Volume 30 — New York Supreme Court Reports

Cross-appeals from a judgment entered upon tlie report of a referee. The defendant Guy appealed from the whole of the judgment; the plaintiff Young from so much of said judgment as decides that the plaintiff’s mortgage is a lien only to the extent of .$1,300 and interest from May 1^ 1875.

<p>'Motion for anew trial, after the trial' ofspecific issues hy a jury — when ii'must he made— Usury^-when the mortgagor is npt estopped from setting up the defense • °ft ty reason of Ms having recognized the mortgage as valid in a general -assignment.</p> <p>W.here, in an action brought to, foreclose a mortgage, issues of fact aré framed 'and, in pursuance of an order to that effect, tried by a jury, a motion for a new trial on a case and exceptions, founded upon irregularities committed on the trial by'the jury, must be made before the entry of judgment in the action, otherwise the findings of the jury will be deemed to have been acquiesced in, and questions of fact involved therein cannot be reviewed on an appeal from the judgment.</p> <p>Whore, after giving a mortgage to secure a usurious loan, the mortgagor sub- . sequently executes to the mortgagee, who still holds the mortgage, a general assignment of all his property in trust to pay his debts, aud in an inventory of his property and debts, subsequently made thereunder, recognizes the mortgage as a valid lien, and the debt it was given to secure as a valid debt, he is not thereby estopped from setting up the defense of usury in an action brought to foreclose the mortgage, by the mortgagee or his assignee, where there is no proof that the latter took the assignment on the faith of such recognition.</p>

the defendant, her husband, and an allowance of $150 .per annum for her maintenance and support, with the costs of tho action. This is an action ■ for separation, on the ground of cruel treatment.

<p>Appeal from an order awarding a writ of assistance to place a purchaser at a mortgage foreclosure sale in possession of the premises purchased thereat.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made at Special Term.</p>

<p>Objection to testimony under section 829 of the Oodc of Civil Procedure — must be specific.</p> <p>Upon the trial of an action brought against the representatives of a deceased person, the plaintiff having been called as a witness in his own behalf, the counsel for the defendants, before the plaintiff had been sworn or, given any testimony, objected to him “on the ground that he is (was) an interested party, and incompetent under section 829 of the Code of Civil Procedure.” The objection was overruled, and the plaintiff having been-sworn gave testimony as to personal transactions had with the deceased, without any specific objection thereto being made by the defendants.</p> <p>Reid, that the objection was invalid, as being too general, and that it was properly overruled by the court.</p>

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon the report of a referee.</p>

Motion by tbe defendants for a new trial, made on a case with exceptions, ordered to be heard in the first instance at the General Term after á verdict ordered for the plaintiff.

The'action was brought to recover money loaned by .the plaintiff to the defendant. The defense was the statute of limitations.

The defendants were assessors of tlie town of Ancram, Columbia county, for the year 1876, and the plaintiff sought to recover damages for their assessing and causing to be taxed tbe railroad of the plaintiff in that town ; the plaintiff claiming that the property was exempt from taxation by virtue of tbe statnte quoted in tbe opinion.

' Appeal from an interlocutory judgment, entered upon an order overruling a demurrer to the complaint. • The complaint alleged that upon the foreclosure of a mortgage, ’■given by one Enoch H. Rosekrans to the plaintiff in 1872, the latter recovered a personal judgment against said Rosekrans for a deficiency arising upon a sale; that a similar judgment recovered by one Arunah M. Adsit was thereafter assigned to the plaintiff, and that no part of either judgment has been paid…

The action was brought to recover damages for the publication, by tlie defendant Manning, in tbc Chenango Union, of an article referring to the plaintiff, which had been written by the defendant Smith, a correspondent of the paper, who resided at Sherburne.

■ Appeal from a judgment in favor of the plaintiff, entered upon, .a. trial before the court without a jury This action was brought to recover for work, labor and services performed, money laid out and expended, and materials furnished, at the request of the board of trustees of the defendant, for. the purpose of sustaining the several departments of the said village and defraying the expenses of the corporation, to the amount and value of $2,176.45.

Writ of Error to the Court of Oyer and Terminer, in and for the county of Columbia, to review the conviction of the plaintiff in error of murder in the first degree. The plaintiff in error was tried and convicted for the murder of his wife.

The action was brought to recover a penalty under section 14 of chapter 628 of 1857, for a violation of the excise laws. The charter of the city of Kingston (chapter 150 of 1872), provides, among other things, as follows : “ Sec. 60. The said Commissioners of the Almshouse may sue and ho sued in their corporate name in any of the courts of this State.

The action was brought to recover the damages alleged to have been sustained by the plaintiff, by being thrown from liis wagon by reason of an excavation alleged to have been made by the defendant’s street commissioner, and left unguarded by the defendant, in one of the public streets of the village of West Troy,

. Appeal from an order made at, a Circuit, dismissing tlie plaintiff’s complaint upon tlie ground tliat it did not state facts sufficient •to constitute a cause of action against the defendant herein, and from the judgment entered on the said order.

The complaint alleged the incorporation of the defendant, and that it was a part of its duties “ to properly direct the manner and superintend the building and repairing of the streets, sidewalks and crosswalks in said corporation, and also to direct the manner of grading, paving, flagging and. otherwise improving its sidewalks,' crosswalks and highways within the corporate limits of said city and corporation; that on or about November 29, 1879, the said city…

One 'Wyekoff, having done work for tbe defendant, received in payment an order, not bearing interest, drawn on its treasurer, and signed by the mayor and clerk, for tbe amount due. Tbis be transferred to tbe plaintiff. It was payable, by its terms, September 1, 1872. The plaintiff presented it September 3, 1872, and tbe treasurer refused to pay, because not in funds.

<p>Costs — in equitable actions, costs are in the discretion of the court.</p> <p>In an action brought by a judgment creditor to set aside, as fraudulent, a conveyance of land made by the debtor, the costs are in the discretion of the court.</p> <p>The rule that, in equitable actions, costs are in the discretion of the court, was not altered or affected by the adoption of the Code of Procedure.</p>

<p>Married woman — when the evidence fails to show an intent to charge her separate estate — when she is not liable as having bought as the agent of her husband —1860, ch. 90, § 1.-</p> <p>This action was brought to recover the price of meat sold by the plaintiff to the defendant, who lived with her family, consisting of her husband and ten children, and conducted the household affairs. The husband supported the family, and the wife carried on no separate trade or business, but was possessed of a separate estate liable to be charged with her debts. The plaintiff having refused to give further credit to the husband, , said to the defendant that “if they wanted to run a bill he should charge ' it to her,” to which the defendant replied, “you will not get cheated out of it, if you do; I will see you paid.”</p> <p>Mild, _ that the defendant was not liable for the price of tlie meat, as the evidence failed to show an intent to charge her separate estate with the payment thereof.</p> <p>That she could not be held liable, under section 1 of chapter 90 of 1860, as ■ having purchased the meat as her husband’s agent, for the support of hertself and family, as the evidence showed that the sale was made to her and not to him.</p>

The action was brought to recover for wort and labor performed for, and materials furnished to the defendant by the plaintiff, and others who had assigned their claims to him. The liability was claimed to have been created by the acts of one Bissell, an agent for the defendant. Upon the trial various declarations and admissions of Bissell were, against the defendant’s objection and exception, received in evidence.

Appeal by Henry A. Ashley, the purchaser of a portion of the assigned real estate of Thomas C. Rider, the above named assignor, from an order of the County Court of Columbia county, made March 10, 1880, vacating and setting aside the sale of that portion of the assigned real estate, consisting of about one hundred and nineteen acres, purchased by the appellant, Ashley, at the assignee’s sale thereof at public auction, had May 12, 1879; and also setting aside all subsequent…

The action was brought by the plaintiff, who had been appointed a receiver'of tbe property of one Lafayette Moore, in proceedings supplementary to execution, issued upon judgments recovered against him in April and May, 1878, to set aside certain conveyances made by Moore to Werner, and by Werner to Moore’s wife, in February of that year, and also certain mortgages given to the defendants Henrietta Briggs and Catharine Whiting (creditors of Lafayette Moore) at Moore’s…

Appeal by tbo defendant from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was brought to recover for professional services rendered by Messrs. Pond & French, which claim had been assigned to tl;C plaintiff, embracing services rendered in different actions, and .continuing from .1806 down to the time of the commencement of ¡this- action, May 25, .1877. This appeal seeks to review two items, one of $60 and one of $500.

■ Appeal by tlie above-named executor from a decree made by ■ the surrogate of Ulster county, February 2, 1880, upon the finaU settlement of his accounts, by which lie was decreed to pay to each of the respondents the sum of $1,986.20. Mary Williams, the testatrix, died in the month of April, 1868,. and resided then at Bondout with her husband, John Williams.

<p>Jury — submission of questions to, for special findings — right to withdraw them, when they cannot render a general verdict without malting the special findings.</p> <p>The plaintiff, one of the defendant's employees, brought this action to recover damages for injuries occasioned by a collision between the car in which he was riding and one in another train. The defendant claimed and the plaintiff denied, that at the time of the accident the plaintiff’s arm was outside of the window, by which he was seated. The judge submitted to the jury four questions, which they were directed to pass upon in addition to their general verdict; the first involving the question of the plaintiff’s contributory negligence, and the other three, the negligence of the defendant in employing- certain persons named, and the negligence of one of such employees. After retiring, the jury asked whether they were at liberty to find a general verdict, without passing on the special questions submitted te them, and were informed that if they could agree on a genera! verdict and could not agree.on the special findings, they might find sue!) a verdict and .come into court and report, and the court would do what it thought proper. Thereafter the jury found a general verdict for the plaintiff for $0,000, and stated that they could not agree as to the special findings... The defendant's counsel excepted to the verdict as irregular and moved to set it aside.</p> <p>Held, that the reply of the court to the question of the jury was not equivalent to a withdrawal of the special questions submitted to them, nor was the failure of the counsel for the defendant t.o except to what the court then said, a waiyer. of his right to object to the rendering of a general, verdict alone.</p> <p>That as there was nothing to show that the jury had agreed in deciding the - first of the questions submitted to them (that relating to the plaintiff’s contributory negligence) in favor of the plaintiff, a general verdict in his favor could not be sustained.</p> <p>Qumre, as to whether after special questions have been submitted to a jury, they can be withdrawn, without the consent of the- parties, when the. jiffy intimate that they cannot come to an agreement thereupon, and as. to whether, in any case, a general verdict and a report that they cannot agi-ee on the special findings can be allowed to stand.</p>

This action was brought to restrain the defendant from proceeding: by.a statutory foreclosure to sell certain real estate formerly belonging to Lewis P. Close, deceased, during the pendency of proceedings before the surrogate, for a sale of the said premises to pay the debt of the said Close. The defendant claims .under a mortgage executed. by Maria A. Root, daughter and solo heir-at-law of the said Lewis P. Close, which is the mortgage sought to be fore.closed.

The plaintiff’s testatrix, after making certain specific and pecuniary legacies, and bequeathing the residue of her personal property to a Mrs. Dill, devised her real estate to two persons named in the will, charged with the payment of all her just debts, funeral and testamentary expenses, and pecuniary legacies.

<p>Wegligence — a county flerlc is only liable for negligence in, malting a search, to the person for whoM it is made.</p> <p>One O’Donnell, having applied by his agent Winslow, to the plaintiff, for a loan on bond and mortgage, was told to procure a proper search from,the county clerk’s office, and that if the property was clear, lie could have the money. Winslow, acting for O’Donnell, and at his expense, procured from the defendant, the- county clerk, a search against the premises, from which was omitted a deed, then on record, by which O’Donnell had conveyed to another person the premises in question. The plaintiff, having made the loan in reliance upon the search, and being unable to 'collect the money on his bond and mortgage, brought this action ,against the defendant, to recover the said amount as damages for the negligence of the defendant in omitting the deed from the search.</p> <p>Held, that the defendant owed no duty to the plaintiff, and was not liable to him for the damages occasioned by his omission of the deed from the search.</p>

■ This was an action brought to foreclose a mortgage executed by Charles S. Lester to tbo Commercial National Bank of, Saratoga Springs. Grant was made a party, because be bad a judgment against Lester subsequent to tbe mortgage. Lucy C. Lester, the’ wife of the mortgagee, and Edwin M. Harris were also made parties, defendant. And the complaint contained the usual allegation that they had interests, or liens, which accrued subsequently to the lien of the mortgage.

The motion was made upon the ground that the said reference had been terminated by the service óf a notice on plaintiff’s attorney. This cause was submitted about June 1,1879, and on the 28th of same month the referee completed his report, and the same day give a written notice to George P. Avery, the attorney for the plaintiff, and Joseph L. Sackett, the attorney for the defendant, that Ms report was completed and ready for delivery upon the payment of Ms fees.

.The action was brought to obtain a judicial construction of the will of one Catharine Moore, who died on January 11, 1879.

. The complaint, which was made upon information and belief,, alleged that the defendants had conspired and combined together to defraud the plaintiff out of large sums of money, and that in pursuance of such conspiracy two of them- had fraudulently obtained from him some $17,000 in Belgium, which they had mailed in several registered letters addressed to the other defendants ; that the letters had not yet been delivered, but were still in the custody of the post-office…

Appeal- from a judgment in favor of the plaintiff, entered xipon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried. The action was brought to recover damages resulting from the death of Jacob Knupfie, the plaintiff’s intestate, through the alleged negligence of the defendants.

Ths action was brought to recover $400, with interest, from December 11, 1877. The complaint alleged that the plaintiff’s testator, on December 11, 1875, sold' and assigned to the defendant a bond and mortgage made by one Leiclc; that defendant agreed to pay $900 therefor; that he had paid $500, leaving $400 due.

<p>Writ of Error to the Court of Oyer and Terminer, of the county of RocHand, to review the conviction of the plaintiff in error, of murder.</p>

Tbe action was brought to recover damages for tbe conversion of certain searches and- abstracts of title-belonging to tbe plaintiff. Tbe defense was that tbe claim bad already been adjudicated upon in another action between tbe same-parties.

This action originated in a justice’s court, where judgment was entered for plaintiff.

The above-named “ Plank Road Company ” was duly incorporated under the “ General Act for the incorporation of Plank Road ‘Companies,” passed May 7,1847, for a term of thirty years, expiring April 18, 1880.

The affidavit, after stating the names of the parties and other formal matters, proceeds : “ The complaint herein alleged defendants were residents of Kings county; that at Gravesend, July 8, 1880, they maliciously, with intent to injure plaintiff, by force, took plaintiff from his lawful business and occupation, compelled him to go with them, dragging him through the Manhattan Beach Hotel, through the midst of large-assemblages of people, to a place •of detention used for…

<p>Appeal from an order of the Richmond County Court discharging the petitioner, a judgment debtor, from the custody of the sheriff.</p>

<p>Appeal from au order sustaining an injunction pendente Ute, to restrain the defendant from entering upon Ocean Parkway and digging up the same, or the court-yards on either side thereof, for the purpose of constructing a railroad on, ovér, or across said Ocean Parkway, and from interfering with the same for any such purpose.</p> <p>The defendants, organized under chapter 697 of the Laws of 1866, an act supplementary to the General Railroad Act, threaten to construct and build an elevated railroad across said Ocean Parkway, about seven hundred feet north of the Concourse, by erecting posts or columns and abutments in said Ocean Parkway, upon which said railroad is to bo built, without the consent of the park commissioners, and without complying with the provisions of chapter 609 of the Laws of 1871, which provides for the necessary co-operation of the State engineer and surveyor in certain cases, as a condition precedent to the construction of a road over this and other avenues in Kings county. Ocean Parkway, in connection with Prospect Park at one extremity, and the Concourse at the other, was laid out and constructed by the park commissioners under certain acts of the legislature, and is placed by law under their immediate control.</p> <p>The county of Kings issued bonds for its construction, which bonds are now outstanding unpaid. The law authorizes the county to reimburse itself from an assessment laid upon the adjoining property. The complaint alleged that the construction of this railroad as proposed will impair the ability of the county to reimburse itself for this outlay, and destroy the usefulness of this avenue for the purposes intended.</p>

The action was brought to foreclose a mortgage for $4,000, given by the defendants, Merritt, to the plaintiff. Neither the-bond nor the mortgage contained any covenant or clause expressly charging the separate estate of the defendant, Julia T-Merritt, with the payment of the money loaned.

<p>Appeal from an order made at a Special Term, sustaining a demurrer interposed by the plaintiff to the third defense set up by the defendant Pierson.</p> <p>The alteration was not material as to the defendant Pierson, as it in no way could affect his contract of indorsement or vary his attitude to the contract as indorsed by him. (.MoCcmghey v. Smith, 27 N. V., 39 ; Ocvrd v. Miller, 1 Hun, 584; 2 Parsons on Oont., 6 ed., 718; Hunt v. Bermet, 6 Mass., 519 ; Brown v. Pi/nckham, 18 Piet., 172; Chase v. Howard, 17 Hun, 5; Shuler v. Gillette, 12 Id., 278 ; Flmt v. Craig, 59 Barb., 319.)</p>

Appeals by the plaintiff and defendants from an order granted at a Special Term of this court, on December 23, 1879, which overruled that portion of the referee’s report herein, which rejected the claims proved against the assigned estate of Elisha P„ Wheeler by the bondholders of the Nes Silicon Steel Company, and allowed said ckims; and also from the decree or judgment granted herein by Mr. Justice Pratt, allowing said claims against said estate, and directing their…

The action was brought to obtain a judicial construction of the will of one James Short, deceased. He died leaving five children, three of whom died intestate and without issue before tbe defendant, Ellen Short, attained the age of twenty-one years. One of the three so dying married the defendant, Patrick Y. Murray, who claimed to be entitled to her share of the estate. The will provided: “ Second.

<p>Contract hy common carrier to receive <md transport goods — what an excuse for not forwarding them Try the first conveyance.</p> <p>October 14, 1889, the defendant engaged to transport for account of the plaintiffs on board its steamship Minnesota or Nevada, for Liverpool, three hundred bales of cotton at J^d. per pound; at thattimethe cotton was on its way from Mobile, the date of its arrival being uncertain. The Minnesota was to sail on October 37, and the Nevada on November 8. The cotton arrived on October 38; and was all delivered at the defendant’s pier by the 36th. When it arrived there was sufficient cotton loaded, and on the pier, which had been specially engagedforthe Minnesota, to fill that vessel. For that reason the plaintiffs’ cotton was not taken hy that ship, but was taken hy the Nevada, and arrived in Liverpool seven days after that taken by the Minnesota.</p> <p>In an action brought by the plaintiffs to recover damages, occasioned by a fall in the price of cotton, between the times of the arrival of the two ships, Held, that they were not entitled to recover.</p>

<p>Appeal from an order made at Special Term, denying a motion -to confirm the report of a referee, appointed to take and state the facts, under an interlocutory judgment entered herein, and for a •final judgment; and from so much thereof as sent the matter back to the referee to re-state the accounts in accordance with certain .specific directions therein contained.</p>

The action was brought to recover damages for an alleged libel published by the defendant as the proprietor of The New Yorlc Herald, relating to the swill milk business in. Queens county. The complaint alleged: “1.

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a. new trial, made upon the minutes of the justice before whom the action was tried.</p>

The action was brought to recover the amount paid by the plaintiff to the defendant upon the purchase of a mortgage, upon, the ground that he had at the time of its purchase promised and warranted that the.mortgage was a first lien upon the premises covered by it, and that the property was worth $15,000. The mortgage was given to secure payment of the sum of $1,000.

The ■action was brought to obtain a decree canceling three mortgages made by the ancestor of the plaintiffs on the ground of a failure of consideration.

<p>Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court, without a jury.</p> <p>This action was brought to compel the executors of the last will and testament of Abraham Denike, deceased, to require security for a loan directed to be made in tbe said will by them. The comnplaint alleged, among other things, the making of the will, of the said deceased, its admission to probate, and the appointment of the said executors; and set out in full the clauses of the will under consideration as to the loan to Reeves, with whom deceased was a special partner; and that the business of the said Reeves was one of risk.</p> <p>That the balance-sheet on January 1, 1879, made by Reeves, showed the testator’s interest to be $17,908, and that the same interest of the testator was in the inventory apj>raised at $14,000. That the said executors propose and intend to loan the said sum of $15,000 mentioned in the said will to the said Reeves, without taking security therefor for its faithful return at the end of three years; and if so made to the said Reeves, he proposes to use the said sum in business; and if loaned and used in business it will be at great risk, and in' a short time be lost, wasted, destroyed or otherwise impaired. That the executors have little or no property. That the plaintiffs demanded of the said executors to take security, but they refused.</p> <p>The judgment directed:</p> <p>“ First. That the said defendants, as executors, shall require and obtain from said Robert C. Reeves sufficient and proper security for the safe payment and return of the fund in the hands of said Reeves belonging to said deceased, or which his said estate is entitled to for the interest of said deceased in said special partnership, for the safe return of said fund to the executors of said estate at the end or termination of the three years mentioned in the clause of said will in reference thereto; and in case the said Reeves shall fail to give such security, then that said executors immediately collect and receive into their hands and possession the amount due said estate from said Robert C. Reeves and the executors thereof, for the interest of said decedent in such special partnership, and that the money resulting from such collection be by the executors invested, so that the same may be preserved for the benefit of said residuary legatees, as directed and provided in and by said will in reference thereto; that any net income arising from such investment over and above an interest at tbe rate of five per cent, per annum be paid to said Reeves, for the term of bis interest therein, as provided by said will; or bring said sum into court.</p> <p>“ Second. And that tbe said Reeves be and hereby is perpetually •enjoined and restrained from in any wise jeopardizing tbe money or property in bis bands as surviving partner of tbe special partnership of said Robert C. Reeves, and from investing or using tbe .same in any business, or treating or using tbe same other than an ■asset of tbe estate of said Abraham Denike, deceased, to be collected and received into tbe bands of tbe executors thereof, in their trust capacity, or be secured as above demanded.”</p> <p>It is tbe duty of tbe trustee to protect the estate of tbe remaindermen against tbe act of tbe tenant for life or a shorter period, by preventing him from -doing any act which is an injury to reversion. (Langston v. Ottmant, Coop., 33; Stuart v. Stuart, 3 Beav., 430; Pechel v. Fowler, 2 Anst., 550; Mortloek v. Butter, 10 Yes., 308, 309; Lord Mahon v. Earl Stanhope, 2 Sug. Pow., 512 ; Oowgill v. Lord Ormintoun, 3 Y. & C., 369; Watts v. Gridleston, 6 Beav.; 188 ; Moseley v. Marshall, 22 N. Y., 200 ; Briggs v. Earl, &c., 19 Jur., '817; Freeman v. Cook, 6 Ired. Eq., 376; Woodman v. Good, 6 "W- & S., 169 ; Whitfield v. Bennet, 2 P. ¥ms., 242; Marker v. Marker, 9 Hare, 1; Baris v. Lee, 6 Yes., 786 ; Swan v. Leigan, 1 McCord Ch., 227; Boswell v. Morehed, 1 Bust. Eq., 26 ; Frazer’s Admr. v. Bwill, 11 Gratt., 9; Foley v. Burnett, 1 Bro. •C. C., 279 ; Woods v. Sullivan, 1 Swan, 507 ; Wootton v. Burch, 2 Md. Ch., 190; Smith v. Ostrander, 64 N. Y., 278; Tyson v. Blake, 22 Id., 563; Lenpton v. Lenpton, 2 Johns., 628 ; Clark v. Clark, 8 Paige Ch., 160 ; James v. Scott, Ala., 579 ; Emmons v. Cairns, 2 Sandf. Ob., 369 ; Van Buyne v. Vreeland, 1 Bresl. (N. J.), 142; Willard Eq. Jur., 328-330 ; Ferrance v. Prentice, Ambler, 273 ; Walker v. Cook, cited by Lord Thurlow in 1 Bro. C. O., 105 ; Green v. Pigott, 1 Bro. C. Q,, 105; Henderson v. Vaults, 10 Yerger, 30 ; Johnson v. Mills, 1 Yes. Sen., 282; Willard Eq. Jur., 330, 331; Smith v. Ostrander, 64 N. Y., 281.)</p>

<p>Liability of tike assignee of a lease for rent accruing after the assignment — Oode of Ovdl Procedure, § 999 — motion for a new triad thereunder.</p> <p>Although the continued possession of the demised premises by an assignee of a lease, after he has assigned the same, may be evidence of fraud, and tend to show that the assignment was merely colorable or fictitious, yet that fact standing alone is not sufficient to establish the invalidity of the assignment, or render such assignee liable for rent thereafter accruing.</p> <p>Under section 999 of the Oode of Civil Procedure, a party may move for a new trial, on the ground that the verdict is contrary to law, and upon an appeal from an order denying such a motion the whole case is before the appellate court, upon the law as well as the facts.</p>

Harvey Edwards, the testator, died November 30, 1868, leaving a large real and personal estate, of which $30,000 was invested in United States bonds. By his last will, made October 31, 1868, he appointed the plaintiff, J. Byington Smith, Eliza H. Edwards, Howard IT. Edwards and Thomas C. Edwards, executors of his estate, but directed the same should be managed by the executor, Smith, who has since managed the same.

This action was brought to procure a divorce on the ground of adultery. The defendant appeared and answered, her answer being a general denial. All the issues were referred to Frank Reynolds, Esq., as referee, to hear and determine. The referee found in favor of the plaintiff. Formal exceptions to the referee’s A motion, made to the court, to confirm the report of the referee and for judgment thereon, was denied, and the “report set aside for insufficiency of evidence.”

The action was brought to foreclose two mortgages, which were owned by the plaintiff’s testator at the time of his death. In November, 1861, Bindley M. Eerris executed to the treasurer of Orange county his bond, conditioned to pay to the obligee $9,000, one year after his death, with interest from the time of his death, for the benefit of his three minor children, Gertrude O. Eerris, Caroline M. Eerris and William L. Eerris, Jr., — one-third to each.

The action is brought by a stockholder of the National Bank of Eishkill, on behalf of himself and all the stockholders, against the directors of the bank, the bank itself, and the receiver appointed by the comptroller of the currency.

On December 6, 1879, the defendants agreed to sell on arrival about. 110,000 pounds of camel’s hair to plaintiffs, at 15% cents per pound. The agreement was evidenced by a broker’s note in the following words: “ Sold for Messrs. A. H. Reitlinger & Co. to Messrs. Dike Bros, about 110,000 lbs. Russia camel’s bair, to arrive from Europe, at fifteen and three-eights (15%) cents per lb. Terms, net cash. Buyer to remove the hair from the dock upon arrival.

Tbe action was brought to recover damages for injuries sustained by tbe plaintiff in falling into an elevator pit in tbe basement of a building occupied by tbe defendants.

<p>Appeal from an order made at Special Term, setting aside a referee’s report, vacating a judgment entered thereon, and directing a new trial. The plaintiff’s claim against the defendant’s decedent was referred under the statute. The referee reported in favor of the claimant. No motion was made to confirm the report, but a motion was made by the representatives of the estate to set it aside. This was denied, and the report was thereupon formally confirmed and judgment entered thereon. The defendants then procured the settlement of a case containing exceptions, and moved for and obtained the order now appealed from.</p>

This was an action for divorce. The action was commenced by the publication of the summons. The first publication of the summons was on July 22, 1877. Judgment was obtained and docketed October 11, 1877. The parties resided in Camden, Oneida county. The . place of trial was laid in Kings county, in which county all the proceedings were had.

<p>Corporation — a creditor at large cannot apply for its dissolution on account of its insolvency.</p> <p>A creditor at large oí a corporation cannot maintain an action to have it dissolved, on the ground of insolvency, and to compel its trustees, directors and officers to make good the losses which it has sustained by reason of their negligence and mismanagement.</p> <p>Belknap v. The PI. T. Life Ins. Go., 11 Hun, 282, followed.</p>

Appeal by tbe defendant from a judgment in favor of tbe plaintiff, entered upon the tiial of this action by the court without * jury. The action was brought against the defendant as a stockholder in a manufacturing corporation, under the following clauses of the act of February 17, 1848. “ § 10.

The action was brought to procure a construction of the will of one Elias W. Van Voorhis, deceased. His will contained, among others, the following provisions: “ Third. — I give, devise and bequeath all the rest, residue and remainder of my property, both real and personal, and wheresoever the same may be situated, which may remain after payment of my debts and after the above devise and bequest to my wife, to my executors hereinafter named.

Henry Gordon died July 12, 1871, leaving three sons, his .only-next of kin and heirs at law, to whom he gave all his real estate indifferent proportions, but died intestate as to nearly all his personal property. His son, Harrison Gordon, was his sole executor. The inventory is dated October 18, 1871, and amounts to-$2,741.89, including a note from the executor, Harrison Gordon, to the testator, for $1,000, with $55.50 interest due, secured by a mortgage.

The action was brought to abate an alleged nuisance, consisting of a stoop and fence erected by the defendant in front of a lot ■owned by him in the city of. Brooklyn, situated on ,the northwest ■corner of Washington avenue and Malbone street, and of a stoop in front of a lot owned by him on the east side of Washington avenue just north of Malbone street.

21 and costs, and also from the judgment entered thereupon. The action was brought to recover upon the bond a deficiency claimed to remain unpaid after an alleged statutory foreclosure of a mortgage upon premises in Kings county, made by the defendant, Thomas Auld, and his wife, to secure the payment of $1,600, loaned to defendant’s wife, and which mortgage,- with the bond accompanying the same, was by divers mesne assignments transferred to the plaintiff.

The action was brought to procure a mcmdairms to compel the Board of Town Auditors, of the town of Fishkill, to audit certain town bonds, owned by the plaintiff’s intestate. The court, at General Term, said : “ This judgment should be reversed. The evidence shows that plaintiff’s intestate had four bonds-of $500 each, issued by the town of Fishkill. These bonds were all due March 1, 1876, and were all, by their terms, payable at the National Bank of Fishkill.

The action was brought to procure a judicial construction of the will of Christopher R. Robert, deceased.

The action was brought against tbe defendant as a trustee of the New York Oil Company because of the failure of said company to file its annual report. The statute is highly j>enal in character, and is to be strictly construed in favor of the trustee.

<p>Appeal from an order of tbe surrogate of New York directing allowances, in lieu of costs, to be paid to tbe respondent, Luke A. Lockwood, Esq., and to tbe respondents Dugro and Eaegner, proctors.</p>

<p>•Ohai'ter of New York city — 1873, oh. 335, § 28 — who is not the head of a Tywreani or a regular clerk within — power to areate new bureaus therein.</p> <p>The “ Superintendent of Telegraph ” is not the head of a bureau or a regular clerk within the meaning of section 28 of chapter 335 of 1873, providing that “no regular clerk, or head of a bureau shall be removed until he has been informed of the cause of the proposed removal, and has been allowed an opportunity of making an explanation.”</p> <p>The charter of 1873, ch. 335, took away the power conferred by chapter 446 of 1857, and chapter 137 of 1870, upon the common council and heads of departments in New York city to create new bureaus, and thereafter no new bureaus could be created except by an act of the legislature.</p>

On December 29, 1877, tlie plaintiffs borrowed from John Bonner & Oo. $15,000, on tbe pledge of one hundred shares of Chicago & Alton Railroad stock, and $10,000 in Government bonds, the property of other persons, customers of the plaintiffs. On the same day John Bonner & Oo. borrowed from the Farmers’Loan & Trust Company $35,000, on the pledge of the plaintiffs’ stock and bonds, and also of other securities belonging to other.defendants in this action, who do not appeal.

A ppeal from an order vacating an assessment for laying a sewer in Sixtieth street. The application was made upon the grounds that there was included in the assessment the cost of work for which no contract had been made, and that a large amount of the work had been done without letting any contract therefor.

<p>Appeal from an order, made at Special Term, denying a motion for a commission to take the testimony of Frank L. Taintor, an inmate of a lunatic asylum at Concord, New Hampshire.</p>

<p>Violation of an injunction — power of the court to impose a fine th&refor — ■how the amount of the fine is to he determined.</p> <p>In proceedings to punish a defendant for contempt, for violating an injunction restraining him from collecting the rents of certain premises during the pendency of an action, brought to foreclose a mortgage thereon, the court can only impose such a fine as shall be sufficient to indemnify the party aggrieved for his actual loss and injury, and to satisfy his costs and expenses in the proceedings.</p> <p>The amount of the loss and injury must be established by the same proof as would be required in an action at law, to recover the damages sustained.</p>

Appear from a judgment, entered upon the trial of this action at Special Term. The action was brought to procure a judicial construction of the will of Robert Thompson. The question in dispute related to the construction to be given to the eighth item of the will, and to whether or not the pecuniary legacies bequeathed by the will were charged upon the real estate.

All persons who were registered on the books of the Bankers’ and Brokers’ Association as holders of shares of its capital stock, when that association failed and came into the hands of a receiver, remained the legal owners of the shares, and were subject to the liability to pay the sum necessary to complete the amount of such share as fixed by the charter.

<p>Contempt — a pa/i'ty cannot be arrested as for a contempt, when penformamee of the judgment cam be enforced by execution.</p> <p>By the judgment entered in this action, brought to obtain a. construction of the will of one Emily Allen, the plaintiff, as her executor, was directed to pay to the defendant, her residuary legatee, the sum of $8,051.59, the residue of the personal estate in his hands, and to deliver to her a certain mortgage for $1,500, wit a the bond accompanying the same, if there were any such bond. Upon an affidavit showing a refusal of the plaintiff to comply with the provisions of the said judgment, after due demand made, an order was granted adjudging him to be guilty of a contempt and ordering a precept to issue to the sheriff to take the plaintiff and actually confine and detain him in the jail until he should be discharged by due course of law.</p> <p>Held, that, in so far as the order adjudged the plaintiff to bo guilty of contempt in refusing to deliver the mortgage to the defendant, it was proper and should be affirmed, but that as to the residue it should be reversed.</p> <p>A party cannot be adjudged guilty of a contempt, and confined to a jail as a punishment therefor, for any disobedience of a judgment or order, where by law an execution can be issued for the purpose of enforcing the judgment or order which has been disobeyed.</p>

The referee’s report was filed on October 21, 1878, and a judgment was entered thereon on October twenty-fifth. On November twenty-third the judgment was set aside as prematurely entered, and a judgment ordered to be entered mono pro tuno as of October twenty-sixth. The notice of lien was filed in the county clerk’s office October 25, 1877. The plaintiffs could not recover without affirmative proof that money had become due from the defendant to Sliker.

<p>Appeal from a judgment dismissing the complaint herein, entered upon the report of a referee,</p>

<p>Accommodation note — when the failure of the payee to comply with a prior agreement is no defense to the accommodation maker.</p> <p>When a note is made for the general accommodation of the payee and no restrictions are placed upon him as to its use, he may use it in any way which seems beneficial to him, provided it is not negotiated usuriously, and liis failure to apply the proceeds according to a prior agreement with the maker constitutes no defense to the latter in an action brought against him thereon.</p>

<p>Appeal from an order made at Special Term reversing and setting aside, upon the return to a writ of certiorari, a conviction of tbe relator by a justice of tbe peace for disturbing a religious meeting.</p>

<p>Judgment — when a pa/rty to it is estopped, from disputing facts established try it— Collector’s bond — as to whether the lien of such bond extends to equitable interests— 1 B. 8. (5th ed.), 833, § 43.</p> <p>Prior to January, 1875, one Loveland Paddock died intestate leaving him surviving as his only heirs-at-law three children, Oscar, Edwin L. and George F. Prior to his death he had bought certain lands for a valuable consideration and paid the purchase-price thereof, and was, at the time of his death, in equity entitled to a conveyance, and had then entered into possession and received the profits thereof. In January, 1875, George F. Paddock was declared a bankrupt. Thereafter a collector, upon whose bond he was liable as a surety, having made default, an action was commenced by the supervisor, under 1 Revised Statutes (6th ed.), 833, section 43, to have the amount in which the said collector was in default adjudged a lien upon the real estate of those who executed the bond from the time of the filing thereof. The complaint therein alleged that the plaintiffs were unable to set forth a description of all the real estate owned by the said George F. Paddock and the other sureties, and prayed leave to furnish the same at or before the trial, with the same force and effect as though set out in the complaint. The court directed a judgment establishing the lien of the bond against all of the said Paddock’s real estate, and referred it to a referee to ascertain and report a description thereof, unless the parties agreed upon the same, and directed that, when so ascertained and described, it should be sold by the sheriff and the proceeds applied as therein directed. By agreement of the parties to the action a description of the above mentioned real estate was inserted in the judgment, and the same was thereafter sold by the sheriff to one who had notice of the situation of the title, and who had been notified by the plaintiffs, the assignees in bankruptcy of Paddock, who were parties to the action, that the collector’s bond was not a lien upon the premises because Paddock’s interest was only of an equitable character. Thereafter the sheriff’s report of sale was, upon due notice to all the parties, confirmed.</p> <p>In this action, brought by the plaintiffs to recover the said real estate from the purchaser, on the ground that Paddock’s interest therein being of an equitable character only, he had acquired no title upon the sale.</p> <p>Held, that they were estopped by the judgment in the former action from insisting that Paddock’s interest was not subject to the lien of the bond, or from disputing the validity of the title acquired by the purchaser at the sale had in pursuance thereof.</p> <p>Qutwe, as to whether section 43 of 1 Revised Statutes (6th ed.), 833, providing that “ every such bond shall be á lien on all the real estate held 'jointly or severally by the collector or his sureties within the county at the time of the filing thereof,” does not create a lien upon real estate of the surety held only by an equitable title, when he is in possession thereof, lawfully exercising the rights of an owner. (Per Talcott, J.)</p>

The complaint alleged that the defendants, for the purpose of cheating and defrauding the plaintiff, represented that they were officers of a company known as the Rochester Frear Stone Company ; that said company had been duly organized and incorporated, and that the capital stock subscribed was $200,000; that there was no such company; that the representations were false, and were made with intent to deceive plaintiff and to induce him to purchase shares of stock, and that…

<p>Appeal from an injunction order granted herein by the special county judge of Chautauqua county.</p>

. Appeal from a judgment in favor of the defendants, entered upon an order confirming the report of a referee appointed to pass upon a disputed claim against the estate of the defendants’ intestate.

MotioN by tbe defendant for a new trial on exceptions taken at tlie Chautauqua Circuit, and ordered to be heard at the General Term in the first instance.

The general words at the end of section 829 of the Code of Civil Procedure, qualify not only the clause immediately preceding, separated by a comma, but the next preceding clause also separated by a comma. (Lambert v. The People, 76 N. Y., 227; Ooxson v. Poland, 2 Daly, 66; Pothier on Obligations, part 1, chap. 1, § 102; Brownmg v. Wright, 2 Bosanquet & Puller, 12 ; Petit v. Geesler, 58 H. Pr., 195.)

The defendant, Andrew Gill, stated in his affidavit, among other things, “ that he has fully and fairly stated the case herein, and all the facts and circumstances relating thereto, to his counsel, Robert Sewell, Esq., who resides at No. 68 West Forty-fifth street, in the city of New York, and has disclosed all the facts which he expects to prove by each of the witnesses hereinafter named, and that he and the defendant, Adelaide C. Gill, and each of them, have a good and…

<p>Executory contract of sale — right of the vendee to set up a breach of wa/rranty without returning the goods.</p> <p>Where upon an executory contract for the sale of a cask of gin, the vendor represents it to be of good quality and to be worth more than the price paid for it, and at the same time exhibits a sample of gin which is of a good quality, the vendee is entitled to a reasonable time to examine the gin after its arrival, and may, if it proves to be inferior to the sample and of poor quality, set up the damages arising from the breach of warranty as a defense to an action brought to recover its price, although he has not returned or offered to return the gin, but has retained and used the same.</p>

The action was brought by the plaintiff, who had recovered a judgment against the defendant Andrew Gill, and had an execution issued thereon returned unsatisfied, to reach certain shares of stock alleged to belong to the j'udgment debtor, but which then stood in the name of his wife upon the books of the company.

Writ of error to the Court of Sessions of Onondaga county, to review a conviction of the plaintiff in error for disturbing a religious meeting.

<p>Evidence — when a defendant who has made no defense cannot testify for a co-defendant, as to personal transactions with a deceased person— Gode of Oivil Procedv/re, §§ 828, 829.</p> <p>Upon tlie trial of an action brought by the administrator of a deceased payee of a promissory note against the makers thereof, one of whom claimed to be liable as a surety only and the other of whom interposed no defense, the latter was allowed, against the plaintiff’s objection and exception, to testify in behalf of his co-defendant as to personal transactions and communications had by the witness with the deceased.</p> <p>Held, that the testimony was inadmissible under sections 828 and 829 of the Code of Civil Procedure.</p>

<p>Sheriff— right of, to receive a prisoner after a volunia/ry escape from a constable.</p> <p>One Anderson having been arrested by a constable by virtue of an execution against his person, issued upon a judgment recovered by the plaintiff, was allowed by the constable to go at large upon his promise to appear the next morning and give bail. On the next day the constable not finding Anderson left the execution at the sheriff’s office, where it was received by a deputy who found Anderson and told him that he had the execution and had come after him, whereupon Anderson voluntarily went with him to the jail and there gave bail for the limits. Anderson having afterwards gone beyond the jail limits this action was brought against the sheriff for an escape.</p> <p>Held, that although after the voluntary escape suffered by the constable the sheriff had no right forcibly to take and detain Anderson under the execution, yet that upon his voluntarily surrendering himself to the deputy the sheriff had the right to receive him and was liable for his subsequent escape.</p>

<p>Evidence — oral agreement made by one when depositing money to the credit of a/nother — when evidence of it is inadmissible.</p> <p>The plaintiff having received from the administrator of her father’s estate two checks for $500 each, payable to her order,-delivered the same, indorsed in blank, to her husband with directions to deposit the same to her credit with the defendant, The First National Bank of Brockport.</p> <p>The husband deposited the checks in the bank to the plaintiff’s credit and received a pass-book from the defendant, in which the amounts were credited to her. In an action by the plaintiff to recover the amounts so deposited, the defendant offered to prove that at the time the deposits were made it was orally agreed between the husband and the teller of the bank that they should be credited to the plaintiff upon the condition that the same should be withdrawn upon checks made by the plaintiff, or by the husband in her name, and that the amounts so deposited had been subsequently withdrawn by checks made by the husband in the name of the wife.</p> <p>Eeld, that in the absence of evidence tending- to show an authority in the husband to act as the agent of his wife, or any ratification by her of his acts, the evidence was inadmissible and was properly excluded.</p>

Appear from an order made at Special Term, denying a motion to set aside or modify the judgment entered in this action, or to order a resale of the mortgaged premises described in the complaint and for other relief. On the 15th day of March, 1877, the defendant John M. Fox, who then owned a farm of 150 acres of land, and his wife, executed to the plaintiffs’ testator a mortgage to secure the sum of $3,500.

Appeal by the plaintiff from a judgment entered upon a decision made at the Steuben county Special Term dismissing the complaint of the plaintiff with costs. The dismissal was based upon the supposed want of jurisdiction in the court to determine the questions presented by the complaint and by the offers and concessions made at the trial. Menzo Ward died April 18, 1874, seized' in fee simple of the lands described in the complaint.

Justice Merwin, at Chambers, tbe one dissolving an injunction in favor of the appellant Vidvard, restraining the respondent Cushman from using the stairway in the stores known as Nos. 25 and 27 John street, in the city of Utica; the other granting an injunction restraining Vidvard from interfering with Cushman’s use of the same stairway.

Tbis action was brought to partition tbe lands whereof William Wager died seized. Tbe plaintiffs are tbe brother and sister of tbe deceased. Tbe defendant Eliza H. Wager is tbe widow of the deceased, and tbe other defendants are tbe nephews and nieces of tbe deceased. The deceased left a last will and testament, which fias been duly admitted to probate.

<p>Tfrunidulent representations —proof that reliance was placed upon them — liability of one partner for the fraudulent representations of Ms copw'tnm' — when his liability therefor is not affected by a discharge in bankruptcy.</p> <p>In 1875, and prior thereto, the plaintiffs, who were engaged as partners in buying wool and sheepskins at Rochester, had been accustomed to ship them to the defendants, who were carrying on business as partners in New York, and to draw drafts upon the defendants and send notes to them, to be negotiated and to take up notes of the plaintiffs previously discounted.</p> <p>The plaintiffs brought this action to recover the damages occasioned by their having been induced to send to the defendants four promissory notes, by reason and by means of false and fraudulent representations of the defendant Strang, contained in letters written to the plaintiffs to the effect that the defendants’ firm, of which he was a member, still held four promissory notes previously sent to them by the plaintiffs, whereas in fact they had then negotiated the said notes and received the proceeds thereof</p> <p>Upon an appeal from a judgment in favor of the plaintiffs, held, that the plaintiffs were properly allowed upon the trial to testify that they sent the notes in reliance upon the statements contained in the letters.</p> <p>That the relations of trust and confidence existing between the two firms were suoli as might well induce the plaintiffs to rely upon such statements, and that the jury were justified in finding that they did so rely upon them. •</p> <p>That Strang was properly allowed to testify that he had no fraudulent intent in writing the letters, but that it was proper to refuse to allow his codefendants to testify to the absence of any intent to defraud on their part, as the fact that the firm had received the proceeds of the discount of the notes rendered them liable for the fraudulent acts and representations, by means of which the notes were procured, without proof of any actual fraudulent intent on their part.</p> <p>That they were chargeable with an express, positive fraud, within the meaning of the term “fraud,” as used in the bankrupt act, and were not relieved from liability therefor by a discharge granted under said act.</p>

Tbe plaintiff sues as administrator of bis infant son Willie, who was killed in tbe town of Geddes, February 26, 1879, at about eight o’clock in tbe morning at a railway crossing over a highway, .by an engine belonging to and operated by tbe defendant. “At tbe time of bis death tbe boy was six and a-half years old and was quite healthy.” His mother, who lived in the “Union Salt Yard,” about thirty yards from tbe crossing where tbe boy was killed, testified “ tbat she saw tbe…

The action was brought to recover of the defendants damages for having made certain false and fraudulent representations to the plaintiff. There was a trial and a verdict for the defendants. The defendant Beach appeared and answered by Abbott & Drake, his attorneys. The defendants Baker and Jones appeared by J. B. Adams, and answered by a separate answer containing a general denial, which was the same and only defense set up by Beach.

Writ of error to the Court of Oyer and Terminer to review the trial and conviction of tbe plaintiff in error of murder in tbe first degree. Tbe court erred in admitting tbe evidence of Albert E. Stevens and George Pennock, as to blood stains.

Dana, the plaintiff’s intestate, had been for many years an engineer on that part of defendant’s road from Syracuse to Rochester via Auburn, which is a single track. It is usual on that road to run extra or wildcat trains, and the movement of such trains, and also of the regular trains which may be on the road and affected by such wildcat train, are directed and controlled by telegraphic dispatches which are sent from the superintendent’s office at Rochester.

Greeno, deceased. ■ Amos H. Greeno died at his residence in the city of Buffalo, March 7, 1873, leaving the plaintiff Susan B., his widow, and three minor children, viz., Mary E., Sarah E. and John C., the children of a deceased wife, and Lemuel S., his only child by the said Susan B. By his will he bequeathed to his mother, Mehitabel Greeno, an annuity of $100 charged upon his real and personal estate.

<p>Appeal — when a referee may appeal from an order fating his compensation— Code of Owil Procedv/re, § 1247.</p> <p>Under section 1247 of tlie Code of Civil Procedure a referee, appointed to sell real estate in pursuance of a judgment, may appeal from an order fixing his fees and compensation for the services so rendered by him.</p>

This action was originally commenced against Edward T. Marsen, before a justice of the peace of Oneida county, on a claim for the delivery of personal property which was taken by the constable and delivered to the plaintiff. The defendant interposed an answer entitling him to a return of the property. On the trial before the justice the plaintiff obtained a judgment on the 18th day of December, 1877, from which the defendant appealed to the County Court of Oneida county.

Tbe action was brought to recover damages occasioned by the alleged negligent hilling of tbe plaintiff’s intestate by tbe defendant. Tbe injury of which tbe plaintiff complains occurred at tbe yard of tbe Erie Railway Company on Louisiana street, in the city of Buffalo. Tbe deceased was in tbe employment of tbe defendant and was engaged in coupling cars. One car bad been run off upon a track and left standing.

On the 22d of April, 1818, the firm of York & Moore, were indebted to the defendant in over $3,000, and on that day Moore, one of the firm, in his own name, to secure the debt, made to the defendant a chattel mortgage in the usual form upon the personal property of the firm and also upon all the lumber and stock it should thereafter acquire.

The action was brought by the plaintiff, as the assignee in bankruptcy of one George Ames, to recover a payment made by said Ames to the defendant on Mai’ch 31, 1877, on the ground that it was made in violation of the bankrupt act. (Sec. 5128 of the H. S. Rev. Stat.)

This action was brought for the specific performance of a contract for the exchange of lands. Held: the following opinion being delivered by Rumsey, J.

Tbe action was brought to foreclose a mortgage and compel tbe defendant Egbert I. Avery to allow tbe plaintiff to collect and receive tbe amount due upon a policy of insurance issued upon tbe mortgaged premises. About December 1, 1870, Chapman W. Avery, tbe defendant’s brother, executed a bond and mortgage to tbe plaintiff on a certain store and lot in Jamesville, for $2,000, payable in three years, interest payable semi-annually.

The copartnership was in the manufacture and sale of picture frames, mouldings, etc., at Syracuse, and was continued until the appointment of a receiver in this action on the 30th day of October in the year 1874.

This action was brought to foreclose two mortgages, one given to plaintiffs, by Lawrence Shuster Smith, individually and as executor of the last will and testament of John M- Smith, deceased.

This action was commenced in the month of November, 1865, and was originally brought in equity to have the plaintiffs declared part owners of a steamboat called the “ Dean Richmond.” The issue as then framed was referred to the late Mr. Nichols who dismissed the complaint.

<p>False statement — when a jury may infer an intent to defraud the inquirer — when the question should he submitted to the jury.</p> <p>When a statement is made Tby a party who assumes or intends to convey the impression that he has actual knowledge of its truth, though conscious that he has no such knowledge, and when he knows that the inquirer relies and is about to act upon his statement, a jury may he justified in finding, on proof of the falsity of the statement, and of the injury sustained by the party relying thereon, that the party making the same intended to deceive and defraud the inquirer.</p> <p>Where the party making such statement testifies that he simply undertook to repeat what had been told him, while the party to whom it was made testifies that the statement was positive and made as being within the personal knowledge of the party making it, held, that the question should be submitted to the jury.</p>

<p>Bonds of a corporation cannot be levied upon until they home been delivered — a pledgee may waive his lien and sell the property under an execution — jRight oj action in bondholder — Evidence—what statements of a pa/rty a/re admissible as pwt of the res gestm.</p> <p>The plaintiffs, claiming to be the holders of bonds issued by the Chicago, Saginaw and Canada Railroad, brought this action, in behalf of themselves and all others similarly situated, against the railroad company, the trustees under a mortgage issued by it to secure the payment of the aforesaid and other bonds, and one Richardson, to restrain the latter from transferring a number of such other bonds purporting to be secured by said mortgage held and claimed to be owned by him, and to procure their cancellation. Upon the trial it appeared that 600 of the bonds were pledged to Richardson to secure large sums of money lent and advanced by him to the company. Subsequently, upon a settlement with the company it gave to him its notes for the amount in which it was then indebted to him, viz., the sum of $185,000, which sum included a large amount of the indebtedness for which he held the bonds and also a subsequent accruing indebtedness for which he held no collateral. Thereafter Richardson, after offering to surrender the bonds and demanding payment of the notes, brought an action on the latter in which he subsequently recovered a judgment. Under an attachment issued in this action the sheriff levied upon 2,974 bonds of the company, then in the office of the company, but which had never been issued by it. Thereafter these bonds were sold by the deputy sheriff under an execution issued upon the judgment, and purchased by Richardson.</p> <p>Eeld, that the bonds having never been delivered were not the subject of attachment, nor of sale upon execution, and that Richardson acquired no title thereto by his purchase.</p> <p>The 600 bonds were sold at the same time by the deputy sheriff and purchased by Richardson. Upon the trial it was claimed by the plaintiffs that they were sold by virtue of the attachment and execution, and by Richardson' that they were sold by virtue of the pledge in pursuance of due notice of the time and place of sale given by him to the company.</p> <p>Held, that even if the bonds were sold under the execution Richardson acquired a good title thereto, subject, perhaps, to the right of the company to redeem on payment of the amount for which they were pledged, as he was entitled to waive the lien upon them created by the pledge and have them levied upon and sold as property of the judgment debtor.</p> <p>Upon the trial Richardson offered to prove the agreement made by him as to the selling of the 600 bonds, with the deputy sheriff, who was then dead.</p> <p>Eeld, that the agreement was admissible as a part of the res gestm, as tending to characterize the transaction of sale, and that the court erred in excluding the evidence.</p> <p>Quow'e, as to whether such an action as the present one could be maintained by the plaintiffs.</p>

Tbe action was commenced in 1875 and bas been tried three times. Upon tbe first trial tbe jury rendered a verdict for $1,500. Upon a new trial, ordered because of tbe admission of improper evidence, a verdict was rendered for $100, wbicb was set aside on the ground of inadequacy of damages. Upon the last trial a verdict was rendered for $5,000.

<p>Appeal from au order made at Special Term, determining the rate of interest to be allowed on the verdict recovered in this case.</p>

<p>Proceedings for a discharge imderr the two-thirds act — when the true cause of the debt is sufficiently set foi'th.</p> <p>In this action, brought by the plaintiff upon several promissory notes, given for money loaned and beer sold to the defendant, the defendant Soule was arrested in pursuance of an order granted on the ground that the plaintiffs were induced to loan the money and sell the beer by means of false and fraudulent representations made by him; and a motion subsequently made by him to have the order vacated was denied. After the judgment was recovered herein, Soule procured a discharge from his debts from the Court of Common Pleas under the two-thirds act. In the schedule accompaying the petition he stated the cause and consideration of tie debt to tbe plaintiff as follows, viz., “notes and open account for money loaned and interest tbereon.”</p> <p>Held,, that tbe true cause and consideration of tbe indebtedness was sufficiently set forth to confer jurisdiction over tbe proceedings upon tbe Court of Common Pleas, and that upon producing bis discharge be was entitled to an order perpetually staying all proceedings under tbe judgment herein, and ordering tbe same to be marked “ satisfied by tbe defendant’s discharge in insolvency proceedings.”</p>

Tbe plaintiff brought tbis action to recover for services rendered as an attendant in tbe Fourth District Civil Court of tbe city of New York, from January 1, 1877 to June 1, 1877.

<p>Appeal from an interlocutory judgment of the Special Term, in favor of the plaintiffs, directing an accounting, etc.</p> <p>The action was begun by Richard Schell as plaintiff for an accounting. Daniel Devlin, now deceased, the appellants’ testator, with one Arkenbnrgh and Bryan, had signed an agreement for the purchase by them and other persons, whose subscriptions were solicited and obtained to it, of certain oil lands and leases of lands in Ohio. Among the subscribers were Richard Schell and Duffy and "Williams, of whom James M. Williams is survivor, to the amount of $5,000 each, which was paid to Daniel Devlin, the treasurer of the parties. It was claimed, and found by the court, that, before the date of this agreement, the three individuals above named had purchased and were owners of these lands and leases, and that they had paid for them a much smaller sum than that at which the subscribers had agreed to purchase them, and that these facts had not been disclosed to the other subscribers, and that the three had divided among themselves the difference between the original cost of the lands and leases and the amount which the subscribers paid for them under the agreement.</p> <p>The agreement is dated the 23d day of February, 1865, and- on the 15th day of March, 1865, Duffy and Williams, and on the 16th day of March, 1865, Schell, paid their respective subscriptions.</p> <p>The action was begun on the 12th day of February, 1875, and the defendant Williams served his answer subsequent to the 1st of October, 1875. Both the plaintiffs and the defendant Williams claim judgment against the executors for an accounting, etc.</p> <p>In the year 1867, Robert P. Getty and others commenced an action, in which all the subscribers to the agreement were made parties, either as plaintiffs or defendants, Schell and Duffy and Williams being included among the latter. Schell served no answer. Thereafter an order was made therein, amending the complaint and limiting the benefit of the action to the plaintiff and those defendants who had answered. (See Getty v. Devlin's Executors, 70 N. Y., 504.)</p> <p>The defenses were: 1st. The statute (six years) of limitation. 2d. The action and judgment in the aforementioned suit of Gett/y v. Devlin's Executors.</p>

Appeal by the plaintiff from a judgment rendered at Special Term in favor of the defendants. The action was brought to restrain the defendant Furgueson, a shore inspector appointed under chapter 604 of 1875, and the police commissioner of Brooklyn, from interfering with or arresting the persons employed by the board of police of New York in removing ashes and street refuse upon scows and casting the same into the sea outside of the harbor of New York.

<p>Appeal from an order made at Special Term, granting allowances out of the funds in the hands of the receiver to counsel who have appeared and urged various claims against the same.</p>

<p>Valuation of a policy in am, insobent life insurance company — the subsequent death of the holder mil not cmfhorize a revaluation of it.</p> <p>When, after a policy in an insolvent insurance company has been valued and placed upon the receiver’s dividend list, the holder thereof dies, the court will not, upon the application of his executor, direct that the policy be revalued as a death claim and order the receiver to pay dividends thereon upon the basis of the latter valuation.</p>

. By an act of tbe congress of tbe United States, approved August I, 1189, it was provided “that all pilots in tbe bays, inlets, rivers, harbors and ports of tbe United States shall continue to be regulated in conformity with tbe existing laws of tbe States, respectively^ wherein such pilots may be, or with such laws as tbe States may, respectively, hereafter enact for that purpose until further legislative provision shall be made by congress.” In June, 1853, tbe State of…

The action was brought to recover damages for a trespass committed by the defendant, upon certain vacant lots in the city of New York, which had been conveyed to the plaintiff’s inféstate by one William Y. Brady, in 1837.

This application was made under 1 Revised Statutes, 603, section 5, for an order declaring that Edward Kearney, John H. Mooney and Joseph J. O’Donohue were not elected trustees at the election held March 15, 1880, and that Erastus Brooks, James Wilton Brooks and Samuel Marsh were so elected at that time.

This action was regularly noticed for trial by both parties for the February Term, 1878. In June, 1878, a motion made by the defendant for leave to renew a motion to vacate an order of arrest was denied, with ten dollars costs, which were not paid. In February, 1879, the action was reached on the calendar, and the defendant, on the plaintiff’s failure to appear, toot a judgment by default, which was entered February 25,1879.

<p>Appeal from a judgment, entered upon the trial of this action at Special Term, dismissing the complaint upon the merits.</p>

<p>Appeal from a judgment in favor of the defendant, entered on the verdict of a jury.</p>

<p>Indorser of note — notice to — when it need, not he sent hy the fin'St mail.</p> <p>This action was brought by the second against the first indorsers of a promissory note, made by a corporation payable at its office in the city of New York. On the day of its maturity, March 4, 1875, separate notices of protest to the plaintiff, the defendants and the third and last indorser, the cashier of a bank at Thomaston, Maine, were prepared by a notary in New York, inclosed in one envelope and mailed to the cashier at Thomaston. The notices were received at that place after banking hours on the fifth, and by the cashier on the morning of the sixth, by whom they were forwai’ded by the next mail to the plaintiff, who lived at Warren, a place distant about four miles from Thomaston. The plaintiff received them on the evening of the sixth, and on the next morning went to Thomaston for advice as to his proper course. In pursuance of the advice so received he mailed at Thomaston a notice addressed to the defendants at New York by the second mail of that day, which left Thomaston at 1:40 p. m. and passed through Warren at 2 p. m. The first mail left Thomaston at 10:10 A. m., and closed at Warren at 9:30 a. m. The plaintiff, who was upwards of eighty years of age, was a lawyer by profession but had been out of practice for twenty-five years.</p> <p>Held,, that the plaintiff was not chargeable with negligence in not posting the notice in time for the first mail leaving W arren on the morning of the seventh, and that the defendants were liable upon the note.</p>

Appear from a judgment in favor of the plaintiff, entered on the report of a referee. The action was brought to restrain the defendants from using a trade-mark alleged to belong to the plaintiff.

Appeal by Henry Marshall and George Caulfield, a committee of Thomas Stephens, from an order of the Special Term, made after certain exceptions taken by said Marshall and Caulfield to the report of a referee, made on an accounting of said Marshall and Caulfield, as the committee of said Stephens, as an habitual drunkard. February, 1873, Stephens was adjudged an habitual drunkard, and the appellants were appointed his committee.

Appeals from orders entered at Special Term, granting motions' made by tbe respondent to remove tbe actions to tbe Circuit Court of the United States for tbe Southern District of New York Tbe actions, wbicb were all of tbe same nature, were brought to compel an interpleader, and grew out of tbe following facts: In tbe month of February, 1880, certain actions brought in this court by tbe defendants Brink and Estes against tbe Republic, Ger-mania, Niagara and Hanover Fire…

<p>Appeal from an order made at Special Term, denying a motion to vacate certain assessments.</p>

<p>Action by a judgment creditor to set aside a conveyanee as fra/udulent — it cannot be maintained unless a judgment has been recovered in the courts of this State.</p> <p>The plaintiff having recovered a judgment against the defendant Wm. D. Bruns in the District Court of the United States for the southern district of New York, and having had an execution, issued thereon to the United States marshal, returned unsatisfied, brought this action to have certain voluntary conveyances of real estate made by the said Bruns set aside as fraudulent and void as against him.</p> <p>Held, that as the plaintiff had not exhausted his remedy at law by the recovery of a judgment against the defendant in one of the courts of this State, and the return unsatisfied of an execution issued upon it, the action could not ba maintained.</p>

The action was brought to obtain an account of a trust fund held by the defendant’s intestate for the benefit of the plaintiff’s intestate.

Appeal by tbe relators from an order of tbe Special Term sustaining tbe action of tbe respondents in the assessment for tbe purpose of taxation of tbe real estate of tbe relators, and quashing a writ of certiora/ri which bad previously issued to review tbe same.

The petition in the above entitled matter, addressed to the General Term, states that the said company is a corporation organized under the act of the legislature of the State of New York, entitled “An act to authorize the formation of railroad corporations and to regulate the same,” being chapter 110 of the Laws of 1850, and the acts amendatory thereof and supplementary thereto, for the purpose 'of building a railroad underground and in a tunnel, commencing at the north…