Volume 31 — New York Reports

This is an appeal by the plaintiff from a judgment of the Superior Court of the city of New York, in favor of the defendants, rendered upon a demurrer to the complaint. The complaint alleges that by virtue of certain proceedings supplementary to execution, the plaintiff was, prior to the commencement of this action, appointed receiver of all the debts,, property, equitable interests, rights and things in action, of William H. Bonnett.

The plaintiffs were incorporated by an act of parliament of the United Kingdom of Great Britain and Ireland, in 1821. They had a number of agencies in this State, for the purpose of receiving applications for insurance. These applications for insurance are submitted to the directors of the company in England; and if the risk is approved, policies are made out and transmitted to these agencies here, who receive the premiums thereon and remit them to England.

The action was upon a subscription note for $1,000, made by the defendant to the International Insurance Company, and of which the plaintiffs claimed to be the holders. Held: that the fact that it appeared on the face of the bill that it was issued by a bank, was sufficient to put the holder upon inquiry whether the bank was organized under that law, and was therefore sufficient evidence of notice to him of the illegality of the bill. 2.

<p>Under the provisions of the act of 1847, oh. 210, where a plank road company-takes and uses a public highway for its purposes, the road thus appropriated does not cease to be a public highway. The general right of the public to use it for the purpose of travel, with horses, carriages and on foot, remain unimpaired.</p> <p>The change effected by said act is, the general public, in consideration of the payment of certain tolls, is relieved from the burden of keeping it in repair, and the duties which, in this respect, before belonged to the commissioners of • highways and other local officers, is transferred to the plank road corporation.</p> <p>But these local authorities are not thereby ousted of their jurisdiction in respect to encroachments upon highways thus used by plank roads.</p> <p>The general public and adjoining proprietors have an interest in having a highway remain of the breadth originally intended, and in its continuing of a uniform width, and the commissioners of highways, as their official agents, are charged with the duty of instituting proceedings to remove all encroachments.</p> <p>Where a board of trustees of an incorporated village are invested with the authority “ to exercise the powers and duties of dommissioners of highways of towns within the limits of the village, &c., so far as these powers and duties are consistent with other parts of the act, and are applicable to the village,” and there is no provision in the act requiring such board to notify proprietors to remove structures encroaching upon the streets of the village, it seems, such board may proceed to remove such structures without giving sixty days’ notice as is required of commissioners of highways.</p> <p>The failure by the commissioners of highways to cause a public highway, long in use, to be opened to its full statute width for a period of thirty years, does not operate to extinguish the fights of the public to the parcels not so opened and worked.</p> <p>The statute requiring highways that have been laid out, to be opened and worked within six years, applies only to those cases where there has been a failure to open and work them at all, and not where the highway has been in full use for the whole time, though not in all places opened to its full width.</p>

<p>Where there was no usurious agreement, the question whether there was a usurious intent is immaterial.</p> <p>A judgment will not be reversed for the admission of evidence which was needless, when it is clear that it was also harmless.</p>

The action was brought to recover for money had and received by the defendant for the use of the plaintiff. The plaintiff established her claim to the amount of $2,964.25, and the defendant established a set-off of $105, for money paid to or for the usé of the plaintiff, which, with interest, amounted to $123.36. The report of the referee before whom the case was tried, was for the balance of the plaintiff’s demand over that of the defendant.

This action was brought, to recover the amount of two promissory notes, dated April 15th, 1857, payable to the order of Isaac L. Hunt, six months after date, at 215 Pearl street.

This was an appeal from a judgment of the Superior Court of the city of Yew York, and was decided in this court at the December Term, 1864.

This action was brought by the plaintiffs against the defendants to compel a specific performance of certain covenants entered into between the defendants and plaintiffs in July, 1851, for the passage of boats of the plaintiffs, laden with coal, in and along the canal of the defendants.

In this case, the sheriff had an execution against the property of Bemsen & Dingee, and proceeded to their store, and informed them of his business, exhibited the execution, and indorsed a levy of the same upon it, while in the store. By an arrangement with one of the partners, the officer left the goods in the store until the next day, when he was served with an order staying proceedings on the execution.

Appeal by the plaintiffs from a judgment of the Superior Court of Buffalo, rendered in favor of the defendant, on a demurrer to the complaint. The action was upon a time policy of insurance, upon the body, tackle, apparel and other furniture of the propeller Challenge, the property of the plaintiffs, valued at $28,000, commencing at the date of the policy, the 22d April, 1853, and ending on the 30th Hovember following, for navigation on the lakes and tributaries.

<p>Appeal from the Superior Court of the city of Hew York. The action was brought upon a promissory note made by the defendants’ firm, for $603.10, dated March 27, 1861, payable nine months after date to the order of J. F. Zebley & Co. The defense set up was fraud on the part of Zebley & Co., in obtaining the note, and a total failure of consideration therefor. On the trial the defendants showed by John F. Zebley, that the plaintiff held a note of $1,500, made by Zebley & Co., which matured in February, 1862; that for the purpose of settling that note, J. F. Zebley & Co. and plaintiff’s testator met at the office of Seymour & Co. in the month of March, 1862; that Zebley & Co. then delivered the note in suit, with several other notes, all of which were indorsed by Seymour & Co., to the plaintiff’s testator, and paid the balance of the fifteen hundred dollar note in.cash; and that the testator took the note in suit with the other notes, with the balance in cash, in payment of the note he held, and surrendered the old note, and delivered the same to Zebley & Co. The counsel for the defendants then offered to show the transaction between defendants and Zebley & Co. to establish the alleged defense. This was objected to, and the court held that, as the evidence then stood, the plaintiff’s testator was a bona fide holder of the note for value, and that he became so before maturity; an<j that the proposed evidence was improper, irrelevant and immaterial, unless the defendants’ counsel proposed by further evidence to explain or modify the testimony of Zebley, and to show that plaintiff was not a tona fide holder of the note for value, which the defendants’ counsel said he did not intend to do. The court thereupon excluded the proposed evidence, and directed a verdict for the plaintiff, to which defendants’ counsel duly excepted. On appeal, the Superior Court, at General Term, affirmed the judgment.</p>

<p>Appeal from a judgment of the Supréme Court affirming a judgment of the Special Term, dismissing the plaintiff’s complaint with costs. And also from an order of the same •court affirming an order of the Special Term, denying a motion to strike out so much of the judgment as awarded costs to the plaintiff.</p> <p>The complainant alleged that on the 1st of January, 1818, William Helm, of Bath, Steuben county, since deceased,was the owner in fee of the premises described therein, lying and being in said county. That on the 30th ¡November, 1825, said Helm appointed the plaintiff and one ¡Daniel G-. Skinner his agents and attorneys, to take possession of and sell his real and personal estate, and to give deeds thereof, and to pay said attorneys for advances then and thereafter to be made, to and for the benefit of said Helm, and by the same instruments conveyed one-half of all his real estate to said attorneys, and at the same time said Helm made his will, whereby he appointed them to be his executors and his trustees, with the same powers contained in the deed. That said attorneys made large advances to said Helm, which became chargeable to his real estate. Said Helm died in March, 1827, leaving said will, and for a money consideration said Skinner quit-claimed and transferred to the plaintiff all his .title under the said deed, powers and will, and all his claim on the estate of Helm. That Dugald Cameron, in February, 1818, pretended to have purchased the premises described in the complaint at sheriff’s sale, or some part of it, by virtue of a judgment, which he claimed to be in form; and on the 2d of March, 1818, made and signed a declaration of trust, that he held said lands in trust for said Helm.</p> <p>Dugald Cameron died in 1828, having by will made Charles Cameron his executor, with power to sell his lands, and devised the same to said Charles. That Charles claims to be owner as executor and trustee, and Davenport' claims that he has some right or interest in said lands. The piece of land secondly described in said complaint has been since 1818 in possession of Dugald Cameron, and in that of Charles and Davenport, who have received the rents and profits, which have been $500 annually since 1818. Judgment is demanded that the said executor and Davenport convey said lands to the plaintiff, and surrender possession and account for the ' rents and profits to him.</p> <p>The answer denies the complaint, and, by way of defense, alleges that Dugald Cameron, in December, 1816, recovered a' judgment in the Court of Common Pleas, of Steuben county, against said Helm for $2,600 debt and $10 costs, issued execution thereon to the sheriff of Steuben, for $1,311.95. That on said execution the sheriff sold certain of real estate described, and the said Dugald became the purchaser at such sale of the piece first described in the complaint; but whether of the second piece, they do not know. That at time of said sale the said Helm did not own the piece secondly described in complaint, but held the same by contract from one Hornby. That said Helm applied to said Dugald for his consent to sell and dispose of the same to the use of said Helm, and he did consent, and Helm, in June, 1819, transferred this contract for 150 acres to one McBurney for $500, which was paid. McBurney afterwards assigned the same to one John McGee, who obtained a deed of the said land. That Helm had the benefit of the $500 paid by McBurney. In July, 1831, said Charles Cameron conveyed the piece of land firstly described in said complaint to said Davenport by deed, with covenant of warranty; and that neither said Cameron or said Davenport had any knowledge that said plaintiff or Helm or any other person, had any interest therein.</p> <p>For a further defense, the defendants plead the ten years’ statute of limitations.</p> <p>The plaintiff replied; denying the recovery of judgment by Dugald Cameron, the sale and purchase by said Dugald, and all other matters affirmatively alleged in said answer.</p> <p>On the trial, the plaintiff proved the power of attorney from Helm to the plaintiff and Skinner; also the papers, giving to the same persons a lien on his property for such advances as they might make, and conveying to them one-half of his property, except certain parts reserved to himself and his children; the agreement, by which Skinner transferred his interest in the property to Leland, and the will of said Helm, being the same instruments set out in the complaint.</p> <p>The plaintiff farther proved, that Davenport was in possession of a part of the premises described in the complaint, and that Helm died in March, 1827.</p> <p>The plaintiff having rested, the defendants moved for a nonsuit on the grounds,</p> <p>1st. That plaintiff had not shown any title to the premises described in the complaint.</p> <p>2d. That he had failed to prove any of the facts alleged in his complaint.</p> <p>The motion was denied, and defendants’ counsel excepted.</p> <p>The defendants then proved the recovery of judgment in favor of Dugald Cameron against Helm, as charged in the complaint—the sale and conveyance, by the sheriff to him, of the premises firstly described in said complaint. This evidence was objected to by the defendants, on the ground that the issuing of an execution was not proved. It was then proved that the search had been made in the county clerk’s office, and no such execution could be found; that the person who made the sale, as sheriff, had removed from the State to the West; that since the sale, his house was burned and he himself was dead; and that inquiry for the execution had been made of the family, but none could be found. It was also shown, under the plaintiff’s objection as to the competency of the evidence, that the attorney who entered up the judgment was dead, and that on his law register, amongst the entries of the proceedings in the case, was, “ Fi. fa. issued December 19th, 1816, to McClure.” The receipt of the execution was recited in the sheriff’s deed. The court overruled the plaintiff’s objection, and admitted the evidence.</p> <p>The defendant also proved the allegations in the answer in regard to the contract from Hornby to Helm and the assignments thereof, and a deed of the same premises to McGee, and a deed from Charles, as executor of Dugald, to Davenport, with covenant of warranty, consideration $250.</p> <p>The defendant then rested, and the plaintiff put in evidence a letter, dated 24th December, 1816, from Dugald Cameron to Helm, in which said Cameron says, that in order to enable him (Helm) to dispose of his real estate, and particularly of that in the contemplated sales to Pratt, Conger and McClure, he did thereby agree to release from his judgment the lands which those persons contemplate purchasing, and that he would execute any writing, needful in law, to remove any embarrassment created by the judgment, as he felt himself otherwise fully safe.</p> <p>The plaintiff then put in another letter from said Dugald to Helm, dated the 2d March, 1818, in which he says that the property he purchased at sheriff’s sale on the 28th February, 1818, he should always be ready to convey to him (Helm) or his order, on payment of the money due him. He said he wished it understood that he (Helm) was at liberty to dispose of the property for his own use and benefit, and should confirm the title of the purchaser, it being, he says, clearly understood that his (Helm’s) interest is to be considered, and not his (Cameron’s).</p> <p>The plaintiff put in evidence another letter from said Dugald to Helm, dated 6th July, 1824, in which said Dugald admits owing him (Helm) $25, which he had forgotten. He sent him $10, and promised to pay the balance.</p> <p>Evidence was then given by the plaintiff tending to show that Helm was involved; that he had been rich but became poor. He was insolvent in 1826.</p> <p>The defendant gave evidence on the same subject, and put in evidence the record of a mortgage from Helm and wife to one Pultney, dated 10th Hay, 1809, for $905.30, on the piece of land first described in the complaint, and the foreclosure of the same' and purchase of the premises by one Conger; and from him they passed to several persons, and finally to Dugald Cameron, in 1821. The mortgage was objected to because the bond was not produced, and the objection was overruled. Also, a warranty deed from Davenport to one Hehoun, of the $500 described in the complaint, in ¡November, 1848.</p> <p>The plaintiff’s counsel then insisted:</p> <p>1. That the pleadings admitted legal title in Helm up to *30th ¡November, 1825. That his title was not divested by sheriff’s sale, as no fi. fa,, was proved, and because the sale was of several parcels in a lump.</p> <p>2. That Cameron held the premises in trust for Helm, and that there was evidence that Cameron had been paid up; that Davenport was not a Iona fide holder. That plaintiff has all the rights of Helm, and is to be deemed owner or cestui que trust.</p> <p>3. That plaintiff is entitled to insist upon the rights of a creditor of Helm.</p> <p>The court overruled the objection and ordered judgment for the defendants.</p> <p>In making up the record, the defendant’s attorney entered a judgment for costs against the plaintiff. The plaintiff’s counsel, when informed of such judgment, moved to set it aside, on the ground that he sued as a trustee, and costs could not be recovered against him as of course, nor without a special order of the court. The court denied the motion, with costs; and the plaintiff then appealed to the General Term, from both the judgment and order, and that court affirmed the same.</p>

<p>Appeal from an order of the General Term of the Supreme Court, reversing an order of the Special Term, requiring Dan-forth H. Olney, one of the plaintiffs’ attorneys, to pay $278.88, the costs for which judgment had been given in favor of the defendants upon the final decision of the action in this court, with interest, on the ground that the plaintiffs had made an assignment of the demand to him and his partner, John Olney, pendente lite.</p> <p>The afSdavits on which the motion was made and opposed showed that the action was originally commenced in the County Court of Greene county, for an assault and battery alleged to have been committed by the defendants on the wife of the plaintiff, L. Wolcott. The plaintiffs recovered judgment in that court in February, 1848, which judgment was affirmed at the General Term in December following, for damages and costs, $168.87, and was also affirmed on appeal to the Supreme Court, with additional costs, in September, 1859. On appeal to this court, the foregoing judgments were reversed and judgment rendered in favor of the defendants, with costs, amounting to the sum first mentioned, in October, 1852.</p> <p>The motion to charge the attorneys with the costs was made in August, 1859, more than six years after the judgment of this court and ten years after the alleged assignment.</p> <p>The assignment' which was relied on to subject the attorneys to the payment of the costs, was alleged in the moving papers to have been made during the pendency of the appeal to the Supreme Court, but the opposing affidavits state that the transaction was after the judgment of the county court and before the appeal.</p> <p>The special facts contained in the affidavits are sufficiently stated in the opinion.</p>

This was an action brought against the sheriff of Kings . county for seizing the goods claimed by the plaintiff, on an attachment issued against the property of William Cartwright and Moses R. Hazzard. The sheriff defended under such writ of attachment, and claimed the property levied upon as the property of Cartwright and Hazzard, which had been disposed of by them with intent to hinder, delay, &c., then* creditors.

A sufficient statement of the facts in this case will be found in the opinion of Judge Davies. I. The report of the referee is conclusive upon the propriety of his finding upon the facts. The only questions left are, whether the facts so found justify his award of damage, and whether proper evidence was excluded and improper admitted. (Code, § 272; Orchard v. Cross, 12 Barb., 294.) II.

<p>When the canal commissioners, in pursuance of the authority of the statute (1 R. S., 221, § 19), alter a public highway which interferes with the proper location, &c., of the canal, the fee simple of so much of the new location as falls within the boundaries of lands appropriated for the canal is in the State; as to all other portions of such lands, the title remains in the owner as before, subject to the public easement.</p> <p>The title of the owner, subject to the easement, remains perfect, not only to the land covered by the highway, but also to all the material within its boundaries, except such as may be needed to build or maintain the road.</p> <p>Where stone had been taken from the land for the purpose of constructing such road, before the land from which they were taken was covered by such location, the title to such material was in the owner of the land, and was not divested by a subsequent location of the road over the same land.</p>

<p>Where there has been a sale of mortgaged premises, pursuant to a power under statute (3 R. S., p. 541, § 8), the equity of redemption of ,the mortgagor is thereby foreclosed; though the affidavit of the publication of notice of sale, and of the posting thereof, be not made and recorded, as required by statute, for twenty years thereafter.</p> <p>The right of the mortgagor to redeem is terminated, whenever there has been a sale of the mortgaged premises, regularly made, pursuant to the power contained in the mortgage, or under a decree of sale.</p>

Appeal by the defendants from an order reversing a judgment of nonsuit and directing a new trial, the defendants, with their notice of… Held: it now becomes material to inquire in what particular and to what extent the act in question invades or violates the rights of the defendants. 1st. It creates a debt against them without their assent, and charges their private property with its payment. 2d. In its practical effect it transfers the private funds of the defendants,…

The action, was brought to recover possession of a certain horse from the defendant. The facts were as follows: One Kéllerhouse, who was a constable, by direction of the plaintiff seized the horse in question, by virtue of an execution in the plaintiff’s favor, against Joseph West. The constable was indemnified for the taking by the plaintiff. After keeping the horse a short time, he was delivered to one George Wright, who became receiptor to the constable for the same.

0$r the 9th of January, 1855, James Thompson, being seized of a parcel of land situate in the town of Brighton, in the county of Monroe, executed and delivered to one Amos 0. Miller a mortgage on said premises, to secure the payment of $100 and interest from the date thereof, in four equal annual payments from the same date. Miller afterwards assigned the said mortgage to the defendants. Two installments of principal and interest were paid, on said mortgage.

It appears from the record (which is all that is contained in the error hook) that Barbara Klein and Joseph Myer, the plaintiffs in error, were indicted, in the Mew York Oyer and Terminer, in December, 1862, for stealing three shawls of the value of one hundred and thirty dollars, the property of one Thomas Le Boutilier. Both plead not guilty, and the indictment was ordered to the General Sessions.

<p>In the construction of a writing, the meaning of particular terms used, as “general opposition,” may be sought for in the light of concomitant circumstances.</p> <p>Where the “general opposition” to be made had for its object the defeating of an improvement in the city of New York, under the act of April 20, 1839 (ch. 209), and was to be resisted by a majority of the parties interested, &c., to be a successful opposition, the term “ general opposition ” would not embrace any litigation which was peculiar to any one or more of the essential parties, less than the whole.</p> <p>Where one of the resisting parties signs a paper to pay any amount within a specified sum toward raising a larger sum as a fund to prosecute such “general opposition,” and no further sum or sums are contributed toward such fund, the contract of the party does not become operative, unless the contemplated fund is raised.</p>

In 1854, William Montgomery, William Garrahrant and Isaac Beeve, were partners, under the name of William Montgomery & Co., in the manufacture of steam engines and machinery, at Yonkers, Westchester county. On the 1st January, 1855, Beeve sold out his interest in the co-partnership to his partners, taking their notes for the price.

The defendant, as sheriff, had process for the arrest of George 0. Heinman, at the suit of the plaintiff. On the 20th of August, 1857, he arrested Heinman, and took from him an undertaking, with sureties, who justified before the sheriff. On the 25th of August, the defendant served on plaintiffs’ attorney a copy of the undertaking and justification. On the 26th of August, the plaintiffs’ attorney served on the defendant notice that they did not accept the bail.

<p>Where the owners of a vessel employ a master for a voyage, and by parol authorize him to exercise his best judgment in the disposal of the cargo, and also in the purchase of a return cargo, they constitute him their general and special agent for such purpose.</p>

The appeal is from a final judgment of the General Term of the Superior Court of the city of New York, entered June, 15th, 1864 (overruling exceptions taken by the plaintiffs at the trial, and ordered to be heard in the first instance at the General Term), dismissing the plaintiff’s complaint and adjudging $284.57, costs and disbursements to the defendants.

<p>Where subscriptions are made under an agreement that they are not to be binding unless a specified sum is subscribed, it is essential that there should be no conditions as to the liability of any of the subscribers not applicable to all. Confidential subscriptions, made for the purpose of making up the required sum, are a fraud upon the other subscribers; and should not be treated as valid subscriptions.</p> <p>’ Where, by deducting such confidential subscriptions, the required sum is not subscribed, the contract of subscription does not become operative, so as to bind the subscribers.</p> <p>Farol evidence is admissible to show that certain of the subscriptions were confidential in character, and therefore fraudulent.</p>

This was a proceeding to enforce a mechanic’s lien under the act of April 16, 1852. Held: that the respondent was entitled to judgment for the amount of his lien, and for its enforcement by sale of the interest of Woodworth at the time it attached. The judgment was affirmed at the General Term, the opinion being delivered by Judge ¡Brown, and Strong, J., dissenting.

The only question presented for review in this case, is the question of jurisdiction of the justice to try the action. The provision of the statute (3 R. S., 5th ed., p. 427, § 6, marg. pag., 226, §8) is as follows: “ Every such action shall be brought before some justice of the .town wherein either, 1. The plaintiffs, or one of them reside; or, 2. Where the defendants, or any one of them reside; or, 3.

The action was brought upon a guaranty of the payment of a bond, made by one Carlile to one Townsend (the plaintiff’s assignor), dated the 28th day of March, 1848, and conditioned to pay $1,-500 within two years, with semi-annual interest. The guaranty was indorsed upon the bond, and executed simultaneously therewith.

The action was brought to recover the amount due on a premium note made for $250 to the Union Insurance Company, payable at such time or times as the directors of the company might require, agreeably to their act of incorporation. The answer denied the allegations of the complaint, and, as a further defense, set up that the note was obtained on a misrepresentation as to the solvency of the company. The cause was referred to the Hon. Ransom Balcom.

The action was to recover damages for injuries received by the plaintiff, while a passenger on the defendant’s railroad, in October, 1857, by a collision of trains on the route between Rochester and Batavia. The cause was tried at the Genesee Circuit, in Hovember, 1858, before Mr. Justice Davis and a jury.

<p>Where the plaintiff files his complaint alleging-a partnership, and asking for an accounting by the defendant, if he does not establish the existence of the partnership, he will not be entitled to the accounting.</p> <p>The mere relation of creditor of the defendant is not, of itself, sufficient to entitle the plaintiff to an accounting.</p> <p>. Whether two or more persons associating in business, are partners, as between themselves, depends upon their intentions, as legally ascertained.</p>

Weit of error to the General Term of the Supreme Court of the second district. The plaintiff in error was convicted of the crime of murder in the first degree at a court of Oyer and Terminer held for the county of Kings in July, 1863. The record was brought to the General Term of the Supreme Court by writ of error. The judgment was affirmed at the General Term, from which it is brought by writ of error to this court.

<p>The facts sufficiently appear in the opinion of Davies, J.</p>

<p>Where the statute requires an undertaking to be entered into by sureties in order to give a right of appeal, an instrument containing the requisite stipulations is valid, although it does not express a consideration, and is not under seal</p> <p>The statute of frauds applies only to common law agreements, where the con-. sideration was the subject of mutual agreement between the parties.</p> <p>It does not apply to instruments created under, and deriving their obligation from, special statutes, without the acceptance or assent of the party for whose ultimate benefit they were given.</p> <p>The Code prescribes no form for the undertaking to be given on appeal from the judgment of a justice of the peace.</p>

In July, 1863, the appellants recovered a judgment against the respondent Mount, in the Court of Common Pleas of the city of ¡New York, for $1,261.76. Mount was sole acting executor of William B. Moffat, late of the city of ¡New York, who died in April, 1862. Letters testamentary were issued to Mount 7th May, 1862.

The action is in the nature of a bill in equity to establish a right of way claimed by the plaintiff over the land of the defendant, and to enjoin the latter from continuing certain fences which he had erected, and to compel him to remove them.

<p>The omission of the county judge to designate, under the Laws of 1851 (ch. 444), at what terms of the Sessions a grand or petit jury shall be required to attend, does not deprive the court of its authority, as such, to impannel a grand jury at any of its terms.</p> <p>The law of 1851 (ch. 444) is so framed that, in the absence of a designation of any terms to be held without a jury, the general provisions of law respecting the drawing and summoning of juries will take effect, and will require a jury to be drawn and summoned at every term. (See Laws of 1847, ch. 280, § 42.)</p> <p>Where the two justices of the Sessions fail to attend the Court of Sessions, the county judge may call upon the bench two other justices; and, subsequently, the two justices of the Sessions may appear and take their seats.</p>

<p>The appeal in this case is by the plaintiffs from a judgment of the Supreme Court, rendered upon the report of a referee; By this report, only $41.59 was found due to the plaintiffs, and judgment was consequently given against them for the balance of the defendant’s costs, which amounted to $77.80.</p> <p>The action was brought to recover an amount alleged to be due the plaintiffs from the city corporation, arising out of the following circumstances: One A. L. Scofield had been employed by the proper authorities of the city to construct certain plank sidewalks, in the streets, he furnishing the materials ; and on the 23d day of January, 1857, there was due to him for such work and materials the sum of, $594.08, which had accrued in the year 1854, and $1,210.49 which accrued in 1856. The plaintiffs, during the year 1856, had furnished lumber to Scofield for, and which was used in that work, for which he was indebted to them in the sum of $1,420. On the said 23d January, 1857, Scofield signed and delivered to the plaintiffs an order on the comptroller of the city in the following words: “ John A. Clark, comptroller: Pay Parker & Wright fourteen hundred and twenty dollars on plank road and sidewalk accounts, and charge to my account. January 23, 1857. A. L. Scofield.” On the same day, the plaintiffs left this paper with Mr. Clark, the comptroller, who, though he did not accept it, gave Mr. Parker, the plaintiff, who brought it, to understand that it would be paid so far as there should be moneys due to Scofield, and funds applicable to its payment.</p> <p>According to the finding of fact of the referee, there was a prior order given by Scofield to one Bogg for $50. The comptroller paid that order, and he also paid Scofield, after he had received the plaintiffs’ order, one hundred and ten dollars; and he paid the plaintiffs on account of their order, at various times, $1,014. On deducting these several sums from the $1,210.49, owing by the city to Scofield for the work done in 1856, there would remain $36.49, which, with the interest thereon, made up the sum reported to be due to the plaintiffs. The referee excluded from the influence of the plaintiffs’ order the amount due to Scofield for the work done in 1854. The plaintiffs claimed that their order embraced the whole of the indebtedness of city to Scofield, including that which was owing for work done in 1854; and also that the'payments by the city to Scofield, after notice of the order, was in violation of their rights. Evidence was given addressed to these points. One Williston, an employee in the comptroller’s office, was examined on behalf of the defendant, and stated that he was present at an interview between the comptroller, Scofield and Hr. Parker, one of the plaintiffs, at the comptroller’s office, immediately after the giving of the order to the plaintiffs, that paper being then in the hands of the comptroller, in which Scofield mentioned certain amounts which he said he was in honor bound to pay out of the fund, and that the balance should go to the plaintiffs, that he understood all the parties to assent to that arrangement; but he could not state the precise amount reserved to Scofield. The defendant’s counsel then asked the witness the following question: Out of what fund was Scofield to be paid for the work in question ? It was objected to by the plaintiffs, who excepted to the ruling admitting it. The answer was that “ he was to be paid from the local improvement for the particular work performed. Nothing was said about the debt of 1854 in that interview. A similar question was raised and decided against the plaintiffs, who excepted, in another part of the witness’ examination, and the testimony thus received was to the effect that the witness several times looked over the accounts of the indebtedness of the city to Scofield, with the plaintiff Parker, and that no accounts were referred to on either occasion except those for the work of 1856. He said “Mr. Parker claimed for work of 1856, and nothing more.” Mr. Clark, the comptroller, in his examination on behalf of the defendant, related several conversations which he had had with Parker and Scofield respecting the claim of the plaintiffs under their order, and said that in all of said interviews Parker spoke only of the indebtedness for work in 1856, and that he wanted to know what was the amount due Scofield for work in 1856. The witness also testified, in effect, that Parker assented to a proposal that the witness, as comptroller, might pay to Scofield, notwithstanding the order, an amount of about $100, a little more or a little less, which Scofield said he had pressing need of.</p> <p>It appeared that the work of this kind for the city was done in 1856 under a different system than that which prevailed in 1854. In the earlier year, the contractor was entitled to a draft on the treasury when his work was done, but in 1856 the work was- done under contracts uy the terms of which the money was to be raised by assessments for local improvements, and to be paid only when the city should be in funds from the proceeds of the local taxation.</p> <p>Both Scofield and Parker, on their examinations, denied that there had been any agreement or understanding with the comptroller that Scofield should receive anything to the prejudice of the order, or that there was any understanding limiting the order to the work of 1856. The plaintiffs offered to prove by Scofield that it was the express understanding between him and the plaintiffs, at the time the order was given, that if the amount due for the work of 1856 was not adequate to the payment of the order, it was to be paid out of the work of 1854. The defendant objected to the evidence, and it was excluded and the plaintiffs excepted.</p> <p>The city had paid the frill amount of the work of 1854 to an assignee of Scofield, whose assignment was executed subsequently to the plaintiffs’ order.</p> <p>The referee’s findings stated the material parts of the foregoing facts; and upon the points principally litigated, it was in the following words : “ That when said order (of the plaintiffs) was delivered to said -comptroller, it was understood foj the plaintiffs <md the said comptroller that it was drawn upon the indebtedness of the said city to said Scofield for work done and materials furnished under said contracts of 1856; and it -was agreed between the said plaintiffs and the said comptroller acting for the city, that the balance of said indebtedness should be applied upon said order after paying any previous orders given by said Scofield, and also paying said Scofield thereof the sum of about $10Q,”</p>

This action was brought, in the Supreme Court, on a draft or bill of exchange drawn by the defendant for value received by him of the plaintiff, on Messrs. Griggs & Lathrop, of Mew York, for $2,026.83, payable to the order of the plaintiff at sight. The complaint set forth a presentment and a protest for non-payment, and notice to the defendant.

The action was brought by the plaintiff, as assignee of August Janson, to recover the loss by fire of certain property insured by the defendants.

This is an action of ejectment, brought to recover the possession of certain lands and premises in the city of Auburn. The land in controversy belonged to the State, and was part of the Auburn State prison property, and was sold in 1847 under and by virtue of an act of the legislature passed in that year. One Theron Green became the purchaser, and received on the 17th of September, 1847, a certificate of purchase from the then surveyor-general of the State.

This was an action in the case for debauching the plaintiff’s minor daughter, and communicating to her a venereal disease, by which she was made sick and unable to labor. It was tried at the Oswego Circuit in December, 1856, and the plaintiff had a verdict for $500.

This was an action to enjoin the sale of mortgaged premises under a statutory foreclosure.

This is an appeal by the Delaware and Hudson Canal Company from an order of the Supreme Court, directing the payment to the plaintiff Kirby, and others, of certain surplus moneys arising upon the foreclosure of a mortgage under the statute. The mortgage was given by one Patrick McEntee to Fitzgerald, in 1853, upon property owned by McEntee; and, upon a sale of a parcel of the property under the mortgage, the surplus in dispute arose.

<p>Where the vendor of premises already incumbered has taken back mortgages from the vendee upon the several lots conveyed, and, by agreement between the parties, the vendor is not to proceed to foreclose any of said mortgages until the prior incumbrances are 'canceled by means to be furnished by the vendee, or by the sale of such mortgages or either of them; and where the vendor has mortgaged or pledged a portion of said mortgages as security for money loaned, and the pledgee forecloses the mortgages pledged, and has a surplus arising therefrom after satisfying his claims against the pledgor, the vendee, not having paid to the vendor the moneys agreed to be paid to cancel such incumbrances or a part of them, is not entitled to such surplus.</p> <p>Where a large number of lots are embraced in the same conveyance 'containing general covenants of warranty, and, by arrangement, separate and distinct mortgages are given for the purchase-money upon separate lots of the land conveyed, the covenants are thereby distributed to the several lots conveyed, and are to be construed as though each parcel had been conveyed for the sum expressed in the mortgage.</p>

This is an action brought by the plaintiff, as receiver of an insolvent bank, organized in the State of New Jersey, to recover of the defendant the amount of his subscription to the capital stock of said bank.

<p>Where a negotiable promissory note has been protested for non-payment, and the liability of the indorsers thereof has been fixed by notice, such indorsers, selling such note without erasing their indorsement, will be held responsible for the payment of the same, though no notice be given to them of its nonpayment by the maker.</p> <p>In such case, the defendants are estopped by their acts from controverting their liability upon the note, as the indorsers thereof.</p>

<p>On an appeal from a judgment entered by the direction of a single justice of the Marine Court to the justices thereof at General Term, security may be given by the appellant, which will operate as a stay of proceedings, according to the provisions of the Code.</p> <p>By the provisions of the act of 1853 (ch. 617, § 5), an appeal maybe taken from a judgment entered by a single justice of the Marine Court to the justices thereof at General Term, in the same manner and with the like effect as appeals in the Supreme Court, &c.</p>

This is an appeal from a judgment of the Superior Court of Buffalo. It appears that the defendant was in possession of a parcel of land, some five acres, which had no dwelling on it, and was partly cultivated and partly in grass, and which land belonged to one P. B. Eaton. On the trial Eaton testified that he told the defendant he might use the premises until he wanted them, but must give them up whenever he should want them for any purpose.

The action was for taking and converting a horse alleged to be the property of the plaintiff.

The action was to recover commissions earned by the plaintiff, in negotiating a sale of 4,000 Prussian muskets for the defendants. It was proved that the service was requested by the defendants, and that it was performed with reasonable despatch by the plaintiff.

Ih June, 1846, the plaintiff in error was indicted, tried and convicted in the Erie county Oyer' and Terminer, of the crime of perjury. He was sentenced to three years imprisonment in the State prison. A record of his conviction was made and filed in August, 1862, purporting to he signed by the then district attorney of said county of Erie.

<p>Where more than legal interest for the forbearance of money is intentionally taken, whether the party acts in ignorance of the law or not, it is conclusive evidence of a corrupt agreement within the statute, and the contract is void.</p> <p>Safety fund banks, subject to the provisions of the act of 1829, were not authorized to take more than six per cent interest in advance on paper discounted in the ordinary course of business, which became payable within sixty-three days of the time at which it was discounted.</p> <p>Where such bank discounted paper payable in thirty-five days, and reserved therefor in advance seven per cent interest, it was held that the transaction was illegal, and that the indorser of such paper was not liable thereon.</p>

Lawrence county, which reversed the judgment of a justice’s court. In February, 1858, the appellant Burnham was traveling, with a horse and cutter, returning home from town meeting in the town of Potsdam.

This action was brought for the conversion of a quantity of butter. It was tried at the Schoharie Circuit in November, 1858, before Mr. Justice Gould and a jury. It appeared, on the trial that in the fall of 1856 the plaintiffs were engaged as partners in the purchase of butter. That one Brown was employed in purchasing butter at Summit for the defendant, but at times when defendant stopped him from purchasing on his account, he bought as agent for plaintiffs.

The plaintiff was elected sheriff of Otsego county, and entered on the duties of his office in January, 1855. Shortly thereafter he appointed one Sidney M. Ballard one of his deputies, the, instrument by which he was appointed being under seal and duly executed according to the requirements of the statute.

In the month of December, 1847, Addison Gardner, H. F. Sickles and Jeremiah Cooper entered into an arrangement or copartnership for the purchase of a quantity of wheat and flour, and for manufacturing and selling the same. The funds were furnished by Gardner and Cooper, principally by Gardner.

<p>Where a plaintiff, by his own voluntary act, has, through misplaced confidence, conferred the apparent right of property in bank stock upon- a third party, a Iona fide purchaser of such stock from such party will be protected against any secret trust in favor of the plaintiff.</p> <p>But where a party, having notice, actual or constructive, of the plaintiff’s equi. ties, has dealings in respect to such stock, he will hold subject to the plaintiff’s rights.</p>

Justice Gotjld. The action was on a lease, for rent of the demised premises. The defense was, that the defendants had been evicted from a portion of the premises by the plaintiff, before the rent in question accrued. The facts sufficiently appear in the opinion of the court.

This was an action on the case, commenced in 1843, to recover damages for an alleged fraud, which consisted in making false representations concerning the soundness and solvency of the Millers’ Bank of Clyde, whereby the plaintiff was induced to subscribe $5,300 to the stock of that institution, and to give his bond and mortgage for the amount of his subscription.

<p>A W of sale, absolute upon its face, transferring property to be held as seeurity for the payment of a debt due the vendee, is, in character and effect, a mortgage, and is to be treated as such.</p> <p>In such case, the mortgagee acquires only a lien upon the assigned property: the residuary interest of the mortgagor therein may still be reached by his creditors.</p> <p>And where, in such case, the assignee is to complete the process of the manufacture of the assigned property, and prepare the same for sale, such condition is not inconsistent with his rights and duties as mortgagee; and, consequently, does not render the assignment void.</p>

<p>Where no exceptions are taken on the trial, and no conclusions of fact stated, which can raise any questions of law, and no conclusions of law are stated, this court has no jurisdiction to review the case.</p> <p>The General Term had jurisdiction to set aside the report of the referee, as being against evidence, if they had found it impeachable on that ground. But on affirming the judgment, it has left nothing for this court to do in the premises.</p>

This is an action of quo warranto, brought to try the title of the defendants to the office of trustees of the “ Religious Society of Cutchogue, in Southold.” The complaint alleged that on the 7th… Held: used and exercised, and still do unlawfully hold, use and exercise the office of trustees of the said religious society.

This aetioh originated in a justice’s court, and was brought to recovel’ the value of ¡a cow, the separate property of Demarias Ackley, one of the plaintiffs, and which was alleged to have been taken and converted by the defendants. In the complaint before the justice, which was in writing, it was averred, that the cow was the property of Demarias Ackley, one of the plaintiffs, and the wife of the other plaintiff Warren Ackley, who is joined in this suit as husband.

This action was brought by the plaintiffs as copartners, to recover an account against the defendant for storing potatoes as warehousemen for him, and services in and about the same.

' A sale of land was made under an order of the Supreme Court of first district, at Special Term, and the above named persons became purchasers, severally, of distinct parcels, and deposited with the referee sums equal to ten per cent on the several amounts bid by them respectively. They united in an application to the court for an order that these sums should be returned to them.

This was an action in the nature of trover for two horses, tried at the Washington Circuit, September, 1858, before Justice Allen and a jury. The plaintiffs claimed the two horses in question under a chattel mortgage executed by Joseph and Orange Collins, who then resided at Whitehall, in Washington county. The defendant justified under an attachment issued by a justice of the peace of Saratoga county, in favor of Nelson Shouts against the mortgagors.

This action was brought to recover from the defendant the interest on five certain bonds purporting to be issued by the town of Sterling, in Cayuga county, bearing date the 1st of July, 1853.

This action was brought in the Superior Court, of the city of Hew York, to recover the amount of a check given by the defendant, made and dated October 14th, 1856. The plaintiffs were the owners and holders of a promissory note made by the firm of Lane, West & Co., dated June 20th, 1856, and which was received by them from a broker, employed by that firm to raise money thereon,- in exchange for the plaintiffs’ note for the same amount.

This action was brought on an alleged parol promise made by the defendant to an under sheriff of Cattaraugus county for the benefit of the plaintiff. The plaintiff was a judgment creditor of Thomas J. Parker, a merchant of that county, who, on the 11th July, 1854, being insolvent, made an assignment to his brother, F. B. Parker, of all his personal property for the benefit of his creditors, with preferences.

The action was brought to recover on two drafts payable at sight. The drafts were dated July 27, 1857, and were sent by mail on that day to the payee, Dickerson, by his order. The drafts were presented for payment on the 26th September, 1857, two months after, they were received, and payment was refused.

The action was brought to recover the value of a certain horse of the plaintiff, which he claimed as exempt property. The defendants, by their answers, first denied the complaint, secondly, justified the taking under a judgment and execution against the plaintiff. The action was first tried at the Wayne county circuit, on the 22d of April, 1857, and the plaintiff nonsuited. The General Term set aside the nonsuit and ordered a new trial.

The complaint alleged for cause of action, that on the 24th May, 1850, the defendant being a carrier of passengers for hire, between Rew York and California, for a reasonable reward paid him by the plaintiff, contracted and agreed to and with the plaintiff to carry and convey the plaintiff and his two men, Moses Miller and Stephen Shackell, from the city of Rew York to the city of San Francisco (except across the isthmus from Chagres to Panama), and to provide suitable boats…

This is an appeal from a judgment rendered by the Superior Court of Buffalo, in favor of the plaintiff against the defendants. i The action was to recover damages resulting from an omisI sion by the defendants to sell or ship the plaintiff’s wheat, in I accordance with his instructions, and was tried by the court [ without a jury. The plaintiff resided in Cleveland, Ohio, and the defendants were commission merchants, and, as such, engaged in business at Buffalo.