less thirty thousand dollars. Thus, the government, by wrongfully and fraudulently omitting and refusing to perform the duty which they were legally bound to perform, in giving to the said pre-emption owners the possession of said lands, had deprived the defendant of the means of paying the interest of said mortgage debt from the lands specifically assigned for the payment of the same, and that as a matter of equity, and inasmuch as the original mortgage debt had been fully paid, the defendant claimed that he should not be compelled to pay interest upon said debt, said interest having accumulated solely in consequence of the neglect and refusal of said government to execute said treaties, which neglect and refusal, it was alleged, were a fraud upon the rights of the defendant. The defendant claimed and insisted that money paid by him to obtain possession of the lands of the Buffalo Creek reservation, and the interest upon his proportion of the purchase and improvement moneys of the Tonawanda reservation, deposited with the secretary of war in 1844, should be allowed to him as a credit upon the sum claimed to be due on said mortgage; and he insisted that the mortgage debt should be adjudged to be fully paid, and that said bond and mortgage should be given up and canceled. By stipulation between the parties it was agreed, in order to save a reference to compute the amount due upon said bond, that the apparent amount due on December 16, 1858, on the bond and mortgage, was seven thousand five hundred and eighty-one dollars and eighty-seven cents.</p>

Dougald McQueen sued Alexander Babcock in the supreme court, for damages for wrongfully seizing and taking away from plaintiff’s possession and converting to defendant’s own use certain personal property of which plaintiff was possessed as general assignee for benefit of creditors of one Henry A. Brown.

Thomas McSpedon and C. W. Baker were sued by the Troy City Bank in the supreme court, on a promissory note. The note in question was one of six notes, made by the firm, on June 8, 1857, payable respectively at from one to seven months, to the order of M. L. Samuel & Co. McSpedon & Baker were a business firm in the city of New York. The agreement under which the notes were given was as follows: “ Confidential contract. We agree to give Messrs.

William M. Mallory sued the defendants to recover compensation for the transportation of certain property, appertaining to the construction of the defendants’ road, in the year 1852, and it was alleged that these services were performed for and at the request of the defendants. Issue having been joined, the case came on for trial before the Steuben circuit in February, 1860, and judgment was rendered for the plaintiff.

John Maltby commenced a proceeding in the Erie county court against Ann R. Greene, for the enforcement of a mechanic’s lien, filed under L. 1844, c. 305.

Abijah Mann, Jr. sued Egbert H. Fairchild and Henry W. James, executors, &c. of Henry 1ST. Fairchild, upon several demands which originally accrued against the decedent in favor of the… Held: on the authority of a previous decision in 14 Bari). 554, that the statute prohibited purchases at judicial sales as well as iu other cases, and that taking title, with intent to sue for himself, after originally purchasing for his clients, was a violation by plaintiff of the statute.

<p>Abijah Mann, Jr., brought this action, in the supreme court, against George Palmer (for whom, on his death pending the action, Everard Palmer, administrator, was substituted as defendant), for an accounting in respect to money'alleged to have been received by defendant under contracts relative to an adventure in the sale of lands.</p> <p>The facts material to this appeal were, that on November 21, 1851, one Lockwood agreed, under seal, with the plaintiff, to convey to plaintiff certain lands subject to his wife’s dower and to assign an award of damages for land taken by a railroad company, in consideration of which plaintiff agreed to pay off liens on the property and cause the property to be sold within three years, and, after deducting his advances, to pay to Lockwood one-half the net proceeds. Pursuant to this agreement Lockwood conveyed the lands to Mann, the plaintiff. On November 22, Mann entered into an agreement with Palmer, the defendant, reciting the agreement with Lockwood, and agreeing that Mann should convey the premises to Palmer, and Palmer should perform the agreement and pay over half the net proceeds to Lockwood.</p> <p>On the same day the defendant Palmer made an agreement with William W. Mann, giving him the management, sale and disposition of the premises, and agreeing to pay him, for his services therein, one-half the net proceeds remaining after paying Lockwood, the original owner, his share; it being further provided that Palmer should advance all moneys which he might deem expedient and necessary for the purchase and preservation of the property and for the perfection and security of the title thereto.</p> <p>Under these agreements some lands were sold and moneys were received by William W. Mann.</p> <p>Subsequently to the making of this contract, Lockwood was adjudged an habitual drunkard; and one Stevens was appointed a committee of his estate. In July, 1853, Stevens brought an action against Abijah Mann (the plaintiff in this action), Palmer and others, to restrain the further sale of the lands, and to annul the contract on the ground of fraud, &c. That action was compromised in 1856 with the approval of the court upon the terms stated in the opinion of Deeio, J., and thereafter no further sales were made.</p> <p>In the present action the plaintiff sought to recover some eleven thousand dollars paid on the settlement of the suit brought by Lockwood’s committee and the conveyance to Wm. W. Mann, and the taxes and assessments since paid.</p> <p>The referee found that the original contracts were canceled by the new arrangement with Wm. W. Mann, and that plaintiff could not recover the sums paid on the settlement of the suit by the committee, nor subsequent payments; but that he could recover the balance of proceeds of sales prior thereto, and interest.</p> <p>Other details sufficiently appear in the opinion. Both parties appealed from the judgment.</p>

The Market Bank sued Richard Hartshorne, in the supreme court, on a check drawn by defendant on the Grocers’ Bank, to the order of the firm of Abbatt & Minturn, indorsed by that firm, and by them delivered to the plaintiff The defense was, that defendant gave his check to Abbatt & Minturn -in exchange for a check for the same amount, for •their accommodation, and without any benefit to the defendant, and that it was obtained by Abbatt & Minturn by the ¡fraudulent concealment…

Luther R. Marsh sued Lowell Holbrook, in the New York common pleas, as surviving partner of Thomas S. Nelson, deceased, to recover for professional services rendered by plaintiff to the firm of Holbrook & Nelson.

Joseph Sihley (for whom, on his decease, Robert Martin and Jane Sibley, administrators, were substituted as plaintiffs) sued David Cope for alleged conversion of a carding machine. Held: that if the machine had been permanently removed from the building on an abandonment of the business, the contract of sale could not, as matter of construction, be held to include it.

Le Grand Marvin, a son of Sarah L. Marvin, deceased, propounded his mother’s -will for probate in the surrogate’s court of Erie county. George L. Marvin, the only other child, and heir of the deceased, opposed the probate. The testatrix was a woman of over eighty-one years of age. The will in question was drawn by Le Grand, and gave substantially all her personal property to Le Grand, and disinherited George.

Anthony Mason (for whom, on his death pending the action, George Ressegnie and Oliver Mason, administrators, were substituted as plaintiffs), sued Benjamin M. Anthony and William Jackson, Jr., in the supreme court, seeking to recover from Jackson, as maker, and Anthony as indorser, of a promissory note. The defense was usury.

James Mason brought this action against James J. Ring, in the New York superior court. Upon defendant’s death, Zebedee Ring was substituted as a defendant, both in his personal capacity as heir, and as the administrator of the estate of James J., deceased.

Sarah A. Mathews sued Sacket L. Duryee and others, in the supreme court, to recover her dower in surplus money arising on a foreclosure suit. Charles L. Mathews, the plaintiff’s deceased husband, was owner in fee in his lifetime of lands, subject to three mortgages, two of which were executed by both Mr. and Mrs. Mathews, and one of which, being for part of purchase money, was executed by Mr. Mathews alone.

David Evans, an English creditor of Ezra J. Coates and John Hilliard, petitioned the supreme court to be admitted to share in the distribution of the assets of their estate by S. P. Hash, Waldo Hutchings, and Marshall Lefferts, the trustees of the creditors of the estate appointed by the court, after attachment issued against the property of the debtors as non-residents under R. 3. part 1, ch. 5, title 1, upon the application of other creditors.

Joseph Morrison and Benajah Leffingwell, receivers of the Columbian Insurance Company, appointed in proceedings on the dissolution of that company, under the provisions of the Revised Statutes, .applied to the supreme court, by which they were appointed, stating that the receiver of taxes had notified them that he held a warrant of personal taxes due from the company to the city of New York, amounting to one hundred and two thousand two hundred and ninety-one dollars and…

Theodore Saltus, Anna Saltus and Lansing Pruyn, executors of Francis Saltus, deceased, cited the parties in interest to appear in the surrogate’s court, in the city of New York, upon an accounting,… Held: that the sums represented must be invested, and that the executor was liable therefor. Among other items entered in the schedule of debts, or sums paid to creditors, was the following: “1856.

John W. Mattice sued William G. Allen and Adolf Hugel, in the supreme court, to recover damages for defendants’ breach of an alleged contract to purchase from plaintiff some fifteen hundred bushels of barley, to be paid for on delivery. The plaintiff proved an oral bargain for the sale as alleged in the complaint.

The Mayor, &c. of the city of New York sued the Brooklyn Fire Insurance Company, in the supreme court, on a fire policy, issued by the defendants to the plaintiffs, June 23,… Held: that the evidence which defendants offered to give, as above stated, would tend to vary the operation of the language contained in the policy, and therefore was inadmissible, and that such a statement as was offered to be proved was not, in a legal sense, a representation of any fact in existence.

The plaintiffs sued Henry Erben and the New York Life Insurance and Trust Company, in the New York superior court, to recover nine… Held: that Erben having been advised by the clerk of the commissioners that he had been awarded the full sum, and having, in reliance thereon, failed to file exceptions to the report, and allowed the time for so doing to pass (facts which did not appear by the report of the referee, but were drawn from testimony in the case), and having…

The Mayor, &c. of the city of New York sued the Brooklyn Fire Insurance Company, in the New York superior court, on a fire policy issued by the defendants to the plaintiffs, in June, 1858, insuring the Crystal Palace building and its contents, which were destroyed by fire in October of the same year.

The plaintiffs sued August Sibberns and Michael Ryan, in the New York common pleas, on a constable’s bond, in which Sibberns was the principal and Ryan the surety. Held: on the authority of Pybus v. Gibb, 6 Ml.

<p>The words “or order,” “or bearer,” and “hearer,” in notes, bills and checks, are words of negotiability, and the use of either of them makes the paper negotiable, although impersonal words be used in place of naming a payee; and if such'words be used it is negotiable by delivery without indorsement.</p> <p>In an action against the maker of negotiable paper, payable to bearer, it is sufficient, after alleging that defendant drew it, to allege that it was transferred and delivered to plaintiff, without saying by whom, if it be also alleged that the transfer was for value, and that plaintiff is the owner.</p>

Austin Melvin and others sued James Wood and others, in the supreme court, to recover a balance of account. The account included charges for goods sold and moneys advanced by plaintiffs to defendants, and credits for proceeds of sales on commission, damages for injured goods, interest, &c. The plaintiffs annexed to the complaint a bill of particulars or copy of the account. The referee allowed them to amend this upon the trial, by substituting a new bill of particulars.

<p>. John Mentz, by Conrad Mentz, his guardian, sued the Second Avenue Railroad Company of the city of New York, in the New York superior court, to recover damages for an injury to the plaintiff by the cars or horses of the defendants. On August 3, 1859, the plaintiff suffered an injury upon the track of th'e defendants’ road, by being thrown down, or run over, which resulted in the amputation of his arm. The jury gave a verdict for the plaintiff of four thousand five hundred dollars.</p> <p>At the time of the occurrence of the injury complained of, the plaintiff was a lad of about eight years of age. The theory upon which he claimed to recover, and which was sustained by the juryj was this: that, having occasion to cross Chrystiestreet, in the city of New York, he started in reasonable time to accomplish that purpose; that when he reached the defendants’ railroad track, which was laid in that street, he stumbled and fell; that by the fall his knee was so much injured that he had great difficulty in rising; that, at the instant of his fall, the defendants’ car was approaching at a rapid rate, and was at the distance of thirty or forty feet from him when he fell; v that the driver was talking with persons upon the platform, with his back towards his horses, and that, before the plaintiff could recover himself, he was struck by the horses, thrown down, and the injury inflicted. An intelligent account of the transaction was given by Stephen Hans, who testified, that as he was coming down Chrystie-street, he saw the boy fall on the railroad track; that the car was coming up from Grand-street; that the driver’s face was turned round, and he was in conversation with some person on the platform of the car, and his face was towards the inside of the car; that the boy had fallen on the track in the middle of the street; that the car was about thirty-five feet from him when he fell; that the boy had hurt himself when he fell, and before he could get away, the car had come up, and the horse went over his arm; and that before the car came near to the boy, he heard persons call out to the driver to stop.</p> <p>The theory of the defense was: that the accident occurred solely through the negligence of the plaintiff; that, with other boys, he attempted to run across in front of the car, and directly against the horses, and was thus thrown under their feet. The driver testified, that several boys were being chased away by a man, and they made a dash, some one way and some another, and one of them (the plaintiff) ran almost abreast of the horses, and there was no possibility of braking the car before the horses knocked him down; that he heard no person halloo to him to stop; that he was attending to his business at the time; that there was only one passenger on the platform; that he had one hand hold of the lines, the other on the brake, and his eyes on his horses, and that he was not talking to any one. The theories of the parties were in direct conflict, and the claim of each was sustained by numerous witnesses.</p> <p>The superior court, on appeal from the judgment and the order denying a new trial, held, that one crossing a highway is not negligent in not anticipating an accident which may leave him helpless, and is not bound to refrain from crossing merely because a car drawn by horses is likely to strike him in case he should fall on the track by some such accident, and lie there unable to rise; because such a result is out of the usual course of events, and not such as the pedestrian is bound, in the exercise of ordinary care, to anticipate and provide for. Defendants appealed.</p> <p>On the question of negligence, — cited, Haring v. New York & Erie R. R. Co., 13 Barb. 9; Spencer v. Utica & Schenectady R. R. Co., 5 Barb. 337; Wilds v. Hudson River R. R. Co., 29 N. Y. 315; Wells v. New York Central R R Co., 24 N. Y. 181; Steves v. Oswego & Syracuse R. R. Co., 18 N. Y. 422; Curran v. Warren, 36 N. Y. 153; Gordon v. Grand-street R. R. Co., 40 Barb. 546, 548; Ernst Cases, 24 How. Pr. 97; 35 N. Y. 9; and especially the last decision of this court (reported in 39 N. Y. 61; S. C., 36 How. Pr. 84); Wilcox v. Rome, Watertown, &c. R. R. Co., reported in 39 N. Y. 358. To the point that the youth of the plaintiff makes no difference in the application of the rule, see Burke v. Broadway & Seventh-ave. R R. Co., 49 Barb. 529.</p> <p>As to the conflict of the testimony, — cited, Seibert v. Erie R. Co., 49 Barb. 583; Lomer v. Meeker, 25 N. Y. 361; Deyo v. New York Central, 34 N. Y. 9; Cotton v. Wood, 98 Com. Law, 566; Toomey v. London, &c. R. Co., 91 Com. Law, 146.</p>

Charles C. Merchant brought this action against Frederick D. Bunnell and Louisa his wife. Held: that as nothing appeared to show any intent on the part of the wife at the time she purchased it, to sell the property, the case was distinguished from those in which a married woman is engaged in a regular business buying and selling, such as Lovett v. Robinson, 7 How.

Sylvanus Merritt sued Isaac Carpenter, in the supreme court, to recover the possession of certain real property, and damages for… Held: that the words “ for injuring property,” in the provisions of the Code, enumerating the actions in which a party may be arrested, must have a general and universal signification, as including real as well as personal property; and that an action of ejectment and for mesne profits was at common law substantially an action of trespass…

<p>One who receives money from A. upon a simple trust, to pay over to B., cannot resist an action by B. on the ground that it was paid by A. in performance of an illegal executory contract. This is not an action in aid of an illegal agreement.</p> <p>Since a party may waive the defense of the illegality of a contract, and affirm the same as far as he himself is concerned, and money paid thereon cannot be recovered back, on account of the illegality of the contract, it cannot be recovered back when paid to an agent for him.</p>

Louis N. Middlebrook sued the Merchants’ Bank of New York, to compel them to transfer to him shares of stock in the bank, standing in the name of Bobert, his father, on their books. Bobert died in Connecticut, resident there, and bequeathed a legacy to Louis N., payable in bank stock. The executors in Connecticut, where all parties resided, executed a transfer to Louis N. of one hundred shares of defendants’ capital, in payment of this legacy.

Charles H. Mills sued Cornelius Garrison, in the supreme court.

George M. Mittnacht sued John Kelly, sheriff of New York, in the court of common pleas of the city of New York, for levying upon a horse, wagon and harness which the plaintiff claimed under a chattel mortgage which had been executed to him by the execution debtor. The mortgage was given on August 13, 1859, and the execution was issued on September 37, 1859. Joseph Zorn, the mortgagor, carried on a family grocery store in Third-street, in the city of New York.

M. Price Moore, executor of Lewis Moore, deceased, appealed to this court from a decision of the supreme court, affirming a decree of the surrogate of the… Held: in respect to the claim for professional services, that the parental relation, the absence of any claim or demand in testator’s lifetime, and the executor’s declaration in the Yew Jersey court, that he had exhibited a true statement of the debts, all tended to show that there was no contract, express or implied.

Henry H. Morange sued Peter Morris, in the supreme court, to recover back money paid by plaintiff to defendant on an agreement to… Held: that the refusal of the plaintiff to complete his purchase because there was a lease on the premises, did not deprive him of the right to object to other incumbrances on the property; that the incumbrances should have been removed before the time fixed for completing the contract; and that performance on the part of the plaintiff was…

Richard, Alden, John G., and J. Parker Morse, sued Joseph A. and Manuel Pesant, in the New York superior court, to recover demurrage. Held: that if the vessel .had been discharged according to the custom of the port, delay would not have taken place, and that the judge was correct in instructing the jury that if the vessel by ordinary due diligence of the consignees might have begun discharging on the eighth or ninth day after her arrival, they might award demurrage…

John Mosher and others sued Lemon B. Hotchkiss, in the supreme court, as guarantor on a promissory note for two hundred and forty-five dollars, made by Spencer Hildreth and Harvey Carey, dated August 8, 1857, payable three months after date, to the order of Hildreth, at the Ontario County Bank.

Joanna Mulford and others brought this action, in the supreme court, against John Cassidy (for whom, on his death pending the suit, James Muller and others, his executors, were substituted), to foreclose a mortgage of land made by Cassidy to secure nine thousand four hundred and fifty dollars with interest.

John Munroe and others sued Leon Guilleaume, in the New York common pleas. Held: that as the statute under which the certificate was given was not put in evidence, the effect of the certificate was not made to appear, and as a consequence, its being put in evidence amounted to nothing. Defendant appealed to this court.

Hamilton Murray sued Abram M. Bininger and Rufus H. Wattles, in. the supreme court, for trespass in seizing and carrying away and… Held: that the defendants were not originally liable for the acts of their agent, Compton, in instructing the sheriff after the return day of the execution, such acts being beyond the agent’s authority and not contemplated by the defendants ; but that they were liable therefor by reason of their adoption and ratification of those acts; and…

Michael Murray sued the defendants, in the superior court, of Buffalo, for damages sustained by him in the killing of his horse, which was run over by the defendants’ train, on their track. The horse escaped from the adjacent pasture, where he was kept, through a gate which had been duly erected by defendants for a farm crossing. The gate was off its hinges, at, and shortly before, the time of the accident.

The plaintiffs brought two actions against the board of supervisors of the city and county of New York, one in the New York superior court, and the other in the supreme court.

<p>A preliminary order made before j udgment, requiring a party to do certain acts or that an attachment issue for contempt, is not appealable to this court.*</p>

to secure the payment of fourteen hundred dollars, in two annual payments from date, according to the condition of a bond of the mortgagor therewith given. The bond and mortgage, by various assignments, were transferred to the plaintiff, long before the commencement of the action.

George M. ISTexsen and others, heirs at law of the testator, appealed to the supreme court, from a decree of the surrogate of Kings county, admitting to probate the will of Sarah ISTexsen, deceased, of which will William ISTexsen, the executor, was the proponent. The grounds of the appeal were — 1. That it did not appear by the proofs taken that the alleged will was duly executed; 2. That the testatrix was incapable of making a will; 3.

William Niblo, as assignee of Anthony E. Hitchings, sued John Binsse and Louisa La Large, executors of John La Large, in the supreme court, for services and materials under a contract with the defendants’ testator. The referee found the following facts.

Charles Bridge petitioned the supreme court to be released from a purchase he had made at a partition sale, held under decree of the court. Held: that the judgment was amendable in this respect by inserting a provision requiring her share of the proceeds to be brought into court; and they overruled the other objections upon substantially the same grounds as those assigned by this court. The petitioner appealed. Cited Burhans v. Burhans, 3 Barb.

Louis and Edward P. Northrop and the Syracuse, Binghamton & New York Railroad Company, having a controversy in reference to the liability of the… Held: that as reasonable time had expired for the consignees, had they been in the vicinity of the depot, to have called for the goods before the fire, the liability of the defendants as common carriers ceased upon the lapse of such reasonable time, and there being no proof of negligence, they were not liable as warehousemen.

<p>The fact that an architect sent for and took away plans he had submitted, — Held, not conclusive on the question whether his employment was absolute or contingent.</p> <p>An architect by profession is competent to testify in his own behalf to the value of his labor in drawing plans.</p>

<p>Samuel G. Ogden, Jr., sued William M. Raymond and another, in the New York superior court, on a promissory note made by them, dated October 4, 1855, for seven hundred and fifty dollars, «payable to the International Insurance Company or order, and indorsed by the president thereof. On the trial it appeared that the note was taken by Samuel G. Ogden, Sr., from the company, in good faith, and for a valuable consideration, at the same time with a number of other notes, amounting together to about fifteen thousand dollars. Evidence to show that the president of the company had indorsed the note without being authorized by a resolution of the directors, was excluded, as the fact that the note had been duly indorsed, transferred and delivered, was alleged in the complaint and not denied in the answer; and judgment was given for the plaintiff.</p> <p>The superior court, at general term, sustained the judgment, on the ground that Ogden, Sr., was a holder for value. Reported in 5 Bosw. 16.</p>

<p>The Ogdensburgh, Clayton & Rome Railroad Company sued William W. Wooley, in the supreme court, to recover sundry installments alleged to be due upon defendant’s subscription to the company’s capital stock.</p> <p>On the trial, it appeared that at the time the defendant made his subscription to the stock of the plaintiff he had nothing in money, but that he had given his promissory note for one hundred dollars (the amount of the subscription being one thousand dollars), as and for the ten per cent, required. That subsequently by an agreement with the plaintiff the defendant’s subscription was reduced to seven hundred dollars, and the defendant’s name was entered in the plaintiffs’ books as a subscriber for that amount.</p> <p>That the defendant afterwards gave two negotiable notes for a sum including the original ten per cent., and the several calls which had been made upon him as a stockholder, and the note for one hundred dollars was surrendered to him. Before their maturity the said two notes were negotiated, and subsequently suit was brought on them, in which the defendant appeared, and put in an answer, but becoming satisfied that the notes had been transferred without notice and for value, he allowed a .judgment to be taken against him by default. Further calls had been made upon the defendant, and he had neglected to pay, and the plaintiff then brought this action. The defense was that the defendant had never paid the ten per cent, in money on making the subscription, as required by the general railroad act, and that therefore the subscription was not valid.</p> <p>The provision of the act on this point is: “ At the time of subscribing, every subscriber shall pay to the directors ten per cent, on the amount subscribed by him in money; and no subscription shall be received or taken without such payment.” L. 1850, c. 140, § 4.</p> <p>The referee to whom the case was referred, gave judgment in favor of the plaintiff, on the ground that the defendant was not discharged from his subscription by the omission to pay ten per cent, in cash at the time of subscribing, but that the giving of the notes which included the ten per cent, and the subsequent calls and the payment thereof, operated as a waiver of any right he might have had to repudiate his subscription, and was a ratification thereof.</p> <p>The judgment for plaintiff was reversed by the court at general term, and a new trial ordered, on the ground that although payment voluntarily made at a time subsequent to the subscription might ratify or perfect th.e act of subscription, yet the compulsory payment of a note given for the ten per cent, to a holder of the note, the maker being unable to resist its payment in the hands of a bona fide holder for value, did ,not in any way make valid the subscription, which was void without the payment o$ the ten per cent.</p> <p>From that decision the plaintiff appealed to this court.</p>

<p>A devise and bequest of all the testator’s real and personal estate, “ subject to the dower and thirds of his wife,” does not entitle her to a third of the personal estate; but indicates an intention, merely, to to make a devise and bequest subject to her dower.</p> <p>It would be otherwise of a direct provision, giving the wife dower- and thirds. Under such a provision she would be entitled to one-third of the personal estate in addition to dower, after payment of debts and. legacies.</p>

<p>The term legacy includes any gift of personal property by will, as well those made in lieu of dower, as those which are gratuitous.</p> <p>The rule that a legacy in lieu of dower is to be preferred to other general legacies, in case of a deficiency of assets, does not apply where the will directs that the legacies mentioned in it shall abate ratably.</p>

G. A. Osgood and Cyrns Curtiss, receivers of the Columbian Insurance Company, brought this action against William Lay-tin and many others, for the purpose of recovering back dividends which certain of the defendants, as stockholders, had received out of the capital, and of restraining other defendants, who were creditors, from prosecuting individual actions for the same purpose.

In tbe action entitled Osgood v. Laytin, last above reported, David Ogden, one of the defendants, answered the complaint, denying knowledge or information sufficient to form a belief as to the payment of dividends, during insolvency, or out of the capital; and as a further defense, alleged that the company were indebted to him in about fifteen hundred dollars, for a balance due upon a policy of insurance and for return premiums.

John Ostrander sued Lewis D. Fay, sheriff of Steuben, for conversion of the goods in a country store. Plaintiff claimed title under a chattel mortgage, given him by one Clayson, October 21, 1859, and duly filed. Defendant seized the goods on execution against Clayson, the mortgagor.

Ira and Orlando Page sued Daniel and Daniel H. Morrel, composing the firm of Morrel & Son, and Benjamin K. Kellis, in the supreme court, on a promissory note, of which D. Morrel & Son were makers, and Kellis the indorser. The note was made on June 10, 1859, for the sum of fifty dollars, payable thirty days after date.

Thomas Paige was indicted, in the oyer and terminer, for forgery; and he demurred to the indictment for insufficiency. The indictment charged that defendant forged a deed dated January 7,1827, purporting to be executed by Thomas Rock to Ann Colorwiclc, purporting to convey certain real estate. The deed was set oiit in each count, in liceo verla, and purported to be signed “Thomas Rock, L. S.” Neither count alleged in express terms that the forged instrument was sealed.

<p>William C. Chipman (for whom, on his death pending the action, Abraham X. Parker, trustee, &c. was substituted as plaintiff), sued Benjamin T. Jervis, Paul Worth, Russell T. Wheeler and E. B. Litchfield, in the supreme court, for wrongfully taking possession of and refusing to deliver, and converting to their own use, a quantity of merchandise belonging to the plaintiff.</p> <p>The property had belonged to one George H. Goodrich, who made a general assignment, transferring it, for the benefit of his creditors, to Chipman. The goods were in the store of Goodrich; the assignment was made in a bed-room above the Store; and the delivery, which was relied upon, was made at the same time as the assignment, by delivering to plaintiff the keys of the store, and by the plaintiff taking the books, notes and accounts from the store, to his office in the same village. The debtor, the assignor, dismissed his clerk, and the plaintiff, the assignee, hired him to remain, and requested him to keep the assignment secret, until the assignor and the assignee, who were going to New York, should return. The store was kept open, with Goodrich’s sign up, until the plaintiff’s return, about ten days after the assignment.</p> <p>The defendants justified the seizure as judgment creditors of Goodrich, claiming that the assignment was fraudulent and void, and that the property belonged to him.</p> <p>After the evidence was all introduced, the defendants moved for a nonsuit, on the ground that there had been no actual .delivery or change of possession of the assigned property. The court denied the motion, and submitted the case to the jury, who found a verdict for the plaintiff.</p> <p>The supreme court, on appeal from an order of the special term, denying a motion made upon the minutes of the judge for a new trial, held that a delivery, such as was here shown, was not a sufficient delivery, in a case where there is nothing to prevent an actual delivery; and hence, that the statute created a presumption of fraud, which imposed upon the plaintiff the burden of proof that the sale was not only made in good faith, but that it was made without intent to defraud creditors; and that, as the plaintiff did not produce evidence to establish either of these requirements, there was nothing to be submitted to the jury. They accordingly reversed the order, and granted a new trial.</p> <p>Cited 2 R. S. 13G, §§ 5, 6, 137, § 1, 135, § 1; King v. Wilcox, 11 Paige, 589; Pine v. Rikert, 21 Barb. 4G9; Forbes v. Logan, 4 Bosw. 475 ;* Mathews v. Poultney, 33 Barb. 127; Hoyt v. Thompson, 19 N. Y. 207, 212; Marston v. Vultee, 12 Abb. Pr. 143 ; S. C., 8 Bosw. 129 ; Adams v. Davidson, 10 N. Y. (G Selcl.) 309 ; Code, §§ 2G8, 272; S. Laws 1860, p. 78G-7; Code, § 11; 2 8. Laws 1857, p. 551; Sanford v. Eighth Ave. R. R. Co., 23 N. Y. 313 ; Miller v. Schuyler, 20 Id. 522; Platt v. Munroe, 34 Barb. 291; Honsee v. Hammond, 39 Id. 96.</p>

<p>An advancement may be established by parol.</p> <p>A verbal agreement between father and son, that the son should have a certain piece of land in full for his share as heir of the estate of the father (the land being, at the time of the agreement, of proportionate value to constitute such share), without writings or written evidence of title given, is, if followed by possession and enjoyment by the son, an advancement, within 1 R. 8. 754; and if it does not appear that the decedent left any personal or real estate other than what he possessed at that time, so that the advancement appears to he equal, if not superior to the amount of the share which the child would have been entitled to have received from the estate as heir, such child and his heirs will be excluded from any further share in the estate,of the decedent.</p> <p>Equity would interpose against the claim of the heir in such case.</p> <p>The provisions of the statute relative to advancements apply'to transactions in the nature of advancements made before the enactment of the statute, although the death of the father occurred after the enactment of the statute.</p>

<p>James C. and Josiah Partridge sued Daniel Gildermeister, in the New York superior court, to recover nine hundred and forty-six dollars, the value of merchandise sold by plaintiffs to defendant, on an agreement that it should be paid for in the notes of John Machado, or of J. A. Machado A Co., having not more than six months to run, which notes the plaintiffs had demanded from defendant after they had delivered the goods; but delivery of the notes being refused by defendant, they therefore now sued for the money value of the goods.</p> <p>On the trial, defendant adduced evidence in support of his answer, to show that, in the character of agent for one Colquitt, he had contracted with plaintiffs for chairs to the value of two thousand three hundred and ten dollars, to be delivered on board the ship “Ellen Hood”; that plaintiffs so delivered a part of the chairs, and requested further time to deliver the rest, on the ground that they were not yet manufactured; that thereupon an agreement was made that the residue should be delivered on the ship “ Martaro,” which agreement the plaintiff had failed to perform, and had failed to deliver any more of the goods.</p> <p>As to the question whether the goods were all to be delivered before the notes were transferred, the evidence was conflicting.</p> <p>The plaintiffs gave evidence to show that after the delivery of the chairs on board the “ Ellen Hood,” Machado became insolvent; and that plaintiffs had demanded the notes of the defendant, who refused to deliver them, saying that the goods were bought for Colquitt, and that plaintiffs must look to him, but gave no other reason for his refusal to deliver.</p> <p>Defendant asked the judge to charge as follows: “ That if the jury believe from the evidence that the contract between the plaintiffs and either Gildermcister or Colquitt was to furnish two thousand three hundred and ten dollars’ worth of chairs, then plaintiffs cannot recover for the amount actually furnished, unless the contract has been waived by the consent of the parties, or the other party to the contract has released the plaintiffs. That the denial of the contract by the defendant when applied to for the notes, even if found by the jury, is not a waiver of performance on the part of the plaintiffs.</p> <p>“ That if the jury find that the insolvency of Machado & Co. occurred after the delivery of the goods in suit, the fact that Machado & Co. had become insolvent was not a sufficient ground for the plaintiffs to rescind the contract.”</p> <p>The judge refused to instruct the jury thus, and in the instructions which he gave them, placed the liability of the defendant (if he were in fact the purchaser), on the question whether it was agreed, that all the chairs were to be delivered before the notes were to be delivered. If they were not all to be delivered before delivery of the notes, the liability of defendant would depend on what answer he made when the notes were delivered.</p> <p>Defendant excepted. The jury found for plaintiffs, for one thousand and forty-six dollars and eighty-three cents.</p> <p>The superior court, at general term, affirmed the judgment entered thereon, upon the ground that there was nothing in the evidence calling for the instructions asked for; that Colquitt’s denial that he had contracted for the chairs, or had bought those delivered, and his refusal to pay for them, relieved plaintiffs of any necessity of an offer to deliver more chairs. That plaintiffs at no time refused to receive the notes of Machado & Co. or to deliver chairs for them. That their right to recover did not depend upon their right to rescind any contract which they had made, but was based on defendant’s refusal to perform his contract, as the purchaser of the chairs. Reported in 6 Bosw. 57. Defendant appealed to this court.</p> <p>Cited Oakley v. Horton, 11 N. Y. 25; Champlin v. Rowley, 17 Wend. 187. And as to the effect of insolvency, Benedict v. Field, 16 N. Y. 595.</p> <p>Cited Crary v. Smith, 2 N. Y. (2 Comst.) 60; Meserole v. Archer, 3 Bosw. 376; 20 Barb. 515; 15 Wend. 474; 1 E. D. Smith, 463.</p>

Zachary Peck, as assignee of Wm. H. Brown, deceased, brought this action in the Kew York superior court, against William Minot, Jr., and others, executors of Wm. Sawyer, deceased, and E. and G. L. Schuyler, for an accounting. The main question was whether the plaintiff was entitled to have a bond and mortgage declared canceled, which Brown, his assignor, had executed in favor of the Schuylers, and which they had assigned to Sawyer.

The Pennsylvania Coal Company sued the president, managers and company of the Delaware & Hudson Canal Company, to enforce the provisions of a special contract in relation to the transportation of coal. The contract in question was originally made by the defendants with the Wyoming Coal Association, whose rights under the contract the plaintiffs acquired in 1851.

Charles E. Boardman and. others instituted summary proceedings, before the city judge of New York, against Garrett M. Clute and others, their tenants, to dispossess them from the demised premises, the Neptune Iron Works, for holding over after the alleged expiration of their term. On the return of the summons no one appeared for the defendants, and a warrant of dispossession was issued.

<p>The Metropolitan Police act {L. 1857, c. 569), which provided that members of the force should not be removed except on written charges, and after opportunity to be heard in defense, — entitled a member to actual notice.</p> <p>Since, by the act, removal disqualifies from reappointment, a removal without such notice, though a nullity, should be reversed by the court, because it involves an apparent deprivation of a legal right.*</p> <p>Such a removal, being a judicial proceeding, is a proper subject of review upon certiora/ri.†</p>

On the relation of John B. Debennetti, that on December 5, 1855, judgment was rendered in his favor by one of the justices of the marine court, against Herman Manchin and others, from which no appeal was taken to the general term of this court; nor were the proceedings stayed by order of the court; that upon application to Moses D. Gale, an execution upon said judgment was refused, and an order that execution issued was also refused by the general term; — an order was issue…

Benjamin F. Manierre applied to the supreme court for a mandamus requiring the common council of the city of New York to enact an ordinance providing for the creation of a fund or stock for the building of a market.

Crowel and others, in October, 18G6, recovered a judgment in the supreme court against Marinda Wheeler, a married woman, for seven hundred and twenty-three dollars and twenty-four cents. Execution was issued and returned unsatisfied. The defendant was examined before a referee in proceedings supplementary to the execution.

Louis Dibble was convicted of forgery, in passing to one Newman a counterfeit bill on the Westfield Bank. The supreme court granted a new trial, on the ground of the admission of evidence stated in the opinion of this court.

Benjamin T. Metcalf and Samuel Duncan, as relators, caused this action to he brought, in the name of the people, in the supreme court, on the official bond of Burdett Stryker, sheriff of Kings, in which John Dikeman and Henry FT. Conklin were sureties.

This proceeding was instituted in the name of the People on the relation of Auguste Noel and others, against Richard Kingsland, a judgment debtor, against whom the relators had instituted proceedings supplementary to execution.

The People sued John Kolb and John Bechtel, in the New York superior court, to recover a penalty for opening a place for theatrical exhibitions in the city of New York, without obtaining a license therefor from the mayor, in violation of L. 1839, c. 13. The appellants furnished no appeal, book or points, on their part.

The People of the State sued Henry R. Lansing and Mary R. Richmond, executrix, &c., of Dean Richmond, in the supreme court, in an action substantially for money received.

<p>Richard Lewis was convicted of murder, and obtained, on error in the supreme court, an order for a new trial. The People brought error to this court.</p>

On the relation of John Lumley and another, an alternative mandamus was granted by the supreme court, directed to the defendant Lewis and others, who were commissioners of highways in the town of Cherry Valley, commanding them to open a certain highway, or show cause, &c. The defendant made a return to the writ, and the relators pleaded to the return. The issues were tried at circuit, and a verdict rendered in favor of the relators.

Henry E. Moring was indicted in the court of general sessions of the peace, in ¡New York, for selling sixty thousand bags of Java coffee as a broker, without having given the bond required by the… Held: that the act was not only a violation of the constitution of the United States, but also a violation of the provisions of the State constitution referred to in the opinion of Htrira, J. They accordingly affirmed the judgment. The People brought error to this court.

The relator, having been arrested in two several proceedings, had in accordance with the act entitled “ An act to abolish imprisonment for debt, and to punish fraudulent debtors” (L. 1831, c. 300, p. 39G), was brought before a judge, who, being satisfied in each case that the allegations made in that behalf were substantiated, and that the relator fraudulently contracted the debt (for the recovery of which an action had been brought), and also that he had fraudulently…

<p>James R. Del Vecchio applied to the supreme court for a peremptory writ of mandamus commanding the respondents to audit and pay a bill of one hundred and thirty-nine dollars and fifty cents for- printing and advertising tax sales in said county. The return to the alternative writ states that the board of supervisors of the county of Kings did not, on August 1, 1860, nor on any other day during said year, designate the Standard (a newspaper published in said county by the relator) as one newspaper to publish and print the laws, as provided by L. 1845, c. 280. That said board of supervisors, at their annual meeting, held on said August 1, 1860, did appoint two printers to publish the laws of a local and general nature, in two newspapers published in said county cf Kings, as provided by chapter 280 of the Laws of 1845; and that the two newspapers so appointed were designated by said board at said meeting as the Brooklyn Daily Eagle and the Brooklyn Daily Times, and that such appointment and designation were made as follows, to wit: That at said meeting of said board of supervisors, a resolution was offered and adopted in these words:—</p> <p>“ Resolved, That the board now proceed to ballot for a choice of the newspapers in which shall be published the laws affecting this county, to be passed at the next session of the legislature.”</p> <p>That, upon the passage of said resolution, the chairman of said board appointed two supervisors as tellers to receive the ballots which should be cast. That a balloting was then had, of which the tellers announced the result as follows, to wit:—</p> <p>That the number of ballots received was twenty-four, of which twenty-two ballots contained each two names, one contained one name, and one was blank, and the vote was as follows, to wit:</p> <p>For The Brooklyn Daily Eagle, sixteen votes.</p> <p>For The Brooklyn Daily Times, fourteen votes.</p> <p>For The Brookly Evening Star, twelve votes.</p> <p>For The Brooklyn City Kews, two votes.</p> <p>For The Standard, one vote.</p> <p>For Blank, one vote.</p> <p>That the ballot containing a single name was for The Standard.</p> <p>That thereupon a member of said board of supervisors moved that the “ Eagle ” and “ Times ” be declared to be the two newspapers designated by said ballots to print and publish the laws affecting said county, which motion was adopted, no opposition thereto" appearing on the minutes of said board. That the mode above stated of designating two newspapers for publishing the laws, had been before adopted and made use of by said board, and that the newspapers were designated in the same manner the previous year, to wit: At the annual meeting of said board, held on August 3, 1859, the relator, James, R></p> <p>Del Vecchio, being then a supervisor of said county and present at said meeting, and participating and acting as teller in the designating and appointing of two newspapers for the aforesaid purpose and in manner aforesaid. That, in pursuance of the said designation and appointment, made on August 1, I860, as aforesaid, the comptroller of the State of New York, in or about the month of June, 1861, prepared for the county of Kings, and for publication in said papers, The Brooklyn Daily Eagle and The Brooklyn Daily Times, a notice of the sale of lands for taxes in Kings county, and caused such notice to be published in said newspapers, as required by chapter 437 of Laws of 1855, section 61; and that said newspapers did thereupon publish said notice for the time and in the manner required by said statute; and that thereafter the proprietors of said newspapers did present their bills to said board duly verified; and said board, at a regular meeting thereof, held on August 6,1861, did audit and order the same to be paid, and the county treasurer of said county did, on August 8 and 9,1861, pay to the publishers of said newspapers, “ Eagle ” and “ Times,” and to each of them, their respective bills of said publication, amounting to the sum of one hundred and thirty-nine dollars and fifty cents, each being for the same services for which payment is now claimed by the relator.</p> <p>That the said comptroller did not, nor did any person for him, prepare for publication, or request or cause to be published, in The Standard, said notice, or any notice of sale of lands for taxes, nor was the relator, nor any of his agents or employees, requested or authorized to publish said notice; and that said notice was, without authority, copied into The Standard from the columns of said “ Eagle ” and “ Times,” after the same had been published by them as before stated.</p> <p>That the same relator did not present his bill and claim for said advertising, to said board of supervisors, until after said bills of the “ Eagle ” and “ Times ” had been audited and paid as hereinbefore stated, to wit: not until August 19, 18G1, although at the time said bills were presented, audited and paid, he well knew the fact; nor did he, on said August 1, 1861, or afterward, at any time, object to the payment of said bills, nor claim that he had any demand.against said supervisors for said advertising, until said August 19,1861. If or did he, at any time previous to said last-mentioned day, claim "or pretend that he was appointed printer, or that The Standard was designated or appointed by said board of supervisors as one of the newspapers to publish the laws as required by the statute hereinbefore referred to. That for these reasons the respondents had refused to audit said account of said relator. To this return the relator demurred, thereby admitting all the facts therein stated. Judgment was given for the defendants upon the demurrer.</p> <p>The supreme court held, that although the ballot was irregular, the power was vested in the board of supervisors, and a deviation from the statute, in the mode, did not affect the validity of the appointment, or at least did not entitle the relator to compensation for services voluntarily rendered without request. Reported in 23 How. Pr. 89. The relator appealed.</p> <p>Cited People v. Supervisors of Seneca Co., 18 How. Pr. 461.</p> <p>Cited Matter of Mount Morris Square, 2 Hill, 14: Striker v. Kelly, 7 Id. 9; Wiggin v. Mayor, &c. of N. Y., 9 Paige, 16; Matter of Mohawk & Hudson R. R. Co., 19 Wend. 143; People v. Cook, 14 Barb. 290, 291; S. C., 8 N. Y. (4 Sold.) 89; People v. Supervisors of Chenango, Id. 328; Sedgw. on Slat. & Const. Law, 368, et seq.; People v. Supervisors of Ulster, 34 N. Y. 268, 272, 273; People v. Mayor, &c. of N. Y., 2 Hill, 12,</p> <p>In reply, cited People ex rel. Lefever v. Board of Supervisors of Ulster Co., 34 N. Y. 268; 5 AM. Dig. 85; Striker v. Kelly 7 Hill, 9 ;* Marchant v. Langworthy, 6 Id. 646; affirmed, 3 Den. 526; Livingston v. Tanner, 14 N. Y. (4 Kern.) 67; Sedgw. on Stat. 375; People v. Supervisors of Albany, 28 How. Pr. 25. and cases cited.</p>

The People, on the relation of William G. Wetmore and others, commissioners of records for the city and county of New York, obtained a mandamus against the board of supervisors of New York county, to compel them to raise by tax the sum of seventy-two thousand and thirty-four dollars and twenty-four cents, for which sum requisitions had been made, by the commissioners.

John W. Thoms, under an indictment for having in his possession, with intent to utter, an altered hank bill, upon arraignment in the New York general sessions, pleaded not guilty.

Alexander Van Rensselaer and others, commissioners of highways of the town of Claverack, in Columbia county, having made an order refusing to lay out a highway, which Peter H. Kipp had applied for, Kipp appealed from their decision to the county judge of Columbia county, who thereupon made an order, in which, after reciting the taking of the appeal, &c., he appointed James Van Alstyne and others (the present defendants), whom he described as “three disinterested freeholders,…

The People brought an action, in the supreme court, againsi the Waterford & Stillwater Turnpike Company, to obtain a forfeiture and dissolution of defendants’ corporation, for a failure to construct and maintain the road according to law. By section 430 of the Code, it is declared that the charter of any corporation may be vacated or its existence annulled, whenever such corporation shall, — 1.

Andrew Williams, under indictment for murder of Rose Williams, Ms wife, upon arraignment in the court of oyer and terminer, held in and for the city of New York, pleaded not guilty, and put himself upon the county for trial.

Isaac H. Phelps and others sued George Yan Dusen, to recover rent for premises occupied by defendant under a written lease from the plaintiff for two years, with covenant for additional term at increased rent. Before the expiration of the first term, the defendant assigned the lease to Benjamin & Co., from whom the plaintiff received rent from the commencement of the second term.

Stephen Philbin and Joseph B. Quin sued Richard Patrick, in the New York superior court, to recover for labor and materials in the plumbing work in defendant’s house. On the trial, Mr. Knight, plaintiffs’ bookkeeper, was called, and sworn as a witness.

Jerome Phillips sued Isaac Terry, in the. supreme court, for damages in obstructing a creek, thereby overflowing the crops on plaintiff’s land. The only questions of interest arising in this court were raised by exceptions to the admission of evidence, which are stated in the opinion of the court. Cited Armstrong v. Smith, 44 Barb. 123; 2 R. S. 549; Goodale v. Tuttle, 29 N. Y. 467; affirming 41 Barb. 194.

Philip Pike .sued Edwin B. Nash and William H. Pardee, in the supreme court, to recover compensation for cutting, upon a lot in Corinth, Saratoga county, and preparing and transporting to New York, a quantity of dock sticks, piles and spars, under a contract with defendants.

Conrad Poppenhusen. sued Ebenezer Seeley and another, in the supreme court, on an undertaking given by the defendants, on an appeal in another suit brought by one Sargeant against White and Stelle. The appeal was from an order of the special term, made August 18,1860, by which the demurrer of the defendants White and- Stelle was stricken out as frivolous and judgment ordered for the plaintiff Sargeant.

Ethan R. Pratt sued Demás Strong, in the supreme court, to recover the sum of two thousand dollars and interest thereon from January 1, 1853, collected by the defendant upon a demand against certain parties in California for the account of the plaintiff, which he had neglected and refused to pay over to the plaintiff, although requested to do so.

Albert Priest sued Rodman M. Price, in the supreme court, for money received under the following facts: Ambrose Lanfear was the owner, by assignment from Ward & Price, of the following instrument: “ Exchange for $5,000^. New York, October 9, 1859. “ Thirty days after sight of this first of Exchange (second and third unpaid), pay to the order oi Messrs.

<p>An instrument may be reformed in equity, although the contract contained in it would be invalid if not in writing.</p> <p>An instrument executed by a surety may be reformed as against him, where it is the subject of fraud or mutual mistake, in the same manner as if it were executed by the principal debtor.</p>