Volume 30 — Barbour's New York Supreme Court Reports

Cause tried by the court without a jury. The action was for obstructing the passage of saw logs floating in the Racket river. The plaintiffs were the owners of certain premises on the said river, on which was erected a dam and saw-mill. About two and a half miles above, the defendants owned the land on both sides of the river, on which stood a saw-mill, and across the stream a dam and boom. Both parties claimed title through the same patent from the state, granted in 1787.

THIS was an action by a purchaser, to recover back from a vendor moneys paid by the former upon a contract between the parties for the sale and purchase of land.

DEMURRER to complaint. The opinion of the court contains a statement of the facts stated in the complaint, and of the legal questions raised by the demurrer thereto.

The action was for work, labor, services done, and materials found, as a blacksmith; and for window-glass bought, furnished and put in shop, at the defendant’s request. Answer, denying the complaint.

THESE actions were heard at special term, on pleadings and proofs. The facts are detailed in the opinion of the court, and need not he here repeated.

MOTION, by the defendants, for a new trial, on exceptions taken at the circuit.

The action was commenced in August, 1856. The cause was tried at the Livingston circuit, before Justice Johnson and a jury, in October, 1857.

THIS action was commenced in this court to recover possession of a strip of land. It was tried at the Cayuga circuit, before Judge Davies and a jury, in October, 1858. -The plaintiff and defendants own lands adjoining each other. In April, 1815, John Owen, under whose title the plaintiff claims, purchased of Humphrey Sharpsteen the west half of fifty acres-of land, then in the township of Milton, now in the town of Genoa.

The action was brought to set aside, and have given up to be canceled, a bond and mortgage, made by the plaintiff to Sutton, one of the defendants, on the ground of usury.

The action was brought by the plaintiff as administratrix of Bartholomew Crowley deceased.

This was a reference under sections 39 and 40 of article 2, title 3, chapter 6, of part 2 of the revised statutes, of a disputed claim, against the estate of Carlton Legg, deceased, to three referees. The appellants are the executors of Legg j and the respondent, claiming to he a creditor of said estate, presented an account to the appellants, as such executors, claiming a balance due him of $1058.85, verified by his affidavit, on the 15th day of March, 1855.

<p>APPEAL from a judgment entered at a special term, upon the report of a referee. The action was brought to re- , cover $312.44, the surplus moneys arising from a sale of premises under a'mortgage executed by the defendant Wood, which amount was in the hands of the defendant Welles, and was claimed by the plaintiff as a judgment creditor of the defendant Wood. On the 1st of February, 1852, Henry Wood, ■ one of the defendants, executed and delivered to Charles C. Sheppard, a mortgage on certain real estate owned by Wood in Penn Tan, to secure the payment of a certain debt, which mortgage was subsequently assigned to Isaac Hartshorn. On the 3d day of January, 1853, the defendant Wood, with John H. Bruen, his partner, confessed a judgment in favor of the plaintiff Norris for $300, and judgment was on that day duly docketed with the clerk of Tates county for $305 damages and costs. That judgment was entered upon the following statement of the consideration thereof, signed by Wood & Bruen : “We, Henry Wood and John H. Bruen, defendants, hereby severally confess ourselves indebted to James H. Norris, plaintiff, in the sum of three hundred dollars, with interest thereon from this date, and hereby authorize him, his executors, administrators, attorney or assigns, to enter a judgment against us for that amount. The above indebtedness arises on a promissory note given by us for value received, to the said plaintiff, and to which note this judgment is given as a collateral security ; and we hereby state that the sum above by us confessed is justly owing to the said plaintiff by us, and will be due according to the condition of the said note, without any fraud whatever ; and this judgment is given upon the express condition that no execution shall issue thereon till the first installment, payable on said note, becomes • due and' remains unpaid. Dated January 3, 1853.” On the 23d day of November, 1854, the defendant Wood executed and delivered to the defendants Lewis and Sylvester Denton, a mortgage to secure them against contingent liabilities incurred, and to be thereafter incurred. On the 19th day of January, 1856, the Sheppard mortgage was foreclosed, and the premises were sold ; and after paying the amount of the mortgage and costs of foreclosure, a surplus of $312.44 was left in the hands of the defendant Welles, which was claimed by the plaintiff Morris, and also by the defendants Dentons. The action Was brought against Lewis and Sylvester Denton, and Wood and Welles. Wood and the Dentons appeared and defended. Welles suffered a default. The cause was referred to a referee, who reported that the plaintiff was entitled to the surplus moneys. A motion was made at the Ontario special term on the 27th of August, 1857, for the appropriate judgment against Welles, upon his default, which motion was granted, and judgment was entered against Welles that he pay over said money to the plaintiff, but without costs. There was no judgment against Lewis and Sylvester Denton, yet they alone appealed.</p> <p>I. The referee erred in overruling the objection by the appellants to the proof of the plaintiff’s judgment. (1:) It was entered by confession without action, and without any such statement in writing as is required by § 383 of the code. The indebtedness was for money due, or to become due, and there was no statement of the facts out of which it arose ; nor did it appear that 'the sum confessed did not exceed the amount due, or to become due. (Johnston v. Fellerman, 13 Howard, 21, 145. Chappel v. Chappel, 2 Kernan, 215. 11 How. 505. 12 id. 141, 410. 10 id. 494. 13 id. 142. Dunham v. Waterman, 17 N. Y. Rep. 9.) (2.) The judgment was not merely irregular, but was absolutely void as against these appellants, having a specific lien on the mortgaged premises sold and the surplus moneys in the hands of the defendant Welles. (4 Paige, 503. 11 How. 503, 506. 13 id. 142, 144, 145. 2 Kernan, 215, 222. ’ 1 Hill, 144. 5 Cowen, 547. 7 Abb. Rep. 23. 1 Denio, 190, 198. 4 Smith, 496.)</p> <p>II. The referee erred in finding that the plaintiff’s judgment was a valid lien on the surplus moneys in question, prior to that of the appellant’s mortgage. (See authorities above referred to.)</p> <p>III. The referee erred in finding that the appellants were not entitled to the surplus money. (See the points and authorities above; also Tallman v. Farley, 1 Barb. 280.)</p> <p>I. The judgment of the plaintiff against Wood & Bruen for $305, on the 3d of January, 1853, was a valid judgment, and bound the real estate of the defendants until satisfied or set aside. It is a judgment in the supreme court, and until paid or set aside, the lien created by such judgment on the premises of Wood continues on the surplus in the hands of the defendant Welles. It matters not that the statement is defective in some particulars ; that does not render it void. It may be a ground for setting aside the judgment on motion by a judgment creditor, but by no other. Sylvester and Lewis Denton are not judgment creditors. They are merely mortgagees, holding the mortgage as collateral security for a contingent liability, and liable to have their mortgage attacked on the ground of fraud.</p> <p>II. Hone but judgment creditors can attack the plaintiff’s judgment. As long as it is permitted to stand, so long its lien continues on the surplus money. The defendants must first seek to set aside the judgment by an appropriate proceeding ; they cannot attack it in this collateral way. The remedy is by motion. (Chappel v. Chappel, 2 Kernan, 222. 2 Whitaker’s Pr. 77. Burkhardt v. Sanford, 7 Howard’s Pr. Rep. 329, 333.)</p> <p>III. If the statement upon which judgment was confessed was not full, or was defective in some particulars, then it was an irregularity, only in the entry of judgment. (Whitney v. Kenyon, 7 How. Pr. B. 458.) And such irregularity can only be taken advantage of by motion within one year after the entry of judgment. (Whitaker’s Pr. 77. 5 Howard’s Pr. R. 381. 8 id. 312. 9 id. 35. Code, § 174. 2 B. 8. 282, § 2.)</p> <p>IY. The defendants, by their answer, do not ask for affirmative relief. They do not ask to have the plaintiff’s judgment set aside. The question whether the plaintiff’s judgment shall, or shall not be set aside, or adjudged void, is not before the court. The court cannot upon this appeal disturb the judgment ; it must remain a judgment of record, and being good as against Wood & Bruen, and creating a lien on their real estate, their subsequent mortgagees can acquire no greater right than Wood & Bruen had. And the Dentons, having taken their mortgage nearly two- years after the entry of the judgment, took it subject to the incumbrance existing at the time.</p> <p>Y. The indebtedness for which the plaintiff’s judgment was confessed, is nowhere denied in the defendants’ answer. The intention to give the plaintiff a lien by the judgment is clearly manifest nearly two years before the execution of the mortgage. The equities are, therefore, most strongly in fa-vor of the plaintiff, and the court possess as much power to amend the judgment on this appeal, as they would to set aside or vacate it, or to reform a mortgage and apply the surplus money arising from a previous sale.</p>

THIS action was brought by Qlement A. Wilson, executor &g. of Hannah Godfrey, deceased, and by several other persons, her heirs at law, and the devisees and legatees named in her will, against Peter B. Lynt, and the Baptist church in Oliver street in the city of Hew York. Its object was to obtain a construction of the will of the testatrix, some of the provisions of which were supposed to be of doubtful validity.

<p>APPEAL from a decree of the surrogate of Richmond county, admitting to prohate the will of Jacob Van Pelt, deceased.</p>

<p>A judgment, entered by confession, upon a statement in these words: “ The above indebtedness arose on a promissory note made by the defendants to the plaintiff, dated June 21, 1854, in the sum of $700, with interest, that amount of money being had by the defendants of the plaintiff, and upon which there is this day due the sum of $782.07, together with $80.41, now due the plaintiff from the defendants as costs in an action brought against the defendants by the plaintiff on said promissory note, in the supreme court, which suit is now discontinued by the plaintiff upon this confession of judgment to him by the defendants,” set aside, on the ground of the insufficiency of the statement.</p>

<p>THIS is an action on the case to recover damages for the bite of a dog. The cause was tried' at the Cortland circuit, July, 1857, before Justice Mason, and a verdict rendered for the plaintiff against the defendant Bentley, for #50 damages. The defendant Sweet was acquitted on the trial, there being no evidence against him, The court ordered a stay of proceedings, and that the cause he heard in the first instance at general term. The plaintiff in his complaint, after setting forth that the dog attacked and bit him, proceeds to say: “And said plaintiff further alleges, that before, and at the time of the injury herein before alleged, the, said defendants well Tcnew that the said dog was a fierce, ferocious and dangerous dog, and that he had [attacked and bitten] and was used and accustomed to attach and hite manhind.” The defendants' answered, denying each and every allegation in the complaint. From the evidence it appeared that the dog belonged to Bentley, who lived about four miles from Cortland village, and that on the day of the accident the dog followed the sleigh in which Bentley rode, to the village. When he started, the dog followed him for a short distance, and he then, got out and drove the dog bach. He saw no more of the dog until after the accident. The person with whom Bentley rode, drove his sleigh into the yard of the Eagle Tavern and left it, having hitched the horses to a place pointed out by the hostler. The owner of the team, with Bentley, then went into the Eagle Tavern, where they purchased and paid for cigars and beer. After this they went about the" village. It did not appear when the dog came to the village, but he was found soon after by the plaintiff (who was the son of the proprietor of the Eagle Tavern) watching the team. The horses being hitched near a- wagon belonging to the plaintiff’s father, they were found gnawing the end board, whereupon the plaintiff took hold of the horses’ heads tó back them away. The dog then jumped up and bit the plaintiff in the groin, which was the injury complained of. The dog appeared to have been irritated by boys throwing snow balls and other missiles at him. There was no proof that the dog had ever bitten any person previous to this time, or that he was a savage or dangerous dog. One witness testified that previous to the accident in question, he ■attempted to take hold of a team that the dog was watching, and that the dog growled. The defendant Bentley knew nothing against the character of the dog until he bit the plaintiff ; and a witness for the plaintiff, at whose house the dog was kept, testified that she thought him a mild and peaceable dog. It was proved (under the defendant’s objection) that in April after the accident in question, the dog hit a small boy who was passing near a barn where the dog was kept, and also ■ that he jumped upon another person who came upon him suddenly, and that he snarled at the same man at another time.</p> <p>The defendant Bentley, upon a case and exceptions, moved for a new trial.</p> <p>I. The defendant is not liable as a trespasser, for the injury committed by his dog. (1.) The defendant was a guest of the innkeeper. (McDonald v. Edgerton, 5 Barb. 560.) (2.) If the dog was trespassing at the time, the defendant is not liable without proof of the scienter, as the plaintiff was not the owner of the close and cannot recover for any injury done to it. The. cases where a recovery has been had without proof of a scienter, is where the breaking and entering the close is the substantive allegation, and the rest is laid as matter of aggravation merely. (Van Leuven v. Lyke, 1 Comst. 515, 517.) (3.) In the case at bar, the liability of the defendant was not put upon the ground of his being a trespasser, and therefore the point does not arise here.</p> <p>II. The judge erred in charging the jury that if the dog was vicious and dangerous only to strangers passing by him when watching a team, then the defendant was liable without proof of the defendant’s knowledge of the vicious and dangerous propensity of the dog. The law seems to be well settled, both in our courts and in those of England, that as any person may keep a domestic animal, the owner is only liable for an injury it may do upon the ground of some actual or presumed negligence on his part. It is essential to the proof of negligence that the owner be shown to have had notice of the propensity of the animal to do mischief. Therefore in this case, as the plaintiff gave no evidence that the defendant had notice of the dog’s propensity to do mischief, the action cannot be sustained. (13 John. 339. 1 Denio, 495. 17 Wend. 496. 4 Denio, 500. 4 Cowen, 351. 4 Denio, 127. 1 Coms. 515. 4 Denio, 175. 13 John. 312. 23 Barb. 324.) In England it has been held that an action for keeping a ferocious dog, which bit the plaintiff, (the defendant well knowing the dog to be ferocious,) does not lie, unless the defendant knew that the dog was accustomed to bite. (Hogan v. Sharpe, 7 Car. & Payne, 755. Beck v. Dyson, 4 Camp. 198. Thomas v., Morgan, 2 C, M. & B. 496.) The judge at the circuit held, in substance, that any person who keeps a watch dog that is dangerous to strangers when watching, is liable for an injury caused by the dog, although he has no notice that the dog was dangerous to strangers while thus watching. With due respect to the decision of the learned justice, it is submitted that no case has yet gone that length. There is a class of cases holding that where an animal is by nature fierce and dangerous, as a lion, tiger and the like, the person who keeps him is liable for any damage he may do, upon the principle that such animals, being fierce by nature, notice is presumed. On the other hand, in the case of domestic animals not naturally inclined to do mischief, such as dogs, horses and the, like, the owner must be shown to have had notice of their viciousness before he can be made liable for their injuries, (per Jewett, J., 1 Comst. 516.) In both cases notice is essential; but while in one case actual notice must be shown, in the other it is presumed. The error complained of in this cause is in placing the owner of a dog, dangerous only to strangers while watching, upon the same level as the owner of a lion, tiger, or other animal fierce by nature, and in holding that neither actual or presumed notice was necessary to be shown in order to make the defendant liable. Had the judge assumed that proof of the vicious and dangerous character of the dog while watching, ivas equivalent to express notice, or if it shall be contended that such is the effect of his charge, then we say, that there is a distinction between the presumption arising from the proof that an animal is of a ferocious and dangerous nature, or in other words, naturally savage and dangerous, and that of the presumption arising from the proof that the dog had an acquired habit making him dangerous only in a particular position. A man may be presumed by a jury to know that an animal fierce by nature is a dangerous animal; but it would be violence to presume him to know that his domestic animal has a dangerous habit, especially if that particular habit is contrary to his nature.</p> <p>III. For the reasons stated in the last point, the court erred in refusing to nonsuit the plaintiff, and in refusing to charge as requested.</p> <p>IV. The court erred in refusing to charge the jury that they could only find the fact of the dog being vicious and dangerous from the prior history of the dog, and not from his conduct on the occasion when he hit the plaintiff, or from the subsequent acts of the dog--and in charging the jury that they might find the bad character of the dog from all the evidence in the case, both before and after the act complained of, and from the act itself. (1.) The accident occurred Feb. 23, 1855; the suit was commenced Feb. 26, 1855; the defendant parted with the dog six or eight days after the accident. The vicious acts of the dog took place in April, 1855, and long after the defendant parted with him. The vicious and dangerous habits of the dog were likely to be, and probably were, engendered by the act of biting the plaintiff and by subsequent treatment. Was it right that the defendant should be prejudiced by evidence which was got up after the suit was commenced ? (2.) If the dog’s conduct subsequently is allowed to be shown, to establish what his prior character was, it would imply that the character of the dog could not change, and was entirely unaffected by circumstances ; whereas the habits, disposition and character of domestic animals undergo a change, as much as those of men, depending upon a variety of circumstances. It would hardly do to say if an individual commits a crime to-day, that therefore his character was bad months or years before, or that because a money lender is now in the habit of taking usury, therefore it is evidence of his habit formerly. (Jackson v. Smith, 7 Cowen, 717.) (3.) The burden of the proof was upon the plaintiff to show the dog to be vicious and dangerous; the presumption being that the character of the dog was good up to the time of the accident. Could this presumption be overcome by proving his bad character subsequently, any more than in the case of an individual whose character ata certain period is in question ? (2 Wend. 352.) (4.) If the defendant was only liable upon the ground of actual or implied notice of the vicious and dangerous character of the dog, then the evidence was improper, as the defendant cannot be presumed to have had previous notice of a vicious propensity which the dog acquired by the act of biting the plaintiff, and by subsequent treatment.</p> <p>V. The evidence as to vicious acts of the dog after he bit the plaintiff, was improperly admitted, for the reasons stated in the last point. A new trial should be granted.</p>

<p>An action claiming equitable relief on behalf of a foreign corporation, brought in the name of stockholders thereof, against another foreign corporation, a corporation formed under the laws of this state, and several individuals who do not appear to be residents of this state ; in which action the complaint does not state that the plaintiffs are residents of this state, so as to entitle them to maintain an action against a foreign corporation for any cause; and in which it does not appear that the cause of action has arisen, or that the subject of it is situated, within this state, cannot be maintained.</p> <p>In order to warrant the bringing of an action by individual stockholders, in their own names, to set aside a sale, it is necessary to show that the constituted officers of the corporation, whose especial duty it is to vindicate its rights, have been requested to institute proceedings for that purpose, and have refused to do so.</p> <p>In an action for equitable relief against a corporation, it is improper to join, with that cause of action,' a claim for damages against individual defendants.</p>

<p>Although foreign corporations may, in some instances, sue or be sued in the courts of this state, yet, to warrant the proceeding, there must be either a necessity, or a fitness suggested by the peculiar circumstances.</p> <p>The cause of action, or the subject, or at least some property to be acted upon, must have arisen, or be situated, within our jurisdiction.</p> <p>The courts of this state will not entertain jurisdiction of a suit between two corporations, both chartered by the laws of Maryland, respecting lands lying in that state, the object of which suit is to annul a conveyance of such lands made to the defendants, on the alleged ground of fraud, which conveyance was executed'and acknowledged in Maryland, and put upon record there. Davies J., dissented.</p>

<p>Trial by the court.</p> <p>The facts are stated in the opinion.</p>

<p>Judgment.—Assignment.—Stipulation.</p> <p>One who takes an assignment of a judgment with knowledge of a stipulation entered into by his assignor, the original judgment creditor, controlling the method of enforcing it, cannot maintain an action to have the stipulation vacated upon the ground that his assignor was induced to enter into it by fraud of the other parties to it. The assignment of the judgment is an affirmance of such stipulation, and does not carry with it any cause of action for fraud.</p> <p>B. assigned his claim against the defendants to A., who brought an action thereon. B., acting as the agent of A., in endeavoring to collect the claim, was induced by one of the defendants to enter into a stipulation by which judgment should be entered against both defendants, but to be enforced only in a certain way. Judgment having been entered pursuant thereto, A. assigned the judgment to B.</p> <p>Held, that B. could not have the stipulation vacated on the ground of fraud on the part of the defendant in obtaining it.</p>

Motion to turn a verdict for defendant into a verdict for plaintiff. This action was brought by the plaintiff, who owned and occupied a lot of ground in Brooklyn, to recover from the defendant, who owned and occupied the adjoining lot, a gore or strip which the plaintiff claimed to belong to him, but which, by reason of the division fence being deflected from the ti-ue boundary, as plaintiff alleged, was in possession of the defendant.

<p>Notice of Motion.—Statement foe Judgment by Confession.</p> <p>A motion by a creditor to vacate a judgment by confession entered against bis debtor, founded on the ground that the statement is insufficient to authorize a judgment to be entered, is not a motion for irregularity within the rule requiring the notice or order to show cause to specify the irregularity complained of.</p> <p>A statement for judgment upon confession to secure a contingent liability must show the facts out of which the indebtedness arises, as fully as if it were to secure an absolute indebtedness.</p> <p>A judgment confessed to secure a contingent liability on a guarantee, should be set aside on motion of a subsequent judgment' creditor, if the statement on which it is entered does not show the particulars of the contract on which the liability rests—e. g,, in case of a promissory note, who are the parties to it— and the facts which impose a liability thereon on the plaintiff, and in behalf of the defendant, and such a liability as the defendant is bound to protect.</p>

Trial by the court. The action was brought by Myndert Yan Schaick, to recover from the defendants rent upon a lease of premises demised to Henry Yan Schaick, as agent or trustee for an association, which, by incorporation, afterwards became the corporation defendant, and to whom the lease had been transferred.

This was an application by the relator who was acting as city inspector of the city of New York, for a writ of mandamus addressed to the mayor of the city, to compel him to countersign a warrant for the payment to the relator, of the salary of city inspector, from the 1st day of January, 1859, at which time the relator’s term of office had expired, and since when he had been holding over.

<p>APPEAL from a judgment entered upon a nonsuit ordered at the circuit. The case is stated in the opinion.</p>

THE plaintiff and defendants, being partners, under the name of Brown, Jeffery and Co., on the 23d of June, 1855, made an agreement in writing, by which the latter agreed to purchase of the former his interest in the partnership property and business, and pay him, for the same, certain notes which the said Brown, Jeffery & Co. held against him for $3000, he paying the interest thereon; and further agreed to give the plaintiff a shingle mill in good condition for business,…

<p>Where the defendants, having been duly appointed by a corporation its building Committee, and authorized to contract for materials for erecting a building in which to conduct its business, entered into a written contract with the plaintiff, under their respective hands and seals, describing themselves therein as “ building committee,” and signing it as such, for the purchase of a quantity of brick; Held that the corporation was liable, on the contract, notwithstanding the seals of the defendants were affixed thereto.</p> <p>And, the defendants having shown that they were fully authorized by the corporation, in fact, a priori, to make the contract, and that after it was so made, the corporation ratified it, by making several payments thereon, and otherwise; Held also, that the defendants were not liable personally, on the contract.</p>

<p>APPEAL from a judgment entered upon the report of a referee. The action was brought against the defendants as copartners, transacting business as distillers, to recover the price of a steam engine and boiler, with certain castings, mill gearing and other goods, wares and machinery sold and delivered to the defendants j and for work and labor done by the plaintiff upon said steam engine, boiler, castings, &c.; and in transporting the same, and putting it up in the distillery of the defendants. The plaintiff claimed to recover the sum of $1512.99. The defendants, in their fourth answer, alleged that on or about the 14th day of February, 1857, the plaintiff and defendants entered into and mutually executed a written agreement and contract in writing, reciting the existence of a controversy between the parties relative to an account of the plaintiff against the defendants for a steam boiler, steam engine and machinery, sold and delivered by the plaintiff to the defendants, and matters growing out of the same, and which are the same account and matters specified in the complaint in this action; and by which agreement the plaintiff and defendants did submit the said controversy to the arbitrament of Elmore P. Boss, and did mutually covenant and agree to and. with each other, that the awar'd to be made by said arbitrator should in all things, by said parties and each of them, be well and faithfully kept and observed, and at the same time the plaintiff did make, execute and deliver to the defendants, Ms certain bond and writing obligatory, under seal, bearing date on the 14th of February, 1857, in the penal sum of $1000 to be paid by the plaintiff to the defendants, to which payment well and truly to be made the plaintiff bound himself, his heirs, executors and administrators; the condition of Avhich said bond and writing obligatory was, that the said plaintiff should well and truly submit to the decision and award of Elmore P. Boss, chosen arbitrator by said plaintiff and defendants, to arbitrate, judge and determine of and concerning an account of the plaintiff for steam boiler, steam engine and machinery, sold and delivered by said plaintiff to said defendants, and all claims and controversies growing out of the same whatsoever, then existing by and between the plaintiff and defendants, and which said accounts and claims on the part of the plaintiff were the same that are specified in the complaint in this action, and no other or different; and the defendants further alleged, that said plaintiff and defendants appeared before the said arbitrator, at bis office in the city of Auburn, in person and by their counsel and with their witness, and the said arbitrator entered upon the hearing of the claims and accounts so submitted to him; and that the plaintiff, on the 21st of April, 1857, after the hearing before said arbitrator had been so commenced, and large expenditures had been incurred by the defendants for attendance before said arbitrator, and for witnesses and counsel before him, to, iu and about the hearing of said matters of difference, violated his said agreement and his said bond and writing obligatory, and refused to abide by and perform the award and determination of said arbitrator; whereby the penalty of said bond became forfeited by said plaintiff to the defendants, and the defendants became and were entitled to, and did thereby demand judgment upon said agreement and upon said bond and writing obligatory, for the amount of the penalty of said bond, and for their damages to be assessed in the premises, which said damages amounted in the whole to a large sum of money, to wit, to the sum of $200, Avhich the defendants claimed to recover of the plaintiff in this action; and the defendants insisted that said submission was a bar to the maintenance of this action on the part of the plaintiff; wherefore the defendants demanded judgment in their favor for the sum of $5000, together with costs.</p> <p>On the trial before the referee, the defendants, for the purpose of establishing the defense thus set up, offered to prove “ what expenses were paid for witnesses on the arbitration, and all other legitimate expenses recoverable in an action on the bond.” This testimony was objected to by the plaintiff’s counsel, and the objection was sustained by the referee, and the testimony excluded. The referee reported that there was due to the plaintiff from the defendants the sum of $359.99 ; for which sum, with interest and costs, judgment was entered against the defendants, who thereupon appealed to the general term.</p>

<p>Where a contractor, engaged in repairing a bridge upon a rail road for the company, employs men to work thereon by the day, the latter are the servants of the contractor, and not of the company; and between them and the company there is no privity whatever.</p> <p>If a man, thus employed by the contractor, receives an injury from a passing train while at work upon the bridge, he may maintain an action for damages against the rail road company; provided he can show that the injury was caused by the negligence of the company’s servants or agents in charge of the train, without any fault or negligence on his part.</p>

<p>THIS action was brought to recover the interest due upon five of the bonds, for $1000 each, issued by the supervisor and rail road commissioners of the town of Sterling, Cayuga county, under a statute passed June 23, 1851, and an amendment thereof, passed July 21,1853, {Laws of 1851, p. 544; Laws of 1853, p. 1137,) of which bonds the plaintiff was the holder. The first mentioned act, by its first section, authorized the supervisor of the town of Sterling, and Bobert Hume and William Wyman, who were appointed commissioners to act in conjunction with, said supervisor, to borrow the sum of $25,000 on the credit of the town for a term of years, and to execute therefor, under their official signatures, a bond or bonds, on which the interest should be made payable on the first of March in each year, and for the successive years after the first of March, 1852. And the moneys thus borrowed were directed to be paid over to the president and directors of a certain rail road company therein mentioned, to be expended by said company in grading and constructing its rail road. The fourth section of the act, after directing how the money shall be levied, collected and paid over to the treasurer, proceeds: “ which sum shall be paid by the treasurer of Cayuga county, at his office, to the supervisor of the town of Sterling, on or before the 25th day of February, which sum shall be applied by said supervisor in payment on the bonds, on or before the first day of March succeeding.” The board of supervisors of Cayuga county caused the money required to pay the interest upon the bonds for the year 1857, to be levied and collected. On the 25th day of February, 1857, the defendant (he being then supervisor of Sterling) applied to the treasurer, and received from him money sufficient to pay the interest upon all of the twenty-five bonds, and thereupon gave him two receipts, each for the same amount, and in the following form:</p> <p>“ $875. Cayuga County Treasurer’s Office, ) Auburn, February 25, 1857. j</p> <p>Received from Horace T. Cook, treasurer of the county of Cayuga, eight hundred and seventy-five dollars, to apply on the moneys collected in the town of Sterling, to pay the interest on the bonds issued by said town.</p> <p>(Signed) Hiram C. Curtis,</p> <p> Supervisor of Sterling.” </p> <p>The plaintiff demanded of the defendant payment of the interest due upon his five bonds, which was refused, and this action was thereupon brought to recover the same. The action was tried at the Cayuga circuit, and the plaintiff nonsuited. Upon appeal the nonsuit was set aside, the general term unanimously holding that the action for money had and received was the appropriate remedy. Upon a re-trial, judgment was rendered for the plaintiff for the interest due, with interest thereon from the time of the demand. From that judgment an appeal was taken by the defendant to the general term.</p>

The complaint alleged that on the 20th day of February, 1857, the defendant agreed to rent to the plaintiff a certain store, No. 74 State street, in Rochester, for the period of one year from April 1, then next, for the sum of $1000.

The complaint was upon a promissory note, made on the 28th of January, 1857, by the defendant Badger, whereby, for value received, he promised to pay, six months after the date thereof, $350, with use, to the order of Hiram Potter, at the Steuben County Bank; and the plaintiff alleged that the defendant Potter duly indorsed the said note, and the same was duly transferred and delivered to the plaintiff.

THIS action was brought to recover the possession of a bay mare and colt, and damages for the detention thereof. The defendant, by his answer, admitted the detention of the property, and claimed the right to detain it, as the owner thereof.

THIS was an appeal, by both parties, from a judgment entered upon the report of a referee.

The action was brought for the wrongful withholding and detention of a quantity of goods, groceries, &c. The referee found the following facts, viz: That on the 4th day of December, 1855, James D. Crank purchased of the defendants, at Rochester, the goods, wares and merchandise and groceries mentioned and described in the complaint, and directed them to be packed in a box and shipped by H. Shackleton’s boat to Greneseo, the place of residence of said Crank; that the said…

PPEAL from an order made at a special term, granting a new trial.

MOTIOK for a new trial, on a case and exceptions ordered to be heard in the first instance at a general term, The action was brought on five promissory notes, for $100 each, payable to the plaintiff, and signed by Lauraette Johnson and Ransom E. Johnson, the defendant. Lauraette Johnson is a married woman, the wife of Kelson Johnson. She owns a large separate estate, consisting of mills, stores and farms.

The action was brought to recover the possession of a farm in the town of Fulton, Schoharie county, and was tried at the Schoharie circuit, in May, 1858.

OTION for a new trial, upon a case and exceptions. The plaintiff sued this defendant and Nelson Beardsley jointly. The complaint contained three counts. The first two counts were for false imprisonment. The third and last count was. for malicious prosecution. The defendant, Russell, answered separately, pleading a justification as a peace officer acting under and by virtue of a warrant duly issued, &c. against the plaintiff for petit larceny.

THIS was a case submitted to the court without action, pursuant to the 372d section of the code. The facts agreed upon by the parties are as follows : By an act of the legislature, passed in 1836, (Sess.

THIS action was brought to obtain a judicial construction of a portion of the last will and testament of John Hover, deceased. It was tried at the Columbia circuit, held in September, 1858, Hon. Geo. Gould, J. presiding, who directed that a verdict be entered against the plaintiffs, establishing each and all the provisions of the said last will and testament which are in controversy in this suit, subject to the opinion of this court at a general term.

APPEALS from orders setting aside judgments entered on confession. The Middletown Bank having, on the 16th October, 1857, recovered a judgment against Daniel Gerow and others for $1525.37, moved to set aside the judgments in the above three causes, on the ground that the statements made upon confessions of the judgments were defective. The motions were heard by Justice Brown, in April, 1859, and he made orders setting aside each of the judgments, with costs.

THIS was an action of ejectment, for the recovery of one-seventh of 263 acres of land in the town of Bethlehem, Albany county. Bach party claimed under Cornelius Van Derzee, jun., the father of the plaintiff, and the grandfather of the defendant; the plaintiff claiming as heir at law, and the defendant under a devise to Storm Van Derzee. Cornelius Van Derzee, jun., died in 1800, in possession of the premises, and claiming to own them.

THIS action was brought upon a contract alleged to have been made by the defendant with Forward & Smith, in Canada, under the following circumstances ; Forward & Smith, residing and doing business in Oswego, in November, 1853, had a claim against one Thompson; residing in Canada, which was in the hands of the defendant as their agent, to look after.

ACTION for trespass on land. The defendant justified as commissioner of highways, alleging the entry complained of to have been in the performance of his official duties in the opening and working a highway properly laid out, and that the locus in quo was a public highway.

THIS is a case agreed upon by the parties, for the purpose of determining the validity of a levy made under a warrant issued under the authority of the city of Syracuse, and of the assessment upon which the same was issued, and the liability of the plaintiff to pay any sum for taxes assessed under or by the corporate authority of the city, for the years 1858 and 1859, upon the real estate of the plaintiff, and also the damages sustained by the plaintiff by reason of the…

The action was in the nature of a bill for an accounting, and to compel the defendant, surviving executor of the will of Gersham Skinner, deceased, to make sale of certain real estate specified in the will. The plaintiff, Almira Terpening, the wife of the other plaintiff, Amos Terpening, claimed to be a devisee and legatee under the will of the testator, who was her grandfather.

THIS action was founded on two leases under seal, one for twelve years and the other for two lives. It was brought to recover rents of the lands described therein, which the lessee, in and by the leases, had covenanted to pay.

OH the 9th of January, 1855, James Thompson was seised in fee of a small parcel of land in the town of Brighton, in the county of Monroe, and on that day executed and delivered to Amos 0. Miller a mortgage thereon, to secure the payment of $400, in four annual payments.

The action was brought for the conversion by the defendants of three negotiable promissory notes, amounting in the aggregate to $2101.42 of principal, made by Daniel Tompkins, and payable to Clinton Evans, or bearer, the assignor of the plaintiffs. On or about the 1st. of August, 1854, the defendants converted these notes to their own use. On the 8th of August, Evans, the owner of the notes, made a general assignment to the plaintiffs for the benefit of his creditors.

On the 4th of December, 1856, the plaintiff and others conveyed to the defendant John S. Wright certain lands in the county of Monroe, by a deed which contained the following covenant, and no other, viz: “And the said parties of the first part, for themselves, -their heirs, executors and administrators, do covenant, grant, bargain, promise and agree, to and with the said party of the second part, his heirs and assigns, to warrant and for ever defend the above granted…

THIS was an appeal from a judgment of the county court of Tates county, reversing a judgment rendered by a justice of the peace in favor of the appellant, who was the plaintiff below, for $46.88, damages and costs.

the report of a referee. In November, 1852, Owen Edmonston was elected sheriff of the county of Ontario. In December of that year, George Clute applied to Edmonston to he appointed a deputy, and gave his bond as such deputy, to Edmonston as such sheriff, with William Crawford, Henry Eamsey, (the appellant,) and Joseph S. Lewis, (the respondent,) as his sureties.

The action was brought upon a written contract entered into between the parties on the 9th of October, 18.49, in these words: “An agreement between Frederick 0. Lauer of the first part, and Jonah Brown of the second part, viz: The party of the first part agrees to do the mason work, and furnish the material requisite for the completing of a building according to the plans and drawings got up by H. Searl, and agreeable to the annexed specifications.

MOTIOH, upon a case and exceptions, for a new trial. The plaintiff is a banking corporation, created by the legislature of Connecticut, and is located at Hartford in said state. The defendant is a corporation, organized under the general manufacturing law of the state of Hew York. The defendant’s secretary was authorized, by by-law, to indorse and accept notes and bills of exchange in the prosecution of its business.

<p>Appeal from a judgment.</p>

<p>Appeal from a judgment.</p>

<p>APPEAL from an order made by a judge, at chambers, denying a motion made by the plaintiff, to vacate an order theretofore made, in this action, requiring the plaintiff to appear and make a discovery on oath concerning his property.</p>

<p>The Croton aqueduct board has full power under the statutes, and the ordinances of the common council, to make special charges, or fix extra rates, to be paid for the use of the water, varying in each case, according to the quantity used; and to regulate the terms on which extra allowances shall be made, and the conditions on which the water shall be used.</p> <p>The board has a right to make every such arrangement, respecting an extra supply of water, a matter of agreement, subject to such terms and conditions as it shall deem necessary to impose.</p> <p>The proper construction of the 27th section of the act of 1849, establishing the board, is that the legislature intended the water should not be furnished to those who would not pay for it; and that the power should exist, in the board, to withhold the supply, if the terms on which the supply was furnished were not complied with.</p> <p>The board therefore has power to cut off the supply of water, for non-payment of the water-rate; whether it be the regular rents, apportioned by the size, character and use of the building, or the extra rents chargeable, in addition to the regular rents, upon buildings which consume an extra quantity of water.</p>

PPEAL from a judgment entered at a special term. The action was instituted by the plaintiffs as executors of the last will and testament of Peter McLoughlin, for the purpose, among others, of obtaining the judgment of this court as to the proper construction of said will. The will was as follows: “First.

The fund in the court was the surplus proceeds of the foreclosure sale in this cause, after satisfying the claims of the mortgagees. The claimants of this fund were: 1. Theodore C. Foote and Daniel D. Foote, who obtained a judgment in this court against Dennis Harris, owner of the mortgaged premises, which was filed and docketed January 1, 1856, for $4607.90, and who regularly filed a claim to the surplus in this cause. 2.

PPEAL from a judgment entered on the verdict of a jury after a trial at the circuit. The action was brought to recover the damages sustained by the plaintiffs by reason of a collision, on the Hudson river, between the steamboat Delaware and a sloop, the cargo of which was owned by the plaintiffs. The sloop was sunk, by the collision, and the cargo of bricks lost.

<p>Receiver.—Leave to Sue.</p> <p>A receiver who is sued as such without leave of court, is entitled to an order, perpetually restraining the plaintiff from proceeding in the action.*</p>

The action was brought for the recovery and delivery of personal property. The jury found a verdict in favor of the plaintiff, and assessed the value of the property at $277.95. Judgment being entered for that sum, with interest and costs, the defendant appealed.

APPEALS from an order made at a special term on the 23d of May, 1859, referring the cause to G. M. Stevens, the clerk, to compute the amount due the plaintiff, on his mortgage; also from an order made on the 13th of July, 1859, denying the motion of the defendants to set aside that order of reference. The defendants also appealed from the final judgment for foreclosure and sale, made on the 13th day of July, 1859.

<p>APPEAL from an order made at chambers, overruling a demurrer to the complaint as frivolous, and ordering judgment for the plaintiffs,</p>

<p>APPEAL from an order of the surrogate of the county of Suffolk. The facts are stated in the opinion of the court,</p>

89, besides costs ; that being the balance of the plaintiff’s claim after deducting a counter-claim of $105 and interest, allowed to the defendant. The rest of the defendant’s counter-claim was disallowed.

<p>By the provisions of the act of the legislature of June 18, 1853, “ to provide for the establishment of union free schools,” the school districts are preserved in their integrity, as divisions of the common school system of the state, and the officers thereof are still “ school officers,” and fall within that designation in the act of April 12,1858, “ to change the school year and to amend the statutes in relation to public instruction,” which declares that the term of office of “ all school district officers” theretofore elected shall expire on the 2d Tuesday of October, 1858.</p> <p>Accordingly, where, in October, 1853, the inhabitants of a school district not within any incorporated city or village, established a free school therein, under the act of June 18,1853, and elected the defendants its trustees, or board of education, who were in office on the 2d Tuesday of October, 1858, at which time the plaintiffs were duly elected trustees, under the act of April 12, 1858 ; Eeld, that so far as those officers were concerned, the act of June, 1853, was superseded and repealed by the provisions.of the act of Apbil 12, 1858; and that the plaintiffs were the legal trustees of the district.</p> <p>Held also, that the union free school in question, not being formed from two or more adjoining school districts, the free school might still be maintained, and the plaintiffs exercise the powers and authority of its hoard of education.</p>

<p>THIS was an action of slander, against husband and wife, for words uttered by the wife. On the trial the husband was offered as a witness generally in the cause, and in his own behalf. The plaintiff objected to his being sworn: 1st. On the ground that, being the husband of his co-defendant, he was not competent; and that the husband and wife could not be sworn and examined as witnesses for or against each other, in this action. 2d. On the ground that this was a joint action, in which no separate, judgment could be rendered against either. The court sustained the objection, and held, that being the husband of his co-defendant, he was not competent ,as a witness in the action. The wife was then offered as a witness, for the same purpose, and in the same manner. The plaintiff interposed the same objections, which were, for the same reasons, sustained by the court, To which rulings the defendants duly excepted. The plaintiff had .a verdict.</p>

<p>A testator, by his will, directed that all his real and personal estate should remain as it was at the time of his death, for the exclusive use of his wife and children who were under age and unmarried, and should be so managed by his executors as would accomplish two objects; first, the comfortable maintenance of his wife ; and second, the comfortable maintenance of his children; that nothing consisting of the character of personal estate should be sold, unless under the greatest necessity, and then under the immediate direction of the executors; that the property, both real and personal, should be so kept, and the income so used, as might best subserve the objects above stated, as long as the testator’s wife lived; and after her death the whole of his estate should be so occupied for the benefit of his children who were under age and unmarried, as might best promote the objects above mentioned ; that after the children were of full age, and after the death of the wife, all the property should be sold, and the proceeds divided among the children, as the law directs. That if the widow should marry again she should have no right or claim to the estate, and should cease to be executrix, and be “ cut off” from every portion of his estate. A legacy of $500 was given S. Conrad, to be paid to him after the death of the testator's wife, and after the testator’s children should be of full age, “ out of the moneys so realized out of the sale of my estate.” There was no direct devise to the executors, nor any express trust, in words, created, in them.</p> <p>Held, 1. That after the payment of his debts, &c. the testator intended that all his property, real and personal, should remain and be kept undisposed of for the use of his wife and his children under age and unmarried, during the life of his wife, or until she should marry again.</p> <p>2. That the testator also intended that all his property should be kept, and remain undisposed of, after the marriage or death of his widow, for the use of such of his children as should then be under age and unmarried.</p> <p>3. That the testator intended his wife should use and receive, and apply, the rents and income of all the property to the support and maintenance of herself and children under age and unmarried, during her life, or until she married again; which was substantially a devise and bequest of all his property, real and-personal, to her for such term, for that use and purpose.</p> <p>4. That so far as such devise and bequest to the wife were for the benefit of the children under age and unmarried, they involved an express trust, which made her term inalienable during the minority of the unmarried children, or of an unmarried child; but that as such inalienability could not continue longer than her life, such devise, and bequest, and trust, was lawful and valid.</p> <p>5. That the further trust after the death or marriage of the widow was not valid, as it might have suspended the absolute power of alienation, for a longer period than during the continuance of two lives. But that the invalidity of that trust did not affect the validity of the devise and boquest to the widow; and there was, therefore, by the.will, a good and valid devise and bequest to the widow, for life.</p> <p>6. That all the property, or the proceeds of its sale, should be divided or distributed, and the rights of all the parties declared, upon the theory that the will made no disposition of the property after the death of the widow, and that the same should be treated, and be divided and distributed among the heirs and next of kin of the testatbr, or those who had succeeded to their interest by purchase or otherwise, as an undisposed of reversion.</p> <p>7. That the real estate of which the testator died seised vested, on his death, in all his surviving children, as his only heirs at law, subject to the devise thereof to his wife for the use of herself and of the children under age and unmarried, and subject to the implied power given to the surviving executor to sell, &e.; and that the rights and interests of all the parties claiming, by descent, purchase or otherwise, must be declared, and the proceeds of the sale, after the payment of the $500 legacy, must be distributed, upon the theory that it was so vested.</p> <p>8. That the legacy of $500 to S. Conrad was vested, not1 contingent; that it did not lapse by the death of the legatee before the death of the widow; and that it must be paid out of the proceeds of the property, to the personal</p> <p>. representatives of S. Conrad, &c., and the remainder of the proceeds must be distributed among the heirs and next of kin of the testator, and those claiming and entitled under and through them.</p> <p>9. That there was no ground upon which the real estate could be considered as converted into money, from the death of the testator.</p> <p>The fact that.a person appointed executor and trustee, hy will, has not qualified as executor, will not disqualify him. for the execution of the power of sale, given to him as trustee; it seems.</p> <p>And so long as the trustee is willing to execute the power, the court will not, in a suit to which he is not a party, appoint another person to execute the power of sale.</p>

THIS case came before the court on an appeal from a judgment rendered by Justice Clerks, in May, 1858. The action was brought to recover the amount of a note for $66.25, made by the defendants on the 19th of March, 1856, payable to the Farmers and Mechanics’ Insurance Company, three months after date, and indorsed to the plaintiffs before the same became due.

EJECTMENT for a lot of land on Murray street in the city of New York, commenced the 17th December, 1856. The complaint was in the usual form. Held: of the title by which the same were held, of the rents and services reserved, and of the arrears, and for an account of payments and receipts, &c., in order that the court might decree such relief as should be just.

<p>A creditor who has commenced an action at law, for the recovery of his debt, in which an attachment has been issued and levied upon the property of the debtor, cannot bring a second action in the supreme court, for the recovery of his debt, to set aside an alleged fraudulent judgment previously recovered against the debtor, and for an injunction to restrain the paying over of the proceeds of a sale of property levied upon by virtue of an execution issued on such judgment. Roosevelt, P. J., dissented.</p> <p>In such a case the creditor must wait until he has established his debt by judgment, before he will be entitled to an injunction, or other equitable relief against the judgment alleged to be fraudulent.</p> <p>And it seems the creditor has a complete remedy at lam, by proceeding with the attachment suit, obtaining a judgment therein, and selling the property, under it.</p>

<p>THE plaintiffs are a corporation created by the laws of the state of Maryland, for the purpose of mining coal, transporting and selling the same, &e. On the 21st of February, 1855, the defendant Sherman was elected a director of the company, and continued to act as such until the 29th of May, 1858, when he resigned. The complaint in this cause was filed December 6,1858, against the defendants Sherman and Dean, and the Hoffman Coal Company, a corporation also created by the laws of the state of Maryland. It was afterwards amended, by striking out, as parties defendants, the Hoffman Coal Company; and the defendant Postley was made a defendant by a supplemental complaint. The complaint alleged that Andrew Mehaffey was president of the plaintiffs from 20th March, 1854, to June 7th, 1858, and acted as treasurer until May 1st, 1858; that the defendant Sherman, on April 4th, 1855, was appointed chairman of a committee to prepare by-laws; that as such, at a meeting of the stockholders, June 4th, 1855, he reported certain by-laws which were adopted, whereby an executive committee was constituted, consisting of three directors, and the president was vested with the exclusive power of constituting said committee; that the same Was appointed, composed of said Sherman, Francis Bloodgood and Joseph Torrey, and the president was made ex officio a member of said committee and chairman thereof; and said committee continued to act until 29th May, 1858; that said Sherman took an active, leading and influential part in the affairs of said company; and that said executive committee assumed to transact most of the ordinary business of the company. That at a meeting of the board of directors of the company on the 9th of October, 1855, he, Sherman, offered a resolution, which was adopted, authorizing the president to appoint a committee of five directors, whose duty it was made to proceed to Maryland, and ascertain how much and what part of their coal lands could be sold without interfering with the working facilities of the company; and, if practicable, that they set off by metes and bounds such portions as they in their judgment should deem advisable, and report their proceedings to the board at the earliest practicable day; that said Mehaffey, as such president, appointed said Sherman chairman of said committee, and appointed as the other members thereof Joseph Torrey, M. H. Falls, William Pettet and Francis Bloodgood; that said Mehaffey was added to the committee as a member thereof; that the only members of the committee who acted were said Sherman, Pettet and Mehaffey; and that they visited the lands of the company for the purpose indicated in the resolution. That at a meeting of the board on the 11th December, 1855, the said committee, in the name of Sherman as their chairman, presented a report, stating that three of their members had visited said mines—leaving Hew York on the 19th of Hovember— and had examined the same, and recommended a sale of 1548^ acres, which they had described by sufficient metes a.nd bounds for a conveyance by deed. They thought the same might be sold at a fair price, and upon such terms as would enable the company to make all necessary arrangements for the development of the resources of the company. That at the same meeting of the directors of the company, a resolution was passed authorizing the president and secretary to accept an offer, should such be made, of not less than $200,000 for the lands referred to in the report, and to convey the same by deed to the purchaser or purchasers, with such reservations, stipulations and covenants as they might deem necessary. At a meeting of the directors on the 15th January, 1856, a resolution was passed, reciting that the stockholders had authorized and directed a sale to be made of part of the company’s lands; that it was believed a sale of a portion of them would be advantageous to the company, and that the board, by resolution of December 11, 1855, had authorized a sale of a portion of such lands at a certain price, which had been found impracticable, and it was understood that a sale could he made of a less quantity for $150,000, or thereabouts; therefore it was resolved, that the president and secretary he authorized to make such sale, by executing a deed of the land to be sold, and make and execute such covenants and agreements on behalf of the company as they might deem necessary; and the president was authorized to make such modifications in the terms and conditions of the sale as he might deem necessary. That on the 22d of April, 1856, a deed was executed to Sherman and Dean by said company, conveying to them 1215 acres of said lands, for the price or consideration of $140,000; of which $28,000 was stated in the deed to have been paid to the company, and the balance, $112,000, by the said Sherman and Dean assuming to pay 112 bonds of the company of $1000 each, the payment of which had been extended to January 1,1864, with interest thereon at the rate of six per cent, payable semi-annually. An agreement was also executed on the part of the company, of the same date as the deed, with Sherman and Dean, securing to them important advantages in the use of the railroad and other property of the company. At a meeting of the hoard of directors, 13th May, 1856, it appears from their minutes that the president stated that a sale of a certain portion of the lands of the company had been made to Sherman and Dean, and two agreements and the deed for the lands had been executed, and the action of the president and secretary in the matter was unanimously approved.</p> <p>The complaint charged that the price at which said lands were sold was grossly inadequate, and that no part of the consideration therefor was ever paid to the plaintiffs.</p> <p>The complaint further charged, that the rates of transportation provided in said contract to he paid by Sherman and Dean, afforded no compensation whatever for the services rendered j that said rates were, in fact, less than the actual expenses of the railroad in doing the work, and that every ton of coal transported, according to said rates, was an injury and loss to the plaintiffs. The complaint further charged, that Mehaffey, the president of the company, falsely and fraudulently stated in his report of June 3,1856, made to the meeting of the stockholders then held, that the $140,000, being the consideration of said sale, had been paid in cash; and that he had appropriated $112,000, part of the proceeds of said sale, to the extinguishment of that amount of bonds of the company, leaving of the $467,000 of bonds of the company $355,000 as the entire debt of the company. That the said Sherman, in connection with the defendant Postley and three others, on the 19th of August, 1858, organized a company under the laws of Maryland, for the mining and transportation, of coal, called the Hoffman Coal Company; and that on the 20th day. of August, 1858, the said Sherman and his wife and said Dean conveyed the lands, so conveyed to them by the plaintiffs, by deed dated April 22,1856, to said Hoffman Coal Company, and had executed, or were about to execute, an assignment to said Hoffman Coal Company of said transportation contract. That said Sherman and Dean became subscribers to 4990 shares of the capital stock of said Hoffman Coal Company, which capital consisted of 5000 shares of $100 each, and that the other ten shares were held nominally by the other persons named, to make them directors. That the company had full notice of. all the acts and transactions of Sherman and Dean in obtaining said deed and contract, and that although the same "were nominally transferred to said company, Sherman and Dean in fact continued to own the same.</p> <p>Wherefore the plaintiffs demanded judgment that said deed and contract might be declared fraudulent and void as to them, and that the same be delivered up to be canceled, and that in the meantime, and until the final hearing of this cause, the said Sherman and Dean be enjoined and restrained from selling or conveying the same, and otherwise as prayed for in the complaint. The supplemental complaint stated that the defendant Postley was president of the said Hoffman Coal Company, and had possession of said deed and contract. That Dean, was a clerk in an office with the said William Pettet, or in some way connected in business with him; that Dean was a man of little or no pecuniary responsibility; and that he held his interest in said deed, contract, and in the Hoffman Coal Company, in secret trust for some of the directors of the plaintiff, at the time said deed and contract were executed. ,</p> <p>On the complaint, a temporary injunction was granted, and an order to show cause why the same should not be continued until the hearing of the cause. On this motion, affidavits were read on the part of the defendants Sherman, Dean and Postley. All the allegations of fraud charged in the bill were denied. The sale and conveyance to Sherman and Dean were admitted, and the making of the contract for transportation. Sherman and Dean both say that they did not know each other till they met to consummate the arrangements, and execute the contract.</p> <p>There was no denial in the opposing affidavits of the charge in the complaint, that the price at which said lands were sold was grossly inadequate. The affidavits alleged that at a meeting of the stockholders on the first of June, 1857, the said sale of lands, and said contract, were ratified by the stockholders, except in some particulars, which were modified, at the suggestion of some of the stockholders, by Sherman and Dean. The affidavits did not deny the allegation of the complaint, as to the report made by Mehaffey to the meeting of the stockholders in June, 1856, that the consideration of the deed, being $140,000, had been paid in cash, and that with a portion of it he had extinguished $112,000 of the bonds of the company; nor did said affidavits allege that, previous to said ratification or approval, the truth in that respect had been communicated to the stockholders, or was known to them.</p> <p>The affidavits alleged that Sherman was solicited by several of the stockholders to become the purchaser of said lands, and that they could not have been sold, if he had not been willing to join in the purchase. Sherman stated that he was a man of pecuniary responsibility, but no allegation was made in the affidavits as to the means or responsibility of Dean. There was no denial of the allegations of the complaint, as to the formation of the Hoffman Coal Company, of the amount of its capital stock, and of the proportions thereof held by the defendants Sherman and Dean.</p>

CASE agreed upon, without action, pursuant to section 372 of the code. The Cattaraugus County Mutual Insurance Company was incorporated in March, 1837. By the terms of the act it was to take effect immediately, and to continue in force for the term of twenty years.

<p>THIS action, in the nature of a quo warranto, was brought to try the title to the office of county treasurer of the county of Lewis, and was tried before Mullin, J. and a jury, and a verdict rendered for the defendant. At the election in November, 1857, the relator and the defendant were candidates of their respective parties for the office named. Of the votes cast, Moses M. Smith received 1683, Moses Smith 2, and M. M. Smith 17; Deodate Pease 1694, D Pease 3, and Deodate Beas 1. The inspectors of election rejected all the votes except those given for Moses M. Smith and Deodate Pease, and the county canvassers gave to the defendant a certificate of his election. Evidence was given upon the trial that the votes given for Moses Smith and for M. M. Smith were intended to be given for the relator, and which being allowed, gave him a majority over the .defendant and entitled him to the office.. The defendant then gave evidence, under objection and exception, tending to -prove that a number of those who voted for the relator, and sufficient to change the result, were not properly qualified voters or entitled to vote at said election. Some of those so voting claimed to be naturalized citizens, having been naturalized since 1847 in the county court of Lewis county; and the judge at the circuit held and decided, under objection, that such naturalization was void, the county court having no jurisdiction in the premises. Evidence was also given by the defendant, under objection and exception, tending to show that the naturalization papers of several of the persons so voting for the relator were forgeries, in this, to wit, that the original declaration of intention to become citizens had been made less than two years before their admission as citizens, and that the date of such declaration of intention had been fraudulently altered so as to give the court apparent jurisdiction to admit them. It does not appear that any question was submitted to the jury on this evidence. One witness, a foreigner, whose naturalization was void within the ruling of the judge, and who voted at the election of 1847, was asked who he voted for; and the question was objected to by the relator, for several reasons, and the objection was overruled. The witness then claimed to be privileged from answering the question, and the judge disallowed the claim and directed him to answer, and he testified that he voted for the relator. On cross-examination, he testified that’he could not tell of whom he got the ballot; that he did not read it; and the defendant was then permitted to prove by this and by several other witnesses, for the purpose of showing that they voted for the relator, that they acted with the democratic party, (by whom the relator was nominated,) and that the persons handing them tickets represented them to be democratic tickets. This was objected to by the relator and admitted as evidence. A motion .for a new trial was made, on a bill of exceptions, by direction of the judge, given upon the coming in of the verdict,</p>

<p>The duty of a town collector to pay to the several officers named in his warrant the sums required to he paid to them respectively, within one week after the first day of February, is the duty which the collector and his sureties, by their bond, undertake shall be performed; and on the failure of the collector to execute that duty, the condition of the bond is broken, and the liability of the obligors at once attaches.</p> <p>For the purpose of enforcing that liability as speedily as practicable, the legislature has provided, for the public benefit, a summary mode of proceeding against a collector in default, by the issuing of a warrant within twenty days by the county treasurer, against the property of such collector, directed to the sheriff.</p> <p>But the issuing of such a warrant, and the return thereof unsatisfied, are not conditions precedent to the right of the supervisor of the town to maintain an action against the sureties, upon the official bond of the collector.</p> <p>' Nor will the omission of the county treasurer to issue his warrant within the time specified in the statute, discharge the sureties from their liability upon the bond. Greene, J. dissented.</p> <p>The provisions of the statute, relative to the issuing of such warrant, by the county treasurer, being for the public benefit, and not for the benefit of the sureties, are merely directory, in respect to the time within which the warrant is to be issued.</p>

On the trial of the action, it appeared that the plaintiff was a resident of the town of Ellicottville, and was the owner of a certain farm known as lot No. 48, in the town of Humphrey in the same county; that one Baxter, who resided on a place adjoining lot 48, put in and harvested a crop of oats on that lot in 1856, and in the summer of 1857 cut and put into the barn the hay on the place, and during both seasons had charge of the lot, “to keep off cattle, &c., and that'he…

ACTION of ejectment, tried at the Oswego circuit in J une, 1859, before Davies, J. without a jury. The defendants were in possession, under a lease for a term of years, from one West, who had contracted to purchase the premises, and was in possession under his contract.

THE plaintiff sued the Potsdam and Watertown Rail Road Company as maker, and the other defendants as indorsers of a promissory note, negotiated with the plaintiff and discounted by it for the benefit of the maker.

THIS action was brought to recover possession of a farm of land containing 149 acres. The action was tried at the Chenango circuit in September, 1859. It was proved that a son of the plaintiff married the defendant in 1849, by whom she had two daughters, one of whom was living and under six years of age at the time of the trial.

THE complaint in this action alleged that John Wilson, formerly of the city of Hew York, died on the 21st of December, 1837, leaving a will, which was afterwards admitted to prohate, and recorded in the office of the surrogate of Hew York.

<p>An objection to the validity of a marriage settlement, on the ground that the parties to it were infants, can only be made by the parties themselves.</p> <p>It is not, for that cause, void, but voidable merely, at the option of the infants on arriving at full age. If they do not, within a reasonable time, seek to avoid, it, they will be considered as ratifying it.</p> <p>The objection cannot be made by the trustee acting under it and holding property received by virtue of it, when a court of equity is asked to compel him to render an account.</p> <p>He cannot dispute the authority under which he holds the trust funds, and seek, in that manner, to retain the trust property to his own use.</p> <p>Where a deed is made to a trustee, which recites that the trustee has determined to invest $5000 of the trust property in the lots thereby conveyed, and which conveys the land in trust to and for the purposes of the trust, the admissions and trusts in such deed are to be taken most strongly against the trustee; especially where the admission relates to matters particularly within the knowledge of the party making it.</p>

THIS action was brought by the plaintiff, in behalf of himself and all other creditors of the defendant, who might choose to come in and contribute to the expenses of the suit. The defendant was a corporation, created and formed under and by virtue of the act of the legislature passed February 17, 1848, entitled “ An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes,” and the acts amending the same.

The complaint alleged that the plaintiffs were a corporation under the general statutes of the state of Hew York, for the incorporation of villages, passed in the year 1847; that at an election for officers of said village of Warren, held in said village, in March, 1857, the defendant John Philips was duly elected collector for said village; and afterwards, for the purpose of renewing his warrant for the collection of taxes of said village, the said Philips, and the…

<p>A judgment will not be set aside, and a new trial granted, on the grounds of surprise or newly /discovered evidence, where the party has been guilty of laches, in making his motion ; where the new evidence would be cumulative in its nature ; or after judgment has been entered.</p> <p>And though the plaintiff’s evidence be a surprise upon the defendant, yet the defendant may, by his own conduct, preclude himself from all relief on that ground.</p> <p>Thus, where the defendant, though present at the trial, instead of asking for a postponement on the ground that the plaintiff’s evidence was a surprise upon him, examined a witness on the subject testified to by the plaintiff’s witnesses, and sought to show by him that the facts to which they had sworn were not true; and at the close of the testimony, agreed that the written points of both parties should be submitted for the consideration of the court, without any suggestion of surprise, or any request that the de- • cisión should not be made on the case as it stood; and in consequence of his omission to furnish his points, nearly seven months elapsed before the decision of the judge was made; several motion terms in the mean time having been held, at which an application could have been made by him to open the case; instead of doing which, he permitted the court to examine and decide upon the evidence adduced, without any interference or complaint on his part; and gave no intimation of having been surprised by the plaintiff's evidence, until three months after the decision of the court was made; it was held that "the defendant, by his conduct, must be presumed to have been willing to abide by the decision of the court on the questions of fact presented for its determination; and that he could not repudiate and reject that decision after it was found to be adverse to him.</p>

THIS was an appeal, by the defendant, from a judgment entered at a special term, after a trial at the circuit. The action was brought to recover damages of the defendant for counseling and attempting to induce the plaintiff’s wife to leave him; and for taking and carrying her away from the plaintiff’s house,^ and breaking up his family.