Volume 3 — Jones & Spencer's New York Superior Court Reports

This was an appeal from a judgment recovered Tby the plaintiff for the value of a stock of goods, taken Tby virtue of void attachments issued on application of the defendants out of the Marine Court. The answer of the defendants contained a general de nial.

The action was upon a promissory note for three hundred and twenty dollars, made by the defendants and payable to the plaintiffs. Held: that plaintiff could not recover. (Numerous cases are cited in note, some above cited, showing that all the circumstances can be inquired into; Frisbee v. Hoffnagle, 11 Johns. 51). A note at sixty days for'value received was made and delivered.

The action was to recover the possession of a one thousand dollar U. S. bond, alleged to have been wrongfully detained from the plaintiff by the defendant.

The parties were copartners in business. On the 12th of July, 1869, the plaintiff sold his interest in the business to the defendant. Held: that under the agreement the plaintiff was entitled to recover the difference, $2,433.46, between the amount of debts owing by the firm on the 12th of July, 1869, and the amount due to it, it having been proved that on that day the firm owed $1,610.59, and that there was due to it the sum of $4,044.05.

Exceptions ordered to be heard at General Term. The action was upon a promissory note made by the defendants, payable to the plaintiffs, dated September 10, 1868.

<p>Exceptions heard at General Term.</p> <p>The action was to recover for the breach of a contract to convey real estate.</p> <p>The defendant had agreed to sell and convey certain real property to the plaintiff. Five hundred dollars of the purchase-money was paid on the execution of the contract; and the balance was to be paid or secured on a day and hour and at a place named in the contract, when the deed was to be delivered. The contract provided that the premises were to be conveyed in fee simple, and free from all éncumbranees, and the deed to contain the usual full covenants.</p> <p>Upon the day, at the hour and place specified in the contract, the plaintiff was present, prepared to perform; but the defendant was not present, and no offer or tender of performance on his part or behalf was made.</p> <p>Subsequently, the defendant tendered a deed to the plaintiff, executed by himself alone, his wife being then living ; which deed the plaintiff refused to receive, on the ground of its non-execution by the defendant’s wife.</p> <p>It was proved that, between the date of the contract and the bringing the action, the property had increased in value, or that it was worth more than the contract price.</p> <p>The court instructed the jury that, excepting for the cash payment, and some expenses incurred, there could be no recovery beyond nominal damages.</p> <p>To which instructions the plaintiff excepted.</p> <p>The plaintiff had a verdict, and the exceptions were sent to the G-eneral Term, to be there heard in the first instance.</p> <p>urged : 1st. The court erred in the rule of damages and the law governing this case, and confounded the case at bar with the case of one who, believing he had a good title, contracted to sell, and was then unable to perform by reason of a defect unknown to him at the time of making the contract (Pumpelly v. Phelps, 40 New York, 66). (a.) The justice failed to draw the distinction between the case of a man honestly believing he has a good title and having none, and one having a good title neglecting to convey (Brinckerhoff v. Phelps, 43 Barb. 473; Pumpelly v. Phelps, 40 New York, 59).</p> <p>2d. In the case at bar, the defendants title was good, and therefore it differs from every case holding only nominal damages recoverable, (a.) In every case holding nominal damages only recoverable, the defendant believed he had a good title at the time of making the contract (Baldwin v. Munn, 2 Wend. 399; Peters v. McKeon, 4 Denio, 546; Conger v. Weaver, 20 New York 140). (b.) The plaintiff had no objection to make to the title, and was ready to accept the conveyance thereof.</p> <p>3d. The exception brought into the law by Flureau v. Thornhill, 2 Wm. Blackstone, 1098, was, “that when a vendor discovers after the contract of sale that his title is defective, and is on that account unable to complete the bargain, he shall not be held liable to the vendee for the loss of such bargain (Pumpelly v. Phelps, 40 New York, 59; Drake v. Baker, 35 New Jersey [5 Vroom], 358). (a.) It is clear that the present circumstances are unlike those of the leading cases above cited. In that case the defect of the title at the time of making the contract was unknown; but in this case the defendant was fully cognizant of it (same authorities).</p> <p>4th. The defendant in this suit knew, when he agreed to make a perfect title to this property, that it was altogether uncertain whether he would be unable to do so, for his ability to discharge his contract was dependent upon the consent of his wife (Pumpelly v. Phelps, 40 New York, 59 ; Drake v. Baker, 35 New Jersey [5 Vroom], 358). (a). With full knowledge of his power to convey being contingent, the defendant entered into the absolute agreement set forth in the complaint, and this circumstance takes the case out of Flureau v. Thornhill (see cases above cited), (b). A party should not be allowed, even where there is no fraud, to escape liability for an engagement to do that which he knew it was altogether uncertain that he could perform (Hopkins v. Grazebrook, 6 Barn, and Cres. 31; Pumpelly v. Phelps; Drake v. Baker; cited above).</p> <p>5th. It may be reasonable that a vendor should not be liable for secret flaws in the title of his property, ' but there seems no rational ground for the hypothesis that a similar relaxation of the general law exists in those cases in which a man agrees, in an absolute form, to do some act which he knows he has not the power to do without the assent of a third party (Hopkins v. Grazebrook, 6 Barn, and Cres. 31; Brinkerhoff v. Phelps, 43 Barb. 473; Pumpelly v. Phelps, 40 New York, 59 ; Drake v. Baker, 34 New Jersey [5 Vroom], 358).</p> <p>There is neither sense nor law for such relaxation (Drake v. Baker. Ibid.).</p> <p>6th. The immunity of the vendor does not extend beyond his inability to perform his contract by reason of a defect in his title which was unknown to him at the time he contracted to sell (Hopkins v. Grazebrook, 6 Barn, and Cres. 31; Brinckerhoff v. Phelps, 43 Barb. 469 ; Pumpelly v. Phelps, 40 New York, 59 ; Drake v. Baker, 34 New Jersey [5 Vroom], 358). (a). This rule will exclude all defaults which are wilful or which arise from contingencies known to the vendor, and of which he consciously assumed the risk (see cases above cited). (b). The rule should not be extended to cases other than those where secret defects in title are discovered, after making contract of sale, which were unknown to the vendor at the making of the contract (Brinckerhoff v. Phelps, 24 Barb. 100, and cases cited above).</p> <p>7th. The defendant knew his exact position, and ventured to make the contract, and he must be responsible for the damage sustained by a breach of the contract (Brinckerhoff v. Phelps, 24 Barb. 100, and cases cited under last point), (a). He either made a contract which he had no right to make, or he arbitrarily refused to fulfil, finding the premises were worth more. Either reason rendered him liable for substantial damages (see case above cited).</p> <p>8th. The question of good f aith cannot arise in such a case (Brinckerhoff v. Phelps, 43 Barb. 469; Hopkins v. Grazebrook, 6 Barn, and Cres. 31 ; Drake v. Baker, 34 New Jersey [5 Vroom], 358).</p> <p>9th. Brinckerhoff v. Phelps, 24 Barb. 100, is easily reconcilable with Conger v. Weaver, 20 New York, 140; Peters v. McKeon, 4 Denio; and Baldwin v. Munn, 2 Wend. 399 (Brinckerhoff v. Phelps, 43 Barb. 469).</p> <p>10th. The plaintiff in this case was entitled to substantial damages for the loss of his "bargain (Hopkins v. Grazebrook, 6 Barn, and Cres. 31; Brinckerkoff v. Phelps, 43 Barb. 469 ; Pumpelly v. Phelps, 40 New York, 59; Drake v. Baker, 34 New Jersey [5 Vroom], 358).</p> <p>Lastly. The verdict in this case should be set aside, and a new trial ordered with costs.</p> <p>urged : First. On an executory contract for the sale of lands which the vendor believes to be his own, and where there is no fraud on his part, if the sale falls through in consequence of a defect of title, the measure of damages is substantially the same as it is in the case of an executed sale. If the vendee has paid any part of the consideration, he may recover back the money with interest; but he can recover nothing for the loss of a good bargain (Peters v. McKeon, 4 Denio, 550; Thureau v. Thornhill, 2 W. Black. 1078; Baldwin v. Mann, 2 Wend. 399; Gillet, admr. of Clemins, v. Maynard, 5 Johnson, 85; Pitcher v. Livingston, 4 Johnson, 1; Bennet v. Jenkins et al., 3 Johnson, 50).</p> <p>Only nominal damages are recoverable for the failure by a vendor to perform an executory contract for the conveyance of land made in good faith, and broken without fraud by reason of his inability to make a good title (Conger v. Weaver, 20 N. Y. 140).</p> <p>Bad faith cannot be charged to the defendant in this action. He tendered as good a conveyance as he was able, as soon after the time for the completion of the contract as it was possible for him to do.</p> <p>There is no evidence of any collusion between the defendant and his wife, nor is it claimed that there was any. He made an honest effort to induce her to execute a conveyance to the plaintiff of her inchoate right of dower; and having failed in his efforts, he at once tendered to the plaintiff a conveyance properly executed by himself.</p> <p>The cases of Pumpelly v. Phelps, 40 N. Y. 66; Brinckerhoff v. Phelps, 43 Barb. 469 ; and Hopkins v. Grazebrook, 6 B. & C. 31, which are relied upon by the appellant to establish the fact that the court erred in its decision on the rule of damages and law affecting this case, will, on examination, be found to sustain the decision of the justice on the trial.</p> <p>Second. An inchoate right of dower is not an encumbrance. The right to dower does not become an encumbrance upon the property of a married man until after his death (the wife surviving him), because until then it is not such a right as could be enforced. Prior to the happening of that event, it is merely a vague, contingent interest, and nothing more.</p> <p>An encumbrance is a subsisting positive right in some person that can be asserted and enforced at once against the premises.</p> <p>The defendant tendered to the plaintiff a full covenant warrantee deed, and the plaintiff would have been protected under the covenants contained therein, if dower in the premises were ever thereafter assigned to defendant’ s wife.</p> <p>By tendering to the plaintiff such warrantee deed, he performed all he had agreed to do, when he covenanted to convey the premises to him free from encumbrances.</p>

On the 7th of December, 1866, the plaintiff sued to recover damages for the taking and conversion of seven cases of merchandise, of the alleged value of $14,000. The respondent put in issue the title and the value, and justified under two warrants of attachment against the property of Lewis Piser, one issued in November, and the other in October previous. The plaintiff claimed to havé purchased the property of Lewis Piser, at Columbia, S. C., November 10 and 12, 1866.

The action was to recover the possession of a lot of land in the city of New York. The referee found the following facts. 1. That on the third day of October, 1851, one Oliver Johnston, of the city of New York, was seized in fee simple of the premises. 2.

<p>Appeal from judgment entered on report of referee, and also from the order of reference. ‘</p>

The action was upon a policy of insurance made Tby the defendants to one E. S. Chandler, Jr., against loss Tby fire to his property at Belleville, Florida. The property was destroyed Tby fire on the 36th of October, 1868.

<p>To authorize a sale of stock pledged as collateral security, without notice to the pledgor, the stock note or instrument pledging the same, must expressly provide for such a sale (without notice). In its absence the sale of the stock without notice is an illegal act, and an unlawful conversion of the stock, and the pledgor can recover for such wrong.</p> <p>In determining which of two innocent parties must sustain a loss, the rule is that one who has suffered himself to be the means or instrument by which the loss has been created, must bear it.</p> <p>Every one who suffers himself to be put forward in a transaction must bear the legal consequences of the same; and least of all should he escape, when it appears that he was made the means or instrument for a sinister object.</p>

This action was commenced in 1868. In 1869 the plaintiffs were adjudicated bankrupts, and Albert Smith was appointed their assignee in bankruptcy. The cause of action vested in Mm, and he prosecuted the suit to trial in 1872, when a verdict was rendered for defendants, and a judgment entered against the plaintiffs for $794.98 costs, from which he has appealed.

Cross-appeals from judgment at Special Term. This action is brought by the plaintiff as receiver of the defendants, Arnold Woodward and Fletcher Woodward, for the benefit of David Barker, a judgment creditor of said Woodwards, to set aside an assignment of property executed by them to the defendant Martin, September 5th, 1853, on the ground of fraud, and to have certain assets which came into the hands of said assignee through such assignment applied upon the judgment in…

The plaintiffs sue as vendors of 1,000 bales of Dowrah jute to defendants on the 25th of May, 1870, shipped at London for New York per ship “American Congress.” The plaintiffs employed Mr. Sturges, a jute broker, to effect a sale of it previous to its arrival.

<p>Appeal from judgment and order denying a motion for a new trial.</p> <p>The action was brought to recover damages claimed to have been sustained by plaintiff, in consequence of being put off one of the defendant’s cars for an alleged non-payment of fare.</p> <p>* Note by Repobtebs.—It might perhaps have been error for the judge to have stated the amount of the recoveries had in these cases.</p> <p>Upon the trial plaintiff testified that a few minutes after 12 o’clock, on the 20th day of June, 1868, he took passage at Ninetieth Street and Third Avenue on defendant’s car No. 75, on its downward passage, and paid the usual fare of seven cents; that, upon reaching the depot at Sixty-fifth Street, the car turned and went into the depot, and its conductor told the passengers to “change cars; ” that plaintiff, with the other passengers, left car No. 75; that defendant’s car No. 2 was waiting to receive them; that being told by the conductor of car No. 2 that, if he came off car No. 75, he was all right and would not need a transfer ticket, he went in and seated himself in car No. 2 ; that car No. 2 thereupon proceeded. on its trip towards the City Hall, and at about Fifty-ninth Street its cond actor asked plaintiff for his fare; that plaintiff declined to pay again ; that thereupon the car was stopped and the conductor fetched plaintiff to the front platform to put him off ; that plaintiff there took hold of a handrail by the window to resist the attempt tó push him off; that the conductor pinched plaintiff’s hand and pulled it open, and then succeeded in forcing plaintiff off; that the plaintiff thereupon took the next car, and, upon payment thereon of six cents fare, was carried to his destination.</p> <p>The defendant produced three or four witnesses, who testified that car No. 75 did not run so as to connect with car No. 2 ; that car No. 75 was a “through car,” and on the day specified by plaintiff did not run into the depot, but continued its through trips, and that for this reason the occurrence, as stated by the plaintiff, could not have happened.</p> <p>The learned judge then charged the jury, among other things, as follows:</p> <p>“In the first place, gentlemen of the jury, you are to take into consideration,—and I wish you to leave it as a separate question for consideration,—whether the charge stated in the pleadings is made, out by the testimony in the case.</p> <p>“ It is charged here, in the pleadings, that upon a certain occasion the plaintiff paid his fare above Sixty-fifth Street upon this railroad, to go through to his destina- ' tion. It is admitted by the answer that seven cents, which he paid, was all that was required to be paid for the fare from any point above Sixty-fifth Street to any point below Sixty-fifth Street. You will therefore have no trouble about that question. The next question for you to decide is, whether these facts occurred as alleged in the complaint, that the plaintiff actually paid his fare, and was afterward put off the car, as claimed in his complaint, and as claimed by his testimony.</p> <p>“ The testimony here is contradictory.</p> <p>“ This is one of those cases peculiarly within the province of a jury to weigh, estimate, and decide. It is not my business, as a court, to direct you in the premises, or to even give you an intimation, perhaps, beyond reflection upon the character of the testimony as it appears in the case. The plaintiff has been upon the stand. You have heard him testify. He has given a clear statement in regard to dates, and the time of this occurrence. He distinctly states that it occurred on the 20th day of June ; that he paid his fare in the regular way ; that it was received ; that it was his intention to go to a point below Sixty-fifth Street; and that he paid his fare in accordance therewith, seven cents. From that time, gentlemen, there is no doubt that the character of passenger came upon him, and that these parties, the defendants, were in the position of common carriers, compelled by the law to do all that was necessary to insure his safety to the place where he should leave the car. They were bound to treat him as such.</p> <p>“He states, also, that when he came to Sixty-fifth Street, the car he was upon turned into the depot; that the conductor called out, “Change cars;” that he heard that said by the conductor; that the passengers left and went into another car that was very near it; that he spoke to a man who afterwards acted as conductor upon that car, and asked him if he required a check to go on that car, and he was answered that he did not; that he went on board that car, and that somewhere in the neighborhood of Fifty-ninth Street, or below there, it matters not exactly, after he had gone in and taken his seat in this car No. 2, he was requested by the conductor to pay his fare ; he refused; thereupon the conductor put him off the car. There was a scuffle. It does not appear that there was any undue violence, or any serious damage to the plaintiff from the scuffle which ensued; but the plaintiff tells us that he was put off the car, and left there, and took another car, and paid six cents .for going on to the place of his destination, and there he left the matter.</p> <p>“These are the facts testified substantially by the plaintiff.</p> <p>“Now, on the other side, comes the testimony of the officers of this road, and you have heard them testimony. In the first place, the superintendent and the receiver have come and showed you, by means of a description of the manner in which that road is carried on, how the cars ran, that on that day car No. 75 was a through car from Harlem to the City Hall; that car No. 2 was a car running from Sixty-fifth Street to the City Hall; that these two cars in nowise connected according to the time.</p> <p>“Now, although their testimony is not positive, from their own personal knowledge, like the testimony of the plaintiff in this case—for they testify that they do not know that they even saw those cars on that day—yet it is a kind of testimony entitled to consideration on your part as affecting the facts in the case.</p> <p>1 ‘ Then there comes upon the stand the conductor of car No. 75, who testifies to you positively that he was on that car on that day ; that he came through from Harlem here on regular trips ; that there was no stopping ; that there was no going into the depot at Sixty fifth Street on that day ; and that it did not connect with car Ho. 2. He testifies as positively on that subject, as far as car Ho. 75 is concerned, as the plaintiff testifies to the facts that he speaks of.</p> <p>“ Then comes before you the conductor of car Ho. 2, and positively states that he was on that car on that day ; and that it did not connect with car Ho. 75. He states that he ran trips from the depot in Sixty-fifth Street to the City Hall on that day, and that no such occurrence took place upon that car as is stated by the plaintiff.</p> <p>“ The driver testifies substantially to the same facts, that he was on that car; and he testifies from the memory, as positively as the plaintiff in this case, that such an occurrence could not take place as a man being put off behind him with a box of tools without his knowing it.</p> <p>1 ‘ This is the testimony before you that you will have to consider and decide upon, in regard to the commission of the offence and the wrong charged in these pleadings. You have got to weigh this testimony. It is contradictory, I admit; but it is the peculiar province of every jury to take into consideration, and to reconcile if possible, or at least to decide, if they can agree upon the testimony. It often happens that juries do not agree when there is such a state of contradiction. I only advert to one or two rules in reference to contradictory evidence, that a jury has a right to consider always in such cases. You have a right to consider the appearance of the persons upon the stand when they testified, whether they appeared to be telling the truth ; whether their statements were full, with regard to the whole matter; whether they covered the whole case ; and you have a right to consider the circumstances and facts about the matter as to the probability of its occurring under the circumstances. It is always proper for the jury to consider these points in weighing contradictory testimony, to arrive at the truth. It is not always, gentlemen, that the greatest number of witnesses establishes a certain fact. It may be a less number of witnesses, and the jury will establish a fact against the testimony of the greater number of witnesses, because of those circumstances and facts round about the testimony which carry conviction to the minds of the jury. You must take this testimony and weigh it, and consider these points, and decide whether these circumstances happened, or did not happen. You may come to the conclusion that the plaintiff is mistaken about these two cars ; that this connection was not as he stated. You may come to the conclusion that he is mistaken about connections on the two cars so closely. You may arrive at the conclusion that he is right, and that the officers of this road running these cars are mistaken, or have forgotten of this occurrence taking place.</p> <p>“ This is a matter that is before you; a plain, common circumstance which you are to consider without reference to the character of the parties, without reference to any sympathy; but which you are to weigh just as you would any other fact, and come to a conclusion; and until you arrive at that conclusion, whether those facts occurred as stated by the plaintiff or not, you are not in a position to go any further. You must decide that fact.”</p> <p>He then charged the jury, that if they found for the plaintiff they might assess exemplary as well as compensatory damages. In this part of his charge he referred to, and commented on, several decided cases as bearing on and sustaining his view, that exemplary damages could be given, but did not state the amounts of the verdicts in these cases. After the charge the following proceedings took place.</p> <p>The plaintiff’s counsel begged the judge to observe that the plaintiff took no exception to the charge, and the presiding justice said :</p> <p>I do not think you ought to, for I think the charge was altogether on your side.</p> <p>To this remark the defendant duly excepted.</p> <p>The defendant requested the judge to charge—</p> <p>1. If the jury believe the plaintiff’s story, the only damage he is entitled to recover is the sum of six cents, being the amount of the additional fare paid by him on another car as testified to by him.</p> <p>(This the judge refused to charge, and to his refusal the defendant duly excepted.)</p> <p>2. When the conductor of car Mo. 2 demanded of the plaintiff the payment of his fare, and the plaintiff refused payment, and failed to produce a transfer ticket as evidence of such payment on car 75, and he was requested by the conductor to leave the car and refused, the conductor was justified in using such force as was necessary to ensure the removal of the plaintiff from car Mo. 2.</p> <p>(This the judge refused to charge, and to his refusal the defendant duly excepted).</p> <p>3. Meither malice nor bad faith is shown on the part of the defendant; and this case does not fall within the rule of exemplary damages.</p> <p>(This the judge refused to charge, and to his refusal the defendant duly excepted.)</p> <p>4. If the jury believe the evidence on the part of the defendant, the defendant is entitled to a verdict.</p> <p>(This the judge refused to charge, and to his refusal the defendant duly excepted.)</p> <p>5. The plaintiff is bound to prove the damage, if any, sustained by him by reason of the alleged acts of the defendant; and, in this case, no damage beyond the payment of the additional fare of six cents has been proved.</p> <p>(This the judge refused to charge, and to his refusal the defendant duly excepted.</p> <p>6. When the conductor of car No. 2 demanded of the plaintiff that plaintiff should pay him the fare, or leave the car, the plaintiff should either have paid the fare demanded," or have peaceably left the car.</p> <p>(This the judge refused to charge, and to his refusal the defendant duly excepted.)</p> <p>After the jury had retired, and been absent over an hour, they sent a request to the presiding justice for instructions as to whether it was necessary for them to believe that defendant’s cars No. 75 and 2 connected on June 20th, 1868, as testified to by plaintiff, in order to render a verdict for the plaintiff.</p> <p>The justice communicated the jury’s request to the counsel of the respective parties. Counsel for plaintiff requested him to instruct the jury that it was not necessary so to believe. Counsel for defendant requested him to instruct the jury that the number and times of running of the defendant’s cars specified by plaintiff were material facts, and unless they believe his testimony with respect thereto, they should not find a verdict in his favor.</p> <p>But the justice returned answer to the jury that the counsel of the respective parties did not agree as to what his instructions should be, and he therefore would give them no instructions on the point at all.</p> <p>To this ruling and announcement the defendant duly excepted.</p> <p>The jury subsequently found a verdict for the plaintiff, and assessed his damages at the sum of five hundred dollars.</p> <p>The defendant moved upon a case made at Special Term, for a new trial; which motion was denied.</p> <p>The appeal is from the order denying motion for new trial, and also from the judgment.</p>

The action is brought upon a judgment recovered in California against the defendant by the assignors of the present plaintiff, August 22, 1851. The defence is, that the attorneys who appeared for the defendant in California, did so without authority; that the defendant was never served with process, and that the court never acquired jurisdiction of the parties or proceeding, and that the judgment was a nullity.

The plaintiff desiring to compel the determination of certain claims to some real estate, under the provisions of title 2, chap. 5, part 3 of the R. S., instead of taking the steps prescribed by that title of notice, etc., commenced a civil action pursuant to the Code of Procedure, under the authority of § 471 of that Code.

The action was brought as an action of claim and delivery under the Code. It was brought by plaintiff, as mortgagee of chattels, against the defendant, who seized them under an execution against the mortgagor. The defendant claimed that at the time of the seizure the mortgagor had a leviable interest in the property. The mortgage was payable on demand. It was executed May 4th, 1867 ; filed May 5th, 1867; refiled May 4th, 1868, and May 8th, 1869.

TMs action was brought to recover of and against defendants the amounts of two drafts; one for $250, dated Memphis, Tenn., December 8, 1868, drawn by W. S. Bearden on the defendants at sight, and the other for $135, dated Memphis, December 9, 1868, drawn by W. S. Bearden, agent, on defendants at sight. The drafts were endorsed and delivered by Bearden to the plaintiff.

This is an action for slander. The complaint alleged that defendant, on the-20th March, 1867, said of plaintiff, “ These nnts ” (being of the cargo of the bark Ellen Dyer, whereof plaintiff was master) “were short; the “captain robbed the cargo, and I can prove it—I mean “ Captain Clapp.” And again on 26th March, said, “Captain Clapp and officers robbed the cargo, and I “can prove it.” The answer was: General denial, except as admitted or avoided ; that a controversy arose…

<p>The defendant executed and issued a series of bonds of $1,000 each, amounting in the aggregate to $2,000,000, bearing date June 1, 1868, payable June 1, 1888, to U. A. Murdock and William Butler Duncan, or iea/rer, bearing interest payable semi-ann.ually, as provided in interest coupons attached. Upon each of said bonds was a certificate, signed by the said Murdock and Duncan, which stated, among other facts, that the said series of bonds was secured by a first mortgage, which contained a provision, “ihat the principal sum secured by said mortgage shall become due, in case the interest on the bonds remains unpaid for four months The bonds contained no such provision, and did not refer to the said mortgage.</p> <p>The plaintiff, being the owner of thirteen of these bonds, and the interest on the same remaining unpaid for a period of four months after the same was due, brings suit on these bonds and seeks to recover the principal of each ; claiming that the same had become due and payable by reason of said provision in said mortgage, and the said certificate of the fact upon said bonds.</p> <p>Held, That the plaintiff was not entitled to recover the principal sums named in said bonds, and only entitled to recover the interest remaining unpaid and represented by the coupons. That this provision was not placed in the mortgage to give the several bond-holders actions upon it for the principal of their bonds in case of non-payment of interest, but to give the trustees named in said mortgage (with whom, in trust for the bondholders, the covenant was made) a right of action upon it, for the foreclosure of the mortgage, thus making the mortgage a more complete security to the bond-holders.</p>

<p>Appeal from a judgment and order.</p> <p>The action was to recover the value of a package of jewelry, delivered "by the plaintiffs to the Adams Express Company, to "be transported to Memphis, Tennessee, and consigned to Merriman & Co.</p> <p>The Express Company gave the following receipt:—</p> <p>“ Adams Express Company, Great Eastern, Western, and Southern Express forwarders.</p> <p>“ Mew Yobk, March, 23 d, 1863.</p> <p>“ Received of one package, marked J.</p> <p>E. Merriman & Co., Memphis, Tenn., which it is mutually agreed is to "be forwarded to our agency nearest or most convenient to destination only, and there delivered to other parties to complete the transportation.</p> <p>“It is further agreed, and is part of the consideration of this contract, that the Adams Express Company are not to "be held liable or responsible for the property herein mentioned, for any loss or damage arising from the dangers of railroad, ocean, steam, or river navigation, leakage, fire, or from any cause whatever, unless specially insured by them, and so specified in this receipt; which insurance shall constitute the limit of the liability of the Adams Express Company in any event; amd, if the value of the property above described is not stated by the shipper, the holder hereof will not demand of the ■ Adams Express Company a sum exceeding fifty dollars for the loss or detention of \ or damage to, the property aforesaid. 1'Tor shall claim be made for damage to goods not properly packed and secured for transportation. All articles of glass will be taken at shipper’s risk only, and the shipper agrees that the Company shall not be held responsible for any injury by breakage or otherwise.</p> <p>“ For the Company,</p> <p>“Dinsmore, Jr.”</p> <p>Evidence was given, showing that the Company failed to deliver the package, and that it was lost to the plaintiff.</p> <p>The value of the package exceeded fourteen hundred dollars.</p> <p>The court charged the jury that “ For the purposes of this action, I will hold, that if you find that the Adams Express Company ham committed gross negligence in the discharge of their duty in forwarding this case of jewelry, that the clause in the express receipt which limits the liability in case of accident by rail, and also the $50 clause, do not exempt them from responsibility for the whole amount of the goods.” And further:</p> <p>“Upon the whole evidence, whether it was through the gross negligence of the Adams BJxpress Company that this case of jewelry was lost.’’’’</p> <p>The defendants excepted to so- much of the charge, as left it to the jury to determine whether the package had been lost through the gross negligence of the defendants, on the ground that the. plaintiffs had given no evidence to establish gross negligence, the only evidence being that the package had not been delivered.</p> <p>The plaintiffs had a verdict, and the defendant appealed.</p>

The plaintiff, a real estate agent, was employed by the defendant to procure a purchaser for certain real estate in the city of New York, then owned by the defendant. The plaintiff, pursuant to such employment, procured Winters & Hunt to purchase such real estate, to whom it was subsequently conveyed by the defendant, they conveying to the defendant, in exchange, certain other real estate in said city then owned by them.

The action was brought against John C. Abbott and Hiram B. Gray, as indemnitors of the sheriff, for damages in trespass in taking and carrying away plaintiff5 s goods under process of court directed against a stranger. After trial and verdict, judgment was entered on June 10th, 1871, in favor of the plaintiff, for $2,481-^%-. On defendant’s appeal to the General Term, the judgment was reversed and a new trial ordered, with costs to abide the event.

<p>Appeal from an order of Special Term.</p> <p>The facts in the case appear in the opinion of the court.</p>

<p>The defendant sold to plaintiffs certain stocks at auction, without disclosing his principal, and after sale refused to deliver the same. Defendant, in his answer to the complaint, alleged that he was employed to sell the stock (naming his principal), and did sell it to the plaintiffs, and the answer then alleged that no written contract or memorandum of such sale or purchase sufficient to bind the defendant—to bind the defendant within the terms of the statute—was made at the time of sale.</p> <p>Held—That the admission in the answer, that the stock in question was “ sold" by defendant, must be construed, under the rules of pleadings, as an admission that everything was done by defendant that was necessary to be done, to constitute a valid sale of the stock to plaintiffs, including, of course, the entry in writing, required by the statute. In the absence of evidence to the contrary, will it not be presumed that the auctioneer preformed the duty imposed upon him by the statute, and made the proper entry of the sale upon his book ?</p> <p>The sale, thus admitted, should have been found directly and positively by the referee as an established fact, and without it appears from his report that he had decided, as a fact, that such sale was made, his legal conclusion that plaintiff should recover, would be erroneous.</p> <p>It appearing, several times in the findings of fact of the referee, that the1 word “sale,” in connection with the parties and the transaction, was' used in such a manner, that it might be reasonably inferred that he had decided that the stock was actually sold by the defendant to the plaintiff,, it must be held to be sufficient.</p>

On the 26th of March, 1846, Daniel .E. Tylee made an .assignment, for the benefit of his creditors, to Julian •Chastelain, of the firm of Chastelain & Ponvert, and Daniel H. Turner. Chastelain & Ponvert, and also Philo S. Shelton, were creditors of Tylee. A suit was pending, brought by Jane Dempsey, to recover the real estate claimed to belong to Tylee.

There was a demurrer to the complaint, which was sustained at the Special Term, and affirmed at the General Term. On appeal to the Court of Appeals, the judgments of the Special and General Terms were reversed, and judgment ordered for the plaintiff on the demurrer, unless the defendant, within twenty days after filing the remittitur in this court, shall answer the complaint, and pay the costs of the action from, the time of putting in the demurrer.

The complaint alleged that the plaintiff had sold and delivered to the defendants, and that the defendants had bought and received of the plaintiff, certain quantities of coal at an agreed-upon price, which they promised to pay, but have failed to pay, except in part, leaving a balance of $4,450 due and unpaid, in which sum the defendants were still indebted for the goods so sold.

Exceptions sent to the General Term. The action was to recover damages for the nondelivery of coal under several contracts between the parties.

■ This is an appeal from judgment, entered in favor of the defendants, against the plaintiff, on the 12th day of June, 1872, and from an order denying the plaintiff’s motion for a new trial.

<p>Appeal from a judgment entered upon the report of a referee, and from an order to vacate the judgment.</p> <p>The facts and points in the case appear fully from the opinion of the court.</p>

Verdict by the direction of the court, subject to the-opinion of the General Term. The defendants on the 26th February, 1869, by a policy bio. 20,587, insured for the plaintiff the schooner “ Thomas Holcombe,” from the 24th day of February, 1870, to the 24th day of February, 1871. The policy contained a warranty not to use foreign ports or places in the Gulf of Mexico.

The action was to recover broker’s commissions for effecting the charter to the United States Government of two of the defendant’s steamers. It was conceded that the defendant made a contract with the Government by which the steamers were chartered; which charter was to remain in force “for the full term of one month from the above date, and as much longer as said vessel may be required by the United States War Department.

Verdict for plaintiffs. Exceptions to he heard at the General Term in the first instance, with a suspension of judgment. The facts and exceptions fully appear in the opinion of the court.

In January, 1869, the defendants issued to the plaintiff their policy of insurance upon the life of her husband, which required the premium to be paid, in quarterly payments, on or before the 27th days of January, April, July, and October, in each year, and provided that, in case of default, the policy should thereupon cease.

Appeal by defendants from a judgment entered upon a verdict of a jury under the direction of the judge before whom the case was tried, and from an order denying a new trial. The action was brought to recover the sum of $14,-949.25, claimed to have been paid by plaintiffs to defendants under a mistake of facts. The case shows that Vermilye & Co. were dealers with plaintiffs, depositing money with them, and drawing checks against the same.

<p>Appeal from an order made at Special Term, sustaining a demurrer to the complaint, and directing judgment in favor of defendant, with leave to plaintiff to amend on payment of costs.</p>

Suspension of judgment, on a verdict for the plaintiff, •on an order that the exceptions on the trial be heard in the first instance at the General Term. The facts in the case, and the exceptions, appear in the opinion of the court.

Appeal to the General Term from a judgment recovered in favor of the plaintiff against the defendant upon the verdict of a jury. Held: at which defendant was also present, and in the proceedings of which he took part. This meeting had reference to the operations of the new superintendent. The defendant was also secretary of the company, but an assistant secretary in the employ of the company took the minutes of the company instead of defendant.

Verdict for plaintiff. Judgment suspended, and exceptions to be heard in the first instance at General Term. The action was brought to recover the value of a package of jewelry belonging to the plaintiffs, and delivered by them to the American Merchants Union Express Company, to be transported and delivered by said company to A. B. Van Cott, plaintiffs’ agent at Milwaukee, Wis., but which, owing to the negligence of the company, never reached its place of destination.

The firm of Grant & Son, of whom the plaintiff is the survivor, as the holders of eight separate bills of exchange, for ten thousand dollars each, drawn by Henry W. Hubbell upon and accepted by the defendant, commenced three separate suits against the defendant, the acceptor—the first action upon one, the second upon three, and the third upon the other form of the acceptances, the plaintiffs demanding judgment against the defendant in the three actions for $80,000, besides…

<p>Parties to bills or acceptances that are void in the hands of a holder, for usury, are entitled to demand, and to hav.e the same delivered up for cancellation (Revised Statutes,. 5th Bd., vol. 3, page 778, §§ 8, 18, 14). *</p>

This is an appeal from an order of Judge Mokell, granted at Special Term, on the 16th day of February, 1871, compelling the sheriff to pay over money collected, upon the following facts : On the 20th September, 1871, the defendants were doing business in the city of New York as grocers, and were indebted to plaintiffs for goods sold and delivered, and the plaintiffs commenced an action on that day by personal service on each of said defendants, of the summons and complaint…

The defendant Haws, a passenger in one of the plaintiffs’ cars, found a package- in the car containing $1,045 in money. He handed it to the conductor without examination, and told him he had found it; supposed some one had dropped it; requested the conductor to inquire for the loser, and if not found, to report to him on his return trip. The conductor gave -the package to the plaintiffs’ treasurer. The owner was not found.

The action was on a policy of life insurance, on the life of James M. Benedict. The policy provided, that in case he should “ die by his own hand,” it should be void, null, and of no effect. The deceased died by shooting himself with a pistol.

<p>Although judges of the General Term, on the hearing and determination of an appeal, were mistaken in assuming as a fact in the case, that a certain witness was in attendance at the trial, and could have heen called to contradict the testimony of one of the parties, yet it affords no sufficient ground for a re-argument, if it appears on the hearing of the motion for re-argument that the evidence of the witness would have heen simply cumulative.</p> <p>It cannot he said that a party is surprised hy any evidence on a trial if he is prepared to fully meet and rehut the evidence.</p>

The action was upon a policy of insurance to recover for a loss by fire. The policy contained the following description : “Four thousand dollars on merchandise . . . contained in letter “ C,” Patterson Stores, So.

The following is the opinion delivered at Special Term: Sedgwick, J.—The facts seem to Tbe that the plaintiffs kept in their office parcels of summons with places left blank for defendants’ names, and amounts to be claimed. The inference is, that if a business interview were not satisfactory, service of summons would follow, after the blanks had been filled up.

The action was to recover a deficiency arising upon an over-estimate of certain encumbrances upon real estate, contracted to be sold by the plaintiff to the defendant, amounting to about $2,000.

This action is brought to recover a quarter’s rent, ■and is substantially the same as the action between the same parties for the preceding quarter’s rent, where judgment was rendered for the plaintiff and affirmed by the General Term of this court, and reported in 34 N. Y. Supr. Ct.

The action is to recover the value of a wagon taken by the defendant from the plaintiff’s possession. The wagon was with other chattels mortgaged by the firm of B. Geils & Steinecke, June 5th, 1868, to the defendant. It was then at the wagon-makers’, completed, having been made for Geils & Steinecke, and a partial payment having been made of the price for making and lettering it by B. Geils, one of the firm.

The plaintiffs bring this action to recover their compensation as real-estate brokers, in effecting the sale of four lots of land on the northwest corner of Fifty-ninth Street and Madison Avenue, in the city of New York. The answer puts in issue all the allegations of the complaint. The evidence on the trial showed that the defendant, in February, 1871, promised to pay the plaintiffs a commission, if they would sell the four lots in question.

In tkis case tke jury rendered a verdict for tke defendants. Thereupon plaintiff moved at Trial Term before the judge, before whom the trial was had, to set aside the verdict and for a new trial on his minutes upon exceptions. The motion was denied. From the order entered denying the motion plaintiff appeals. The facts sufficiently appear in the opinion.

<p>Appeal from judgment.</p> <p>The plaintiff’s intestate, it was alleged, was the owner of certain buildings erected upon premises which had been leased to him by defendant’s grantor.</p> <p>The lease bore date April 14, 1859, was made by Whitney, the defendant’s grantor, to one Alois Muller, by whom it was assigned to the plaintiff’s- intestate ; was for a term of ten years, and contained the following covenant :</p> <p>“And the said party of the second part, for himself, his heirs, executors and administrators, doth covenant and agree to and with the said party of the first part, his heirs and assigns, by these presents, that the said party of the second part, his executors, administrators or assigns, shall and will yearly and every year during the said term hereby granted, well and truly pay, or cause to be paid, unto the said party of the first part, his heirs or assigns, the said yearly rent above reserved, on the days and in the manner limited and prescribed as aforesaid, for the payment thereof, without any deduction, fraud or delay, according to the true intent and meaning of these presents. And also shall and will pay the regular annual charge which is or may be assessed or imposed according to law upon any part of the said premises for the Croton water, and that the said party of the second part, his executors, administrators or assigns, shall and will at their own proper costs and charges, bear, pay and discharge all such taxes, duties and assessments, whatsoever, as shall or may during the said term hereby granted, be charged, assessed or imposed upon the said described premises.”</p> <p>Also the following provision:</p> <p>“And it is further understood and agreed by and between the parties to these presents, that, at the expiration of the term hereby granted, the said party of the second part may remove all buildings and movable improvements that he may have erected upon said premises, but that he shall not remove any trees, plants or shrubbery, the foundations to any buildings, nor any fences or permanent improvements that he may have made or erected in or upon said premises, except the buildings themselves, but the same shall remain and be deemed and considered parcel of the realty.”</p> <p>“Provided, nevertheless, and it is hereby understood, that the right of the said party of the second part to remove buildings and movable improvements, as aforesaid, is only upon the condition that the said party of the second part shall have kept and performed all the covenants, agreements and conditions of this lease. “And also, that all such “removals, as said party of the second part shall have the right to make pursuant to this lease, shall be made during the month next preceding the termination thereof.”</p> <p>The premises covered by the lease were taken by the corporation of New York for public purposes, and the damages assessed to Earle, the owner, included the sum of nine thousand five hundred dollars for the value of the buildings, which sum in addition to the award for the land was paid to Earle.</p> <p>The action was tried by the court with a jury, and the following facts found:</p> <p>First. That said action was discontinued as to the defendant, the mayor, aldermen, and commonalty of the city of New York, and continued against the other defendants. That the defendant, Richard B. Connolly, comptroller of the city of New York, did not appear in the action, or answer the complaint therein. That the defendant, William P. Earle, appeared in and defended said action separately, and that the action was tried on the issues raised by the separate answer of the defendant Earle.</p> <p>Second. That at and prior to the time of making the award to William P. Earle, and the taking of the land mentioned in tire complaint herein, with the improvements thereon, the defendant, William P. Earle, was the owner in fee of the lands taken upon which the buildings claimed by the plaintiff had been erected, and that the plaintiff at the time of taking said land held and occupied said lots, Nos. 36 and 37, with others, on the commissioners’ map, mentioned in said complaint, as lessee, under said defendant Earle, as his landlord, by virtue of the lease mentioned in the complaint, and that said lease was terminated on the confirmation of the commissioners’ report mentioned in said complaint.</p> <p>Third. That the said plaintiff was bound by his covenants in said lease, among other things to pay and discharge such water rents, taxes, and assessments, as should be imposed or assessed upon the demised premises during the term granted, and at the termination of said lease, upon condition that he performed the covenants in said lease, he was to have the right to remove .all buildings and movable improvements by him erected on said premises ; all such removals to be made during the month next preceding the termination of said lease. That at the time of the making of said award, and taking the said lands, with the buildings and improvements thereon erected, water rents, and taxes, and assessments to a considerable amount had been imposed and -assessed thereon, and were still in arrears and unpaid, the plaintiff, as such lessee, having omitted and neglected to pay and discharge the same, and that the said buildings were removed from said lands by authority of the mayor, aldermen, and commonalty of the city of New York, and applied to their use.</p> <p>Fourth. That the award made to the defendant, Earle, by the commissioners, and confirmed by the court, for improvements, comprehended and' included the buildings which had been erected by the plaintiff, and were then standing on lots 36 and 37.</p> <p>With the following conclusions of law:</p> <p>Second: That the said plaintiff has no cause of action .against the defendant, William P. Earle, for or by reason of any matter or thing stated or alleged in his complaint, or proved on the trial.</p> <p>Third. That the said defendant, William P. Earle, is entitled to a judgment in his favor against the plaintiff, .Louis Muller, with costs, and I do hereby order judgment accordingly.</p> <p>The only proof of unpaid taxes or assessments was the production of certain bills and their payment by Mr. Earle previous to receiving the award tor damages. This evidence was objected to, and the objection overruled. The plaintiff excepted.</p> <p>Judgment was entered in favor of the defendant for costs, from which the plaintiff appealed.</p> <p>First Point. One of the main grounds on which the court "below dismissed the complaint, as to the defendant Connolly, and ordered a judgment in favor of the defendant Earle, was, that as there were certain unpaid taxes and assessments upon lots 36 and 37 at .the time the commissioners made their report, the plaintiff (appellant) was, "by the terms of the lease under which he held, precluded from setting up any title to, or interest in, the buildings.'</p> <p>It is respectfully submitted that the judgment cannot be sustained on such ground, (a). It must be borne in mind that the termination of the lease which Louis Muller held was not a termination by efflux of time, nor by the expiration of the term.</p> <p>It was a forcible termination, so to speak, caused by the exercise of the power of eminent domain, on the part of the mayor, aldermen, and commonalty of the city of Hew York, which evidently was not such a termination of the lease as was within the contemplation of the parties thereto at the time of its execution. (5). 1STow, no one can deny that if Louis Muller had waited until the first day of March, 1869, and had then paid all the taxes and assessments on lots thirty-six and thirty-seven, he would, if there had been no proceedings taken for the acquisition of those lots by the city, have been entitled to remove the buildings in question during the month of April, 1869.</p> <p>There is nothing in the lease itself which prohibited Louis Muller from waiting until the last moment, and then paying the taxes and assessments, and thereby preserving his right to the buildings, (c). The commissioners therefore, we submit, were not right in assuming that Muller would make default in the payment of the taxes and assessments, or that he had in any way forfeited, at the time their report was made up, his right to remove the buildings, nor to an award for their value, (cl). Clearly the commissioners had no right to assume that there had been a forfeiture of Louis Muller’s right to remove the buildings, and that the title to said buildings, and to an award for their value, had become vested in the defendant Earle.</p> <p>Second Point. There had been no forfeiture of Louis Muller’s right to remove the buildings on lots thirty-six and thirty-seven at the time the report of the commissioners was made, nor at the time it was confirmed. (a). The lease from Whitney to Alois Muller contained the usual clause, that if the lessee failed to keep or made default in any of the covenants therein contained on his part, the lessor might then re-enter.</p> <p>The breach of this condition did not work an absolute forfeiture of the lease.</p> <p>It could be considered a forfeiture only at the election-of the lessor, and the case clearly shows that Earle never elected to consider the lease as forfeited (Clark v. Jones, 1 Denio, 516; Stuyvesant Davis, 9 Paige,, 427; Arnsby v. Woodward, 6 Barn. & Cress, p. 519).</p> <p>Earle, as landlord, had done nothing indicating his intention to insist that there had been a forfeiture of the lease by the lessee, nor had he re-entered or taken any steps showing that he elected to consider the lease as void (Ib. 519).</p> <p>The taxes and assessments upon the lots had been standing for several years, and it was too late for Earle to elect to consider the lease as forfeited, even if he wished to do so.</p> <p>Third Point. Again, even if a tenant has forfeited his lease, by a neglect to pay a certain sum of money, a court of equity will in general relieve him from the forfeiture, where the interest can be calculated with certainty (Baxter v. Lansing, 7 Paige, 350; Jackson v. Brownson, 7 John. 235; Taylor on Landlord and Tenant, sec. 495).</p> <p>And in this case it would be competent for the court, acting on this principle, to make such a decree as would. do justice between the parties, to wit, by adjudging that the plaintiff pay off the taxes and assessments, with the accrued interest, and that the balance of the value of his buildings be paid to him.</p> <p> And such is the prayer for judgment. </p> <p>Fourth Point. But if there ever was a forfeiture on the part of Louis Muller, that forfeiture had been waived by the defendant Earle by the receipt of rent from Muller, subsequent to the alleged breach of the covenant. (a). The evidence shows that the defendant Earle continued to receive rent from Louis Muller up to the 18th day of March, 1868, or eighteen days after the confirmation of the report of the commissioners, and, of course, after the alleged forfeiture.</p> <p>Such a receipt operated as a waiver of the forfeiture, if any forfeiture had occurred (Jackson v. Sheldon, 5 Cowan, 448; Hunter v. Osterhoudt, 11 Barb. 33; Bleecker v. Smith, 13 Wend. 530).</p> <p>Fifth. The suggestion contained in the opinion of the Chief Justice, that there had been an award to the plaintiff for $200 by the commissioners, is no answer to the claim of the plaintiff, (a). In his opinion the Chief Justice admits that the award “ was very small, and “that it is quite possible that nothing was included “ therein, for the value of the buildings or materials, “ when removed.”</p> <p>It is, with great deference, contended by the appellant that, by the record in this case, it must be considered as having been determined that no allowance was made in the award to Muller for the value of the buildings.</p> <p>The Chief Justice has found, as matter of fact, that the award to Earle comprehended and included the buildings which have been erected by the plaintiff.</p> <p>Such being the case, the inequity of allowing Earle to receive the value of the buildings, it seems to us, must strike any candid mind. (b). The injustice perpetrated upon Muller by the commissioners can best be seen by the award made hy them to Masterson. Masterson was the assignee of that part of the Whitney lease which related to lot No. 33.</p> <p>Masterson, for his Building, on one lot, was allowed By the commissioners $5,600, and for his lease $2,000.</p> <p>The plaintiff’s Buildings were worth much more than Masterson’s, as would have Been shown if the report of the appraisers had not Been excluded By the court.</p> <p>There was no reason why Louis Muller should not have Been allowed, upon doing equity, to wit: upon paying up the taxes and assessments, to receive equity By an award for his leasehold interest and the value of his buildings.</p> <p>Muller’s lease had fourteen months to run, the same as Masterson’s; and it is mockery to say that the value of such an interest and of the Buildings amounted to no more than $200.</p> <p>Besides, the case shows that the greater part of unpaid assessments and taxes were imposed on lot 33 (Masterson’s).</p> <p>Sixth. The plaintiff was not precluded, Because he appeared Before the commissioners and claimed an. award to the Buildings, from maintaining this action. (a). The decision of the commissioners, as to the question who is the owner of the property taken for a proposed improvement, is not Binding upon the rival claimants, if there are such, and an error in making a decision on the part of the commissioners will always Be corrected By the courts By decreeing the award made By the commissioners to the actual owner (Matter of Central Park Extension, 16 Abbott, 64).</p> <p>In that case Judge Ingraham says :</p> <p>“If the commissioners should err in awarding to the “wrong persons the damages, no injury can accrue. lt The true owner can recover the money if paid, or “may, By injunction, stay the payment and have his “claim investigated,” etc. (Ib. p. 64).</p> <p>It is quite immaterial, therefore, what the commissioners decided as to the respective claims of Earle and Muller, under the lease, to the buildings.</p> <p>Those claims could only finally be settled by a court (Laws, 1813, sec. 178, p. 408; William and Anthony Streets, 19 Wend. 678; John and Cherry Streets, 19 Wend. 657; Palliet v. Youngs, 4 Sandf. 50).</p> <p>urged:—I. The buildings erected on the land became the property of the owner of the fee, subject to the tenant’s license to remove such as he had erected, on payment of all taxes and assessments, and removing them one month before the termination of the lease on the 28th day of February, 1868 (Elmers v. Mann, 3 East, 38; Austin v. Stevens, 24 Me. 520, 528; Mathinet v. Geddings, 10 Ohio, 364).</p> <p>II. By failing to pay such taxes and remove the buildings as required by the lease, the tenant lost all claim thereto, and any award for the value of them properly belonged to Earle (Worthington v. Young, 8 Ham., Ohio, 401, and cases cited under last point).</p> <p>III. The only testimony material to the plaintiff’s case was such as tended to sho w that he, or his assignor, erected the buildings, paid the taxes, and removed the buildings pursuant to the precedent condition of the lease.</p> <p>All other testimony was wholly irrelevant and immaterial.</p>

The complaint among other things alleged that the plaintiffs were engaged in the business of keeping a boarding and lodging house, in which business they used certain personal property belonging to them ; that the defendant wrongfully took, carried away, and converted to his own use the said personal property. The answer put in issue these allegations of the complaint and the value of the property.

Exceptions ordered to be heard at General Term in the first instance. The action was for the recovery of personal property. The defence was that the defendants were justified because the taking complained of was under an execution against the plaintiff. On the trial the plaintiff claimed that this property was exempt from levy of execution.

The action was, first, for the reformation of a written contract for 'the sale of land ; and, second, for the specific performance of the contract when reformed. The complaint alleged that in September, 1870, the plaintiff and the defendant Spratt entered into an agreement, wherein the defendant agreed to sell and convey to the plaintiff certain premises in the city of New York, and to perform certain work in and upon the premises.

<p>I. Succession Tax.—Chargeable on and Payable by Trustee named in Will, when.</p> <p>1. Where a testator devises his real estate to a trustee upon trust, to take possession and management of the same, and out of the rents arising therefrom to pay the taxes, insurance, and necessary repairs thereon until the same is sold ; to sell the same as soon as could conveniently be done, and execute unto the purchaser or purchasers thereof a good and sufficient conveyance or conveyances therefor, and pay the net proceeds over to A.; the trustee is chargeable with the succession tax, and it is payable by him, though perhaps he might sell and convey subject to the tax, and thus, as between himself and his grantee, shift the liability.</p> <p>Held, that A. having conveyed all his interest under the will to B., and the trustee having thereafter, under the power in the will, sold the real estate to 0., and having paid the succession tax to make good title, the trustee could not recover the amount so paid from A.</p> <p>Held Further, the trustee might have deducted'the amount paid by him out of the proceeds of sale before paying over to B. a. This, although the law imposing the tax was not in existence during the life of the testator.</p>

Exceptions of plaintiff ordered to be heard at General Term. The action was brought upon a bond, made by defendants conditioned, “that if Edward,IT.

The action is claim and delivery brought to recover from the sheriff the possession of a certain coupé, and damages for its taking. The plaintiff claimed to recover under the chattel mortgage payable in instalments mentioned in the opinion, and the sheriff claimed under an attachment issued against the property of the mortgagor. The seizure by the sheriff was after the mortgagor had made default in the payment of several instalments.

The action was to recover the possession of a carriage, which it was alleged -the defendant had wrongfully detained from the plaintiff. The answer admitted the possession of the vehicle, and alleged that the defendant had made repairs to it at the request of the plaintiff, which he had not paid for, and for which the defendant had a lien upon the carriage.

<p>I. Broker in Real Estate.</p> <p>1. Sight to commissions, Try what not affected.</p> <p>1. Having on the employment of the vendor obtained a purchaser on the vendor’s terms, his right to commissions will not be aSected by—</p> <p>1. Non-performance of the contract.</p> <p>OR,</p> <p>2. That on the purchaser’s failure to perform, the broker procured another purchaser, and stated that he expected no commission on the other sale.</p> <p>OR,</p> <p>3. That the vendor did not understand the contract as written, provided the broker himself was not guilty of fraud or deception.</p> <p>2. By what it will he affected.</p> <p>1. By complicity between the broker and the person claimed to be procured by him, as a purchaser, such person being a mere pretended purchaser, who, by arrangement with the broker, had no intention of fulfilling the contract. In such case the broker cannot recover.</p> <p>1. Proof of complicity, a. "What not sufficient.</p> <p>See statement of case and opinion.</p>

The action was to recover the possession of personal property.