Volume 3 — Lansing's New York Reports

This was an appeal from a judgment for the defendant, entered upon the report of a referee.

This was an appeal by the defendants from an order disallowing a demurrer to the plaintiffs’ complaint. The complaint alleged that in the fall of 1866, the defendant, John Pindar, was duly elected county treasurer of the county of Schoharie, and entered upon the duties of his office on the 1st day of January, 1867.

<p>An executor obtained an order of Special Term for the sale of his testator’s real estate, to satisfy liens thereon, and to pay legacies bequeathed by the will, and made a contract of sale under the order with the plaintiff’s assignors. The heirs-at-law, who as such were entitled to the reversion after expiration of a life estate devised to the widow, believed the order valid, verbally sanctioned the contract, and by their actions and conduct induced the plaintiff to purchase under it; but after conveyance by the executor, they, as also the plaintiff, (who had improved the premises), ascertained that the order was - invalid and, refusing to execute a deed of their interests, the plaintiff sued them to compel a conveyance, and had judgment with costs. — Held, that the defendants were estopped from disputing the agency of the executors in contracting for conveyance of their interests, and the judgment was affirmed.</p> <p>Nor was the plaintiff precluded from the relief demanded by alleging in his complaint, that the defendants were estopped from denying the executors authority to convey.</p>

This action was for board, lodging, etc., furnished by the plaintiff to the defendant’s intestate, in the years 1861, 1862 and 1863. ■ Among other defences, the defendant alleged that the six months short statute of limitations applied to the claim.

This was an appeal by the plaintiff from a judgment against him for costs. It appeared that on the 4th day of May, 1868, the defendant was indebted to the plaintiff in the sum of $50.19 for freight; and to the' United States Express Company, $7.85 for transportation of express matter.

The action was brought to foreclose a mortgage made by the appellants, Oakley and Clapp, to John F. McCain and Charles T. McCain, and assigned by the mortgagees to the respondent. The mortgage was given to secure the payment of a bond for $2,500 and interest, made by said Oakley and Clapp, as principals, and the other appellant, Morris Bennitt, as surety. The defence set up was usury.

<p>This was a submission upon a case agreed, without action, and was submitted upon briefs without oral argument, by</p>

This case came before the court on a case made, and exceptions ordered to be heard in the first instance at General Term.

This was an appeal from an order, overruling the defendant’s demurrer to the complaint as frivolous. The facts are stated in the opinion.

This was a motion by the plaintiff for a new trial, upon exceptions ordered to be heard in the first instance at General Term. The facts appear in the opinion of the court.

This was an appeal from a judgment entered on the verdict of a jury at the Rensselaer Circuit in June, 1869, Mr. Justice Peckham presiding. The action was ejectment for non-payment of rent upon a lease from Stephen Yan Rensselaer to Robert Patrick, dated October 3d, 1795, and the complaint described and demanded possession of the premises covered by the lease.

This was an action for malicious prosecution, tried before a justice and a jury at the Albany May Circuit, 1868; a verdict of $100 was rendered for the plaintiff, and the defendant appealed from the judgment entered thereon.

The action was brought to have a certain bill of sale, executed by the plaintiff to William Carter, deceased, and a lease in perpetuity, executed by Ebenezer Wiswall, to said Carter, in his lifetime, declared a mortgage, and to obtain a conveyance from the defendant to the plaintiff, of the house and lot covered by said lease and bill of sale, on the payment by the plaintiff of such sum as should be found due the estate of Carter on an accounting.

This proceeeding was initiated upon the written application of twelve or more freeholders of the town of Oneonta to the county judge of the county of Otsego, praying the removal from office of the relators as railroad commissioners in and for said town, or that said office be deemed and declared vacant, and that the defendants in error be appointed to the said office.

<p>Certiorari to the county judge of Otsego county, to review proceedings in which he made an order declaring the office of the relators as railroad commissioners of the town of Milford, vacant and appointing the defendants in their places.</p>

Exceptions ordered to be heard in the first instance at General Term. The facts of the case, so far as material, are sufficiently stated in the opinion.

This was an appeal from a judgment entered upon the decision of Mr. Justice Mulles, before whom the action was tried, without a jury. The action was commenced in February, 1866. The plaintiff was a banking corporation, located and doing business at Paducah, in the State of Kentucky.

This was an action to recover damages, for injuries received by the plaintiff while upon the defendant’s ferry boat. It appeared that the plaintiff’s hand had been badly jammed and injured, and some of the fingers destroyed, while she was upon the defendant’s ferry boat, which plied between New York and Huntersville.

This was an appeal by the defendant from a judgment entered for the plaintiff on the report of a referee. The action was upon a promise to pay the plaintiff’s assignor the sum of $150.10 ninety days after date, and was in writing, signed by the defendant, Hicks, and five others.

<p>Proof that the husband bargained for the purchase of real property conveyed to and paid for by the wife, and also for a resale of the same by her does not establish his general agency for the wife respecting such property, nor show authority in him from the wife to improve it for her</p> <p>The wife is not charged at law, for improvements made to her separate estate under the husband’s contract therefor.</p> <p>For is she, or her estate, chargeable in equity for such improvements, made under the husband’s contract, where no fraud imputable to her has induced the person contracting with the husband to make them.</p> <p>The dicta in Colvin v. Cruise (22 Barb., 371), on this point disapproved.</p> <p>The wife’s omission to disclose her ownership of the property on which the improvements are being made, with her knowledge, does not of itself render her liable; and this is so, although the husband has fraudulently represented to his employe that the property is his own.</p> <p>For is the fact that after the contract was made with the husband, and while the work was proceeding under it, the wife made an unwritten promise to pay for the work, material upon the question of her liability.</p> <p>The remedy against a married woman in equity, to charge her separate estate for her contracts is superseded by the statutory provision for judgment against her personally. (L. 1862, ch. 172, § 7.)</p> <p>This court cannot create a lien by judgment upon real property in another state.</p>

<p>Since the Revised Statutes, a judgment in ejectment has the same conclusive effect as obtains in favor of judgments in other classes of actions, i. e. .• it is conclusive upon the parties to the action, and all those who afterward stand in privity with them; hence the action of ejectment affects the • title to land, and section 132 of the Code, provides for the filing of a notice of lis pendens therein.</p> <p>Where, in ejectment commenced in 1856, judgment was recovered and entered, but there was no Us pendens filed. — Held, that a grantee of the defendant in the action, taking title after entry of the judgment was not chargeable with constructive notice of its existence.</p> <p>AH such facts as might legally be established by the evidence, and are necessary to support the judgment, are to be assumed, on appeal to have been found in conformity with the judgment directed; when there is nothing in the conclusions in conflict with the assumption.</p>

<p>A mechanic’s lien expires after the lapse of a year from the filing of the notice, and the commencement of an action thereon does not extend it beyond that time.</p> <p>Accordingly where a judgment was recovered and sale made under proceedings upon a mechanic’s lien, within a year from the filing of notice thereof, — Held, that the purchaser’s title was good, notwithstanding a subsequent sale of the property under judgment obtained in proceedings upon a mechanic’s lien prior in date, where the proceedings were begun within, but judgment was recovered after, a year from the filing of the ■ notice.</p> <p>Certiorari to remove summary proceedings under the landlord and tenant act.</p>

<p>If a witness can testify to facts, absolutely from his recollection, he' need not, it seems, necessarily produce in court a memorandum by which his memoiy, in respect to the facts, has been revived.</p> <p>But, where he makes his answers from a statement or memorandum, used on the stand it is the privilege of the party against whom he is introduced to inspect the paper and to examine him concerning it; and even, it seems, to submit it to the jury.</p> <p>And this is so, without reference to the manner in which the paper affects the testimony of the witness.</p> <p>A referee has power to compel submission of a paper used by the witness, to the inspection of counsel. And where he declined to exercise such power, and refused to strike out the testimony affected by the paper,— Held, that it was error, and the judgment entered on his - report was reversed.</p>

<p>A common law eertiora/ri lies to review the determination of a county judge, upon a question of the assessment under section 5, Laws of 1855, chapter 546, of the property of a plank-road company, although by that section his determination is made final.</p> <p>The statute (section 5 id.) exempts property belonging to any plank or turnpike road company from assessment and taxation “ until the surplus annual receipts of tolls on their respective roads over necessary repairs, and a suitable reserve fund for repairs and relaying of plank, shall exceed seven per cent per annum, on the first cost of such road.” — Held, that the exemption extends only to the property and cost of such road as the corporation has and operates at the time of the assessment.</p> <p>Accordingly where the relator constructed and operated a plank-road, but afterward abandoned a portion of it under the statute (Laws 1854,167, § 1), it was held that the first cost of the portion of the road retained, and not of the whole original road, was to be estimated in determining whether the property of the company was assessable.</p>

<p>The facts of the case are sufficiently stated in the opinion of the court.</p>

<p>A debt due from a factor for goods sold by him on commission is a debt created “ in a fiduciary character,” within the meaning of the bankrupt act (§ 33), and is not covered by the debtor’s discharge in bankruptcy.</p> <p>In re James W. Seymour (6 Inter. Rev. Record, 61), approved and followed. When a finding by the court adversely to a fact claimed by the unsuccessful party, is necessary to support the judgment, and the evidence warrants it, such adverse finding will be presumed.</p> <p>A circular, stencil plate, and form of invoice delivered to the plaintiff by the defendant while soliciting consignments of goods for sale, held admissible, as evidence bearing upon the terms on which the consignment was afterward made, and the character in which the defendants proposed to the plaintiff to act in receiving the same.</p>

<p>Appeal by the plaintiff from a judgment rendered against him by the court.</p> <p>The action was brought, to recover the sum of $6,000, against the defendants as commissioners of' highways for the towns of Geneseo and Leicester, in Livingston county, upon a contract, made with the plaintiff by their predecessors in office, for repairing a bridge over the Genesee river between the two towns.</p> <p>It appeared that the bridge bad been originally built in 3 837, upon a public highway, by “ The Leicester Bridge Company” under authority of an act of the legislature passed in that year (Laws 1837, p. 432), and thereafter until 1851, maintained as a toll-bridge by that company. In 1851 the bridge was carried off by a freshet, and eighteen months afterward, upon neglect of the company to rebuild, it was restored by commissioners acting under authority of the supervisors of Livingston county, and was paid for by the county. In 1866, it was again destroyed, and the commissioners of high ways of the two towns, without any special authority, or vote of the towns, or either of them, or of the supervisors of the county, authorizing any sum of money to he raised for the repair of roads and bridges in such towns, additional to the sum provided by law, and while they had no funds in hand applicable to the expense of erecting the bridge, caused the bridge to be rebuilt at an expense of some $23,000. Shortly after the bridge had been so rebuilt, one of the abutments was found to be so negligently constructed, and insecure, as to require reconstruction, and the contract in suit, was made by the said commissioners of highways, without any further authority or provision for payment, than they possessed at the time of the rebuilding. The plaintiff performed the work provided for in the contract; and the towns of Gfeneseo and Leicester having repudiated the contract of their commissioners he brought this suit as before stated.</p> <p>among other points insisted, that whether the towns were liable to make and maintain the bridge, was a question of fact to be decided, in the absence of statutory provision by the legally constituted tribunals of the towns, viz., their commissioners of highways.</p> <p>That the towns were primarily liable for the maintenance of highways and bridges, and that (§ 9, chap. 388, Laws 1837) in no manner made it obligatory upon the county of Livingston, to build and maintain the bridge in question; the intention of the act, being to enable the county, if it saw fit, to aid the towns in building or repairing the bridge, if the same should be abandoned by the corporators, citing Hill v. Supervisors of Livingston Co. (12 N. Y., 52.)</p> <p>That as the law had conferred, upon the board composed of the commissioners of the two towns, power to repair the bridge, it was their duty to cause the repairs to be made. (Laws 1841, chapter 225, §2, as amended by chapter 383, § 2, Laws 1857; Laws 1841, chapter 225, § 5.)</p> <p>That the statute authorized the commissioners of highways of the two towns without limitation, to enter into the contract in question, and provided (1841, § 4) that a judgment against the commissioners thereon should be a charge on the town, and collected as other town charges, reviewing at length, the provisions of the Laws 1841, chapter 225 ; id., 1857, chapters 383 and 639; id., 1858, chapter 103; id., 1865, chapter 442, to show that no limitation had been imposed upon the commissioners of the two towns, acting jointly in regard to bridges between their adjoining towns.</p> <p>argued substantially, that if the commissioners of highways for the respective towns, in making the contract, acted within the scope of' their official powers, the towns which they represented were bound by-their contract, bat that the commissioners had no such authority.</p> <p>That no power is conferred by law upon commissioners of highways, to enter into contracts for the fulfillment of which funds have not been provided.</p> <p>That the towns in question, were not liable as a matter of law, to construct the bridge, or rebuild the abutment, as all the powers conferred on the commissioners, and upon the electors of the towns respectively, and both of them, and upon the supervisors of the county, to raise money for the purpose, if exercised to its fullest extent, would have been insufficient to raise an amount sufficient to meet the debt sought to be created against the towns by the contract in question.</p> <p>He also argued that the bridge was not a town bridge, within the meaning of the statute, conferring upon commissioners of highways the power to erect or repair bridges; that they (the commissioners) were under no obligation to the public, or individuals, to cause the bridge to be reconstructed after it had been destroyed by the flood, and that the act of 1841 had, therefore, no application to it.</p>

<p>The assignee of a mortgage is an incumbrancer within section 123 of the Code, and taking by assignment after (or recorded subsequently to), the filing of a Us pendens in an action to set aside the conveyance of the mortgaged premises to his mortgagor, as fraudulent against creditors of the latter’s grantor, is charged with knowledge of the facts set forth in the action, and bound by the judgment therein recovered.</p> <p>The assignee of a mortgage, takes, subject to "equities against it in favor of the mortgagor, but not, it seems, subject to latent equities in favor of the mortgagor’s creditors.</p> <p>But it is otherwise when the assignee takes with knowledge of such equities, and without paying value.</p>

<p>This was an appeal to the General Term from a judgment rendered at circuit. The facts appear from the opinion.</p>

Motion upon a case and exceptions for a new trial, heard in the first instance at General Term. The plaintiffs sued as indorsee of a note running in the name of the defendants as joint makers, and given by Spencer Duncan, the defendant, to one Starring, on the purchase of a horse, as the consideration therefor, and payable to Starring’s order. The defendant, Smith Duncan, defended and averred that his name had been forged to the note.

This action was brought for the purpose of preventing the defendant, Ramsey, and others, from taking any further proceedings in an action in which Ramsey was plaintiff, and the Erie Railway Company and others were defendants, -and from taking other proceedings in any other suit for a . similar purpose, and for other relief. An injunction was granted restraining the defendants “ from proceeding any further in the action in which Joseph II.

The plaintiffs, as receivers of the Columbian Insurance Company, sue the defendant on three notes, being part of the assets of the company, two of which, are payable twelve months after date, and one is payable seven months after date. The defence is, that these notes were given as advance payments of premiums merely, and not as security notes under the provisions of the charter, and that nothing had ever become payable thereon.

<p>Appeal from judgment entered on a referee’s report.</p> <p>This action was brought to recover the amount due on a promissory note given by the appellant to the respondent for the purchase price of one-half of a threshing machine. The only relief asked for by the complaint is a judgment for the amount found due on the note. Soon after the giving of the note, the parties entered into a partnership for the purpose of threshing grain. The partnership transactions were not at the time of the trial settled. The answer admits the giving of the note, sets up the partnership, asks for an accounting, and if any balance shall be found due defendant that it' be applied- in payment of the plaintiff’s note. The plaintiff served a reply, taking issue upon the answer, and disputing the claim for a balance due on settlement of copartnership accounts.</p> <p>. The defendant upon the trial made various offers to prove the: copartnership, transactions, which were refused by the referee, and exception taken to the decision.</p> <p>■ The referee reported in favor of the plaintiff, and exceptions were duly taken to his report.</p> <p>Judgment was duly entered upon the report, and the defendant appealed.</p>

<p>In an action to recover damages for false representations, fraudulently made by the defendants, that a certain stock company had obtained an interest in a valuable patent, which patent was in fact worthless, whereby the plaintiff had been induced to purchase a share of the stock of the company. — Held, on demurrer to the complaint, that allegations showing the actual value of the patent, the extent of the company’s interest therein, and the number of shares of its stock, for the purpose of showing, the actual value of the stock as compared with the value which the defendants represented it to have were not essential; and that it was sufficient upon this point if the complaint averred that the stock was represented by the defendants to be valuable, and that it was in' fact valueless.</p> <p>And where it is averred in such an action that the defendants made representations to the plaintiff that individuals, of repute and pecuniary mean s had invested money in the purchase of rights in the patent, and given their notes in payment for the stock of the company, the averments are material without other averments, to the effect that such individuals had experience in similar dealings, that the plaintiff had confidence in their judgment, and that the defendants were aware of such confidence, and took advantage of such knowledge to entrap the plaintiff.</p> <p>And if the complaint avers that the plaintiff, relying upon the representations made, and believing the same to be true, was induced to purchase, and did purchase, the stock, it is not necessary to allege that the plaintiff had no knowledge of the true value of the stock.</p> <p>So, also, an allegation that the representations made by the defendant as to the value of the patent were false and untrue, was sufficient to show that they knew the stock to be worthless.</p> <p>And where the allegation is, that the false and fraudulent representations which induced the plaintiff’s purchase were made by the defendants jointly, they are both liable, notwithstanding it is averred that the payment or security was received directly, by only one of them.</p>

<p>The complaint is against defendants as makers of a promissory note. Ferguson and Starbuck defended.</p> <p>The defence was, substantially, first, that in July, 1867, plaintiff agreed to sell to the defendants 292 acres of land in Houghton Patent, and. convey same to defendants by warranty deed, before 1st of January, 1868, free from al] incumbrances ; and that before the conveyance, the plaintiff was to procure a conveyance to himself of an undivided one-eighth of the property from one Joseph Ferguson, who was then the owner of one-eighth. The plaintiff was also to procure a release of a verdict against the defendant, Ferguson, recovered in the Supreme Court, in favor of Joseph and Daniel Ferguson, executors, &c.</p> <p>That the defendants were to pay §8,000 for the land, viz.: §2,000 August 1st, 1867, and give their joint note indorsed by Tifft & Russell, for §1,000, being the note in suit, and two other notes of §2,500 each. That the notes were deposited with an agent of all the parties to be delivered on full and complete performance by the plaintiff. That the plaintiff falsely represented that he had procured a deed from Joseph Ferguson of the one-eighth of the land, and had procured a release of the verdict, and the defendants relying on, and believing these false statements to be true, that the other defendants, in the absence of the defendant, Ferguson, received the conveyance from the plaintiff, and that the notes were delivered to plaintiff. That plaintiff had not obtained a release of the verdict, nor a deed from Joseph Ferguson.</p> <p>Second, that the note was a joint note, and that on the 17th January, 1868, the defendant, Starbuek, paid the plaintiff one-third of the amount of the note. And that in consideration thereof the plaintiff released and discharged the defendant, Starbuek.</p> <p>The cause was tried at the Warren circuit in February, 1870, before Justice Bocees without a jury, and judgment was rendered in favor of plaintiff. On the trial, the plaintiff produced a release of the verdict and deed of the one-eighth from Joseph Ferguson, both executed after the commencement of this action, which was commenced July 9th, 1868, at issue, and on the trial. The judge found, that on the 5th of March, 1868, the defendants had full knowledge that the plaintiff had not obtained the deed and release; that the defendant, with such knowledge, continued in possession of the lands, and still remained in possession of the same, and after such knowledge, removed saw logs, dock sticks, and wood from the lands.' That with such knowledge, on the 6th of May, 1869, and after the plaintiff had obtained the release of the verdict, and the conveyance of the one-eighth from Joseph Ferguson, the defendant, Russell, obtained from the plaintiff and wife another warranty deed of the premises, which was duly acknowledged" and delivered. That the defendants never rescinded the contracts, nor repudiated the deeds, or either of them, nor the delivery or acceptance of them, or either of them; nor surrendered possession of the premises, nor offered to convey the same. It also appeared, and the judge found, that in January, 1868, Russell and Star-buck both paid one-third of the note, and each one took a receipt for the same in full of one-third of the note. The receipt to Starbuek read “ to apply on note, &c., in full for Benjamin C. Starbuek’s third of said note,” and was under seal.</p> <p>The judge also found in favor of the plaintiff for the one-third of note unpaid, and exceptions were taken to the findings. A motion for a nonsuit was also-made and refused, and objection made to testimony received, and exceptions taken to the decisions. A judgment was entered in favor of the plaintiff, and the defendants appealed to the General Term.</p>

This is an appeal from a judgment entered upon the report of a referee. The facts and questions raised upon them appear in the opinion of the court.

The action was commenced before a justice of the peace of the county of Otsego, to recover the balance of twelve dollars, purchase-money and interest on an alleged sale of hops, made by the son of plaintiff to the defendant, and assigned to the plaintiff. The defendant had paid the plaintiff’s assignor, sixty dollars on account of the purchase-money. The justice rendered a judgment in favor of the plaintiff for twelve dollars and fifty cents damages and five dollars costs.

<p>This' cause was tried at the Oneida County Circuit, held at Utica in February, 1869.</p> <p>The action was brought to recover damages for injuries received by the plaintiff’s horses, under the following circum stances, as they appeared in evidence.</p> <p>The plaintiff’s team, while driven by his servant along the highway from Clinton to Hamilton, toward a bridge some ten or twelve rods distant, crossing the Chenango canal, over which the highway ran, were frightened by the defendant’s horse which was running away in an opposite direction, became unmanageable, and ran away, and were seriously injured.</p> <p>The defendant had driven his horse from the highway upon the towing-path of the Chenango canal for the purpose of collecting a debt from a lock tender of the canal, and while .here upon a narrow part of the towing-path, an embankment some eighteen or twenty feet in width, and driving in close proximity to a lock in which there was a boat then rising upon the water, his horse was frightened by the appearance of the boat above the sides of the lock, turned and jumped down the embankment, overturned the skeleton wagon to which he was attached and ran away, going back upon the highway, and coming into collision with the plaintiff’s team which was drawn up, upon the approach of the running horse, to the side of the road, caused them to break the pole of their wagon, and run away. The jury rendered a verdict in favor of the defendant.</p> <p>The principal questions raised, arise upon the charge of the judge to the jury, to which exceptions were taken, and which so far as material are stated in the opinion.</p> <p>The plaintiff moved for a new trial upon the minutes, which was denied, and the plaintiff appealed from the order. The plaintiff also made and served a bill of exceptions which was ordered to be heard in the first instance at the Genei al Term.</p>

<p>The defendants sold coal to the plaintiffs, and agreed to deliver it in October, upon boats provided by the latter. The plaintiffs furnished boats as agreed, and demanded the coal, which the defendants failed to deliver until late in November. In an action to recover damages for detention of the plaintiffs’ boats, — Held, that the defendants were liable, and in view of their contract, could not excuse the detention by showing an usage or custom, or that the delay was caused by failure in their supply of coal, or by breaks in the canal, or by other excuses which might avail where the contract for delivery was not explicit in terms.</p>

<p>It is questionable whether an extension of the tiine of payment of a note, without consent of the indorser, which is founded upon an unfulfilled promise, of the maker, to pay an usurious premium therefor, can be made available to the indorser as a defence in an action against him on the note.</p> <p>"Where the indorser proved, as a defence to an action against him on a note, that the payee had extended the time for payment without his consent, and that the consideration for the extension was an unfulfilled promise made by the maker to pay an usurious premium therefor. — Held, that the plaintiff (the holder of the note) might avail herself, in defence, of the fact that the extension was based upon no valid consideration.</p>

This was an appeal from a judgment entered on the decisions of the court without a jury, in favor of the plaintiff. The plaintiff sued as assignee in bankruptcy, after demand upon the defendant, to recover the amount of a note which his assignor had delivered to the firm of Bliss & Brown, of which the defendant was the surviving member.

<p>Error to the Oyer and Terminer of Oneida county.</p> <p>The plaintiff in error was indicted in the Oneida Oyer and Terminer in June, 1870, for the crime of murder in the first degree, was arraigned upon the indictment, pleaded not guilty, and was put upon his trial on the 29th of the same month, whereupon the prisoner’s counsel, after stating objections to the drawing of the original panel of jurors, made also an objection as follows: “I next object to the new panel of one hundred as being improperly drawn, or improperly summoned, and improperly here. That they have no right to sit in this case as drawn,” and called the sheriff of Oneida county, who was sworn, and produced the precept under which the new jurors objected to had been summoned, which ran as follows:</p> <p>u State of Yew York, County of Oneida, ss : The people of the State of Yew York to George F. Weaver, Esq., sheriff of our said county of Oneida, greeting:</p> <p>“ We command you that you summon one hundred jurors, duly qualified as the law directs, to be and appear before our Court of Oyer and Terminer, in and for our county of Oneida, at the court-house in the city of Rome, on the twenty-eighth day of June, 1870, at nine o’clock in the forenoon, and so from day to day until discharged, then and there to serve as petit jurors in and for our said county, in the case of The People of the State of New York-y. Hugh Mallon, on an indictment pending against him in the said court for murder in the first degree, and have you then and there this writ.</p> <p>“ Witness, Hon. Charles H. Doolittle, justice of the Supreme Court and judge of the said Court of Oyer and Terminer, the twenty-seventh day of June, 1870.</p> <p>“ C. H. DOOLITTLE,</p> <p>“ Justice of Supreme Court, and presiding judqe of court.</p> <p>“ JAMES B. PADDON,</p> <p> Clerlf </p> <p>The prisoner’s counsel, upon the production of this precept, further objected to it, as not authorizing the sheriff to bring into court the persons produced under it, according to statute. The sheriff testified that the precept was the only paper relating to the matter of which he had any knowledge; but that he was in court when the order, that one hundred additional, men should be summoned by him, was made and entered on the minutes.</p> <p>It appeared from the minutes of the court that the precept had been issued by virtue of proceedings entered therein as follows, viz. :</p> <p>“ June 27th, 1870, the day assigned for the trial of this cause, the prisoner and his counsel being present, the district attorney moved that more jurors be summoned under 2 R. S., p. 733, § 3, the better to form a jury for the trial of this cause; and the court being satisfied it was proper so to do, ordered that one hundred jurors be summoned, which order was duly entered on the minutes of the court, a copy of which is as follows:</p> <p>agt. y Indictment for murder in the first degree. HUGH MALLON. j</p> <p>“ There being only twenty jurors’ names in the box, on motion of the district attorney, it is ordered by the court, pursuant to the statute, that the sheriff of the county of Oneida do forthwith summon from the county at large one hundred persons, duly qualified to serve as jurors, to complete the number repaired by law, to attend on Tuesday morning, the twenty-eighth day of June, at nine o’clock in the forenoon of that day.”</p> <p>The objections of the prisoner’s counsel were thereupon overruled by the court and an exception was duly taken. The jurors were then called, sworn, and examined as to their competency. Various objections were made and exceptions taken during the impanneling of the jurors. So far as material to the decision, they are fully set forth in the opinion of the court.</p> <p>in error, argued substantially as follows:</p> <p>There was no jury legally impanneled to try the case.</p> <p>The additional number of persons, even if .the statute referred to in the order has not been repealed, were illegally summoned. The sheriff swears that the precept was all the paper he saw or had any knowledge of, and the precept duly signed by the judge and the clerk, and sealed by the clerk, must therefore be regarded as the order named in section 3 (2 R. S., 733). The precept runs: “We command you that you summon one hundred jurors, duly gualified as the law directs, to be and appear, &c.,” without saying whether they must be summoned “from the bystanders” or “from the county at large.” But the statute is: “ When twenty-four jurors, duly drawn and summoned, do not appear, or when by reason of there being one or more juries impanneled, &c., there shall not remain twenty-four ballots containing the names of jurors then attending, the court shall order the sheriff to summon from the bystanders, or from the county at large,.so many persons, &c.” The statute invokes the discretion of the court as to whether the sheriff shall summon these additional jurors “ de circumstantibus,” men before the court and looked upon by the court, or whether, the court being satisfied that a jury cannot be obtained iii’ the courthouse or near by, the sheriff shall summon them “ from the county at large.”</p> <p>This discretion the court must exercise and cannot delegate to the sheriff. The sheriff must continue a ministerial officer. This is the policy of the statute as to these two alternatives. The court threio the responsibility upon the sheriff, and this was error.</p> <p>It is held under the statiite as to the issuance of a precept by the district attorney, that the omission to do so, is fatal. (2 Parker, Grim. R., 148.)</p> <p>Other objections to the precept, &c., were specified, and it was also contended that, as the act under which the additional jurors had been summoned (2 R. S., 733, § 3) was loose and unsatisfactory and objectionable in leaving to the sheriff too much power in the selection of jurors, and in order that the system of talesmen should again be brought to the “ casting of lots,” the legislature had enacted the law of 1870 (chap. 409), which, providing a method for procuring “additional jurors,” repugnant and inconsistent in its provisions with those of the Revised Statutes, and had superseded and repealed the latter. The provision of the two enactments were discussed at length and the allegod inconsistencies thereof.</p> <p>They also contended that jurors were improperly rejected and received upon the trial.</p> <p>contended that it was not important if the precept was informal or defective, and that the order was the sheriff’s authority; that the statute (2 R. S.. 733, § 3) was unrepealed and unaffected by the provisions of the act of 1870, and that there were no valid objections shown to the jurors.</p> <p>They also claimed that if the proceedings and decisions as to the jurors specified were to be regarded as upon a challenge to the favor, they were no part of the record, citing 4 Denio, 9; 21 N. Y., 134; 22 N. Y., 147; 36 N. Y., 276; 3 Abbott, N. S., 368.</p> <p>That if the proceedings were to be regarded as upon challenge for principal cause, then that decision was right, citing Freeman v. The People (4 Denio, 15 and 34).</p>

This was an appeal hy the defendant from a judgment entered against him upon the report of a referee.

<p>The cause was tried at the Chemung circuit before one of the justices of this court and a jury in March, 1870. It appeared on the trial, that in April, 1866, the defendants sent to S. B. Tomlinson, Esq., an attorney, a claim against J. H. Dunn for collection, upon which claim judgment was entered 8th May, 1866, for $284.22 damages and costs. An execution was on the same day issued to the plaintiff, who ivas sheriff, and who, on 12th May, levied on a quantity of cigars as the property of Dunn. Plaintiff claimed that he made this levy by direction of Tomlinson, and on his promise that defendants would indemnify him. A brother of Dunn sued the plaintiff for the cigars, and plaintiff gave the papers to Tomlinson who defended the action; and it was tried on the 2d June, 1868, and Dunn’s brother recovered a judgment against plaintiff for $821.41 damages, as the value of the cigars, and $231.55 costs; in all, $1,050.96.</p> <p>In September, 1868, plaintiff paid on an execution issued on the judgment obtained by Dunn’s brother, $1,088.85, and thereafter brought this action, averring that defendants directed plaintiff to sell and dispose of the cigars, and apply the proceeds on the execution of Dunn’s brother against him, and that he did so sell them and apply their proceeds, $198.71, on said execution, “ leaving the balance due and unpaid on said execution of about $890.14, being the amount of loss and damage incurred and sustained by said plaintiff, and that said defendants, on or about the 18th day of June, 1868, after being informed of the facts aforesaid by their said attorney, promised and agreed to pay whatever deficiency there might be on said last execution, after applying the proceeds of the sale of said property thereon.”</p> <p>The answer admitted the recovery of the defendant’s judgment, the issuing of execution thereon to the plaintiff, and the recovery against him; but alleged that the action against the sheriff had been insufficiently and negligently defended, and otherwise denied the complaint.</p> <p>The plaintiff rested without showing what the cigars sold for, and defendants’ counsel asked the court, under the pleadings and proofs, to restrict the plaintiff’s recovery to the costs of the action in the case of Dunn v. Howell, upon the ground that the plaintiff had not shown what the cigars sold for, and had failed to show any deficiency.</p> <p>The court refused the request and the defendants’ counsel excepted.</p> <p>It is claimed by the plaintiff that Tomlinson had authority from the defendants to indemnify him, for the levy on the cigars and did so, and that defendants ratified Tomlinson’s act after the plaintiff was beaten in the action by Dunn’s brother. Both the authority and ratification are denied by the defendants. The authority mainly rests upon certain letters introduced in evidence, and others alleged to have been written and lost.</p> <p>The defendants made an offer of evidence on the trial and certain requests to charge the jury, which were refused, and exceptions were duly taken to the several rulings of the judge. The questions arising are stated in the opinion. A verdict was rendered in favor of the plaintiff for $983.20, the amount claimed, and interest thereon. Exceptions were made, which were" ordered to be first heard at General Term.</p>

This is an appeal from a judgment of Special Term before Justice Pottee, adjudging the specific performance by the defendant of a contract for the sale of certain lands in Moriah, Essex county, made by John 0. Hammond, under whom the defendant claims, as vendor, to Albert Hubbard, under whom the plaintiffs claim, as vendees. In the year 1856, John 0.

<p>This action was tried before the court and a jury, at the November circuit of Greene county, 1868.</p> <p>It appeared that one Edward L. Walters and the defendants, Henry B. Montgomery and Sylvester B. Sage, in January, 1867, under the firm name of Montgomery & Sage, were merchants and copartners at Prattsville, Greene county, N. Y. The latter also owned a blacksmith shop and tools, which, with the stock on hand, was valued at $1,000.</p> <p>On the first of January, 1867, Walters negotiated with the defendants, Montgomery & Sage, for a purchase of the blacksmith pi-operty and tools, representing himself, as the defendants claimed, to be perfectly responsible, and as having $1,500 coming to him in Dutchess county. Montgomery & Sage, relying on these representations, sold him the property for $1,000, taking in payment his two notes of $500 each, payable at three and six months. Walters took possession at once, and carried on the business until February 20th, 1867, a little over a month, when he disappeared.</p> <p>Montgomery & Sage finding Walters to be largely indebted, and claiming that his representations as to solvency were false, on the 22d February, made efforts to commence proceedings to recover the property.</p> <p>On the 23d of February, 1867, Walters made an assignment, for the benefit of the assignees and other creditors, to the plaintiffs in this case.</p> <p>Bullís, one of the assignees, brought the assignment to Catskill, had it recorded on that day, and arrived with it at Prattsville on Sunday, and on the same day obtained the keys of the blacksmith shop, went there unlocked it and then locked it again.</p> <p>An action was brought in favor of Montgomery & Sage, against Walters, to recover possession of the property, and the property was taken by the sheriff and delivered to the plaintiffs in said action. The next morning Bullís was informed that the property was replevied and in charge of the deputy sheriff, who had taken it about one o’clock that morning, under proceedings for claim and delivery at the suit of Montgomery & Sage.</p> <p>The plaintiffs in this action did not demand and made no claim to the property under their assignment, nor did they proceed under the Code to get it back into their hands; but allowed the sheriff, or his deputy to deliver it to Montgomery & Sage, as plaintiffs in their action.</p> <p>Offers of testimony were made upon the trial which are stated and discussed in the opinion. On the trial the defendants moved for a nonsuit, which was denied and an exception was taken to the ruling. At the close of the case the defendants moved for the discharge of the sheriff, the defendant Osborne, who was also prosecuted with Montgomery & Sage, which motion was denied and an exception taken. The jury found for the plaintiffs, and the court ordered that the 4 case and exceptions be first heard at Q-eneral Term.</p>

<p>In ejectment by a mortgagee in possession, after default, under an agreement with the mortgagor therefor, the defendant cannot defend upon the title of a third party, which is barred by twenty years’ adverse possession by the plaintiff.</p> <p>The plaintiff in ejectment, may prove title as mortgagee in possession by agreement with the mortgagor, although his complaint avers that he is entitled as owner in fee simple.</p> <p>Evidence- of a paroi surrender of lands, by the mortgagor followed by actual possession under it, is competent in ejectment to show the title of a mortgagee in possession.</p> <p>Affidavits of proceedings in foreclosure by advertisement, under which the mortgagee has bidden in the property, although not sworn before suit brought, are admissible in evidence in ejectment by the mortgagee, as part of the history of his claim of title.</p> <p>Where a complaint in ejectment avers possession by the defendant as a corporation, and the answer admits possession as alleged, there is a substantial admission of the defendant’s corporate existence.</p>

<p>The plaintiff shipped goods, by a common carrier, whose route terminated at Albany, addressed to a consignee at New York, “ by Union Express from Albany.” He discovered after shipment that the express company ivas wrongly named in the address, and applied to the carrier, who corrected the way bill; the plaintiff’s agent then gave an order for the goods, to the proper express company at Albany, and informed the carrier at Albany of the change; the latter promised to see to it, and ship the goods on. The goods were placed by the carrier in a warehouse at Albany, on arrival there, and two days after were damaged there by an unusual and unexpected flood. — Eeld, that the defendant (the carrier) was chargeable with the damage as a common carrier.</p> <p>Held, further, that the defendant could not claim exemption from liability, on the ground that the <7 image resulted from the act of God.</p>

<p>The defendant, a horse railroad company, accepted from the city of Troy a license to construct and operate its road upon the streets of the city, by which it was required “to keep in repair the pavement between the tracks and for a distance of eighteen inches outside of each track, and to cause the snow to be removed so as to afford a safe and unobstructed passage to sleighs and wagons; the repairs and removal of snow to be done to the satisfaction of the city commissioner,” and, in default thereof, the license granted might be terminated by the common council, if they should deem it proper. The license contained, also, a provision, that the defendant should fully indemnify and save the city harmless from any and all claims or damages for which it might be made or become liable, or compelled to pay, “ by reason of the construction or working of the road, or of the giving or allowing of the licenses, rights and privileges hereby granted.” The defendant neglected to remove the snow from the outside of its track; and P., a passenger, who had received injuries by the upsetting of a stage-sleigh caused by the neglect, sued the plaintiff for damages. The latter notified the defendant of the suit; but it declined to defend. The plaintiff defended, but judgment went against it for the damages claimed. — Held, that the defendant was liable in an action to recover the amount of the judgment.</p> <p>Held, further, that the court did not err upon the trial in holding “that the judgment recovered against the plaintiff was competent evidence against the defendant, and an estoppel, except as to the question whether the injury to P. did or did not happen by the act or omission of the defendant.”</p> <p>Nor in holding “ that the defendant was liable, if it excavated its track carefully and skillfully, and yet left the street in an unsafe condition by reason of its going down too low, so as to interfere with proper sleighing and to cause the injury, and although it left on the east side a safe and commodious passage.”</p> <p>Nor in refusing to instruct the jury, “ that, if the city officers negligently omitted their duly in keeping the street in condition, and thereby contributed to the injury, the plaintiff could not recover.”</p> <p>Nor in holding that the plaintiff was entitled to the amount of the judgment recovered and interest.</p>

This was an appeal from a judgment entered on the verdict of a jury rendered at the Rensselaer June circuit, 1869, and from an order denying a new trial. The action was for damages caused by an accumulation of flax shives in plaintiff’s mill-pond,- thrown into the stream by defendant, and causing an obstruction and deposit therein. The plaintiff owned and operated a grist-mill on the Tomhannoclc creek, in the town of Pittstown, Rensselaer county.

This was a motion for a new trial after a nonsuit at the circuit, and the exceptions ordered to be heard at the General Term in the first instance. The action was brought against the defendant, Balde, as the obligor, and Snell and Petrie, as sureties, in a certain bond given in 1852 to the plaintiff, then an infant, in proceedings before the Herkimer county judge, for the sale of the plaintiff’s real estate.

’This was a certiorari to the county judge of Ontario county to review proceedings under the act of 1869 (chap. 907, p. 2303), to permit municipal corporations to aid in construction of railroads.

This was an appeal from a judgment for the plaintiff-entered on the report of a referee.

<p>Appeal from an order, made at the Jefferson Special Term overruling a demurrer to the complaint.</p> <p>The complaint set forth substantially the following facts, viz.:</p> <p>That one J. Goodrich Scott, the husband of the defendant, on the 25th day of May, 1869, unlawfully and fraudulently obtained of the plaintiff six negotiable promissory notes made by the latter, of $1,000 each, payable respectively, at a future day, to William B. Nickelson or bearer, but that said Scott did not acquire any legal title to the notes. That afterward Scott, for value, and before maturity, transferred three of these notes to Norris Winslow, who thereby became a hona fide holder thereof, and that the plaintiff was legally holden to pay the same; that Scott placed the avails of the notes so transferred to Winslow, to wit, $2,800, upon the books of the latter’s banking house to the credit of the defendant; that the defendant subsequently drew the avails from the banking house upon her checks; that no consideration for the money so received by the defendant passed between her and Scott, her husband; that the money was so placed to her credit for the purpose of securing it from the creditors of Scott, and particularly from the plaintiff.</p> <p>That the defendant had a separate estate, and was worth the sum of $30,000. That she permitted her husband, under a general power of attorney, to do business ostensibly in her name, but really for his own benefit and profit. That this was done to enable him to secure whatever property he might acquire, from the reach of his creditors. That Scott was insolvent, and had no property that could be reached by execution.</p> <p>That on the 13th of August, 1869, after the money had been received by the defendant, the plaintiff, after informing her of the unlawful manner in which the promissory notes were obtained from him, demanded the notes from her; that he further demanded of her that, if the notes had been transferred to a purchaser in good faith, to pay to him the proceeds thereof. That she refused these demands,</p> <p>The plaintiff demanded judgment against the defendant for the sum of money secured by the defendant as the avails of the notes; to wit, $2,800 and interest thereon, and such other or different relief as the court must deem proper to grant.</p> <p>The defendant demurred upon grounds stated as follows, viz.: -</p> <p>“ 1st. That the complaint does not state facts sufficient to constitute a cause of action.</p> <p>2d. The facts stated in the complaint do not show any legal liability in an action at law against the defendant for the conversion of the notes, or refusal to pay over the avails thereof on demand.</p> <p>3d. There is a defect of parties defendant in this, that the action does not concern her separate property, and hence her husband, J. Gr. Scott, must be joined with her as a defendant in the action.”</p> <p>The demurrer was duly brought on for argument, and after hearing thereon, was overruled with leave, &c., and an order entered to that effect, from which the defendant appealed.</p>

Motion by plaintiff for judgment on a special verdict found at the Oswego circuit. The facts appear in the opinion of the court.

This was an appeal by the defendant upon a case and exceptions from a judgment entered in favor of the plaintiff upon a referee’s report. The complaint demanded, that a certain judgment obtained by the defendant, Lewis, against one H. K. Wilgus, in the latter’s lifetime, should be declared fraudulent and void as against a judgment obtained by the plaintiff against the defendants Cook and White as administratrix and administrator of the estate of Wilgus, and for other relief.

This was an appeal by the defendant from the judgment entered on a verdict had in the County Court of Jefferson county, upon trial on appeal from a justice of the peace. The plaintiff sued in the Justice’s Court, upon a note given by the defendant, Graham, to the firm of J. E. Godfrey & Co., for some fifty-six dollars, and indorsed as follows: “ I waive demand of protest. J. E. Godfrey & Co.” The defendant pleaded a general denial and the statute of limitations.

This was an appeal from a judgment entered on the decision of Mr. Justice Morgan at Special Term. The action was on a promissory note running as follows, Oswego, N. Y., April 20, 1868. “ One day after sight I promise to pay to the order of G. L. Parsons four hundred dollars. Payable at my office. Value received.

<p>Appeal to the Supreme Court. The facts appear in the opinion.</p>

One Cluff had a policy of insurance from the defendants on his life, which policy was duly assigned to B. E. Clark & Co., about the time of its making, and afterward by that firm to the testator of the plaintiff, on 10th April, 1861, of which notice was given to the defendants.

Appeals taken from judgment recovered under the direction of the Special Term, held in Cattaraugus county, before the Hon. G-eorge Barker, one of the justices of this court, in an action brought to determine the validity of the will of Benjamin Chamberlain, deceased. At the time when the will was executed, the testator resided in the county of Cattaraugus, and the execution of the same took place at West Randolph, in that county, on the 17th of December, 1867.

<p>The constitutional provision (Art. 7, § 8), that “ all contracts for work or materials on any canal shall be made with the person who shall offer to do or provide the same at the lowest price, with adequate security for their performance,” is, it seems, to be applied according to its spirit, and not literally.</p> <p>A discretionary power is vested in the officers authorized to award the contract to determine who is “ the lowest bidder,” and what is “ adequate security.”</p> <p>Where the canal commissioners have received bids and awarded work to the lowest bidder, the award is a rejection of the bids or proposals of all other bidders; and they are not then authorized by law to let the same work to the next lowest bidder, although the latter be willing to accept the award.</p> <p>Where the commissioners advertised for proposals for several different pieces of work, and awarded the same to the lowest bidder, who neglected within the prescribed time, to enter into contracts, and then awarded the same work to the relator, the next lowest bidder, who notified them of his acceptance, but the commissioners afterward refused, upon request, to enter into a contract, and readvertised, and thereupon relet the work to another person whose aggregate bids were less than the aggregate of the relator’s bids, upon which the award to him had been made, — Held, that the award to the relator was but a voluntary agreement between the commissioners and the relator, made, on the part of the former, in opposition to the provisions of the Constitution and of the statute; and that a mandamus would not lie against them to compel an execution of a contract pursuant to such award.</p> <p>The writ of mandamus is not a writ of right, but rests in the discretion of the court, and should issue only where the duty of the defendant and the rights of - the relator are clear.</p> <p>Accordingly, held, further, that the right of the commissioners to enter into the contracts awarded being doubtful, the writ should for that reason be denied.</p>

<p>Return to a writ of habeas corpus. The facts are fully-stated in the opinion of the court.</p>

This is an appeal from a judgment entered upon the report of a referee on the 9th day of December, 1867, in Ulster county clerk’s office, in favor of the plaintiff, against the defendants, for $761.16, damages and costs.

This action was brought to recover the amount insured by the defendant upon the plaintiffs’ steamer Columbus. The insurance was $2,500, and was effected by policy of the defendants, No. 8,039, at Troy, through their agents there, B. A. Tillinghast & Son, on the 28th of February, 1866, to continue for one year from that date.

<p>This was a submission upon a case agreed without action under section 372 of the Code.</p>

Demurrer to the answer to an alternative mandamus. The writ shows, that the “ German United Evangelical St. Stephen’s Church of Buffalo ” was incorporated in April, 1853, under the act of 1813, providing for the incorporation of religious societies; that it was and is composed of a large number of male persons of full age, and of five trustees; that Dilcher was accepted by, and became a member of such church in 1856, and has ever since continued to be, and now is, a'member…

This was an appeal upon a ease and exceptions from an order denying a motion for a new trial, and from the judgment entered in pursuance thereof. The plaintiff sued to recover damages for injuries to his cattle, and the loss of several of them while the defendant was engaged in the transportation thereof on its railroad, from Erie, Penn., to Buffalo.

<p>Where coals, negligently dropped from the defendant’s locomotive, set fire to the ties under its track, and from thence spread through the defendant’s premises and ran into the plaintiff’s woodland adjoining, and burnt and damaged the wood and soil, — Held (following the decision in Field v. New York Central Railroad, 32 N. Y., 339, as based upon substantially the same facts), that the plaintiff could recover for the damages sustained.</p> <p>Field v. New York Central Railroad, and Ryan v. Same (35 N. Y., 210), commented upon and compared.</p>

This was an appeal by the defendant from a judgment entered for the plaintiff npon the report of a referee. The action was brought to recover compensation as provided by contract between the plaintiff and defendant, for the plaintiff’s services as general superintendent of tlie defendant’s factory; for damages on account of his dismissal from employment, and for a portion of the earnings of the company.

This was an appeal from a judgment for the plaintiff entered upon a verdict and an order of the Special Term denying a new trial on a case made.

This was an appeal by the plaintiff from a judgment entered on the report of a referee appointed upon motion granted for a new trial in the Onondaga County Court, to hear and determine the action.

<p>A contract for building a church edifice, at not less than a specified cost, provided for paying the builders by assignment of the subscription list to them, with power to collect and discharge the amounts subscribed, and also by permitting them to sell the slips at auction, with the right to retain such as should be unsold, to be sold or locked up at their election. —Held, that the builders had merely a power to dispose of the slips retained, and no title in or to the edifice or premises.</p> <p>And the church having, against the objection of the builders, removed and destroyed the pews so retained. — Held further, that the cause of action on account thereof, arose at the time of the removal, &c., and was barred by the statute (Code, § 97) after the expiration of ten years from that time.</p> <p>It seems that if the church trustees being called upon, to do so in the reasonable exercise of their duty to the corporation and congregation, on account of delapidation and necessity for repair, took out the floors and slips, and other fixtures, and reconstructed the inside of the edifice, the plaintiff (who was the assigne of the original contractors), thereupon lost his title to the pews, and had-no remedy against the church with regard to other pews put in to replace the old.</p>

This was an appeal from a judgment entered after a trial by the court and a jury, dismissing the plaintiffs’ complaint. The exceptions were ordered to be heard in the first instance, at General Term.

This was an appeal from a judgment for plaintiff on demurrer to the complaint, in an action to cancel a promissory note for usury.

This was an appeal from a judgment entered on the report of a referee, dismissing the plaintiff’s complaint, as not stating a cause of action.

This was an appeal from a judgment entered at Special Term allowing the plaintiffs to redeem mortgaged 'premises. It appeared that the plaintiff, Elizabeth C. Brown, daughter of Jane O’Brien, claiming as owner, and the plaintiff, George S. Trimm, complaining under a contract of purchase, commenced this action to redeem the premises from a mortgage executed to the New York Eire and Marine Insurance Company, and assigned by said company to the defendant Sarah A. Marsh.

This was an appeal by the defendants from a judgment against them at Special Term. The plaintiff claimed to have certain judgments adjudged to be subsequent liens to her claims in equity against the premises described in the complaint.

This was an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, and from an order denying a motion for a new trial.

The plaintiff in this case appealed from the judgment entered on the report of a referee in his favor, claiming that the amount of such judgment, as directed by the referee, was less than he was entitled to recover.

This was an appeal from a decree of the surrogate of Chautauqua county, entered upon the final accounting of the respondent, Cyrus Underwood, as administrator of the goods, &c., of Julia R. Underwood, Ms deceased wife, and ordering and adjudging that said respondent retain in his hands all the money, property, goods and chattels of the said Julia R. Underwood, deceased, remaining after the payment of her debts, and discharging him from further duties and liabilities as…