Volume 31 — New York Supreme Court Reports

Ermand, as executor of Samuel Robinson, deceased. On February 4, 1879, a decree was entei’ed, passing and allowing the accounts of the said Dey Ermand, as executor of Samuel Robinson,' and directing as to the distribution of his estate.

Appeal by the plaintiff from a judgment dismissing the complaint, entered upon the trial of this action by the court without a pry.

<p>Evidence — the fact that other persona home been injured by the dbsti'uction complained of, when admissible — when am objection cannot be fw'st taken on appeal.</p> <p>In an action to recover damages for an injury sustained by the plaintiff in falling over a water-gate projecting from the sidewalk in one of the streets of the defendant, a witness for the plaintiff having testified that he knew of the existence of the water-gate at the place where the plaintiff fell, for some year and a-half before the accident, was asked, “Did you ever know of anybody falling over there before?” Upon the defendant’s objecting that the evidence was immaterial and irrelevant, the court excluded it.</p> <p>Held, that this was error.</p> <p>Held', further, that the defendant could not insist upon the appeal that the evidence was properly rejected on the ground that it did not appear when such other falls had occurred, or that the condition of the water-gate was the same as at the time of the accident, as such grounds of objection were not stated at the trial.</p>

<p>Village — is not bound, to construct a sidewalk in each street — when it is not liable for the negligence of am, individual in constructing one fon' his own use.</p> <p>This action was brought by the plaintiff to recover damages for injuries sustained by falling upon a sidewalk in Brindley street, in the village of Ithaca, and from it into an open space over which it passed. The street became such by dedication some forty years before the accident. Some ten years prior thereto railroad tracks were laid therein, and from that time it had been but little, if at all, used as a highway. The village had never built, or ordered to be built, a sidewalk along the street. About a year before the accident one Turner, who owned a house and lot on the street, built the sidewalk to enable his tenants to go to and from his house to State street.</p> <p>Held, that as the sidewalk was not built by or under the direction of the village, it was not liable for an accident arising from its unsafe condition, and that the action could not be maintained.</p> <p>Upon the cross-examination of the plaintiff’s attorney upon the trial he was asked how much of the judgment was to be his in case of success. An objection to this question was sustained by the court, to which ruling the defendant excepted.</p> <p>Held, that the exception was not well taken as the question related to a collateral issue, and that the extent of the cross-examination was in the discretion of the court.</p>

<p>Appeal from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.</p> <p>This action was brought by the plaintiff against the defendants, as administrators of the estate of Peter Betsinger, deceased, to recover her distributive share of his estate as his widow, under sections 9 and 10, title 6, chapter 6, part 2 of the Revised Statutes.</p> <p>The plaintiff claimed that she was married to the defendants’ intestate on the 24th day of May, 1863, while the defendants claimed that the marriage did not take place until January 20,1864, and that prior to such marriage, viz., January 19,1864, the plaintiff entered into an ante-nuptial agreement with the intestate whereby she was to receive $200 at his death in lieu of dower and of all demands and claims against the property and estate of the said intestate.</p> <p>This action has been twice tried. The first trial was had before the court, without a jury, at the Madison Circuit, in February, 1879. The court found the facts as claimed by the plaintiff in her complaint, and upon such findings judgment was entered in favor of the plaintiff against the defendants for the sum of' $16,908.76, including costs. The defendants appealed from that judgment to the General Term, where the judgment was reversed and a second trial granted, costs to abide the event. The case came on again for trial on the 16th day of June, 1880, at the Madison Circuit, before Justice Follett and a jury, and a verdict was found for the plaintiff for the sum of $15,105.</p> <p>The defendants’ counsel made a motion for a new trial on the judge’s minutes, which was denied, and the defendants appealed from the order denying a new trial to this court.</p> <p>At the close of the evidence, the defendants’ counsel moved for a nonsuit on the following grounds:</p> <p>1. That the plaintiff was not entitled to maintain this action under the statute, because she is neither a legatee or next of kin, and that the widow is not entitled to bring this action.</p> <p>2. On the whole case, the court should direct a verdict for the defendants on the ground that the proof is not sufficient to entitle the plaintiff to go to the jury, and not sufficient in law to authorize the plaintiff to recover.</p> <p>The court denied the motion.</p>

<p>Common carrier — duty of, to notify consignee of the arrival of goods — when liable for a neglect so to do — when a MU of lading does not relieve him from liability for a loss caused by his negligence.</p> <p>On March 4, 1876, a car-load of hams and shoulders was shipped to plaintiffs at, Binghamton, at which place it arrived at 11:40 A. M. on March ninth, and was there run upon a side track where it remained until 5 p. M. of Saturday, March eleventh. The plaintiffs, who had repeatedly inquired for the car-load on Thursday, Ikiday and Saturday, being unable to remove them on Saturday without great risk and by working at night and on Sunday, did not remove them to their store until Monday, when they were found to have been greatly injured by the heat, the damage having been occasioned after Thursday. The defendant was in the habit of notifying consignees of the arrival of goods by putting a receipt therefor in a pigeon-hole accessible to the consignees or their agents. In this case the notice was not put into the pigeon-hole until late on Saturday afternoon.</p> <p>The bill of lading under which the goods were shipped provided that the defendant would “ not be responsible for goods while at any station awaiting delivery, * * * nor for decay of perishable articles, nor for damages arising from heat or cold, or where occasioned by providential causes or by fire, * * * nor for delays from unavoidable causes.”</p> <p>In an action by the plaintiffs to recover damages for the injuries sustained by the heating of the hams, held, that the damages were caused by the negligence of the defendant in failing to deliver the hams and give the customary notice of their arrival to the consignees.</p> <p>That the bill of lading did not relieve the defendant from liability for damages occasioned by his own negligence.</p> <p>That the plaintiffs were entitled to recover.</p>

It appeared that on August 30, 1878, a judgment for ninety-four dollars and forty-one cents damages and costs, of which seventeen dollars were for costs, was recovered in this court by the plaintiffs against one Silas E. Smith, and that execution was issued thereon to the defendant September 2, 1878, against the property of the said Smith. That the sheriff did not return the said execution within sixty days.

This action was brought to recover the possession of certain real estate described in the complaint, situate in the town of Schodack, Rensselaer county. The answer is a general denial. The premises were originally owned by Stephen Van Rensselaer.

<p>Statute of frauds — when the fact that a contract is invalid under, cannot he set up after its performance.</p> <p>The defendant having agreed with one Sands to draw and raft certain lumber for him from Sands’ mills to Bordentown, at a specified rate per thousand feet, and being in need of supplies wherewith to perform his contract, it was agreed by and between Sands, the defendant, and one Wheeler, that the latter should furnish the defendant with such supplies as he might need and charge them in the first instance to him; that the lumber was to he sold or delivered to Wheeler, and that when the work was done there was to he a settlement, and that then the goods delivered to the defendant were to he charged over to Sands. The defendant performed his contract and the lumber was delivered and sold to Wheeler.</p> <p>In an action by Wheeler against thé defendant to recover the value of the goods furnished to him, held, that it was unnecessary to consider whether or not the original agreement was valid under the statute of frauds and could have been enforced if either of the parties had refused to perform it.</p> <p>That as the defendant had never agreed to pay for the goods in money, but by work to be done for a third person, and as he had performed the agreement on his part, an action for the price of the goods could not be maintained against him.</p>

On tbe 13th day of January, 1878, one Eliza O. Houseworth, deceased, delivered to tbe defendant Iiosea Baker certain notes and securities, from which he subsequently realized the sum of $1,136.92.

The action was brought to recover damages for an injury alleged to have been sustained by the plaintiff, by falling-from a bridge over a stream in the village of Waterford. The alleged negligence of the defendants, the commissioners of highways, consisted in their failure to place a railing upon the south side of the bridge, that being the side from which the plaintiff fell.

The action- was brought to restrain one Cleveland, the original defendant herein, since deceased, from detaching or interfering with a boom belonging to the plaintiffs which they claimed to be entitled to attach to Cleveland’s lands.

This action was brought upon a policy of life insurance for $3,000 issued by the defendant upon the life of Hugh P. Grattan, and payable to him if he should survive the 24th day of June, 1896; and in case of his prior decease to his personal representatives or assigns within sixty days after receipt and acceptance of proof of his death by the company. The policy was issued the 24th day of June, 1876, and the application upon which it was issued is dated June 19, 1876.

The plaintiff was an employe of the defendant. His work consisted in charging and firing holes for blasting. He continued under such employment until July 3, 1875, when he was injured by the premature explosion of a blast while he was engaged in charging a hole drilled in rock.

<p>Train conductor — w7ten tTie company is estopped from denying Ms authority to allow a passenger to stop over at a station.</p> <p>Where a passenger, upon applying for information to a train agent or conductor, is informed by him that he may get off at a station and continue his journey by the next train upon the same ticket, and the passenger relying upon the said statement, leaves the train at that station, the company is bound to carry him on the next train to the end of his route upon that ticket, and is estopped from denying the authority of the conductor to make the said agreement.</p>

<p>Common Council of Troy — may fix price tobe paid for publication of its proceedings —1870, chap. 598, title 2, § 3, as amended by, 1873, chap. 813 —1869, chap. 831— to what cases it is applicable.</p> <p>The charter of the city of Troy provides that the common council shall designate not to exceed four newspapers in which the city advertising shall be done, only by the order of the common council. September 2, 1875, a resolution was passed by the common council to the effect that it would pay for publishing its proceedings five dollars for each column thereof, and that any •fficial paper refusing to publish them at that rate was notified not to publish them at all. In this action brought by the plaintiffs, the proprietors of one of the official papers of the city, to recover for publishing the proceedings of the common council from September 20, 1875, to March 7, 1876, they claimed to be entitled to recover the sum of seventy-five cents for each folio so published, though they had had notice of the passage of the resolution of September second.</p> <p>Held, that although the plaintiff might have declined to publish the proceedings at the rate fixed by the resolution, yet having published them with notice thereof, they were limited to the price therein prescribed.</p> <p>That chapter 831 of 1869, providing “ that for publishing any notice, order, citation, summons or other proceedings or advertisements required by law to be published, not more than seventy-five cents per folio for the first insertion and fifty cents for each subsequent insertion ” shall be charged, referred principally, if not altogether, to publications in actions and the like, and had no application to the case in hand.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes.</p> <p>The case has been tried twice. The General Term reversed the judgment rendered for the plaintiff on the first trial on the ground that the' evidence- authorized no reformation of the contract. On the present trial the -plaintiff was permitted to waive any reformation and recover a judgment on the contract made by the defendant.</p> <p>The action was brought upon a policy of insurance issued by the defendant to the plaintiff for $2,000 — $1,700 on his dwelling and additions thereto situated in Ballston Spa, $300 on furniture. The complaint alleges that the plaintiff’s interest in the house at the time it was destroyed by fire was upward of $800, and furniture $225. The complaint also alleges that at the time of the insurance the plaintiff was the equitable owner of the dwelling, and lot on which it stood, having a contract for the purchase thereof and that he had no deed of the same, and that these facts were stated to the defendant by the plaintiff, and were well known to the defendant when the policy was issued, and that the policy was written by the defendant without any statement of these facts, and that the plaintiff did not know of such omission until after the loss and damage, and prayed for a reformation of the policy and for judgment for $1,025 with interest from December 2, 1874.</p> <p>Upon opening the ease plaintiff’s counsel asked leave to amend the complaint by claiming the face of the policy. This was objected to by defendant, but was granted, and an exception taken by defendant. The policy contained a clause that “ if the assured is not the sole, absolute and unconditional owner of the property insured, or (if such property be a building or buildings) of the land on which such building or buildings stand, by title in fee simple, and this fact is not expressed in the written portion of the policy,” or “ if the premises hereby insured shall become vacant or unoccupied or, if the property insured be a mill or manufactory, shall cease to be operated, and so remain for a period of more than fifteen days without notice to the company, and consent indorsed hereon, in every such case the policy shall be void.”</p> <p>It also provided that “ no officer, agent or representative of the company shall be held to have waived any condition of the policy unless such waiver is indorsed thereon.”</p>

Writ of error to the General Sessions of the county of Essex, to review the 'conviction and sentence of the plaintiff in error of robbery in the first degree.

<p>Appeals from two orders made by the Special Term at Kingston, the one from an order appointing a referee to take testimony, and the other from an order denying a motion .to set aside the order appointing the referee.</p> <p>This is a special proceeding, being a certiorari under chapter 269, of the laws of 1880, entitled “An act to provide for the review and correction of illegal, erroneous or unequal assessments.” It was instituted for the purpose of reviewing an alleged unequal assessment of the real estate of the relator.</p> <p>The relator or petitioner applied ex 'parte for the writ to Justice Westbrook at chambers, and it was allowed, no notice having been given to the defendants.</p> <p>The writ was allowed on the 11th day of September, 1880, was made returnable on September 25, 1880, at Special Term at Kingston, and was served on the assessors on the fifteenth of September.</p> <p>TJpon the filing of the return the relator’s counsel moved the court for the appointment of a referee to take testimony to contradict them.</p> <p>The defendants objected and insisted that the Special Term had no authority to appoint a referee or to entertain a hearing upon the return, but that the hearing must be had at the General Term; that a case was not presented for taking testimony; that the return was conclusive and could not be traversed or contradicted by testimony, but that .-the hearing must be on the return itself. The court overruled the objections and made an order appointing a referee, which was served and a notice of hearing before the referee was also served. The appellants then made a motion before the justice, on affidavits and on all the papers, to set aside the order of reference, which was denied pro forma.</p>

The cause of action which was. stated in the complaint was one in favor of the plaintiff in his official character only. 1. He is the judgment creditor in that capacity only. 2. That action was founded upon a penalty. (1 R. S., 526, .§§ 131, 132; id., 521, §102; People v. Supervisors, etc., 32 N. Y., 477; 5 Hill, 215, 217; 2 R. S., 473, § 92.) This judgment is a contract which plaintiff could enforce against Joseph Rood.

The action was brought to restrain the defendants, The Board of Supervisors of the County of Schenectady and one of the committees thereof, from taking possession of a certain piece of ground belonging to the county, of which the plaintiff claimed to be the lessee. The ground was leased by the board, in 1869, to one Wingate, who erected certain buildings thereon upon the agreement that he should be allowed to remove the same upon the termination of his lease.

The action was brought to recover for services rendered by the plaintiff under a contract with the board of trustees of the defendant, for lighting the streets and furnishing oil for its lamps.

<p>Appeal from a judgment in favor of the defendants entered upon the trial of this action by the court without a jury.</p> <p>The plaintiffs, general creditors of the firm of Bennett & Archibald, brought this action in behalf of themselves and all other creditors whose debts were provable in bankruptcy, and who were willing to come'in and contribute to the expenses of the action, to set aside certain transfers of property made by the said firm as being fraudulent and void under the bankrupt act. The firm filed a voluntary petition in bankruptcy on April 29, 1877, and the defendant Coleman was thereafter appointed their assignee. The assignee having refused, upon the plaintiffs’ application, to take steps to set aside a fraudulent preference given to the defendant Bradley, the plaintiffs commenced this action, demanding judgment against Bradley for “ the sum of $800 with the costs of this action, for the benefit of the creditors of said bankrupts, to be administered in due course of proceedings in bankruptcy, and that the plaintiffs may have such other relief as may be just or equitable.”</p>

<p>Appeal by the defendant from a judgment entered on the report of a referee.</p> <p>October '6, 1866, the plaintiff contracted to sell to Solomon Knight a farm incumbered by five mortgages amounting to $2,461, for $6,000; $1,000 to be paid by March 1, 1867, and $500 annually thereafter. The plaintiff was to give a deed when the $1,000 was paid, and Knight to give back a bond and mortgage for the balance.</p> <p>The plaintiff being in want of money, it was agreed between the parties that the defendant should raise for him $1,000, take a deed of the farm from him and convey it to Knight and take back a mortgage from him for the balance. On the 27th day of March, 1867, this arrangement was carried ont and the deed was executed to Knight and the bond and mortgage were executed by Knight to the defendant for $2,589.</p> <p>The plaintiff went west and Knight occupied the farm during the season of 1867, and left in the winter following. He had committed waste on the premises, and in the spring of 1868 the defendant had procured an injunction and foreclosed his mortgage, bidding off the premises himself at $4,200. He occupied the farm in 1868 and had the rents and profits, etc., worth $250. October 12, 1868, defendant sold the farm to one Dye, for $4,500, subject to the above-mentioned five mortgages, then amounting to $2,361, and the balance of $2,139 Dye paid to defendant.</p> <p>This action was brought by the plaintiff to recover the balance of the money which was alleged to belong to him.</p> <p>The referee stated an-account between the parties as of October 12, 1868 (the day defendant sold the farm to Dye), charging him with the $2,139 and the use of the farm in 1868 at $250, and giving him credit for all he had paid or advanced for the plaintiff, and struck a balance of $268.07, and in his conclusions of law found the defendant liable for that amount.</p> <p>He refused to allow him commissions and allowed the plaintiff costs against him.</p> <p>The referee erred in not allowing the defendant some compensation for his services, either by way of statutory commissions or upon a quantum meruit. 1. He was entitled to statutory commissions. (9 Paige, 398; 23 Barb., 211; 32 id., 587; 35 N. Y., 187: 39 id., 202; 40 id., 96; 46 Barb., 579.) 2. If not to commissions he was upon a quantum meruit. (1 Johns. Oh., 27; 6 Bans., 368; approved, 56 N. Y., 668; Iddings v. Bruen, 4 Sand. Oh., 238-287; 39 N. Y., 202-3.) "When a party asks equity he must do equity. This case is not within the exceptions to the rule which allows compensation. (5 Johns. Oh., 534; 4 E. D. Smith, 534; 37 Barb., 133.) It is no answer to his right to compensation, that the proceeds of the mortgage or land was coming to himself, or that he received a benefit by getting security on the appeal bond, for that security was promised originally. (See 9 Paige, 398; 4 Redf., 405.)</p> <p>The defendant was not entitled to commissions on the funds received or paid out. It is evident that no compensation was contemplated by or between the parties. • {Mason v. Roosevelt, 5 Johns. Ch., 534; Green v. Winter, 1 id., 27; Mcmning v. Marmvng, 1 id., 527; Perry on Trusts, §§ 904, 905, 911, 916, 918 and note; Tiffany & Bullard on Trusts, 940; Ireland v. Potter, 25 How., 175.) It is entirely clear that the defendant was not a statutory trustee, and hence not entitled to the statutory allowance. (2 Stats, at Large, 95, § 58;. 6 id., 126, § 8 ; Ogden v. Murray, 39 N. Y., 202, 204, 206; Story’s Equity Juris., § 466; Hill on Trustees, § 535).</p>

The plaintiffs, composing the firm of Masten & Hayes, obtained' a judgment against one C. J. Townsend, January 12, 1877, for $6,621.89. On this judgment the sheriff of Ulster county sold, among other things, the stock of Townsend’s store and certain household furniture belonging to him.

Controversy submitted upon an agreed statement of facts under section 1279 of the Code of Civil Procedure. Orlow J. Pratt, on tbe 2d day of June, 1880, was and for five yearn nad been a private banker, doing business at Whitney’s Point, Broome County, N. Y. On that day he made an assignment for the benefit of creditors to the plaintiffs. At that date he held the note in question on which there was due August 5, 1880, $611.68.

Butler, be charged personally with the payment of the defendant’s costs. The action was brought by plaintiffs, not individually, but in their representative capacity, for ’damages to the real estate held by them for the fife of Alexander Hammond, occasioned by the defendant’s building and maintaining a second track in the street in front of the said premises; and also praying for an injunction against the defendant, restraining the use of said second track.

<p>Appeal by the defendant from a judgment in favor of the plaintiff entered upon a verdict, and from an order denying the defendant’s motion for a new trial upon the minutes.</p> <p>The action was brought to recover for injuries sustained by the plaintiff, a married woman,'in being overturned while riding in a carriage driven by her husband in the streets of Cohoes, on Sunday evening, October 21, 1875. The overthrow of the carriage was caused, by a heap of dirt thrown up by the water commissioners in excavating for the purpose of repairing a leak in the water-pipe on Remsen street, upon which the plaintiff’s husband drove his horse and wagon, in the absence of lights on the barricade surrounding the heap of dirt and the excavation.</p>

The plaintiff was a merchant doing business and residing at Canaan Four Corners, in Columbia county, and was the traveling partner of the firm of O. L. Carpenter & Co. On the 6th day of January, 1876, the plaintiff was the owner of a distance ticket, so-called, issued by the defendant, upon which there was then due a certain number of miles travel, and more than enough to pass him from Chatham Village to Canaan station, on the defendant’s road.

Among the assets of the deceased was a note of James Bair, one of the executors, dated April 1, 1874, for $4,561.91, on which there was due at the making of the inventory, as certified by the appraisers, $3,753.11. Barr united in verifying the inventory and in filing it. The testator owned no sheep or their fleeces, nor swine, but owned such jointly with his tenant farmer, one-half each.

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

<p>Tena/ntfm' life — when requwed to gi/oe security for fund, received — when testamentwy trustee requwed to give security — 1871, cha/p. 482.</p> <p>A testator by liis will bequeathed one-half of a certain sum of money to his “son John, in trust to be invested for the benefit of his heirs, he having the use or interest of the same; also his widow, so long as she remains his widow; he dying without heirs of his own begotten,” the principal of the same shall revert to certain persons named in the will.</p> <p>Held, that the bequest was a general one to John for life (and to his widow so long as she should remain his widow), with remainder over as specified in the will.'</p> <p>That as no trustee for the fund was created by the will, the executrix should either retain and invest the same, or that security should be required of John in case it were delivered to him.</p> <p>That even if John, who was a non-resident of the State, was to be deemed a testamentary trustee of the fund, the surrogate was authorized, by section 1 of chapter 482 of 1871, to require him to give security for its ultimate disposition in accordance with the direction of the will.</p>

<p>General assignment — requisites of, under chap. 466 of 1877.</p> <p>Since the passage of chapter 466 of 1877, a general assignment for the benefit of creditors must, in order to vest the property in the assignee, be in a writing duly acknowledged by the assignor, must have thereon the assent of the assignee, duly subscribed and acknowledged by him, and must have been duly recorded.</p> <p>An assignment recorded without the assent of the assignee to act, having been duly subscribed and acknowledged by him thereon, although he may have orally agreed to act, is void as against creditors claiming under attachments against the property of the assignor.</p>

In 1875 the defendant agreed by parol to convey to the plaintiff certain real estate, and to receive in part payment thereof a stock of goods in a store and the unexpired term of about fourteen months of a lease thereof given by the owners to the plaintiff, the defendant agreeing to pay the rent to fall due upon the lease to the lessors. The agreement was carried into effect.

<p>Motion for a new trial on exceptions ordered to be beard in tbe first instance at tbe General Term, after a nonsuit directed at tbe Circuit.</p>

<p>Appeal from two orders made at Special Term, one setting aside a subpoena duces tecum, issued on behalf of the defendant to the plaintiffs, and one denying a petition presented by the defendant for leave to inspect and take a copy of the books and documents set forth in the said petition.</p>

In 1832 James Tuthill, owning the land where the village of Jamesport now is, caused it to be surveyed and laid out in building lots, streets and alleys, and had a survey and map made, and sold lots and gave' deeds bounding by the streets and alleys, and sometimes referring to the map.

The action was brought to recover five dollars a week for sick benefits, during a sickness of the plaintiff, extending from August 24, 1878, to November 15, 1879, a period of sixty-four weeks, which amounts to $320. His claim rested on an alleged contract with the defendant society, entered into when he became a member, which was embodied in its constitution and by-laws, with a printed copy of which he was then furnished.

<p>Tmi — when invalid — only the trustee of an express trust can apply to the court for leave to resign.</p> <p>One Hatfield executed an instrument under seal, whereby he sold and conveyed all his property, both real and personal, to one. Hall, “in trust, nevertheless, for my use, benefit and advantage; that is to say, the said Wright Hall shall manage and control the same in his discretion, and shall, from time to time, give me therefrom such sum or sums as I may need or require, and he shall deem reasonable and prudent, for my comfort, support and interest, and shall pay therefrom such debts as I may contract and desire him to pay, and he shall deem it just and prudent to pay.” Thereafter Hall, having received money upon the sale of real estate belonging to Hatfield, applied by petition for leave to resign the trust and for the appointment of a successor.</p> <p>Held, that as the trust was not authorized by the Revised Statutes, Hall was not a trustee within the meaning of the statute (1 R. S., 730, § 69) authorizing the court to accept the resignation of a trustee.</p> <p>That the application should be denied, and the money in Hall’s hands be ordered paid over to Hatfield, as being his property.</p>

On 16th July, 1870, the plaintiffs, as executors, commenced an action in this court against William Ohristal and Joseph Struthers to recover the sum of $6,798.52, with interest from 1st January, 1870, being the amount of a promissory note made and delivered to the executors by the firm of Ohristal & Struthers, of which William Ohristal and Joseph Struthers were members.

The action was brought to recover a debt attached by the sheriff in a former action brought by the plaintiffs against the defendant. W. IT. Seheiffelin & Go. were the original defendants and appeared, deposited the money in court and asked that George Carragan be substituted as defendant in their place. The court granted the application.

The action was brought to recover the .price of meat sold by the jilaintiff to the defendant, Mary Banks, a married -woman, at various times, between May 5, 1873, and July 14, 1876, and for wbicli she had promised to pay him. She was at the time living with the defendant, her husband, and the meat was delivered at their residence.

<p>Execution issued aftm‘ the lapse of five years from the entry of judgment — when the court will refuse to set it aside— Oode of Oiril Procedure, § 1877.</p> <p>Where upon the hearing of amotion to set aside an execution because issued for the first time more than five years after the entry of the judgment, it appears that the facts are such as would have required the court to have granted leave to issue it, if an application therefor had been formally made, it is not an abuse of judicial discretion for the court to refuse to set it aside.</p> <p>Qucere as to what constitutes the return of an execution “ unsatisfied or unexecuted,” as those terms are used in section 1877 of the Oode of Civil Procedure.</p>

Justice CooKE, requiring the defendant to appear and submit to an examination before trial, pursuant to section 8JO of the Code of Civil Procedure.

This case came on for trial before Mr. Justice Cooke and a jury, at Circuit, on the 29th day of April, 1880, and at the close of the testimony the court directed the jury to find a verdict for the plaintiff, counsel for both parties stipulating that the court could direct judgment for the defendant, if on consideration it was found that it was not indispensable to the right of the defendant to recover, that her testator should have proceeded to judgment and execution against…

<p>Appeal from a judgment in favor of the plaintiffs, entered upon tbe .trial of this action by the court without a jury, and from an order denying a motion for a retaxation of the costs.</p> <p>This action was brought to recover the damages occasioned by reason of the defendant’s setting the water of the Fishkill creek back upon the plaintiffs’ premises, and also for a judgment or decree directing the defendant to take down its dam to such an extent as to leave the water in said Fishkill creek to pass through and by the plaintiffs’ premises the same as the water flowed in said creek before the building of said dam.</p> <p>The court decided that the defendant’s dam was built fifteen inches higher than they had a right to build it, and ordered and decreed that it be taken down to that extent, and fixed plaintiffs’ damages nominally at fifty dollars.</p> <p>The defendant objected to the insertion in plaintiffs’ bill of costs of an item of “ ninety-four dollars for surveys, maps, profiles, and making levels,” etc., and also to the granting of an extra allowance of $250.</p>

<p>Contract to render services to the satisfaction of another — when it may be terminated by the lattes' without assigning any cause therefor.</p> <p>The plaintiff and defendants entered into an agreement by which the former agreed to work for the latter for the term of one year for the sum of $1,200, payable in equal weekly installments, and the defendants agreed to pay therefor, “provided his work and services should be to their satisfaction. Should there be any disagreement the installments are to be paid only to the time of such disagreement, unless an amicable settlement can be arranged.”</p> <p>Held, that the employment of the plaintiff was only to continue during the pleasure of the defendants, and that the latter might discharge him at anytime without assigning any reason therefor.</p>

<p>Appeal from a judgment in favor of the plaintiffs, 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> <p>The action was brought to recover the sum of $781 as damages for the conversion by the defendant to her own use of money, jewelry and other articles of property belonging to the plaintiff.</p>

Appeal by tbe defendant from a judgment entered upon a verdict, and from an order denying a motion for a new trial made upon the minutes of tbe justice before whom tbe action was tried.

<p>Juror — may dissent from a verdict at any time before it is recorded.</p> <p>Upon the polling of a jury one of them stated that he was not satisfied with the verdict. Having stated, in answer to a question put by the court, that he had agreed to the verdict, the court, against the objection of the defendant’s counsel, directed the verdict to be entered.</p> <p>Held, that this was error, that the right of a juror to dissent from a verdict to which he has before agreed, is not lost until the verdict has been recorded.</p>

The action was commenced on May 29,1879, to recover damages for a conversion of the plaintiff’s goods. On August 25, 1879, the parties settled the action and agreed to discontinue the same. Thereafter the plaintiff’s attorney, the defendant being in default for want of an answer, procured the appointment of a referee to assess the damages, and subsequently applied for leave to enter judgment on his report.

<p>Appeals from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from parts of the order made at Special Term, on the 27th day of May, 1880, denying the motion to set aside the verdict, on the ground of alleged irregularity in drawing a jury and of alleged excessive damages, and from that part of said order making an extra allowance to the plaintiff and from a Special Term order made on the 8th day of July, 1880, denying a motion to set aside the verdict “ because it is for excessive damages,” and from an order made on the 8th day of July, 1880, denying the defendant’s motion for a new trial, and to set aside the verdict because there had been a mis-trial.</p> <p>This action was brought to recover damages for personal injuries received by the plaintiff, a passenger for hire on the Elevated Railroad, then owned and operated by the defendant, on the 25th day of March, 1879, at or near Forty-second street and Third avenue, in the city of New York.</p> <p>Hpon the trial evidence was given tending to show that on the last mentioned day the plaintiff (a builder) took passage over the said road at Franklin Square, to go to another station on that road at or near Eightieth street, in said city; that he entered one of the defendant’s passenger cars of the “ np trains ” for that purpose ; that when the plaintiff’s train was approaching Forty-second street, and owing to the defendant’s carelessness and negligence, one of the defendant’s “ down trains ” was switched off from the down track upon the up track and collided with the train in which the plaintiff was a passenger, causing a great destruction of the engine and cars, injuring several passengers and severely and permanently injuring the plaintiff.</p>

March 18,1807, Charles Anton Bollermann was born at Mainz, in the Grand Duchy of Hesse, of parents who were residents and subjects thereof.

On the 3d of September, 1880, a complaint, signed by the relators and verified by one of them, was filed with the board of excise of the town of Flushing, complaining of Charles J. Freygang, licensed innkeeper of the village of College Point, in said town, and charging that he had repeatedly sold and given away spirituous liquors and wines on Sunday, and especially that on Sunday, August 15, 1880, he had at his inn in College Point sold intoxicating liquor as a beverage to…

<p>Usury — validity of notes determined by the laws of the place where they are made.</p> <p>The defendant, having gone to the State of Illinois to receive money for the plaintiff, forwarded to him from time to time as the money was received, promissory notes, made and dated in Illinois and hearing interest at the rate of ten per cent per annum, a ratio of interest which was lawful in that State. One of the notes was made payable in this State, in the others no place of payment was specified.</p> <p>In an action brought upon the notes in' this State the defense of usury was set up.</p> <p>Held, that the validity of the notes was to be determined by the laws of the State of Illinois, and that being valid there, they were valid and enforceable here.</p>

<p>Appeal from the report of commissioners appointed to appraise the damages to be awarded to the owners of land to be taken for railroad purposes, and from an order made at Special Term confirming the same. ■ .</p>

The action was brought to foreclose a mortgage, and one William Mangam, sued as William Moore, an infant under the age of fourteen, and a non-resident of this State, was made a party defendant, as an owner of the equity of redemption in the mortgaged premises. Upon an investigation of the proceedings under the foreclosure, it appeared that the infant defendant, William Mangam (sued as William Moore), was not served with the summons in the action.

<p>Failure of sheriff to return execution — action for, is assignable.</p> <p>A cause of action against a sheriff for his failure to return an execution against property within the time required by law, and for making a false return, is assignable and the assignee may bring an action thereon in his own name. CZabrishie v. Smith, 13 N. Y., 323, criticized and not followed.)</p>

On the 5th day of May, 1880, tbe surrogate of Kings county made an order appointing Annie T. de Marcellin guardian of tbe infant Mary Louise, nine years of age, upon condition, however, “ that she should give a bond with two sureties, which bond shall be in the penal sum of $1,000, and which, in addition to the usual conditions, shall be further conditioned that the said guardian shall and will well and suitably support, maintain and educate said infant.” This order was made…

<p>Rights of an only child, born after the making of a will by the father — it may recover land soldby the executor under a power in the will — SR. 8. [6 thedJ], 64, §47 [49].</p> <p>On September 5, 1862, one Scott, being married, but having no children, made a will, by which he authorized his executor to sell all his property, both real and personal, and pay the proceeds thereof to his widow. On April 17, 1864, the plaintiff, the testator’s only child, was born, and about a month thereafter Scott died, leaving his will unaltered, his child not being in any way mentioned therein, and not being provided for by any settlement. On December 1, 1865, the executor named in the will sold certain real estate, of which Scott died seized, to the defendant for the sum of $3,200, $2,200 thereof being paid in cash, and the residue by discharging a mortgage upon the premises.</p> <p>In this action, brought by the plaintiff to recover the said land, subject to the dower of her mother:</p> <p>Reid, that the plaintiff not being provided for by or mentioned in the will, succeeded, under section 49 of 2 Revised Statutes, 65, to the same portion of her father’s real and personal estate as would have descended or been distributed to.her if her father had died intestate.</p> <p>That she was not confined to suing the devisee or legatee to recover the proceeds arising upon the sale made by the executor, but could bring an action against the grantee and recover the land itself.</p>

<p>Statutory proceedings of commissioners of highways — when they cannot be restrained by a court of equity.</p> <p>A court of equity cannot entertain an action to restrain commissioners of highways from continuing proceedings, instituted under the provisions of the statutes, to open a highway, on account of any irregularities occurring in their proceedings, unless it be shown that the assistance of the court is necessary to protect the complainant against irreparable damage and injury.</p>

<p>Appeal from a. judgment in favor of the defendant, entered upon a nonsuit directed at the Circuit.</p> <p>The action was one of ejectment.</p>

<p>New promise after a discharge in bankruptcy — am, action will lie upon the original debt— Trial by jury — what a’Waiver of the right to.</p> <p>When a debtor bas promised to pay a debt from wbicb be bas been discharged by proceedings in bankruptcy, an action will lie upon tbe original debt, and need not be brought upon tbe new promise.</p> <p>After a trial bad been commenced before a jury and tbe plaintiff bad rested bis case, tbe questions of law were, at tbe suggestion of tbe court, submitted to it for decision, and tbe jury was thereupon discharged without objection. Tbe court subsequently made and filed findings of fact and of law, and decided the case in favor of tbe plaintiff.</p> <p>Held, that tbe defendant could not complain on appeal that be bad been deprived of his right to a trial by jury.</p> <p>That not having stated at the trial that be desired to introduce further testimony, that be could not complain on appeal that be bad been deprived of tbe right to do so.</p>

<p>Appeal from an order-denying a motion for a retaxation of the •osts herein</p>

a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

On March 22,1866, the Crawford County National Bank, a corporation located and doing business in the State of Pennsylvania, being indebted to the plaintiff, a national bank located at Meadville, in the same State, delivered to it a draft upon Culver, Penn & Co., bankers and brokers doing business in the city of New York, for $6,000, payable, at sight.

<p>Failure of an attorney to pay over money to his client — proceedings to commit him for contempt— the court may shorten the lime prescribed by Bule 30 — The escape of the attorney does not prevent him from moving to vacate an attachment because</p> <p>Where upon the return of an order requiring an attorney to show cause why he should not be punished, as for a contempt, because of his failure to pay over to his client moneys collected for him, a reference is ordered, the court may, upon the coming in of the report, appoint a day for the hearing thereon, and direct that an attachment issue against the attorney, returnable upon the day of the hearing for the purpose of securing his presence thereon.</p> <p>The court may direct the hearing to be had within a shorter period than that prescribed by General Rule No. 30.</p> <p>The fact that the attorney has evaded the service of the attachment and other papers, and neglected to appear on the return day, will not authorize the court to refuse to entertain a motion made by his counsel to set aside the order directing the attachment to issue, on the ground of alleged irregularities in the proceedings.</p>

<p>Discharge in bankruptcy — what debts a/re discharged by — when the debt is not created by the fraud of the bankrupt.</p> <p>The plaintiff having incurred certain liabilities for the defendant’s benefit, the latter executed a bill of sale and chattel mortgage of certain personal property to him to secure him against loss therefrom. Thereafter, the defendant having failed to pay the indebtedness for which plaintiff was liable, the plaintiff brought this action to recover the possession of the property covered by the bill of sale and mortgage. The sheriff having been unable to find the whole of the property, the plaintiff procured an order of arrest, under section 179 of the Code of Procedure, upon the ground that the defendant had concealed, removed or disposed of the property with the intent that it should not be found or seized by the sheriff. The plaintiff thereafter recovered a judgment and collected a portion thereof under an execution issued thereon, but never obtained the possession of that portion of the property in respect to which the order of arrest was made.</p> <p>Upon a motion made by tbe defendant, under section 1268 of tbe Code of Civil Procedure, to have the judgment canceled on the ground of his subsequent discharge in bankruptcy:</p> <p>Held, that the debt upon which the judgment was recovered was not created “by the fraud” of the defendant within the meaning of that term, as used in section 5117 of the United States Revised Statutes, exempting debts so created from the effect of a discharge in bankruptcy, and that the motion should be granted.</p>

, attaching creditors, for a reference to determine the priorities of the liens upon the funds in the hands of the receiver appointed by the decree in this action.

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

<p>Board of police commissioners of the city of New York — may regulate the salaries of disabled policemen — Bemedy.</p> <p>The hoard of police commissioners of the city of New York has power to determine and regulate the compensation which shall he allowed to sick or disabled policemen, who are unable to perform their duties by reason of such disability, and the court will not interfere by mandamus to compel the board to pay a full salary to a policeman, to whom a smaller amount has been allowed, in pursuance of its rules, on the ground that he is unable to discharge the duties of his office.</p> <p>Semble. That if the police commissioners had not such power the remedy would be by action and not by mandamus.</p>

<p>Representations that a note is a business note — when a pa/rty making them, is estopped from pleading usury as against one receiving the note in payment of an account— right to recover for goods for which such a note was given.</p> <p>The complaint in this action alleged, that the respondent, being indebted to the plaintiffs for goods sold, delivered to them a promissory note made by Z. Stern & Oo., and indorsed and guaranteed by the respondent. It then alleged the non-payment and protest of the note and demanded judgment for the amount due thereon. The defense was that the note was made for the accommodation of the respondent and discounted by the plaintiffs at a usurious rate of interest. Upon the trial the court refused to allow the plaintiffs to show, that at the time the note was delivered to them the respondent stated and representated that the note was a business note, given by the makers to him for bills receivable.</p> <p>Held, that the court erred in excluding the evidence, as such representation would, if proved to have been made, have estopped the respondent from disputing the validity of the note.</p> <p>That in any event the plaintiffs were entitled to recover the value of the goods, sold and delivered to the respondent, for which the note was given.</p>

Writ of error to tbe Court of General Sessions of the city and county of New York, to review the conviction and sentence of the plaintiffs in error of an attempt to commit forgery in the third degree.

<p>Certiorari to the Court of Special Sessions of the county of New York, to review its decision compelling the relator to provide for the support of his wife.</p>

<p>Appeal from a judgment in favor of the defendants, entered upon the trial of this action at the Special Term.</p>

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

<p>A post dated cheek is valid — A corporation cannot plead usury — What is not a defense to an action on a check.</p> <p>The fact that a check hears a date subsequent to that on which it was made and issued does not render it invalid.</p> <p>A corporation cannot set up the defense of usury when sued upon its own obligations.</p> <p>Where two persons have exchanged checks, upon the agreement that each will keep his account good to meet his check at maturity, the fact that one person has failed to keep his account good constitutes no defense to the other when sued upon his check by a Iona fide holder thereof.</p>

<p>Certiorari — when an application therefor will he denied because of the laches of the petitioner.</p> <p>On September 8, 1879, the relator applied for a writ of certiorari to review the proceedings by which he was removed from his position as a member of the police force of the city of New York, which proceedings were completed and terminated on December 24,1878.</p> <p>Held, that in the absence of any excuse for his omission to sooner apply for the writ his application was properly dismissed, because it was not made with reasonable diligence.</p>

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

<p>Claims against the United States — may be tra/nsf erred to an assignee for the benefit of creditors — 10 U S. Stat. at Large, 170, § 1— US. Rev. Stat., § 3477. •</p> <p>Section 1 of the act of congress of 1853 (LOU. S. Stat. at Large, 170),prohibiting the transfer or assignment of any claim against the United States, or any share thereof or interest therein, whether absolute or conditional, before the allowance of such claim, or the ascertainment of its amount and the issuing of a warrant for its payment, and declaring every assignment in contravention of such restraint absolutely null and void, does not prevent the assignment to an assignee for the benefit of creditors, under the laws of New York, of a claim made by the assignors against the United States to recover income taxes paid under protest, which claim is, after the making of the assignment, decided upon and allowed in favor of the assignors.</p>

<p>Deed by which a grantee assumes mortgages — when the delivery of, will be presumed from the fact of its homing been recorded.</p> <p>This action was brought to foreclose a mortgage upon certain premises which were, in 1861, conveyed by the mortgagor to the defendant subject to the mortgage now in suit and other mortgages, amounting in all to $7,000, which the grantee (the defendant) assumed to pay as so much of the consideration ($10,000) expressed in the deed. The plaintiff sought to charge the defendant with any deficiency that might arise upon the sale. Upon the trial the plaintiff offered in evidence a certified copy of the record of the deed, which was, upon the defendant’s objection, excluded upon the ground that there was no evidence of its delivery.</p> <p>Held, that this was error; that in the absence of any evidence to the contrary, the fact that the instrument was found upon the record duly acknowledged or attested, was prima facie evidence of its delivery. (Brady, J., dissenting.)</p>

<p>Trustee of a mortgage — duty of, as to bondholders — when liable to one injured by his neglect 'of duty.</p> <p>When a mortgage, given to secure the payment of bonds issued by the mortgagor, is executed and delivered to a person in trust for the security of those who may thereafter become the owners of the bonds, and such trust is accepted, and an indorsement to that effect made upon each of the bonds, a duty is imposed upon the trustees of enforcing the mortgage against the property, in case default is made in the payment of the bonds, and of making such a disposition thereof as will best promote the interests of the bondholders.</p> <p>The duty so imposed upon the trustee is a personal one, and he cannot divest himself of it by delegating its performance to any other person or persons.</p> <p>Where a trustee of a mortgage, given by a railroad company to secure the payment of bonds issued by it, upon the application of persons claiming to own a majority of the said bonds allowed the applicants to institute proceedings in its name to foreclose the mortgage, and to carry on the proceedings to final judgment and sell the property thereunder, the trustee paying no attention to the said proceedings, hut leaving them wholly subject to the control and direction of suoh persons, held, that the trustee was liable to a holder of one of the said bonds for the damages sustained by him, by reason of its neglect to faithfully perform and discharge the duties imposed upon it by the acceptance of the trust.</p>

<p>Appeal from a judgment in favor of the defendants, entered on the trial of this action at Special Term.</p>

<p>Appeal from an order made at Special Term, confirming the .report of a referee on the settlement of the accounts of the trustees of Michael Burnham, deceased.</p> <p>Cornelius Savage (the elder), John Cockle, Henry Sherman and Harriet Buss were, by a decree made in the above entitled action June 17,1859, appointed trustees under the will of Michael Burn-ham, deceased. At that time the trust estate consisted of certain real estate on Pine and William streets, in the city of New York, and the interests of the various beneficiaries were as follows:</p> <p>Pour-tenths of the estate was held in trust for the benefit of Anna A. Sherman, Harriet Buss, Elizabeth Cockle and Ellen Savage, each having a life interest in one-tenth (-¿¶), with remainder over to her children. The remaining six-tenths of the estate had vested and belonged to the following persons, either as purchasers, heirs-at-law, or Otherwise, in the following proportions, viz.: Anna A. Sherman, Harriet Buss, Elizabeth Cockle and Ellen Savage were each entitled to nineteen two hundred and tenths of the entire estate; James M. and Thomas Burnham were together entitled to four twenty-firsts (^T) of the entire estate, and the children of Michael Burn-ham, the younger, were entitled to the remaining one twenty-first (¥V) of said estate.</p> <p>These vested interests were owned subject to the trusts and powers set forth and established by the decree of June 17, 1859. In 1873 the said James M. and Thomas Burnham sold and conveyed their interest to John M. Pinkney. Upon the appointment of said trustees, Mr. Savage (the elder), upon consent- of all parties and upon the express authorization of his co-trustees, took sole charge of the whole trust estate, attended to the leasing of the property, collected the rents, made up and rendered the quarterly accounts to each beneficiary, and attended to the quarterly distribution of the income, and continued to so manage the estate down to February, 1869, the time of his death. During this period Mr. Savage was paid by the trustees five per cent of the rents collected and disbursed for his services in managing the estate. This charge was made with the approval and consent of all parties.</p> <p>After the death of Mr. Savage, Mr. Washington Cockle managed the estate as agent of the trustees, charging for his services five per cent on the rents received and disbursed.</p> <p>The trustees, Sherman and Eoss, died in the early part of 1879, leaving Mr. Cockle the sole surviving trustee.</p> <p>In October, 1879, several of the parties interested desiring a distribution of the vested portions of the estate, the surviving trustee, under the power conferred by the decree of June 17, 1859, entered into a contract for the sale of the property for $175,000. Thereafter, on the application of the said trustee to have the accounts of all the trustees examined, and their right to commissions determined, the court appointed a referee to examine and settle the accounts of all the trustees and ascertain their right to commissions. This was done, and the referee, among other things, found and reported:</p> <p>1. That the trustee, Cornelius Savage, faithfully discharged his duty, and that during the ten years of his management the trustee rendered quarterly accounts to each party in interest.</p> <p>2. That in his opinion the allowance of five per cent to Cornelius Savage during his management of the estate should be held to cover all trustees’ commissions on income during that period.</p> <p>3. That after the death of Cornelius Savage the surviving trustees were entitled to commissions on the income of the four-tenths of the estate received and paid to the life beneficiaries.</p> <p>4. As to commissions on principal, that each of the four trustees, or their estates, were each entitled to one-fourth of three half commissions for receiving the estate, and that the surviving trustee was entitled to one-half commission for paying over the estate.</p> <p>5. That John M. Pinkney was entitled to four twenty-firsts of the estate, and should be charged with his proportion of commissions on principal and the expenses of this proceeding.</p> <p>The court at Special Term confirmed said findings, and a decree was entered in accordance therewith, from which the petitioner Anna A. Sherman and the said John M. Pinkney have taken this appeal.</p>

<p>Mveeution — right to issue it after the death of the plaintiff — right of his assignee to issue it — who may move to vacate it, if irregularly issued, — Bight to attack a conveyance as fraudulent as to creditors.</p> <p>June 15, 1860, the plaintiff’s attorney, issued an execution upon a judgment recovered on that day against the defendant, which was on August 5, 1860, returned unsatisfied. On April 16, 1877, the same attorney, without any application to the court, issued a second execution upon the judgment, indorsed by him as the -plaintiff’s 'attorney, under which certain premises ' belonging to the defendant were, on June 8, 1877, sold, and thereafter, and in September, 1878, conveyed to the purchasers. The plaintiff died in February} 18.70, and letters of administration were duly issued upon his estate. Prior to his death he had assigned the judgment to his attorney as security for certain costs owing to him.</p> <p>Upon an application, made by persons who had purchased the premises from the defendant shortly before the issuing of the second execution, to vacate and set it aside, together with all the proceedings had thereunder:</p> <p>Held, that the execution was irregularily issued and that the.application should be granted.</p> <p>That the question as to whether or not the conveyance to the applicants was made with the intent to defraud the creditors of the judgment debtor could not be determined upon this application.</p>

<p>■ Appeal from an order made at Special Term, denying the defendant’s motion for a stay of proceedings.</p>

<p>Joint and several obligors — right of one to recover the proportionate pa/rt of a payment made by him, from his co-obligor.</p> <p>Tbe plaintiff and defendant having executed a joint and several bond, payment of which was secured by a mortgage upon real estate owned by them, the plaintiff paid the' whole of certain interest falling due upon the bond, and thereafter brought this action against the defendant to recover one-half of the amount so paid.</p> <p>Held,, that he should be considered as the equitable assignee of the claim of the obligees in the bond against the defendant to the extent of one-half of the payment so made, and should be allowed to maintain the action, subject to the right of the defendant to interpose any defense which he might have set up had the action been brought directly upon the bond by the obligees thereof</p>

In the year 1868 certain United States stocks of the par value of $56,600 were transferred to the New York Life Insurance and Trust Company, and also $5,575.37 in cash, to be held and retained by the company to pay certain annuities, and upon the death of Rachel M. Moffat, one of the annuitants, $50,000 of the moneys and stocks so delivered were to be divided equally between Sophia Y. Quackenbos and Maria Moffat.

<p>Fraudulent representations — by husband inducing conveyance of dower interest by the wife— Code of Oivil Procedure, § 829 not applicable to the wife’s testimony as to the representations made.</p> <p>The plaintiff brought this action to set aside a deed, executed by herself and her deceased husband, by which certain real estate owned by the husband was conveyed to the defendant upon trust to pay the debts of the husband. She alleged that she was induced to execute the deed upon the representations then made to her by her husband, that it -was in conformity with a proposed deed of trust in which she had agreed to unite, and that relying upon the truth of such representations, and believing the instrument to be what her husband said it was, she executed it without reading it; that the representations were false and that her husband was of unsound mind at the time he made them.</p> <p>Meld, that she was entitled to maintain the action to recover the value of her dower right in the property.</p> <p>That she was a competent witness to testify to the representations made to her by her husband, as against the defendant, and was not disqualified by section 829 of the Code of Civil Procedure.</p>

<p>Appeal from orders of the Special Term vacating two former orders granting writs of mandamus against the mayor and comptroller, and denying a motion for a writ of mandamus on the petition of the relator.</p> <p>The relator moved for a mandamus to compel the mayor and comptroller to audit a certain claim of her testator, arising upon a contract between liim and tbe city for tbe erection of a public market. She set forth in her petition, among other facts, that there had been two previous writs of mcmdamus, in the first of which an order had been made by the Special Term, in September, 1873, granting a peremptory writ of mandamus requiring the audit of the claim by the then mayor and comptroller; that they wholly neglected and refused to obey said writ, and that afterwards, on the 23d of June, 1874, an order was granted to show cause why an attachment should not issue against them for their alleged contempt ; that no further proceedings were had thereon, and that afterwards, on the 14th of September, 1874, the testator died; that afterwards, on further application to the Special Term, and on or about the 1st day of November, 1876, an alias writ of peremptory mcmdamus was issued against the then mayor and comptroller commanding them to audit the claim of said testator at the sum of $36,661.45, with interest from June 16, 1871, but that said mayor and comptroller did not obey said writ, and have neglected and refused to comply with the same. She then set forth that the persons then occupying the offices of mayor and comptroller had ceased to hold such office, but that Edward Cooper and John Kelly had, respectively, become mayor and comptroller and she had made a demand upon them to audit the claim and they had neglected and refused so to do. A cross motion was made by the respondents to vacate the two orders granting peremptory writs of mandamus as above stated. The court, as appears by its order, denied the motion for the writ of mcmdamus and vacated the two former orders granting such writs.</p> <p>The court at General Term said: “ The long period that elapsed between the granting of the former writs and the present motion seems to show great laches on the part of the relator, in not pursuing her alleged rights against the city. It was not incorrect practice on the part of the respondents to bring before the court, by their cross motion, the propriety of vacating the orders granting the writs; and we think it was within the power of the court to reconsider the orders and to vacate them if they appeared to have been improperly or improvidently granted. Belmont v. Erie Bmboay Company (52 Barb., 637) is an authority for such action, and that case is cited with approval by Rapallo, J., in Biggs v. Pursell (74 N. T., 379). The relator, instead of pursuing the remedies already granted, chose to come into court upon all the facts existing in the case and present her new application upon its real or supposed merits. The court was not bound to regard the former orders as conclusive adjudications in her favor, but upon the motion of the respondent to vacate them was entitled to take such action as in its opinion the justice of the case demanded. "We think it was not error to vacate the previous orders. The latter was erroneous, in that it was made after the death of the testator without having brought in any authorized representative; and the former, we think, was erroneous on its face in having arbitrarily commanded the mayor and comptroller to audit a claim at a fixed and specified amount. (Howland v. Mldredge, 43 N. V., 457.) It was too late to correct that error by appeal, and since the relator chose to seek redress by application for a new mamdam,us, we think it was within the. power of the court to reopen and consider the former applications and vacate the orders then made. They had become stale and unprofitable by the laches of long non-user, and should not be left to annoy the present respondents.</p> <p>The mcmdamus was sought under the first section of chapter 383 of the Laws of 1870, which contained the following appropriation for building the eigthteenth ward market: ‘ And for liquidating all debts and liabilities incurred by the commissioners in erecting said market, $59,000, to be audited by the mayor and comptroller.’ We think this provision clothed the mayor and comptroller with the power to audit the debts and liabilities mentioned therein, in the usual sense of that word, by using their judgment as to the existence and the just amount of the debts and liabilities, and that it was not competent for the Special Term to order the audit to be made at an arbitrary and fixed sum. The intention of the legislature was to confer upon those officers the power to ascertain and determine the amount of just claims entitled to be paid out of the sum appropriated. It was not a mere formal or clerical duty that-was conferred upon them, but so far as related to the payment of any debts and liabilities claimed under the act they were to sit in judgment upon the questions of both liability and amount. We think, therefore, that the order of the Special Term, so far as it affects the previous writ of mamdamus, should be affirmed.</p> <p>But upon the facts before us we think it was error to deny to the relator all relief. There was certainly some small portion of the moneys appropriated by the provision of the act'remaining in the treasury. That fact is a conceded one. There is also a controversy as to whether another and more considerable portion of the moneys is not still in the treasury, or has not been paid out without authority and under circumstances entitling the relator to raise the question that that may also be applied to her claim.</p> <p>We think, since it has been settled by the judgment of one tribunal, that she cannot maintain any action without an audit, and since it is apparent that under the law nothing can be paid to her out of the provision referred to until an audit has first been made, that a mandamus was proper in the case directing the mayor and comptroller to proceed to audit the claim for the purpose of ascertaining the extent of actual indebtedness and liability thereon. As we have already said, this, of necessity, submits to those officers the power of determining, pro hao vice, the legality of the claim as well as its amount, for those facts are necessarily involved in the question whether it is a ‘ debt or liability ’ within the meaning of the provision above cited.”</p>

<p>Appeal from an order denying the plaintiffs’ motion to set-off a judgment in their favor, or so much thereof as was necessary, against the costs of two motions awarded to the defendant in the same action.</p>

<p>Answer — verification of, by an attorney — when it cannot be stricken out as sham.</p> <p>An answer denying any knowledge or information sufficient to form a belief as to the truth of material allegations of the complaint, which is verified by the defendant’s attorney, who gives as a reason why the verification was not made by the defendant, that the latter was not a resident of the county in which the attorney resided, and states that the grounds of his belief were statements made to him by his client, raises an issue, and it cannot be stricken out on motion as sham.</p> <p>Qucere, as to the respective liability of the attorney and client in case the answer be false.</p>

<p>Open commission — order allowing one to issue is not appealable.</p> <p>An order allowing an open commission to issue, as authorized by sections 893 and 894 of tbe Code of Civil Procedure, is not appealable to tbe General Term.</p>

<p>When the court must appoint a referee in place of one uiho refuses to\ serve — Code of Civil Procedure, § 1011, as amended hy chap. 542 of 1879.</p> <p>Under section 1011 of the Code of Civil Procedure, as amended hy chapter 542 of 1879, when the referee to whom the parties have agreed to refer the action refuses to serve, the court must, on [the application of either party, appoint another referee unless the stipulation expressly provides otherwise.</p>

<p>Supplementary proceedings — Code of Oivil Procedure, § 2458 — not applicable to judgments on which executions have leen returned unsatisfied prior to September 1, 1880 — Effect of the failure of an applicant to show that no previous application has leen made— General Pule No. 25.</p> <p>Section 2458 of the Code of Civil Procedure, providing that proceedings supplementary to execution cannot be instituted upon a judgment recovered for costs only, does not apply to a case where such a judgment was recovered, and an execution issued thereon was returned unsatisfied prior to September 1, 1880?</p> <p>The failure of the applicant to show, as required by General Rule No. 25, that no previous application for the order has been made is an irregularity which authorizes but does not compel the court to refuse to grant the order or to vacate it after it has been granted.</p>

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

<p>Undeclared and undivided earnings of a company — a/t'e inddents to the shares of stock, and canmt he assigned separately from them.</p> <p>The owner of certain preferred shares of stock in a mining company, after having sold the same and delivered the certificates thereof to one person, assigned to another all his right, title and interest in and to the interest due upon the shares of stock which he had previously owned. By the terms of the certificates the company agreed to pay interest upon them annually out of its net earnings, at the rate of seven per cent per annum for each year, provided so much had been earned in the year preceding. It did not appear that any separation of this interest from the other funds of the company had ever taken place, or that any of the earnings had been in any form appropriated or assigned to the payment of this interest.</p> <p>Held, that the right to recover the interest was merely an incident to the shares themselves, and depended upon the title thereto, and that the assignee of the said interest could not sue to recover the same and compel the company to account therefor.</p>

The action was commenced on February 24, 1879, on two nonnegotiable promissory notes for $1,200 each, dated tbe 20th day of February, 1873, made by one William J. Hughes, payable to tbe plaintiff on demand, with interest from tbe 1st day of January, 1873, and indorsed by tbe defendant. Hughes died on tbe 5th of December, 1878, and letters testamentary were issued to tbe defendant and another, as executors of bis will, on tbe 20th of January, 1879.

Appeal by tbe petitioner from an order made at Special Term, readjusting tbe costs on a preceding appeal taken to tbe General Term of this department.

<p>GucM'aniy — when a continuing guarrant/y — when construed in fa/oor of the promisee.</p> <p>January 10, 1877, the defendants executed an instrument whereby they agreed with the plaintiff’s assignors that one Pope, who had purchased or was about to purchase coal of said assignors, should and would pay them such prices therefor at such time or times as might be agreed upon between them and Pope, for ' all coal that might be delivered to him up to the 1st day of January, 1878; and in default of his so doing the defendants agreed to pay for the same, provided the amount so in default should not at any time exceed the sum of $1,000.</p> <p>Held, that the guaranty was a continuing one.</p> <p>That the proviso that the amount in default should not at any time exceed $1,000 was a limitation upon the defendants’ liability, and not upon the amount of coal to be furnished, and that the fact that the indebtedness due from Pope for coal exceeded at times that sum, did not relieve the defendants from liability upon the contract.</p>

<p>Subsoription to stock of a corporation — when the signer is not released by a mutilation of the paper — when he cannot dispute the existence of the corporation.</p> <p>The defendant signed a printed paper whereby he agreed to take one share of the capital stock of a railroad company thereafter to be organized, the route of which was described in the paper. Other printed papers, fac sinniles of the one signed by the defendant, were signed by other persons, all of which papers were thereafter delivered to the persons proposed in them as directors with the intention that they’should be used in organizing the company. Thereafter the persons having the said papers in charge cut from all of them, except one, the signatures attached thereto, pasted such signatures upon the remaining paper and filed it with the requisite affidavit annexed thereto in the office of the Secretary of State for the purpose of organizing the corporation.</p> <p>In an action brought by the corporation to recover the unpaid balance of the defendant’s subscription:</p> <p>Held, that as the defendant’s liability was in no way changed or affected by the mutilation of the paper signed by him, and as the paper was not mutilated by the corporation or by any person for whose acts it was responsible (the directors in what they did having acted as agents of the subscribers), the defendant ant was not released from his liability upon the agreement.</p> <p>That the defendant was estopped from claiming that the corporation was not duly organized and had no existence, and that, for that reason, the action could not be maintained.</p>

<p>Action for slander — what communications are privileged — .a plea of privileged communications is one of justification — Damages—what arre recoverable as.</p> <p>This was an action of slander brought against the defendant, the principal of the “Central New York Institution for Deaf Mutes,” for having maliciously and falsely stated to the members of the executive committee of the said institution that the plaintiff had deposited in the post-office a letter addressed to the defendant’s wife, the contents of which were indecent and obscene, by reason of which slanderous words the plaintiff was discharged by the committee from her employment in the institution. The answer contained a general denial, and alleged, as a further defense, that the envelope containing the letter was received through the post-office; that it was addressed in a disguised, but apparently female hand; that the defendant, who was well acquainted with the plaintiff’s handwriting, believed it to have been written by her; that he sent it, together with specimens of her handwriting to an expert in New York, who returned the papers with a report, giving the reasons for his opinion that the address was written by the plaintiff; that the defendant without malice and in good faith, for the sole purpose of doing his duty as the principal of the institution, laid the letter, the expert’s report and the specimens of the plaintiff’s handwriting, before the committee for them to act upon as they should think proper, and that he never oharged the plaintiff with directing the envelope or having anything to do with it. He further alleged in his answer that he would give these matters in evidence in mitigation of damages and as a justification and full defense, and also that all his conduct, sayings and doings in the matter were privileged communications.</p> <p>Held, that the communications, if made by the defendant in good faith and without malice, were prima facie privileged.</p> <p>That the fact that the answer alleged that they would be proved as a “ justification,” did not prevent him from showing that they were privileged communications.</p> <p>That the court erred in refusing to allow the defendant to prove that the report of the expert contained not only his opinion, but the reasons upon which it .was founded, and that he laid the same before the committee at the meeting, and that they acted upon it in discharging the plaintiff.</p> <p>That the court also erred in charging the jury; that the plaintiff was entitled to recover for the expense necessarily attending her coming into court to vindicate her character.</p> <p>That it also erred in charging that the plaintiff might recover not only the damages already occasioned, but those that might be occasioned in the future by the speaking of the words.</p>

<p>Appeal from a judgment, entered on the decision of a justice of this court dismissing the complaint, on atrial at the Jefferson Circuit before the court without a jury.</p>

Action on the case to recover damages resulting from a nuisance. The plaintiff occupied lands adjoining those occupied by the defendant. The complaint alleged that the defendant had standing on his premises a maple tree near the boundary line, the branches of which hung over the plaintiff’s premises from five to fifteen feet, and in consequence thereof damaged his garden, and that the defendant refused to trim said tree on being requested by plaintiff to do so.

<p>Appeal from a judgment in favor of the defendant, entered upon an order overruling a demurrer interposed by the relator to a return to an alternative writ of mandamus.</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 upon the minutes of the justice before whom the action was tried.</p>

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

<p>Reservation — it cannot operate in favor of a stranger to the deed — A covenant to stand, seized was not abolished by the Revised Statutes — When an agreement to convey land will be enforced by the court — Rcvrol evidence — admissible to show the relationship between grantor and grantee — but not to cut down a life estate created by a deed — Notice to quit — when unnecessary.</p> <p>On March 34, 1874, William Eysaman, the plaintiff’s husband, executed and delivered to the defendant a deed, purporting to be made in pursuance of a consideration of $1,000, between “ William Eysaman and Lydia, his wife, of the first part, and Joseph H. Eysaman of the second part,” whereby he granted to the defendant certain land. Immediately after the description of the land were added the following words : “The parties of the first part reserve to themselves the right of controlling said land and all the benefits of said land ■during their natural lives,” and after a covenant of quiet and peaceable possession were added the words, “ with the reservation therein claimed.” The plaintiff neither executed nor acknowledged the deed. Upon the trial of an action of ejectment, brought by the plaintiff after the death of her husband, to recover possession of the land, it was shown by parol that no money consideration was paid, and that the defendant was a nephew of the plaintiff’s husband.</p> <p>Held, that the clause reserving to the grantors the right of controlling the lands and all the benefits thereof, could not operate as a reservation in favor of the plaintiff, because she was not a party to the deed.</p> <p>That as the deed contained all the elements essential to constitute a covenant to stand seized on the part of the grantee, and as the Revised Statutes had not abolished that mode of conveying land, it operated to create a use for life in favor of the plaintiff, which use was by virtue of the Statute of Uses (1 R. S., 737, § 47, and 1 R. S., 738, § 49), transformed into an estate for life in the land.</p> <p>That even if this were not so, the clause would be regarded as an agreement by the grantee to convey a life estate to the plaintiff, enforceable in a court of equity, and which might be enforced in this action by adjudging the title to be in the plaintiff and awarding to her the possession, under the rule that equity will regard that as done which ought to be done.</p> <p>That parol proof of the relationship existing between the grantor and the defendant, was properly admitted to show that the requisite consideration existed to support the deed.</p> <p>The defendant offered to show by parol evidence that, as part of the consideration of the deed, it was agreed that he should take immediate possession of the land and have th'e use and profits thereof, and support and maintain the grantor and his wife in his, the defendant’s, family and furnish to them certain rooms in the house upon the land conveyed, for their exclusive occupancy, and that he had performed his agreement.</p> <p>Held, that the evidence was properly rejected, as it could not have the effect to extinguish the life estate of the grantor, much less that of his wife, who was not a party to the agreement.</p> <p>When the relation of landlord and tenant does not exist between the parties, and the only issue between them is as to the title, no demand or notice to quit need be made or given before commencing an action of ejectment.</p>

Motion by the defendants for a new trial on exceptions taken at the Wayne Circuit, and ordered to be heard at the General Term in the first instance.

<p>Appeal from an order made at the Otsego Special Term, denying a motion to set aside an order granted ex pa/rte, requiring the plaintiff to file security for costs.</p>

<p>Action against two sureties — entry of a jugdment against one only releases the other — Bight of a cosurety to contribution — ~With knowledge of what facts the assignee of a judgment is changeable.</p> <p>Where, in an action brought against the two sureties to a joint undertaking, both of the sureties are served, hut judgment is entered against one only, such judgment-cannot be enforced against the surety against whom it is entered for more than one-half of the amount due on the undertaking.</p> <p>The other surety is by such entry of judgment against his co-surety, only, released from all liability to the obligor, and cannot be called upon for contribution by his co-surety.</p> <p>An assignee of such a judgment is chargeable with notice of all the facts contained in the judgment roll, and has no greater rights than had his assignor.</p>

<p>Motion for a new trial on exceptions directed to be beard in tbe first instance at tbe General Term, after a nonsuit ordered at tbe Circuit.</p>

Appeal by the plaintiff from a judgment, entered in Wayne' county, upon the decision of the Special Term, after a trial before that court dismissing the plaintiff’s complaint. The action was brought by the plaintiff, an infant of the age of sixteen years, to have her interests ascertained and declared in certain lands situated in the said county, and described in the complaint.

The action was- brought'to correcta mistake made in the conveyance of thirteen acres of land. The answer put in issue the question as to the mistake. The referee found that the defendant, Francis P. Dezengremel, having been in adverse possession under his deed from Ranney P. of the land in question for twenty years, the plaintiff is not entitled to a judgment for a reformation of the deed or for a correction of the mistake.

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

Appeal by the defendants from a judgment, entered in Orleans county upon the report of a referee. The action was brought against the committee of a lunatic to recover for board and necessaries furnished by one ‘Lawrence to Rebecca Mathes, the wife of the lunatic, the claim for which had been assigned to the plaintiff, and for board and necessaries furnished by the plaintiff to Eebecca in 1877. The accounts were presented to the committee and payment demanded and refused.

The action was brought to recover damages for an injury to the person of the plaintiff sustained through the defendant’s negligence. The cause of action accrued in June, 1874, when the injury was sustained. The action was commenced April 13,1877.

Appeal by tbe plaintiffs from a judgment, entered upon a decision made at the Jefferson Special Term, dismissing the plaintiffs’ complaint, with costs. The intestate died February 15, 1879. In January, 1879, he was seized and possessed of two several parcels of land, and was the owner and in possession of a written contract whereby he had become the purchaser of a parcel of land of about five acres, which he had paid for prior to January 24, 1879.

<p>Appeal from a judgment in favor of the defendants, 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 for a trespass alleged to have been committed in the taking up and interfering with the plaintiff’s oysters, which were planted on land lying under the waters of Northport harbor, in the town of Huntington, Suffolk comity.

<p>Evidence — a wife cannot testify against her husband on a criminal trial — chapter 182 of 1876, section 2.</p> <p>Under section 2 oí chapter 182 of 1876, a wife cannot, though willing so to do, he allowed to testify against her husband upon his trial for bigamy.</p>

<p>Order of interpleader — when it should not be granted.</p> <p>This action was brought by the plaintiff, as the assignee of one Comerford, to recover certain money collected for the assignor from persons indebted to him and still held by the defendant for the assignor. The defendant, who had notice of the assignment, moved upon an affidavit stating that certain persons claim this money under judgments obtained against the assignor, to have them substituted as defendants in his place.</p> <p>Held, that'an order of interpleader should not have been granted.</p>

<p>Appeal from a judgment in favor of tbe 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>

<p>PtM'tnershi/p — after its dissolution one partner cumiot hind the other hy stating am, aeeount.</p> <p>By the articles for the dissolution of a firm, consisting of two partners the business was to be liquidated at the firm store, and all the partners were to assist and were authorized to sign in liquidation. Thereafter one of the partners, without the knowledge or consent of the other, made out and sent to the plaintiff a statement of the account due to him from the firm.</p> <p>In an action upon this as an account stated, held, that it was binding only upon the partner making it, and not upon his co-partner.</p>

<p>Appeal from a judgment in favor of tbe defendants, entered upon an order sustaining a demurrer interposed to tbe complaint.</p>

<p>Police powers of the State — what is a valid exercise of them — Chapter 190 of 1878.</p> <p>Chapter 190 of 1878, making it a misdemeanor for any person to remove any sand, earth or clay from the beach on the south shore of Staten Island opposite and contiguous to the seaside boulevard, in the town of Southfield, from within twenty feet of ordinary high-water mark, so as in any manner to injure, undez'mine, encroach upon or endanger the said boulevard or the meadows adjacent thereto, or render the same liable to be overflowed or washed by the tide or water of the bay of New York, is constitutional and valid as against one in possession and having title to such beach, it having been passed by the legislature under and in purszzance of the police powers vested in it.</p>

Otis, mayor of the city of Yonkers, and William H. Doty, clerk of said city, commanding them forthwith to execute and deliver to the said relator duplicates of certain bonds of the city of Yonkers, with their accompanying coupons, therein mentioned.

On the 23d day of July, 1875, Joseph Bonnell, while in the service of the defendant as an employe, was killed by the explosion of a locomotive on which he was riding. This action was commenced March 15, 1879, three years and eight months afterwards, to recover damages for thus causing his death. It was claimed in the complaint that the death resulted from negligence on the part of the defendant, and therefore a liability therefor existed.

<p>Appeal from an order made at Special Term, denying a motion for tbe appointment of a receiver.</p>

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon tbe trial of tbis action by the court without a jury.</p>

<p>Mechanic’s lien — when one contracting with a tenant may acquire a lien as against the owner— 1873, chapter 489.</p> <p>The defendants leased certain lands and quarries to a cement company for the term of seven years, with privileges of renewal, the company agreeing to erect certain improvements thereon, which were to become the property of the lessors upon the termination of the lease. The plaintiff, in pursuance of a contract made with the company, erected the improvements upon the lands, the defendants assisting in locating the same and directing him as to the foundations thereof. The cement company having failed, the plaintiff filed a notice of lien under chapter 489 of 1873.</p> <p>EM, that he thereby acquired a valid lien upon the land as against the defendants, the owners thereof.</p>

<p>Manufacturing corporation — failu/re of subscribers to pay in the capital stock — what is sufficient to prove the defendant to be a stockholder— the judgment and, execution against the company cannot be attacked collaterally — the plaintiff must prove his claim against the company.</p> <p>In an action by a judgment creditor of a manufacturing corporation, to charge a stockholder thereof with the payment of the judgment because of a failure to pay in the amount due upon his stock, the fact that he was a stockholder is sufficently shown by proving that he was one of the trustees named in, and that he signed the certificate of incorporation; that he subscribed for fifty shares of the stock, and subsequently acted as secretary of the company, even though it is not shown that he in fact actually received his certificate of stock.</p> <p>In such an action the defendant cannot dispute the validity of the judgment recovered against the company, or of the execution issued against it thereon, for mere irregularities.</p> <p>In such an action proof that the judgment was recovered against the company is not sufficient; it is incumbent upon the plaintiff to prove, by competent and satisfactory evidence, the validity of his claim against the company.</p>

<p>Appeal by the defendant from a judgment of the County Court of Greene county, affirming a judgment of a justice of the peace.</p>

<p>Appeal from a judgment of the County Court of Madison county, rendered in favor of the plaintiff.</p>

Appeal by the plaintiff from an order made at Special Term, granting an extra allowance to the plaintiff in this action.

<p>Appeal from a judgment of the Sullivan County Court, affirming a judgment in favor of the plaintiff, rendered in a Justice’s Court. The action was brought to recover a penalty for allowing cattle and other animals to run at large upon a highway.</p> <p>The summons issued by the justice required the defendant to appear before him, at his office, at a time specified, “to answer Smith Schoonmaker, in a civil action for penalty for letting cattle run at large on highway, to his damage of two hundred dollars or under.”</p>

Appeal by W. B. French from an order made at Special Term, denying a motion made by him for a mandamus to compel the sheriff of Saratoga county to execute to him a deed, as the purchaser of certain premises at a sale thereof on execution issued upon a judgment.

The action was brought under chapter 428, of the Laws of 1855, to recover damages sustained by plaintiff, by reason of the destruction or injury of his property by an alleged mob or riot. On the 1st day of December, 1814, the plaintiff was carrying on business in the city of Kingston, in what was known as the “ Sampson Building;” several other stores were in the same building.

<p>Policy of insurance — provision for arbitration — when not a condition precedent to the right of action — Kerosenenot a “ burning fluid or chemical oil ”— Interest of-the assured — when the policy is not annulled by a failure to state it.</p> <p>A policy of insurance provided, among other things, that if any difference should arise touching any loss or damage, the matter should, at the written request of either party, be submitted to impartial arbitrators, whose award, in writing, should be binding on the parties as to the amount of such loss or damage, but should not decide the liability of the company, and that no suit should be sustainable until after an award should have been obtained in the manner provided, nor unless it was commenced within twelve months after the loss should occur.</p> <p>Held, as neither the number of arbitrators nor the manner of their appointment was specified, and as there was no way provided whereby their appointment could be procured nor their award obtained within the time limited for the bringing of the action; as in case no differences should arise as to the amount of loss (but only as to the liability of the company) no arbitration could be had, and consequently no suit could be sustained; that the clause could not be treated as a condition precedent, compliance with which was essential to the bringing of the action, but as merely an independent covenant, collateral to the agreement to pay. ¡</p> <p>In the absence of proof the court cannot hold that keroseiie oil is a “burning fluid or chemical oil,” as these words are used in a policy of insurance, forbidding their use in the insured premises.</p> <p>A policy of insurance upon a boat was issued to “ George Mark, Superintendent.” The boat was owned in different shares by five persons, of whom Mark was one. He had been superintendent, and managed the boat for many years. The agent of the company knew that Mark was not the sole owner of the boat when he issued the policy.</p> <p>Held, that the policy was not avoided by the clause reciting that if the interest of the assured was other than the entire unincumbered interest, it must be so represented or the policy would be void.</p>

<p>Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term, after a verdict rendered in favor of the defendant.</p> <p>This is an action of ejectment, brought to recover a small, triangular piece of land, described as being about ten chains, twenty-three links; four chains, fifty links, and fourteen chains severally on the sides. The plaintiff in 1856 made a sealed contract with one Nehemiah Shannon to sell to him a certain piece of land, being about twenty-five and one-fourth acres, part of a larger piece of about fifty acres. And it is not disputed that the triangular piece in controversy is a part of the land described in that contract. By the contract the purchaser was to pay a certain mortgage then on said whole fifty acres. Afterwards that mortgage was assigned to Eliza Shannon, wife of the purchaser, and was by her foreclosed by advertisement. On the sale, part of the fifty acres was bought by her for the full amount of the mortgage; and it was substantially that part contracted as aforesaid to be sold which was thus sold under the foreclosure. The description, however, of the part sold under the foreclosure, it is said, did not include the triangle in question.</p> <p>In the contract the westerly line is described as running to the centre of the highway, thence easterly to the west end of the barn on said premises, thence north to Eliza Shannon’s land, thence east to the place of beginning. In the notice of sale this line is described as running to the highway running from Burdett to Reynoldville and lands of Eliza Shannon, thence east to the place of beginning. Eliza Shannon subsequently conveyed to the defendant by a deed, which included as well the lands described in the notice as the triangle in question.</p>

<p>A servitude is not an estate in land, — 1 B. 8., 738, § 137.</p> <p>A servitude is not an estate in lands within the meaning of section 137 of 1 Revised Statutes, 738, providing that every grant in fee, or of a freehold estate, not acknowledged or attested, shall not take effect as against a purchaser or incumbrancer until so acknowledged.</p> <p>Right of one who has exercised an easement to enforce, against a purchaser of the servient tenement, with notice, specific performance of a defective grant of the easement, considered.</p>

The action was brought for an escape from the jail limits of Fulton county of one Henry D. Helterline, who was imprisoned on an execution issued on a judgment recovered by this plaintiff, for the conversion of personal property. The sheriff justified for the alleged escape, under an order of the Fulton County Court, made the 5th day of April, 1880, by which order the court directed the discharge of Helterline from imprisonment.

<p>Inability of obligors as between each other — right of cosureties to compel contribution— when the right to compel contribution to a deficiency judgment is not tabeen away by a failure to malee the person against whom it is sought a paurty to that action.</p> <p>In 1873 the plaintiff, the defendants’ testator Ives, De Lano and Harris, purchased a parcel of land for $10,000, the plaintiff owning one-quarter, Hairis one-half and Ives and De Lano together the remaining quarter. A joint and several bond, secured by a mortgage, in which they all united, was given to secure a portion of the purchase-money. Ives died in 1877. Thereafter, in an action brought to foreclose the mortgage, to which the plaintiff, Harris and De Lano, and Ives’ widow and heirs-at-law, but not the defendants, his executors, were madeparties, ajudgment for deficiency was recovered against the plaintiff, Harris and De Lano, which was thereafter paid by the plaintiff, Harris and De Lano being insolvent.</p> <p>In an action by the plaintiff to compel the defendants, Ives’ executors, to contribute towards the payment of the said judgment:</p> <p>Held, that the defendants were liable for one-eighth of the deficiency, and also for one-half of the amount which the plaintiff had been obliged to pay by reason of the insolvency of Harris and De Lano.</p> <p>That neither the death of Ives nor the fact that the defendants had not been made parties to the foreclosure action and that no judgment for deficiency had been asked or recovered against them therein, relieved them from such liability to the plaintiff.</p>

<p>Judgment in former action — only a bar as to the matters actually litigated — effect of a defendant in a Justice’s Court withdrawing a flea involving the title to land.</p> <p>One John Olcott, claiming to be in possession of a certain piece of land and to be a tenant of Adelaide Olcott, brought an action in a Justice’s Court to recover damages for a trespass committed thereon by one Masten. Masten alleged, and upon the trial offered to prove, that he had been in possession of the land for twenty years; but upon Olcott’s objecting that it would bring the title to land in dispute, he withdrew this defense, and judgment was entered in Olcott’s favor. Nothing was litigated before the justice but Olcott’s actual occupation and the amount of damages sustained. Thereafter this action was brought by Masten against John and Adelaide Olcott to recover the land.</p> <p>Held, that this action was not barred by the former judgment, as the question of title was not in any way involved or determined therein.</p> <p>That Masten did not waive or in any way prejudice his rights by withdrawing his offer upon Olcott’s objecting, instead of giving an undertaking and removing the action into another court.</p>

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

The claim was presented to the comptroller under the Laws of 1873, chapter 593, which provides, among other things, that “all charges for making examinations of any insurance company, and all charges against any company by any attorney or appraiser of this department, shall be presented in the form of an itemized bill, which shall first be approved by the said superintendent and then audited by the comptroller, and shall be paid on his warrant, drawn in the usual manner,…

<p>Bill of lading — {he printed portions are controlled by the written pants — when the earner is estopped from denying the receipt of the cvrticles specified in it.</p> <p>In November, 1878, tbe firm of E. W. Peek & Co. delivered to tbe defendant, at Kansas City, fifty-five barrels, and received therefor two bills of lading, partly printed and partly written. The printed portion acknowledged tbe receipt, in apparent good order (contents and value unknown) of tbe packages, consigned as marked and numbered in the margin, and in tbe margin was written, by tbe defendant’s agent, besides tbe address and marks, in one tbe words “articles, thirty ban-els eggs,” and in tbe other "articles, twenty-five barrels eggs.” In fact the barrels contained nothing but sawdust.</p> <p>Tbe bills of lading, indorsed in due form by E. W. Peck &.Co., and accompanied by drafts drawn upon the plaintiffs, were sent to tbe latter, who relying thereon, accepted and paid tbe drafts. Thereafter,- upon discovering that the barrels contained nothing but sawdust, they brought this action to recover from the defendant the amount so paid.</p> <p>Held, That tbe printed portions of the bills of lading were controlled by tbe written parts thereof, and that, as so construed, tbe words “ contents and value unknown,” meant simply that tbe condition or kind, and quality and value of the eggs were unknown.</p> <p>That as against a bona fide indorsee of the bills of lading the defendant was estopped from denying that tbe barrels contained eggs, and that the plaintiffs were entitled to recover.</p>

<p>Letter guaranteeing payment of d/rafts— who may take advantage of it.</p> <p>The firm of Bingham Bros., distillers at Evansville, Indiana, were accustomed, to the defendants’ knowledge, to consign their products to one Fiegelstoch in New York and draw upon him as occasion required. December 29,1874, the defendants wrote from New York to Bingham Bros, a letter saying “any drafts that you may draw on Mr. A. Fiegelstoch of our city we guaranty to be paid at maturity.” Thereafter Bingham Bros, drew a draft on Fiegelstoch, and presented the same, together with the defendants’ letter, to the plaintiff, which discounted the draft, and forwarded it to New York, where it was dishonored. In an action brought against the defendants:</p> <p>Held, that the letter operated as a special promise to Bingham Bros, to pay the amount of any drafts drawn by them upon Fiegelstoch, which he refused to pay.</p> <p>That the discounting of the draft by the plaintiff, upon the delivery to it of the letter, rendered the plaintiff an equitable assignee of the promise contained in the letter, and that having an interest in the subject-matter the plaintiff could maintain the action to the same extent as its assignors could have done.</p> <p>When a letter is to be considered as a general agreement to guaranty all drafts to be drawn against a certain person, enforceable by the holders thereof, discussed and the authorities collated by Davis, P. J.</p>

<p>Lease — acceptance of rent is a waiver of a piñor forfeiture — when the continued failme of a lessee to comply with a lease operates as a new forfeiture.</p> <p>Although the acceptance of rent by a lessor is a waiver of a forfeiture theretofore incurred by the failure of the lessee to pay taxes assessed against the premises as required by the terms of the lease, yet the failure of the lessee to pay the taxes within a reasonable time after the reception of the rent occasions a new forfeiture, for which the lessor may re-enter.</p>

<p>Appeal from an order denying a motion for leave to continue this action against Caroline Brown, as executrix of the last will and testament of Robert O. Brown, deceased.</p>

<p>Temporary injunction — when it is not dissolved ly the entry of a final judgment.</p> <p>The entry of a final judgment in an action does not, uiiless it be so expressly declared therein, dissolve a temporary injunction theretofore granted in the action, where the defendant has appealed from the judgment and given an undertaking to stay all proceedings during the pendency of such appeal.</p>

<p>Appeal from a judgment in favor of the defendant, entered upon a trial had before a referee.</p>

<p>Appeal from an order made at Special Term, denying a motion made to set aside the service of the summons on the ground of its irregularity, provided that a summons properly corrected should, within five days after the entry of the order, be served upon the defendant.</p>

<p>Seduction of assessment — as to the charging of interest upon it.</p> <p>Where, upon an application to vacate an assessment, the amount thereof is reduced, interest can only be charged upon the assessment, as so reduced, from the time that the amount thereof is ascertained by the order directing the reduction.</p>

<p>Appeal from an order made at Special Term, vacating an order of arrest on the ground that the complaint did not contain a statement of the alleged fraud for which such order had been granted.</p>

Motion, on behalf of the plaintiff, to place an appeal from an order, made in this action, upon the calendar for argument.

<p>Motion for leave to amend a notice of appeal.</p>