Volume 3 — Thompson & Cook's New York Supreme Court Reports

Justice Ingalls at the Columbia circuit, in April, 1872. The action was brought by Louisa Parsons, executrix, under the will of Anson Parsons, deceased, to enforce an alleged equitable lien for purchase-money, on the sale of real estate, by the plaintiff’s testator, to the defendants, Henry A. Tilden and TTri M. Hazard, and to compel specific performance of an agreement. The agreement was for the sale of certain hotel property in the town of New Lebanon, Columbia county.

The action was brought to recover from the defendants, the mayor, aldermen and commonalty of the city of Troy, damages to the dwelling-house of the plaintiff, Henry B. Mms, caused by the bursting of a sewer, commonly known as the “ crooked sewer,” in said city, and running through the lot on which plaintiff’s house was built.

The action was brought against the defendants, Cornelius A. Church, Otis B. Matterson and James A. Lynes, as indorsers of a promissory note for $2,000, at ninety days, and dated April 3, 1869. The defendants, by their answers, admitted the making and-indorsing of the note, but denied its due protest; set up payment in part, and an extension of the time of payment, without their consent, and claimed that they were consequently discharged from liability.

<p>Appeal from a judgment entered on the report of a referee.</p> <p>The recovery was for $6,758.01 damages and costs, and was allowed for services rendered to the defendant by the plaintiff’s intestate, De Witt C. Bates, including use of team, and for money advanced by him in performance thereof, and also for office rent.</p> <p>The intestate performed most of the services for which the j udgment was rendered, under and in pursuance of resolutions passed by the board of directors of defendant, which, in effect, were contracts with him declaring his rate of compensation and the mode of payment.</p> <p>The first of these resolutions was adopted July 9, 1868, and after various recitals stating that Mr. Bates had expended much time, labor and expense in the business of the company, and that it was necessary to continue his services in that behalf, and after appointing him especial agent and attorney of the road, it was resolved that there should be allowed to him for all his past services and expenses the sum of $1,000 of the stock of the company, and that he be paid in the stock of the company for his future services the sum of $10 per day as such agent and attorney, while engaged in such business; and whenever such business required him to be absent from the village of Cherry Valley, he should be allowed in addition thereto his expenses, including the use of team, etc., “ the items of which shall be rendered in detail to the board of directors, and which shall also be paid in the stock of said road. Always provided, that the directors are to incur no personal responsibility for or on account of such services and expenses of said Bates; but he shall rely entirely upon the stock of such railroad company for his compensation.”</p> <p>On the 2d February, 1870, the following resolution was adopted by the company: “ Resolved, That for compensation to De Witt C. Bates, for his services and expenses hereafter, including use of team as heretofore, he at his election be paid in the first mortgage bonds of the road, or in the stock of the road.”</p> <p>The referee found that Mr. Bates performed services for the company under the resolution or agreement of July 9, 1868, which, with his expenses and the use of team, also including the $1,000 for prior services and expenses therein mentioned, amounted to $4,245.17; and that he rendered services for th£ company under the resolution of February 2, 1870, which, with his expenses and use of team, amounted to the sum of $439.28.</p> <p>He also found that the former sum was, by the terms of the contract (first resolution), payable in the stock of the company; and that the latter sum was, according to the contract (second resolution), payable in first mortgage bonds, Mr. Bates having so elected.</p> <p>The referee further found that, at the time of making the contract of July 9, 1868, and during the time of the rendition of the services thereunder, both parties believed that the stock would be worth par when the road should be completed and be put in operation; that the road went into operation in June, 1870, but has earned nothing, and that the stock has been and still is of no market value; also, that the bonds were not of par value.</p> <p>In giving construction to the contracts (resolutions) the referee held that the market value of the stock and bonds, and not par value, was contemplated and intended by the parties, and in giving judgment he awarded damages, estimating the stock and bonds at par value. To this ruling and decision an exception was interposed.</p> <p>Other questions are raised on the appeal; but the conclusion arrived at, on the point above presented, renders their examination here unnecessary.</p>

Appeal by the plaintiff from judgment of nonsuit at the Delaware special term. Also, appeal from an order denying a motion for a new trial on the ground of newly-discovered evidence. The action is, in form and substance, a creditor’s bill.

In April, 1869, a contract was made between plaintiff, Jeremiah Muckey, and defendant, Jacob V. Howenstine, as follows : Plaintiff was to manufacture for defendant one dozen barrels for the price of $21. They were to be done by October 1, 1869, and defendant was then to come and get them at plaintiff’s shop.

This action was brought to recover a judgment rendered in favor of -the plaintiff before a justice of the peace on the 15th day of December, 1856, for $28.65, damages and costs, and was tried at the Delaware county circuit in March, 1872, before Mr. Justice Boardhah and a jury.

This action was upon a policy of insurance for $3,000, issued to one Palmer, and loss payable to the plaintiff, Salmon G-. Cone. The plaintiff asked to reform the policy by indorsing upon the same the consent of the company that the dwelling-house be and remain vacant in accordance with the agreement alleged to have been made at the time when the policy was taken out, between the plaintiff and the defendant’s agent.

<p>Contract — construction of— guaranty.</p> <p>W„ who owned nine aerea of land, upon which there wag a mortgage amounting to a sum equal to $150 an acre, had sold and conveyed all of said land except about two acres. He then conveyed this two acres to H. and at the time executed an instrument containing this: “ B. holding a mortgage of $150 per acre on the above specified land” (the two acres), "for which I bind myself,” etc., " to cancel and pay when it shall become due and payable, leaving a fee simple right and title in the hands of H.” Appended to this was a guaranty by S., wherein', for value received, lie guarantied and engaged that W. " shall pay and discharge the within specified mortgage.” Held, that the instrument and guaranty covered only the portion of the mortgage on the two acres last conveyed, at the rate of $150 an acre, and did not cover the whole mortgage.</p>

Exceptions ordered to be heard in the first instance at general term. The action was brought by the plaintiff, Lucinda Burrows, to recover damages from the defendant for injuries received by her in getting off a train of the defendant, at the depot at Deposit, on the 28th day of April, 1870. It was tried at the Broome circuit in June, 1872, before Mr. Justice Boardman and a jury, where plaintiff had a verdict for 8500.

Elwood (the respondent), had in their hands, at said former accounting and decree, $2,146.41, belonging to said estate, which was not accounted for, and said estate of Hezekiah Elwood received no credit (specifying the alleged items constituting the sum total aforesaid), and that said $2,146.41 be paid by the executors as of August 12, 1867, and that $294.66 of it be retained by said William H. Elwood, the petitioner, to wit: $216 for his expenses and disbursements in the…

Weed. The prisoner was indicted for procuring an abortion upon one Catharine Ryan, on the 22d day of April, 1873, at the city of Schenectady, whereby her death was caused, and was tried at the Schenectady sessions in November, 1873. There was evidence to show that medicine had been administered by the prisoner to the deceased which might produce a miscarriage, and that a miscarriage was produced, and that she died by reason thereof.

Exceptions ordered to be first heard at general term. The action was brought by the plaintiff Emilie E. Sprong, as administratrix of Charles H. Sprong, deceased, to recover damages for his death, alleged to have been caused by the negligence of the defendant. The deceased was at the time of his death in the employ of defendant as head brakeman of a freight train.

The action was for goods alleged to have been sold and delivered by the plaintiffs John 0. Ward, John Ward and Marshall Williamson to the defendant Sarah A. Guyer. The material facts appear in the opinion.

The action was brought to recover treble damages for waste committed upon lands situated in St. Lawrence county. The plaintiff, John Rutherford, was the grantee of the reversioner, and the defendant, David Aiken, the assignee of the tenant for life. The alleged waste was committed before the plaintiff had acquired title, but the right of action was duly assigned to the plaintiff before suit brought.

John Fitzgerald, Senior, executed and delivered to his children John, Jr., William and Ellen, a mortgage upon premises owned by him. Afterward, John, Jr., and William assigned their interest in such mortgage to Daniel Failing and John P. Swartwout, as collateral security for a debt then due. After such assignment a foreclosure action was commenced. This action was defended by Henry 0.

Motion by Alexander and Robert McKay to compel John B. Simpson to enter judgment in the first aboye suit, upon the report of a referee and for general relief. The case was this: The first above suit was brought by Simpson in the late court of chancery, in July, 1843, to foreclose a mortgage given by one Charles McKay to Andrew McKay, Simpson claiming that the mortgage had been assigned to his intestate by Andrew McKay.

Sinclair, entered upon the report of a referee. The action was brought to set aside a sale of a store, fixtures and leases, and to compel the surrender and cancellation of a mortgage of $3,000 executed by defendant Jane Alley to the defendant James ¡Neill, and of two notes of $500 each given by plaintiff to the defendants ¡Neill, Robert Thomas and one Palmer, constituting the firm of ¡Neill & Co., in payment for said store.

The action was for divorce on the ground of the alleged adultery of the defendant. On'September 22, 1873, a motion was made by plaintiff for a commission rogatory, to take the examination of one Mannier, residing in France, as a witness for plaintiff. This motion was denied by Mr. Chief Justice Iítgraham.

<p>Ebeoe to the court of general sessions of the city of New York to review a conviction for larceny. The plaintiff in error, Deiderick Hildebrand, was tried at the September term of the court of general sessions, 1873, in the city of New York, before the Hon. Josiah Sutherland, city judge, upon an indictment for grand' larceny of money. The facts as developed on the trial showed that William Rose, the complainant, on Sunday, September 7th, gave to the prisoner, a bar-keeper, a $50 bill — a greenback — to take out of it ten cents, the price of a glass of soda water he had purchased, and to return the change. The prisoner took the bill and appropriated it to his own use, refusing to give back the change. He was convicted of grand larceny and sentenced to State prison for a term of three years.</p>

The action was brought to recover a balance due from the defendant, Aaron Homer Byington, to plaintiff for certain goods sold and delivered. The referee found that defendant was indebted to plaintiff in the sum of $3,168.39, as balance from moneys collected by defendant as plaintiff’s agent upon the sale of certain goods. From the judgment entered on his report defendant makes this appeal. The exceptions taken to the admission of evidence appear fully in the opinion.

Appeals taken by the relators in ten cases from orders denying motions made by them for writs of peremptory mandamus, to be directed to the respondent, Andrew H. Green, as comptroller of the city of New York, requiring him to pay the relators certain sums of money claimed to be due to them, respectively, for services performed in proceedings taken for the making of certain public improvements in the city of New York.

This action was tried before Mr. Justice Van Bbunt and a jury, and judgment was rendered for plaintiffs Lazurus Hallgarten and others. An appeal was taken to the general term where the judgment was reversed, and a new trial ordered. After the entry of the reversal order the plaintiffs obtained from Mr. Justice Daniels leave, on payment of costs to defendant, to apply for the resettlement .of the case by striking out a specific exception, upon which the reversal was ordered.

Appeals from orders of the special term denying motions for writs of mandamus. The proceedings were instituted in behalf of George H. Purser, the relator, to compel the payment by Andrew H. Green, comptroller of the city of New York, of claims by said relator for services as clerk employed by commissioners in various street openings in that city. The facts appear sufficiently in the opinion.

, of John Hays, deceased,” whereby the payment of balance of the decedent’s estate was ordered to be made to the respondent William. G-ourley, as administrator of the decedent’s widow, and to appellant Archibald Hays, as his brother and next of kin. The cause was argued and submitted on an agreed statement of facts, which is embodied in the opinion.

Exceptions ordered to be heard in the first instance at general term. The complaint was dismissed in the court below. The action was brought to recover the sum of $1,140.42 for goods sold and delivered to defendants by the plaintiff.

Exceptions ordered to be heard in the first instance at general term. The case was tried before a jury and a verdict in favor of plaintiffs, Charles E. Hill and another, was directed by the court. The action was one of replevin for a quantity of teas in the possession of defendants, John D. McKenzie and others, alleged to belong to plaintiffs. Charles Webb & Co. bought of the plaintiffs the teas in suit on May 21, 1867, for cash on delivery.

Cebtioeaei to review proceedings before the first district court of the city of New York, in which a warrant for the removal of the relators James C. Daniels and Abraham L. Sweet, from certain premises, and the putting of the respondent Frederick Cushman in possession of the same was granted, under the Landlord and Tenant act. The facts appear sufficiently in the opinion.

By the will and codicil, the testatrix devised the bulk of her property to persons not related to her in blood. The probate was contested by her husband and her aunts, as next of kin, upon the ground of undue influence exercised by some of the legatees, fraud, the unnatural tenor and effect of the will, and mental incapacity. The material facts, not above stated, appear in the opinion.

Exceptions ordered to be heard in the first instance at general term. The plaintiff, James E. McVeaney, brought this action to recover from the defendants $4,000, as his salary, as an assistant alderman of New York city from January 1/1869, to January 1, 1870. He claimed that at the charter election in 1868 he was duly elected to the office; that he took the oath of office and that he performed the duties of the office so far as the board would permit him.

The plaintiff, Vernon K. Stevenson, was the owner of certain lots fronting on Madison avenue, between Fifty-eighth and Fiffcyminth streets, in the city of New York, which were assessed for the opening of Madison avenue, from Eighty-sixth to One Hundred and Twentieth streets.

The action was brought upon a joint bond of indemnity executed by both defendants, Robert L. Darragh and Albert Marsh, in the sum of $5,000, conditioned for the faithful performance by the defendant Marsh of his duties as assistant receiving teller'of the plaintiff. It is claimed by plaintiff that Marsh improperly applied to his own use $7,500 of the plaintiff’s funds.

The action was brought for the price of a quantity of California barley sold by the plaintiffs, Eugene Kelly and Joseph Donahue, to the defendants, Emanuel Bernheimer and Joseph Schmid, in December, 1868. The defendants in their answer made a general denial, and three other defenses called second, third and fourth. The second set up a breach of warranty, that the barley was equal in quality to certain barley bought by the defendants of Scholle brothers.

The action was brought to foreclose a mortgage. The plaintiff, Ellen Mary Murray, and another, in the title of the suit are described as executrix and executor of Peter Murray, deceased, being the same terms used in the bond and mortgage, and wherever mentioned subsequently in the complaint, they are referred to simply as “the plaintiffs.” The defendant, Simeon E. Church, demurred on the grounds that it did not appear from the complaint, that plaintiffs had any authority to…

Justice Beady without a jury. The action is against the defendants, John Weber and others, for damages sustained by plaintiff, Robert Huston, from their negligence in not giving notice to the drawer of a certain draft sent to them for collection, of the-non-payment thereof by the acceptor, by which negligence the drawer was released from his liability upon said draft. The facts appear sufficiently in the opinion.

Appeals from orders denying motions for writs of mandamus. The appeals in this, and in two other similar applications, in which Archibald J. Fullerton and James Dunphy, respectively, are relators, were taken from orders denying motions for peremptory writs of mandamus, directing the respondents as the board of estimate and apportionment of the city and county of New York, to convene, audit and apportion the amount due to the relators for their salaries as messengers and…

The action was founded on an alleged contract dated September 27,1870, made by plaintiff with defendant, for regulating, grading and setting curb and gutter stone and flagging the sidewalks in Tenth avenue in the city of New York, amounting to $326,254.50, on which he had been paid $206,257.50, leaving a balance due of $90,337.50.

Case submitted upon an agreed statement of facts under § 372 of the Code. The proceedings were brought in the name of the People ex rel. William Wade, and said William Wade against the respondent, Joseph Strack, to determine between the claims of the relator and respondent to the office of president of the board of assistant aldermen. The facts appear in the opinion.

The plaintiff, Apollonie M.undorff, is the widow of John Mundorff, deceased, who died intestate in the city of New York, May 29, 1867. The six defendants, Jacob Mundorff and others, are sons of the deceased by a former wife.

<p>Amendments—power of court to allow — sinking out names of parties — changing form of complaint and demand of relief.</p> <p>In an action by five plaintiffs to rescind a contract for fraud, the special term dismissed the complaint. This decision was affirmed by the general term and reversed by the commission of appeals. After this, plaintiffs moved to amend complaint by striking out the names of three plaintiffs, whose interests had, after the action was commenced, been acquired by the other two, and by changing the verbiage and form of the complaint, but not varying the substantial facts. Held, that the court could, in furtherance of justice, allow the complaint to be so amended.</p>

The relators, Gotlieb • Grissler and another, seek to reverse the decision of, Justice Fowler, made in summary .proceedings had before him, in which judgment was rendered for the landlord against the relators, upon which they paid the rent of the premises before warrant of dispossession was issued.

The action was brought to recover money, realized by defendant, Thomas E. Mason, on the sale of goods consigned to him, between the 1st day of May, 1870, and the 1st day of May, 1871, by plaintiff, John Grierson, and plaintiff’s assignors, the firm of John S. Cropper & Co. Defendant set up byway of counterclaim, that plaintiffs employed him as their agent to sell their goods, and that they guaranteed to him that his commissions, which were to be at the rate of five per…

Cebtiobabi to review a decision made by Mr. Justice Fahoheb, on November 26, 1872, discharging on habeas corpus one Max Friedlander from the custody of the sheriff, by whom he was held, under or by… Held: under or by virtue of certain orders of arrest and executions against the person in favor of the relator Thomas P. Eldridge and others, in a suit brought by them against him.

<p> Will—construction of—disposal of entire estate—Suspension of power of alienation—accumulations. </p> <p>A testator by will directed his estate to be held in trust by his executors, and divided as follows: To J. three-fourteenths of the estate for life; upon J.’s death two-fourths of his share to E. during life, upon her death to the heirs of J.; one-fourth to each of the two sons of J. for life, and upon the death of either his share to the heirs of J. To E. two-fourteenths of the estate for life, upon E.’s death three-fifths of her share to J. for life, and one-fifth to each of the sons of J. for life, and on the death of any of the persons named, his part to go to the heirs of J. To M. three-fourteenths for life, on M.’s death one-fourth of her share to each of certain persons named for life, and on the death of either of said persons to his or her heirs. To each of six persons named one-fourteenth of the estate for life; §1,000 out of the income of his or her share to be paid' for the support, etc., of such person during minority; the remaining income to be accumulated, and upon each arriving at age the entire income of his or her share, and of the accumulations thereupon, to be paid him or her. Upon the death of either of the six his or her share to go to persons designated. Provision was made for the event of a death of any one named before he became entitled to take.</p> <p>Held, (1) that the testator disposed of all his residuary estate; (2) that the power of alienation was not unlawfully suspended; and (3) that the direction to accumulate, during the minority of the legatees, the income of the six. fourteenths, was not unlawful.</p>

<p>Evidence — on tried for receiving stolen goods — prior transactions of simila/r character— Charge to jury.</p> <p>At the trial of an indictment for receiving stolen goods, it had been proved that the goods in question had been stolen by the clerk of the owner -from whom the prisoner received them, and that on several previous occasions the clerk had stolen goods of the same kind from the same owner, which he had sold or pawned to prisoner. Held, that conversations had between the prisoner and the clerk at the time of the previous transactions were admissible on the part of the prosecution to show guilty knowledge.</p> <p>The prisoner was a licensed pawnbroker, and had paid the clerk only $6 for the goods, which were shown to be worth $17.50. The clerk testified that he sold the goods; the prisoner claimed and testified that the money was advanced as a loan upon the pledge of the goods. Held, that a charge to the jury that it was material for them to consider whether the indicted act was a pawn or a sale was not error.</p>

The plaintiff, Albert W. Crandall, brought this action as assignee of the firm of Rivenburgh & Hopkins, against the various creditors of said firm, for the purpose of determining and settling the conflicting claims of the creditors of said firm to the funds in his hands. The material facts appear in the opinion.

On the 27th of June, 1869, Christopher Babcock died leaving a widow, Jeanette Babcock, and three grandchildren him surviving. He left no children. Before his death he made a will, in and by which he gave to his wife all his household furniture, also $1,000, to be held by her in her own right forever.

Justice Mobgah and a jury. In the fall of 1871, several executions were issued to the defendant, Addison W. Wheelock, as sheriff of Jefferson county, commanding him to seize and sell the personal property of the plaintiff, David F. Frederick, to satisfy said executions.

The plaintiff, David Ervin, in July, 1870, applied to one H. H. Allen, an agent of defendant,-for insurance upon a tenant-house owned by plaintiff, and situated on his farm, in Chautauqua county. The agent knew the house, its situation and value, having spent a night therein previous to the receipt of the application. The amount of insurance asked for was $1,200, and a three years’ policy was issued by defendant for this amount.

verdict of a jury, at the Jefferson circuit, in September, 1872. The action was brought against the defendant, James Johnson, to recover the value of certain goods levied upon and sold by him as sheriff of Jefferson county. The facts sufficiently appear ■ in the opinion.

<p>Appeal from a judgment of the Onondaga county court affirming a judgment rendered by a justice of the peace in favor of plaintiff. The facts sufficiently appear in the opinion.</p>

<p>Exceptions ordered to be heard in the first instance at general term, upon a motion for a new trial by the plaintiff Oscar F. Brit-ton, who was nonsuited at the circuit. The facts appear in the opinion.</p>

On the petition of Cyrus W. Swan and others, Jesse P. Haines and Luther Eorsyth were, on the 12th day of May, 1870, appointed by the county judge of Niagara county, commissioners for draining certain low and wet lands in the towns of Wilson and Cambria, in said county, under and in pursuance of chap. 888 of the Laws of 1869.

Appeal by the defendant, Harry Curtiss, from an order denying a motion for a new trial, and also, from a judgment in favor of the plaintiffs, John Pooler and Levantia Pooler, his wife. The facts appear sufficiently in the opinion.

<p>Riparian owners—use of stream — holding back water — damnum absque injuria—reasonable use a question for the jury.</p> <p>Defendant operated a saw mill which, during a portion of the year, required more than the natural flow of the stream upon which it was situated. In order to run it defendant held back the water in his mill-pond, and operated the mill by using a pondful at a time. By this plaintiff’s mill on the same stream below, and which could be run by the natural flow, was deprived of water during a portion of each day. In an action to restrain defendant from holding back the water, held, that defendant had a right to a reasonable use of the stream, having a regard to a like use by other proprietors on the stream, and if plaintiff was injured by such reasonable use he was not entitled to damages therefor.</p> <p>Held, also, that whether such use was reasonable was a question of fact for the jury.</p>

<p>Statutory construction—Laws 1863, chap. 399 — Eminent domain—Indian resm'mtion — Highways — bridge between adjoining towns—(Constitutional lam—local act.</p> <p>By Laws 1863, chap. 399, the construction of a bridge over the Allegany river upon the Indian reservation in the town of Carrolton, Cattaraugus county, is authorized and it is provided that “ said bridge shall be erected as and shall be a joint bridge between the towns of Allegany and Carrolton.” Held, (1) that the State under the power of eminent domain (Const., art. 1, §§ 11,16) had the constitutional authority to provide for the construction of this bridge on the Indian reservation ; (3) that by the act in question the expense of maintaining the bridge was made a joint charge upon the towns named; and (3) that the legislature had the power to impose such duty upon the towns.</p> <p>The act named is entitled " An act to authorize the construction of a bridge over the Allegany river on- the Indian reservation in the town of Carrolton, county of Cattaraugus.” Held, that the title indicates the purpose of the statute, and the subject is a single one within the spirit and intent of the constitution, article 3, § 16.</p>

The action was brought for the alleged conversion of certain goods, wares and merchandise sold to the defendants, James Johnson and Joseph ¡N. Page, by one J. F. Manchester, upon a letter or order directing said goods to be sent to them at their residence at Syracuse, from Boonville, Oneida county. The goods were sent by railroad and duly received.

Butler, upon a verdict directed by the court-in an action originating in a justice’s court. The action was commenced to secure the possession of a black mare claimed by the plaintiff. It was tried before a justice, with a jury, who found a verdict for the plaintiff, that he was entitled to the possession of the property, with nominal damages for its detention.

The action was brought by John Cruty to recover damages sustained by him from a personal injury alleged to have been occasioned by the negligence of the defendant. Plaintiff was an employee of the Atlantic and Great Western Railway Company at Salamanca, in this State, and his particular business was to inspect for that company the cars which came on defendant’s railway from the east, destined for the west by the railway of the Atlantic and Great Western Railway Company.

<p> Evidence—failure of consideration—former judgment—execution and levy in bar—burden of proof. </p> <p>In an action upon a promissory note against maker and indorser, the answer set up that the note was given upon a parol agreement on the part of plaintiff to discontinue a suit against the maker upon his giving indorsed notes for the claim in suit, and that after accepting these notes plaintiff continued the suit to judgment and execution. Held, a complete defense and the ex elusion of evidence in support of the same, error.</p> <p>The answer also set up that the sheriff had, under the execution issued in the action first instituted, levied upon property enough to satisfy such execution. Held, that it was upon the plaintiff to show that the levy was not a satisfaction of the execution, and the exclusion of proof of such levy was error.</p>

On the 19th day of December, 1866, Lawrence Lannon and wife conveyed certain premises situate in the town of Alma, Allegany county, to the defendants, James and Ellen Ryan (husband and wife), jointly, for the consideration of $520, all of which was paid by one of the defendants, John Hood, who, at the time, owed the defendant, Ellen Ryan, $200.

The action was brought to recover damages for injuries received by the plaintiff, Aaron V. O. De Graff, a minor, while in the employ of the defendant as a brakeman on a freight train, running west from Albany to Syracuse. About seven miles west of Palatine Bridge on applying the brake the chain gave way and plaintiff was thrown to the ground and received the injuries complained of.

The action was brought by Isaac S. Auburn against Ezra J. Settle, Julia E. Settle, Elizur Little, John P. Heir and John H. Goats, to enforce a vendee’s lien. The facts are these: Prior to March 16,1873, the plaintiff was seized in fee simple of a farm, and the defendant Ezra J. Settle was owner of a hotel and real estate connected therewith.

The case was this: On the 18th day of July, 1871, one Merriam made his promissory note as follows : “ $350. Adams, July 18,1871. “ Thirty days after date I promise to pay to the order of S. N. Bond three hundred and fifty dollars, payable at the Central National Bank, N. Y., with interest, value received. “S. A. Merriam.” The note was indorsed by the defendant, Samuel N. Bond, to plaintiffs, Alfred Ethridge and others, and at maturity it was duly protested for non-payment.

Exceptions ordered to be heard in first instance, at general term. The action was for malicious prosecution in that the defendant, Charles 0. Blair, procured the plaintiff, Oscar B, Heyne, to be arrested for forgery January 24, 1873. The case was as follows: the defendant had discounted for plaintiff two notes of $300 each, both indorsed by H. Ackerman.

The action was brought by the plaintiff, Harrison Judd, to foreclose a mortgage to secure $953.28, executed by the defendant, William Seekins, to Sellew & Popple, on the 24th of December, 1869, and recorded January, 1870. Said mortgage was assigned to the plaintiff on the 17th of April, 1873.

<p>Witness — deposition under Gode, §§ 390, 391—impeachment.</p> <p>The deposition of a witness was taken at the instance of the plaintiff pursuant to §§ 390, 391 of the Code; but at the trial of the cause the plaintiff rested without reading the deposition. The defendant then read it. Held, (1) that defendant was entitled to read the deposition, and (3) that the plaintiff could not introduce evidence to impeach the character of the witness.</p>

The action was brought by the plaintiff William W. Weaver, to recover damages for being expelled from defendants cars and injured by the negligence of defendants’ agents. The plaintiff was traveling from Rome, northward, on the defendants’ railroad, and had two ladies with him. He claimed to have purchased at Rome three tickets to Albion, the place of his destination, and paid for them and to have received by the mistake of the ticket agent but two tickets.

The action is by James Bridgford against Lemuel L. Crocker, as survivor of the firm of L. Crocker & Co., upon a check of the firm dated July 22, 1867, payable to the order of Pat. Gavin, which the payee indorsed and paid to the plaintiff October 26, 1867, in part payment of a lot of cattle delivered that day by plaintiff to Garvin. The opinion sufficiently states the case. The verdict and judgment were for plaintiff, and the motion for a new trial was by defendants.

Chamberlain. The action was brought by. Chamberlain against the defendants, George N. and Milton B. Fóbes, to recover for sawing logs upon a contract. The defendants set forth a violation of the contract of sawing, and claimed damages as a set-off., The facts appear in the opinion.

Exception's ordered to be heard at general term, in the first instance. The action was brought in the name of the corporation as plaintiff, by the trustees thereof, for the recovery of the possession of the church building from which it was alleged defendants, Daniel Filkins and others, had unlawfully evicted the plaintiff, and for the recovery of $1,000 damages.

The action was brought by the plaintiffs, Calvin Gr. Hinkley and Henry Hinkley, to recover of the defendant the value of two car loads of oil which were burned on defendant’s railroad while being transported thereon.

■ The action was brought to recover damages of the defendant, Volney Woolworth, for trespass, in destroying roadways constructed by the plaintiff, Evan Strickland, from the traveled track of the highway to his adjoining land. The plaintiff was the owner of land on both sides of said highway, at a point where it was crossed by a stream of water.

The action was brought by the plaintiff, William H. Bradley, to recover damages for injuries received by him while employed in scraping snow from the defendant’s tracks at Verona, in the county of Oneida, on the 26th day of January, 1867, under the following circumstances: On that day plaintiff, who was a farmer in the neighborhood, was drawing wood to the Verona station. The weather was stormy and large quantities of snow had accumulated upon the tracks of the defendant.

This action was brought to recover back money paid under the following circumstances: Stephen S. Cornell and George G. Cornell, who were then partners in business under the firm name of S. S. Cornell & Co., on the 13th day of August, 1857, bought of the plaintiff, Ferdinand Hirsh, certain merchandise and gave him their firm note therefor for $305, due in four months, and payable to the order of the plaintiff; the plaintiff afterward indorsed the note and procured the same to…

Exceptions ordered to be heard in the first instance at the general term. The action was brought by the plaintiff, Elizabeth Lampman, to recover damages for the seduction of her minor daughter, whom the defendant, on March 26, 1872, seduced and got with child. Sophie Schumaker, the person seduced, was aged sixteen years, and was the daughter of the plaintiff by her former husband who died twelve years prior thereto.

The action.was brought in equity by the plaintiffs, William J. Oomins, Samuel H. Tolies and Edwin A. Holbrook, to restrain the defendants, the board of supervisors of Jefferson county, from levying any tax upon the city of Watertown, for the purpose of paying any principal or interest upon certain bonds executed by Willard Jones and others, professing to be railroad commissioners of the town of Watertown, and issued in aid of the construction of a railroad, called the…

The action was brought June 15,1872, by Timothy 0. Grannis, as assignee of Theodore D. Cook, against Lewis D. Cook, since deceased, to recover an alleged balance of account for moneys laid out for their and his benefit, and for rent. The answer denied the allegations of the complaint and set up a counter-claim for board and work and materials, and claimed a balance due defendant.

The action was brought by Silas GL Morgan, Harvey Morgan and Samuel Wilson against Lemuel Crocker, for damages alleged to have arisen in consequence of defendant’s negligence, as bailee of twenty-two cows belonging to plaintiffs. The defendant Crocker died subsequent to the commencement of the action, and his representatives were substituted. The cows were delivered to Crocker, who lived near Buffalo, by plaintiffs, December 31, 1863, to be kept over night.

The action was brought by FFoah Wood against Betsey 0. Forncrook to recover for an alleged breach of warranty ip a deed of land. The land conveyed by the deed was uninclosed and uncultivated; but at the time of conveyance there was an outstanding mortgage which was subsequently foreclosed, and the premises sold; but the purchaser did nothing to disturb the possession of the plaintiff.

The action is brought by the Weed Sewing Machine Company, incorporated under the laws of Connecticut, against John J. Kaulback impleaded with Prank Presley, to recover the amount secured by a bond. The opinion sufficiently states the facts. The appeal is by defendant.

The action was ejectment brought by Hylah Hasbrouck and others against Valentine Bunce, John Dygert and others, for a lot of land known as lot 76 in the third allotment of the royal grant in the town of Norway, in the county of Herkimer. The first link in the plaintiff’s chain of title to the lot in question is a deed from the commissioners of forfeiture to John De Witt, Jr., and Philip D. Bevier, dated September 1, 1776.

Appeal by defendants from a judgment at circuit in favor of plaintiffs. The action was. brought by William R. Olney and Cyrenus M. Greene against George Yan Heusen and Reuben M. Grems, to recover the value of a number of patent forks. In June, 1870, the plaintiffs were engaged in the business of sell'ng screw forks, and the defendants were also employed in selling such forks, through agents appointed by them, and which forks they procured from the plaintiffs.

Submission, without action, under section 372 of the Code, of a controversy between Otto E. 0. Guelich and Benjamin A. Olark. The facts appear in the opinion.

Appeal by the defendant from a judgment in an action of claim and delivery recovered by plaintiff at circuit, and from an order denying a motion for a new trial. The opinion' states the facts.

The action was brought by the plaintiff David F. Atkins against the defendants Frank Hosley and Michael Doran, to recover damages for a breach of warranty of title to a canal boat. The material facts appear in the opinion. Other facts in relation to the matter will be found in the case of Halstead v. Swartz, 1 N. Y. Sup. 559.

The action was brought by the plaintiff, Benjamin Barker, as assignee of Addison- G-.

This was an action in equity, brought to set aside a deed of real estate and a transfer of personal property made by the plaintiff David H. Wager, and his wife, to the defendant, on the ground that such conveyance and transfer were obtained under such circumstances, and upon and under the influence of such statements, promises and representations as amounted to actual or constructive fraud.

“ Appeal from a judgment, decision or order entered * * * in favor of the plaintiff,” by defendant David Rearick. This action was one of revivor, brought by Robert Drew against David Rearick and others, and was tried before Mr. Justice Barker without a jury, at the Genesee special term, March, 1873.

Submission of a controversy without action, as provided by section 372 of the Code of Procedure. The defendant, George E. Williams, is the county treasurer of Ontario county. The other defendants are the sureties on his oficial bond, whereby he became bound to pay over to the State treasurer all moneys received by him belonging to the State.

t Appeal from a judgment entered upon the report of a referee in favor of the plaintiff. Thé action was brought by John Goodell against Silas Harrington upon two agreements between plaintiff and defendant. The facts are sufficiently stated in the opinion.

<p>Indian reservations—sale of property removed from, void — Demand before suit.</p> <p>The act of 1845, for the protection of the Seneca Nation of Indians (Laws of 1845, chap. 150, § 1), declares void all transfers by individual Indians of property removed from any of the reservations therein mentioned. Defendants purchased hemlock bark taken from the reservation by individual Indians, from those who purchased of the Indians. Held, that an action might be brought in the name of the nation against defendants to recover the value of such bark. Those who purchased the property of the nation from individual Indians got no title, and they could confer none upon their vendees, Held, also, that it was no defense to such an action that the defendants acted as agents for others in buying the bark; or that they purchased it without notice that their vendors had no titles or that they acted in good faith. Held, further, that the original taking being unlawful, sending the bark - away was in itself a conversion, and no demand was necessary.</p>

The action was brought by Samuel Daubney against Thomas S. Hughes to recover for board, medicine, medical attendance and other necessaries furnished to the defendant’s wife. On the trial two motions to nonsuit the plaintiff were madé and denied, and exceptions taken. . Exceptions were also taken to the rulings and charge of the court, and to refusals to charge as requested. The other material facts are stated in the opinion. W A. Beach £ D. J. Mitchell, for appellant.

The action was brought by Forest Q-. Weeks against William H. Fox, who was impleaded with one Noble Hopkins, to recover the amount of a certain draft for $300, drawn by N. Hopkins upon “ L. Fox, agent,” August 15,1871, payable two months after date, to the order of, and indorsed by, said ST. Hopkins. It was accepted, on its face, as follows: “Accepted, payable at First ¡National Bank, Baldwinsville, M. Y., L. Fox, agent.” It was sought to charge the defendant. Wm.

The action was brought by Daniel S. Chatfield against Calvin Frost for a breach of a warranty alleged to have been made by the defendant upon the sale of a span of horses, by him, to the plaintiff.

The action was brought by Adam Miller as a purchaser and holder of a promis-, sory note for $66, dated May 3, 1866, payable April 1, lSE^and^7 purporting to be executed by the defendant, David Crayton. ' The plaintiff purchased the note of the payee’s agent May 9, 1866. The defendant denies the making of the note, and says that it is a fraud and a forgery, and that the plaintiff is not a bona fide holder of the note. Defendant admitted having made a note for $64.

' The action was brought by Lucy Bowyer against James Burlew to recover for an injury to the plaintiff alleged to have been caused by the defendant having negligently allowed a number of horses belonging to him to be at large on the highway as the plaintiff was passing in a carriage.

Codding. The case was this: William T. Codding died June 1, 1860, and left a will in which William 0. Codding and Thomas Newman were appointed executors. The will was admitted to probate August 10, 1860, when Thomas Newman presented to the surrogate a renunciation, and letters testamentary were issued to William G. Codding, who entered upon the trust and continued to discharge the duties of executor until March, 1872, when he was removed pursuant to 'statute.

Exceptions ordered to be heard in the first instance, at general term. The action was brought by John M. Easterly against The National Exchange Bank of Auburn, to recover possession of a promissory note for $5,000, made by the Stevenson Manufacturing Company, and discounted by defendant; also a note called a “collateral,” for the same amount, made by J. Barber & Sons. The note made by the manufacturing company was indorsed by E. G-.

The action was brought by Jonathan L. Booth to recover damages for the failure of the defendant to perform its contract to furnish one hundred tons of steel caps for rails by the 1st of April, 1868.

Exceptions ordered to be heard in the first instance, at general term, after a verdict in favor of plaintiff. The action ivas brought by Luther Stowell against Calvin T. Chamberlain and Frank L. Stowell, to recover the amount of proceeds arising from the sale of certain bonds by defendants. The defendants were partners, doing a banking business at Clean, and borrowed of plaintiff a number of government bonds, which they undertook to return or replace, on demand.

The action was brought by Ezra B. Booth against Jeremiah Eighmie to obtain a judgment, declaring that the defendant, and all persons claiming under him, be barred and foreclosed of all equity of redemption or other interest in certain first mortgage bonds of the Dutchess and Columbia Railroad Company, directing a sale of the bonds, under the direction of the court, by a receiver; and that the proceeds of such sale be applied to the payment of the amount due to the plaintiff…

The action was brought by George T. Cole and others against Oscar E. Mann to recover the value of a piano claimed to be wrongfully taken and sold by defendant. The opinion states the material points of the case_

The action was brought by William A. Caswell against Adelia West, to recover for work, labor and services upon a written contract.

Appeal by defendants from a judgment on the report of a referee in favor of plaintiff. The action was brought by the plaintiff against George W. Lawrence and Daniel Lee upon a guaranty.

The action was brought by Luther Lawyer against Joshua S. Loomis. In September, 1870, the defendant attended the agricultural fair at Watertown, in the county of Jefferson, having with him a horse for exhibition at said fair, and a skeleton buggy in which he rode. The horse was unhitched from the buggy, and it was left near the stable on said fair ground.

The action was brought by William Bookstaver, Hiram J. Dwight Miner, Edwin Isham, George Bradley and William O’Neil, against William Glenny and B. G. Jayne, upon a promissory note for $4,000, made February 11, 1873, by defendant Glenny, payable in three months to the order of defendant Jayne, and indorsed by Jayne to plaintiffs.

The action was brought by Edward J. O’Neill against the defendant. The complaint contained two causes of action. 1. For the loss of 22 barrels and 32 gallons, of cider, delivered by one Tallman to the defendant at Fairport, for transportation to the plaintiff at Rochester. 2.

<p>Commission to take testimony—objections to mode of executing—Promissory notes — demand of payment—notice of protest.</p> <p>Where an objection to the mode in which a commission to take testimony has been executed exists, the proper remedy is by motion, at chambers or at special term, to suppress the deposition or to send back the commission ; such a motion should not be entertained at the-trial.</p> <p>A personal demand'of payment of a promissory note made by a partnership firm need not be made upon each partner. A demand upon one is sufficient. A notary’s certificate of the protest of a note, in the usual form, contains all the information which it is necessary to give an indorser, and sending him a copy of s.uch certificate should, in the absence of any evidence by him, be deemed a good and sufficient notice.</p>

The action was brought by John Purcell against John M. Jaycox and others, to recover the value of a barrel of gin, the property of the plaintiff. The plaintiff, a retail merchant at Elmira, in November, 1870, ordered a barrel of gin of the defendants, who are wholesale liquor merchants at Syracuse, and they sent it to him on a credit of two months, the price being $114.30.

Exceptions ordered to be heard in the first instance at the general term after nonsuit at the Ontario circuit in February, 1873. The action was brought by Maria Bush to recover damages for personal injuries sustained by the plaintiff, by reason of the negligence of the defendants. The complaint contained two causes of action. The first it is unnecessary to mention, as it seems to have been abandoned on the trial, and is not noticed in the opinion of the court.

<p> Vendor and vendee—possession by vendor—Evidence—good faith—when improper not ground for reversing judgment. </p> <p>M. repaired B.’s wagon; and at the request of B. plaintiffs bought the wagon and had the repairs charged to them. Plaintiffs gave B. an order upon M. for the wagon, and upon this order the wagon was procured by B. who agreed to pay plaintiffs for the use of it. B. kept the wagon about three months under this arrangement, and then sold it to defendants. In an action to recover the value of the wagon, held, that the purchase by plaintiffs being in good faith and for a valuable consideration, they had a right to allow B. to retain possession of the wagon upon an agreement that compensation should be paid, for its use. Evidence of the absence of an intent to defraud on the part of plaintiffs in the purchase of the wagon and in allowing B. to use for a price was therefore competent. But evidence of defendants’ good faith, and that they paid for the wagon, was immaterial.</p> <p>A question put to a witness which calls for a conclusion of law is obj actionable, but where the answer to the question does not prejudice the objecting party it seems it will be ground for reversing the j udgment on appeal.</p>

<p>Appeal from a judgment in favor of the plaintiff at the Livingston circuit entered upon the verdict of a jury.</p> <p>The action was brought by Myron H. Rector as administrator, etc., of Ella E. Rector, deceased, against John Pierce as commissioner of highways of the town of Mount Morris, to recover damages occasioned by the death of said Ella E. Rector, the daughter of the plaintiff, alleged to have been caused by the negligence of the defendant on account of the improper construction of a bridge over a tail race on the highway just east of Mt. Morris on the road leading to Geneseo. It was claimed that the bridge was left without railings, or other suitable protection, and was too narrow and not properly graded.</p> <p>On the 1st of January, 1870, the deceased left Geneseo with three other young persons in a carriage with two horses hired from a livery stable and drove to Mt. Morris. They started to return about half-past seven in the evening. It was very dark, and the driver, who was a young man, on account of the darkness, thought it best to leave the horses to take their own course as he passed beyond the lights of the village. The evidence leaves it uncertain how the accident occurred, but the horses, wagon and all thé parties were precipitated into the water near the approach on to the bridge in question; whether before entering upon the bridge or after was not clearly established on the trial. By this accident, the plaintiff’s daughter, Ellen, was drowned. She was twenty years old, and would have been twenty-one in the following March.</p> <p>Much evidence was given on the trial as to the condition of the bridge and its approaches, and the question of plaintiff's and defendant’s negligence was submitted to the jury, who found a verdict for the plaintiff for SI,500 damages.</p> <p>Several exceptions were taken by the defendant’s counsel on the trial, and to the charge of the judge, which, so far as they are material, are noticed in the opinion of the court.</p>

Exceptions ordered to be first heard at general term upon a motion for a new trial by plaintiff after a verdict. The action was brought by John M. Easterly as third indorser against William C. Barber as second indorser of a negotiable promissory note for $500, made by the Stevenson Manufacturing Company, payable to the order óf E. G. Knight, at the Mational Exchange Bank of Auburn, and indorsed by E. G. Knight. C. D. McDougall was fourth indorser.

The action was brought by Olive E. Tompkins against Perley K. Wadley, for an alleged breach of contract of marriage. The answer was a general denial. On the trial at the Jefferson circuit, in October, 1872, it appeared that both parties had been once married before. The plaintiff was 53 years of age, and was the mother of three children, aged, respectively, 25, 22 and 10. The defendant was 52 years of age, was a man of some property and had no children.

The action was brought in the name of the town of Lyons against David F. Cole and others, commissioners' appointed under Laws of 1869, chapter 907, and the acts amendatory thereof. The necessary facts appear in the opinion.

The action was 'brought by Germain W. Pulver against Lawrence J. Richardson, to recover a balance alleged to be due on certain notes. It appeared that defendant purchased a horse of plaintiff, March 31, 1868, for $6,000, paying cash $1,600, and notes. for $4,400, secured by a mortgage on the horse.

The action was brought by Edward P. Williams against John M. Wieting, to recover for professional services as a veterinary surgeon, and for medicine. The plaintiff claimed a judgment of $46.50. The defendant denied the complaint and gave notice of a set-off and recoupment.

Exceptions to he heard in the first instance at general term. The action was brought by William Palmer against Levi H. Palmer, Ebenezer ITpham and Oliver Aikens, upon an undertaking to stay proceedings on appeal in a suit pending between William and Levi H. Palmer. The opinion sufficiently states the case.

Exceptions by plaintiff ordered to be heard in the first instance at general term. The action was by Oscar F. Britton against The Mutual Benefit Life Insurance Company, upon a policy of $3,000 issued by defendant on the life of George J. M. Andrews. The defense was that the policy was void by reason of certain false and fraudulent representations on the part of the assured as to the state of his health. The complaint was dismissed.

The action was originally brought in a justice’s court by Enoch B. Armstrong and Henry S. Armstrong against George 0. Baldwin, to recover for milk delivered at the defendant’s cheese factory by one Ward, who afterward assigned his claim to plaintiffs. There was a recovery before the justice of $200 damages and costs, and defendant appealed to the county court. The cause was subsequently transferred to the supreme court to be tried on the original pleadings.

Brooks and others, and was in the nature of a creditor’s suit. The judgment determines that one William 0.

Appeal by the defendant, and also by the witness, from an order made at a special term in Kings county denying a motion to vacate an order under the provision of Code, section 401, appointing a referee to take the affidavit of William F. Gf. Shanks, and requiring Shanks to appear before said referee for that purpose.

<p> Partition—action by heir to avoid will—right to jury trial. </p> <p>Plaintiff, one of the lawful heirs of a testator, brought action for the partition of the real estate whereof the testator died seized, alleging in the complaint that the last will of testator, devising such estate, was void. (Laws 1853, chap. 238.) Held, that a refusal of the special term to settle issues in the action to he tried by a jury was error.</p>

Appeal by both parties from a judgment entered at the special term in Suffolk county, August 19,1871. The action was brought by Sophia C. Davis against William Davis to obtain a limited divorce on the ground of cruel and inhuman treatment. The necessary facts appear in the opinion.

Exceptions ordered to be heard in the first instance at general term. The action was brought to recover back moneys paid to the defendant, John H. Van Clief, Sr., for services for the county of Richmond, while supervisor thereof. The material facts appear in the opinion.

Clapp, to punish Darius R. Mangam, the president, and James Merritt, the secretary of the National Trust Company of the city of New York (one of the defendants), and Thomas L. Rushmore, as for a contempt, in disobeying the mandamus in this case.

<p>Appeal from a judgment entered on the verdict of a jury in favor of plaintiffs, at the Kings circuit, in November, 1873.</p> <p>The action was brought by Henry J. Baker and others, to recover of William S. Squier the difference between the contract price of a quantity of soda ash purchased by defendant and the price received in a resale after he had refused to receive the same. The material facts appear in the opinion.</p>

<p>Submission under Code, § 373. The facts sufficiently appear in the opinion.</p>

' The action was brought by William H. Adams against John Ives and others, as commissioners appointed by the supreme court, for the opening and grading of Atlantic avenue in the town of Mew Lots, Kings county. The material facts sufficiently appear in the opinion.

The action was brought by Elizabeth Thompson against Joseph Egbert, to obtain possession of certain real estate situate in Southfield, Richmond county, and damages for withholding the same. The plaintiff claimed title to the premises as devisee of her husband, John 0. Thompson, in whose name the title was. The defendant, in his answer, set forth that John 0.

The action was brought by Hervey Rockwell against Alfred Lawrence, to recover the price of a quantity of hay sold defendant by one Jacob Seymour, a tenant of plaintiff, the hay having been raised-upon a farm belonging to plaintiff. The facts relating to the only material point appear in the opinion.

<p> Divorce—defense not allowable after judgment. </p> <p>In an action for divorce, service was by publication. After judgment defendant, upon showing that he had received no notice, and had a defense, was permitted to defend. Held, that the court had no power to permit a defense under section 135 of Code..</p>

Exceptions to be heard in the first instance at general term. The action was brought by Abner 0. Keeney, receiver, etc., against The Home Insurance Company, of Columbus, Ohio, upon a policy of fire insurance. The plaintiff had a verdict, and defendant excepted.

<p>Payment-*-when promissory note is not. Pa/rtnershvp — liability of partner after dissolution.</p> <p>The taking of a promissory note from one of two joint debtors does not satisfy the debt unless it is so agreed.</p> <p>A partnership between A and B was dissolved upon the agreement that B should assume the debts of the firm. Subsequently 0 took B's promissory note for a debt of the firm, with knowledge of the terms of the dissolution but stating that if the note was not paid he “ would hold the firm.” The note was not paid, and in an action against A and B for the debt, C produced the note and offered to return it. Held, that C could recover against both A and B. In such a case A does not stand in the position of surety.</p>

Bainbridge, the acting executor of the last will and testament of Richard Bainbridge, deceased, to pay Andrew McCullough, administrator, etc., of Cecilia McCullough, deceased, the sum of $724.91. The opinion states the facts.

The action was brought by Ellen O’Reilly against The Guardian Mutual Life Insurance Company of New York, upon a policy issued by defendant upon the life of plaintiff and that of her husband, Michael O’Reilly, for the sum of $5,000, payable to the survivor. The opinion states the case.

William Ingram, of Orange county, died intestate, July 16, 1864, leaving a widow and two infant children; and Eliza Ingram, the widow, was subsequently appointed administratrix of his estate. Oliver Young died in October, 1871, and Amos Van Etten and Lydia E. Young were duly appointed administrators. In July, 1872, Eliza Ingram, as administratrix, made a claim on the estate of Oliver Young, deceased, for $700. The claim was refused, and the case was referred.

Dale to foreclose a mechanic’s lien, filed by him against certain premises at Kingsbridge in said county, owned by the defendant to secure the sum of $505.88, alleged to be due to him for work and labor performed upon said premises. The answer of the defendant denied the lien and the filing of the requisite notice, and all other allegations of the complaint except that she owned the premises, and that the claimant had done certain work for which he had been fully paid.

Appeal by defendant, Emily Sherwood, from an order of the special term directing the payment of surplus moneys. The action was brought by the Hope Eire Insurance Company against Stephen Cambreleng and others to foreclose a mortgage. The mortgaged premises were sold under the decree for the foreclosure of the mortgage to the plaintiff in this action which was conceded to be the first lien.

This action was brought by T. James Glover against the village of Edgewater and another party, to obtain a perpetual injunction restraining the village of Edgewater from giving a lease of certain lands of the plaintiff which it had caused to be sold for the non-payment of taxes assessed for municipal purposes in May, 1873.

Gibson, in a justice’s court. On the 20th day of February, 1871, the plaintiff delivered to defendant at Fort Plain, ÍT. Y., a box containing a light double harness worth $45, marked “S. E. Dana, Malden, West Virginia, G. 0. D. $45.” From blank receipts left by defendant with plaintiff, his son and clerk drew np a receipt for this box which was signed by defendant’s agent and returned to plaintiff.

The action was brought by Thomas P. Deyoe against the Village of Saratoga Springs for injuries to person and property received by reason of having driven, with his horses and carriage, into an open and unguarded ditch in one of defendant’s streets. The ditch had been opened by the commissioners of water-works for the purpose of making repairs to pipes, etc., and had been left unguarded by them during the night when the accident occurred.

Wood. Plaintiff in error was convicted upon an indictment for perjury at a court of sessions, held in and for the county of Washington on the 27th day of August, 1873, before Hon. Chas. S. Lester, county judge of Saratoga county, and Eli Skinner and William Hutton, justices of the peace of Washington county, designated according to law as members of the court of sessions. Hpon such conviction plaintiff in error was sentenced to imprisonment in the State prison for five years.

The action was brought in Ulster county by James Van Burén against Richard Stokes and Stephen Yaple, upon a promissory note for $100, made by Stokes and indorsed by Yaple. The defense was usury. The necessary facts appear in the opinion.

Exceptions ordered to be heard in the first instance at general term. The action was brought by Christopher Matze to recover damages for personal injuries sustained by the plaintiff by reason of the negligence of the defendant. It was tried before one of the justices of this court and a jury, at the Albany circuit, in June, 1873.

The action was brought by - Esther Gregory and Emily Gregory against Benjamin Brooks, to recover the sum of $264,05, alleged to be due the plaintiffs under a written agreement to work plaintiffs’ farm upon shares, for one year; the plaintiffs claiming that the proceeds of certain crops received by defendant had not been divided. By the agreement, the plaintiffs let and leased to the defendant their farm for the term of one year.

The action was brought by Ambrose Fowler against Elsie Trull, to recover a balance of $943.74, with interest, for merchandise sold and delivered to the defendant’s husband, as was claimed, as the agent of the defendant, a married woman. The negotiations were concluded by the husband with the plaintiff.

This action was brought by James Kerslake against Cyrus Schoonmaker, for goods sold and delivered on the 17th of August, 1870, consisting of a quantity of lumber of the value of $782.17. The answer was a general denial. The issue thus raised was referred, by an order of this court, to a referee, to hear and determine, who rendered his report in favor of the plaintiff.

Submission under Code, § 372. The action was brought in the names of Samuel D. Hopkins, and others, against Mary L. Hopkins and Druzilla Hopkins, to determine the ability of plaintiffs to give a valid title to certain real estate. Susan Hopkins died prior to May, 1873, leaving a last will and testament, whereof Samuel Hopkins and Travis Hopkins were executors named thereon, which was admitted to probate May 8, 1873, and letters testamentary issued.

On the 19th of June, 1854, Archibald A. Dunlop gave his promissory note to John Wardrop, payable to his order, for $3,600, with interest at six per cent; and John Wardrop, during the same year, when leaving this country for Scotland, where he had previously and has since resided, left the note with his cousin, Robert Wardrop, of Newburg.

The plaintiff,' John Brady,- in July, .1872, owned a cow, which, on the day in question, was left in charge of a hoy, who, in the afternoon, drove her from plaintiff’s stable down to an open lot adjoining defendant’s track, in the northern part of the city of Albany, near a crossing known as Holligan’s. In the vicinity of this crossing defendant’s roadway was being improved and repaired, and some of the fences at the crossing were temporarily and necessarily down for that…

The action was brought in Albany county by Edwin A. Meneely and George R. Meneely, who constituted the firm of “E. A. & G. R. Meneely,” against Clinton H. Meneely and George H. Kimberly, to prevent the use of the name of “Meneely” by the defendants, and the complaint demanded that the defendants desist and refrain from using the name and designation of “Meneely,” in their business at Troy of bell founding, in any manner and form whatever, and asked for an injunction…

Appeals from orders made by Mr. Justice Bocees overruling the defendants’ demurrers, in each of the following actions, to the amended complaints therein. The actions were four in number.

The action was brought in Montgomery county by Harriet Beal against John 0. Miller to recover the one equal, undivided half part of a lot of land, situated in the village of Amsterdam, in the county of Montgomery.

The action was brought in Cortland county by Julia Ann Freeman against Albert Barber, to recover for the use and occupation of about forty-five acres of land, and waste committed while defendant was in possession. The land in question was purchased by the father of the plaintiff’s husband, and a life estate given them by parol in the same if they would occupy and improve the same. Under this agreement, plaintiff and her husband went into possession and improved the premises.

Exceptions ordered to be heard in the first instance, at general term. The action was brought by John J. Bates and David Baird against Daniel J. Coster.

The action was brought by Richardson H. Thurman against Henry W. Mosher and Edward Tracey, to recover for alleged false and fraudulent representations made by the defendant Mosher to the plaintiff, concerning the stock and property of the Heydrick Oil Company, a corporation organized under the laws of the State of Pennsylvania, by which representations the plaintiff alleged that he was induced to transfer to Tracey certain lots of land in the city of Brooklyn of the value of…

This action was tried in a justice’s court October 19, 1865; retried in county court March, 1866, and the general term granted a new trial in May, 1868. Parker, J., writing the opinion of the court, which was as follows : Parker, J. This action was originally brought in a justice’s court, and came to the county court of Cortland county by appeal, where it was re-tried, and a verdict given for $107 for the plaintiff.

<p>Appeal from a judgment in favor of the plaintiffs upon the report of a referee. The action was brought by Patrick Organ and John Farrell against Neil Stewart, for the non-delivery of a quantity of wool. The cause was referred to a referee who reported the following facts: The defendant, a resident of Livingston county, was the owner of three lots of wool, and in January 34,1871, he entered into negotiations with the plaintiffs, copartners in business at Troy, N; Y., for the sale of the wool. The negotiations resulted in the parol gale of two lots known as the “ York ” wool and the “ Gilmore ” wool, and the conditional sale of the other lot known as the “ Fowler-ville” wool. The condition of the sale of the “Fowlerville” wool was such that if the plaintiff, Organ, and the defendant could agree upon the manner in which the wool should be shrunk, it was to be included in the sale and purchase on the same terms as the other lots. The “ York” and “ Gilmore” wool was delivered according to agreement at Caledonia. Subsequently, a difference arose between plaintiff, Organ, and the defendant as to the shrinkage of the “ Fowlerville ” wool, and the defendant refused to deliver it; and plaintiff, Organ, refused to pay the price of the wool already delivered. Organ and the defendant afterward agreed that the “ Fowler-,ville ” wool should be delivered at the store of Henry Rankin, in Troy, to be assorted and shrunk by Rankin’s assorters, and then delivered to plaintiffs. Thereupon the plaintiffs paid defendant $18,357.60, the price of the wool which had been already delivered. The “ Fowlerville ” wool was not delivered according to agreement.</p> <p>The referee found, as conclusions of law, that the parol contract made January 24,1871, was modified and extended by the subsequent agreement, and that the money paid thereupon by plaintiffs to defendant was paid upon the contract, as modified, as a part of the purchase price of the whole of the wool, and that the contract, so modified, was rendered valid and binding by such payment. Judgment was entered on the report in favor of plaintiffs. Defendant appealed to this court.</p>

Appeal by the defendants from an order of the special term, made on the 18th day of November, 1873, denying defendant’s motion to set… Held: and was held by Mr. Justice Bocees, at the town hall, Saratoga Springs, on the 9th of July, 1872, and this action was noticed for trial thereat; but Mr. Justice James being engaged at the same time and place in holding an adjourned special term this action was, by the consent of defendants’ attorney, tried before Mr. Justice James.

The action was brought by Peter Phillip against Josette Gallant, to recover a balance claimed to be due the plaintiff upon a contract for building a house with one David Philip, which was assigned to the pláintiff. The referee to whom the case was referred, reported in favor of the plaintiff, and exceptions were duly taken to portions of his report, as is hereinafter stated. Judgment was entered in favor of the plaintiff upon the same, and the defendant appealed.

The action was brought by Cornelius Van Bensselaer, to recover damage caused by the sliding of defendant’s railroad embankment down upon plaintiff’s land. In 1859 the father of plaintiff was the owner of land through which defendant’s road was built, on a steep hillside.

Submission of a controversy between William T. Post and Elavel H. Doremns, survivor of Theron S. Doremus. The case arises upon an agreed statement of facts. The plaintiff brought an action in the supreme court against one Hathorn, impleaded with one Robertson, which resulted in a verdict for the defendant.

The action was brought by Miles Kent and others against Hector S. Kent and others. The facts appear sufficiently in the opinion.

The ground upon which the application upon which said order was granted, was, the need of gravel to construct other portions of the railroad distant from the property, and the anticipated increase of business at that point demanding room for side-track, switches, etc. The lands sought, with other lands already acquired, for the railroad, would occupy about eleven acres of said Gunnison’s land, claimed by him to be worth $2,000 per acre, lying between the steamboat landing on…

Exceptions ordered to be heard at the general term in the first instance, after a verdict in favor of plaintiff directed by the court. The action was brought by Stephen W. Card against John K. Miller and Permelia Miller, upon a promissory note.

Cebtioeaei upon the relation of Asa Foote to Ralph S. Dewey and others, the fence viewers and town clerk of the town of Sydney, Delaware county, to review proceedings for the division of a line fence between relator and one Rhinard L. French.

The action was brought by John B. Norton, against Bnssell B. Mallory and Fred. E. Mallory, an infant, to set aside as fraudulent, a conveyance of land made by Eussell B., to Fred. 0., his son. Sarah Mallory was the mother of defendant Eussell B. Mallory, and grandmother of defendant Fred. E. Mallory, who is the son of Eussell B. Mallory. In 1868, Sarah was the owner of a considerable interest in real estate in connection with her son Russell.

Exceptions ordered to be heard in the first instance, at general term, after a verdict for the plaintiff. The action was brought by John Powell against Hamilton S. Preston, for the value of goods taken by defendant as sheriff. The plaintiff being the owner of a stock of goods in a store, sold the same to his son, E. H. Powell, conditionally, that is, plaintiff was to retain the title to the goods until they were paid for, and until certain debts due third parties were paid.

The action was brought by Jud Smith, as sheriff of Chemung county, against William E. Post, to recover personal property, which he had levied upon by virtue of an execution against one Thomas Merritt, and which had been sold after the levy was made under a chattel mortgage in favor of the defendant and one Catherine MeCutchen. The mortgage was executed July 30, 1869, and delivered soon afterward.

<p>Appeal from a decree of the surrogate of ¡New York. The questions litigated arose in the final accounting of the executors of the will of Jacob Hoppock, deceased. The surrogate decided that the devisees referred to in the opinion took as a class.</p>

The action was brought by John H. Lester against the Union Manufacturing Company.

<p> Maritime lien—constitutionality of State laws. </p> <p>A bond given on the discharge of a vessel from an attachment under laws of 1862, oh. 482, relating to the ’ enforcement of claims for building and repairing vessels, is invalid so far as the demand on which the attachment was issued accrued for repairs, but valid so far as it accrued for building the vessel. The statute is unconstitutional in respect to claims for repairs and the like, but constitutional in respect to claims for building vessels.</p>

<p>Principal and, agent — lease to agent—when principal not bound by—use and occupation.</p> <p>Plaintiffs entered into an agreement under seal with S., whereby they leased to him certain premises. In the lease S. was described as the general agent of defendants; but the lease was executed in his individual name. S. occupied the premises, in transacting defendants’ business, from November, 1860, to April, 1861, when he was removed from his agency by defendants, and a successor was appointed. The new agent occupied the premises until February, 1862. S. paid the rent up to May 1, 1861. In an action against defendants for the rent remaining unpaid, held that the lease was not binding upon defendants; and if the action could be maintained “ it must be upon the theory that when the lessee was removed he abandoned the possession of the premises, with the understanding that they should afterward be occupied by defendants; that they should protect him from liability for the rent by paying it themselves, and that they accepted and occupied the premises by his successor, as their agent, upon those terms.”</p>

The defendant took an order, that Frederick A. Watson, the administrator of the plaintiff, show cause why the judgment of divorce in an action by James A. Watson against Elizabeth Watson, obtained against defendant in plaintiff’s life-time, should not be set aside for fraud and irregularity.

<p>Trial—exceptions, when necessa/ry — when error no ground for reversing conviction.</p> <p>The court, upon the trial of an indictment for an assault with intent to kill, at the request of the prisoner, charged the jury that they could not convict of an assault with a sharp, dangerous weapon, with intent to do bodily harm. The prisoner took no exception to the ruling. The jury convicted of assault, with intent to kill. Meld, (1) that an exception was necessary to present an error for review; and (2) that as the charge, if wrong, could not prejudice the prisoner, and as it was made at his request, the error was no ground for reversing the conviction.</p>

The action was brought by Francis Bassett, Jr., against Samuel M. Lederer, to recover the price of certain goods claimed to be sold by plaintiff to defendant. The sale was made through one West-brook, a broker, and defendant claimed to have purchased such goods of Westbrook as principal, and to have paid Westbrook for them, acting in good faith and without knowledge of plaintiff’s claim. Such other facts as are material appear in the opinion.

Writ oe Certiorari. The writ was issued to bring before the court the proceedings of the tax commissioners of New York city and county, assessing the property of the relators, the Pacific Mail Steamship Company, a resident corporation. It appeared that the company owned a number of steamers, registered some at New York and some at San Francisco. The commissioners determined that vessels registered at New York were to be deemed within the State for thp purposes of taxation.

<p> Married women—charging separate estate. </p> <p>The defendant, a married woman, owned a house and twenty acres of land, and managed the place, making necessary purchases and superintending the servants. She carried on no other business. She opened a bank account with plaintiff and obtained mbney which she stated was to be used for the business purposes of her place ; and plaintiff discounted her notes on the credit of her separate estate. In an action on a promissory note made by defendant for a balance due plaintiff on the bank account; held, that under the' statutes relating to married women, plaintiff could recover, although the intention to charge defendant’s separate estate did not appear on the face of the note. In such a case it is not material whether or not defendant actually applied the loans to the benefit of her separate estate.</p>

The action was brought to recover for injuries received by plaintiff in consequence of alleged negligence in starting defendant’s street car while plaintiff and wife were endeavoring to get on the car. The opinion states the facts.

<p>Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a new trial.</p>

The action was brought to recover the proceeds of scrip dividends on insurance premiums. The opinion states the case. The receipt referred to was in the following form: “ Received, New York, 12th November, 1867, from Messrs. Aymar & Co., seventy-six dollars and thirty-five cents, to close account; my interest in steamer Mary A. Boardman,’ and in full of all demands of mine against Messrs. Aymar & Co. (Signed) “ William Boabdman.”

Exceptions ordered to be heard in the first instance at General Term. The verdict was in favor of plaintiffs. This action was brought by George A. Osgood and Cyrus Curtiss as receivers of the Columbian Insurance Company, upon two promissory notes given to the company. The leading facts are stated in the opinion.

The action was brought by Stephen Krom as survivor for a balance of account for work done and materials furnished by him and John A. Schenck as partners. The referee allowed $63.23, with interest, to the surviving plaintiff, and the defendant appealed from the judgment entered on the report.

Exceptions ordered to be heard in the first instance at the General Term. • The action was brought by Albert S. Gallup and others against Samuel M. Lederer to recover for the price of certain goods claimed to have been sold by the agent of plaintiffs to defendant.

Judgment of divorce was entered in favor of the plaintiff against the defendant September 5,1871, and by the decree the defendant was directed to pay the sum of §3,000 a year to the plaintiff for her support, payable quarterly. The plaintiff was allowed to remarry and thereafter did marry one General O. L. An derson, whose wife she now is.

Appeal by defendant James W. Bowne from an order affirming the report of a referee. The action was brought by Hannah Jane Hull to foreclose a mortgage upon certain real estate in which the defendant, James K. Spratt, had an equity of redemption. The defendants, James. W. Bowne and Vernon K. Stevenson, were judgment creditors of Spratt.

Exceptions ordered to be heard in the first instance at the general term. The action was brought by Rodman M. Price against Erasmus D. Keyes and Edmund Scott, who were impleaded with Theodore Payne and Squire P. Deny, to recover damages for the alleged fraudulent and wrongful sale, in 1853, of certain real estate, the property of plaintiff, situate in California. The necessary facts appear in the opinion.

Genet, who was convicted of felony at the December, 1873, term, of the New York oyer and terminer. The opinion states the facts sufficiently.

Motion to quash and dismiss writ of error to review the conviction of William Sharkey and certiorari issued from this court to the court of sessions. The ground of the application is the escape from jail of Sharkey. ¡No points were submitted; the case was argued on the affidavit referred to in the opinion.

<p> Pa/rtnership—what constitutes—participation in profits. </p> <p>In an action to recover for goods sold and delivered by a firm to defendant, the answer was that the goods were sold in a firm name in violation of the statute relating to fictitious names in firms (Laws of 1833, ch. 381), there being in fact no firm at the time of the sale. Upon the question of the existence of a partnership, the judge charged that “participation in the profits makes a man a partner, and it is not necessary that they should say any thing about losses.” The charge was accompanied with the explanation that it is competent for a firm to employ clerks and give them as a compensation for services'a certain amount of profit, but it must be distinctly understood between the parties that it is as compensation, and that they have no interest in the business whatever. Held, correct.</p> <p>One of the clerks of G. had for his services one-fifth of the profits, and the business was carried on under the name of “ G. & Co.,” the clerk representing the Co. Held, that they were partners as to third persons, and these facts were a sufficient answer to the defense of the violation of the statute.</p>

Appeal by defendant, Sarah A. Davison, from a judgment entered upon the verdict of a jury in favor of plaintiff, Semanthe S. Isham, executrix, etc., of Pierrepont Isham, deceased. The action was brought by the plaintiff’s testator, in his lifetime, to recover upon two certain promissory notes, of $1,500 each, made and delivered by defendants to the testator, on the sale to them by him of a tract of land in Bergen county, jST. J. The case has been twice tried.

The action was brought by Henry Jacoby against David Johnston and John Johnston, to recover for wrongfully entering upon and taking from plaintiff’s lands certain timber, etc. The case had been submitted to arbitration, after the action was commenced, after which plaintiff put the cause upon the circuit calendar and noticed it for trial. The opinion states the other material facts.

The action was brought by Sheppard, Knapp and another, as executors, etc., to recover on town bonds issued by defendant. The opinion states the material facts of the case.

The action was brought by George W. Stephens against Ephraim J. Anils, to restrain defendant from carrying on the business of making iron castings, in the village of Oramel, Allegany county, or within ten miles thereof, it being alleged that he had agreed not to do so, which defendant denied. The trial court upon the facts found against the plaintiff.

Alexander and others for the taking of their land for railroad purposes. The commissioners held that the lands taken, which were adjoining the railroad track of another company, did not front upon a public street.

The plaintiff is a citizen of this State, the defendant a corporation created by the laws of Connecticut, and located and doing business in that State. The action was brought to recover the amount alleged to be due to the plaintiff from the defendant on a policy insuring the life of the plaintiff’s husband. The summons and complaint were served August 5, 1873.

The plaintiffs, Frederick Huse and George Huse, under the name of “ Huse Brothers,’’ sued the defendants, Minor' Guyot, Edward G. Short, Mary A. Rulison and William S. Rulison, as copartners under the name of the “ Guyot Coupling Company,” to recover a debt due from the defendants, to one Orlando Robinson, for work, and formally assigned to one of the plaintiffs for the benefit of both.

Appeal by defendant from a judgment on the report of a referee in favor of plaintiff. The action was brought by Huntington Beard against Mark Hale, upon several promissory notes. The defense was payment and usury upon two of said notes.

Re-argument of cause decided at the October term, 1873, and reported in 1 N. Y. Sup. 486, and motion by plaintiffs to modify order of reference.