Volume 32 — Barbour's New York Supreme Court Reports

THIS action was brought against the defendant as an indorser of a note for $1000, made by one Gates, dated July 23d, 1855, and payable in ninety days from date. Held: by the said bank, upon which the said Gates should be liable as maker, indorser or acceptor.” From this $2250.50 the note indorsed by Chipps was paid, with the consent of the defendant, and, as it would seem, of all parties interested.

THE plaintiff sued as administrator of his wife, to recover the pecuniary damage sustained hy her “next of kin’’ by reason of her death, caused by the negligence of the defendants. The cause was tried at the Oneida circuit, before Mullin, J. and a jury, in June, 1859. The killing of the intestate by the negligence of the defendants was admitted by the answer.

The action was brought to restrain the defendants from making or carrying out a contract with Messrs. Fairchild, Walker & Co., for the construction of the gate-houses of the Croton Reservoir. The motion had been once denied without prejudice (see 9 Ante, 253), and was now renewed. The facts are fully stated in the opinion, and in our report of the former decision.

THIS was an action to obtain a perpetual injunction against the defendants, to restrain them from removing the remains of the plaintiff's relations from a certain vault owned by the plaintiff, and from destroying the vault.

<p>Motion to open judgment by default.</p> <p>The facts are stated in the opinion.</p>

<p>Sale of Infant’s Real Property.—Next Friend.— Incumbrance.</p> <p>XJndtr the provisions of 2 Revised Statutes, 194, § 170—authorizing infants to ap ply, by next friend or guardian, to the court for the sale, &e., of their real property—an appointment of a next friend to present the petition is not necessary. The court may proceed upon a petition presented by the natural guardian,— e. s'., the mother of the infants.</p> <p>A reservation or covenant that five feet of the front of a lot shall not be built upon or used except for steps, <&c., is an incumbrance, and entitles the purchaser at a judicial sale, free of incumbrance, to be discharged.</p>

<p>Justice's Judgment docketed in the County Clerk’s Office. —Action on Judgment.</p> <p>An action cannot, without leave of court, be maintained on a judgment of a justice after it has been docketed with the county clerk.</p> <p>In an action in a justice’s court on a judgment recovered in a justice’s court, the complaint showed that the judgment had been docketed with the county clerk. The answer claimed that the action could not be maintained, because “ under the provisions of the Code, no action can be maintained on a judgment of the county court.’’</p> <p>BM, a sufficient statement of the objection that leave of court was necessary.</p>

Motion to continue an injunction, and motion to modify an injunction. The nature of the action and the facts are stated in the opinion.

<p>Where the defendant obtained $3300 from the plaintiffs, upon three checks drawn by him, two of which were upon a bank at Rahway, N. J., and the other upon a bank in the city of New York, representing, at the time, that the two former checks were good, and that he was authorized to draw for $40,000; that he had the money in bank, and that he was good for the amount of those checks, himself; and it appeared, upon a motion to discharge an order of arrest, that two days before the defendant obtained the money on the checks, his notes, to the umount of $6000, were protested, and that attachments were soon after issued thereon, and the notes still remained • unpaid; that he was insolvent at the time, and knew it; that he had no funds in the bank at R.; and had only been allowed to overdraw his account, and the bank declined to honor the checks; that he made other cotemporaneous attempts to obtain goods on credit, from other persons, upon like representations ; and that he failed, two days after obtaining the money on the checks 5 the defendant not positively alleging, on the motion, that he believed himself to be solvent when he obtained the money; Reid that a prima facie case of fraudulent intent was established, in respect "to all the checks; and the order refusing to discharge the order of arrest was affirmed.</p> <p>On a motion to vacate an order of arrest, evidence of other concurrent frauds, committed by the defendant, is admissible, as proof of his intent in committing the particular fraud charged.</p>

PPBAL from an order made at a special term, dismissing the complaint. The action was brought by the plaintiff, suing alone, as executor, for the purpose of setting aside an assignment for the benefit of creditors, made by a special partnership. (See the case at special term, reported 10 Abb. 42.)

THIS was an appeal from so much of an order made at a special term, by Justice Davies, as required the original draft or bill of exchange on which the action was brought, to be annexed to the commission issued to examine certain witnesses in Iowa for the defendants; the draft or bill of exchange to be delivered by the plaintiffs or their attorney to the clerk of this court, for that purpose, who should, before annexing the draft to the commission, cause a photograph of said…

<p>APPEAL from an order made at a special term, overruling demurrers to the complaint.</p>

<p>PETITION to the court for an order vacating an assessment made by the direction of the common council, for paving the New Bowery in the city of New York. The facts appear in the opinion of the court.</p>

The order of arrest was originally granted upon the ground that the defendant had fraudulently contracted the debt or incurred the obligation for which the action was brought. The motion to vacate the same was upon the ground that the fraud was not, on the whole case, established, and did not in fact exist.

DEMURRER to complaint. The complaint alleged that about the 1st of May, 1858, the plaintiff sold and conveyed to the defendant Catharine Yan Deusen a farm of land, in Livingston, Columbia county, subject to two mortgages thereon, for the price or consideration of #1471.43.

<p>MOTION for an injunction. The facts sufficiently appear in the opinion of the court.</p>

<p>Lunacy.—Selection and Appointment of Committee.</p> <p>The filing and confirmation of an inquisition on a writ de lunático inguirendo, should not he set aside for mere irregularity, where there is no room whatever for doubt of the lunacy of the person concerned.</p> <p>The appointment of a stranger as committee of a lunatic without request of the relatives and next of kin of the lunatic, and without a reference, and without notice to persons prospectively interested in the estate, is not authorized by the practice of the court.</p> <p>It Is no objection to the appointment of a person who is a resident of the State, and within its jurisdiction, that he is not a resident of the county, in the County Court of which the proceedings are had.</p>

<p>The fact that an assignee of property in trust for the benefit of creditors has fraudulently appropriated and converted property to his own use, and has misapplied large sums of money, the proceeds of the assigned property, furnishes a better reason for removing the assignee and appointing another trustee in his place, than for breaking up the assignment itself.</p> <p>A postponement of certain debts, confessedly partnership debts, to others which are really individual debts, but are innocently or mistakenly supposed - to be partnership debts, will not avoid an assignment made for the benefit of creditors.</p> <p>It seems that a provision in an assignment, preferring individual debts, known to be such, over partnership debts, out of partnership property, if made without actual fraud, upon a mistaken supposition that the law sanctions such an appropriation of partnership property, will not make the whole assignment void; though it might furnish occasion, in a proper case, for seeking the aid of a court of equity to prevent the misappropriation of the property, and enforce its distribution among the parties properly entitled to participate in it.</p> <p>If an assignment is only partially objectionable, for making, to some extent, inequitable preferences, it will be only partially broken up, and then only in a way which shall enable the court to cony out the principle that equality is equity.</p> <p>If, in such a case, a complaint is filed to set aside the assignment altogether, and not to carry it into effect, either in whole or in part; to break up the entire transaction, and not for an account and distribution of the assigned property; to satisfy the plaintiff’s debt, alone, and not to divide the property equitably among all those having a claim to participate in it, the action cannot be sustained.</p> <p>The appropriate remedy, under such circumstances, is, it seems, a suit in which all the partnership creditors shall be parties ; or an action commenced as well for the benefit of the plaintiff as for such others, similarly situated, as choose to come in and make themselves parties thereto; or a suit for an account and distribution of the partnership funds, and avoiding illegal or inequitable preferences, if such there be. — - • .</p>

MOTION on the part of the people and the relators to compel a further return by the referees to the writ of certiorari issued to them in this matter to return the proceedings had before them on the appeal of Peter H. Kipp from the decision of said commissioners refusing to lay out a certain highwáy in the town of Claverack in the county of Columbia, applied for by him. The referees reversed the decision of the commissioners and made an order laying out such highway.

The cause was tried at the Columbia circuit in September, 1857, before Justice Deadatus Wright, without a jury, who, after consideration, gave judgment for the defendant, from which judgment this appeal was taken by the plaintiff. The question arose upon the statute of limitations.. The Messrs.

ÁCTIOH brought by the plaintiff as administrator of Mary McGrath, deceased, under the act of December 13, 1847, requiring compensation for causing death by wrongful act, neglect or default, as amended in 1849, (Lavjs of 1847, oh. 450; Laws o/1849, ch. 256,) to recover damages for the death of the plaintiff’s intestate, a little girl about twelve years of age, alleged to have been caused by the negligence and improper conduct of the defendant and its agents.

MOTION, upon exceptions, for a new trial. The action was brought by the plaintiff, as executrix of Henry Ernst, deceased, to recover damages of the defendant for causing the death of her testator, by negligence. The cause was tried at the Bensselaer circuit, in May, 1859, before Justice Gould and a jury.

APPEAL, by the plaintiff, from an order made at a special term, granting a new trial. The action was brought by the plaintiff, as administratrix of Q-ustavus Bernhardt, deceased, to recover damages for the alleged wrongful killing of the deceased, by the defendant, in Hovember, 1846, by running a locomotive engine against him, in the city of Schenectady, and thereby producing injuries of which he died.

MOTION to set aside a nonsuit, and for a new trial, upon a case; which motion was ordered to be heard in the first instance at a general term. The action was for the delivery of personal property, on the ground of fraud in the purchase. The defendants claimed to hold the property as assignees under an assignment made by John S. Joslin, in trust for the benefit of creditors.

<p>A CTION for the construction of a will, and the determination of the rights of the parties under the same.</p>

DEMURRER to complaint. The complaint alleged that the plaintiff was one of seven surviving children of Jonas W. Glenton, who died at Leon, Nicaragua, on the 20th of June, 1857. Her father left an estate, mostly personal, worth from $3,0,000 to $40,000, exclusive of a large claim (of little or no value) against the government of Nicaragua.

<p>A vendor, who wishes to rescind the contract of sale or to hold the purchaser to a performance on the day appointed, should have his deed prepared and executed, ready to be delivered on the payment of the purchase money.</p> <p>When the time for the payment of the purchase money is not an essential ingredient in, or inducement to, the execution of a contract of sale and purchase, the payment or tender may be made within a reasonable time after the day named.</p> <p>A purchaser, seeking the aid of a court of equity to enforce .a specific performance, must apply promptly. If he slumbers upon his rights for five years after becoming entitled to a conveyance, a specific performance will not be decreed, but he will be left to his remedy, if any he has, by an action for damages.</p>

THESE suits were brought for the purpose of setting aside an assignment made by the defendant Fisher, for the benefit of creditors.

<p>Proceedings supplementary to execution cannot be had upon an execution issued by a county clerk, on a justice’s judgment for less than $25, of which a transcript has been filed in the county clerk’s office.</p>

<p>EMITRRER to complaint.</p>

Demurrer to the return to an alternative mandamus. Defendant is the comptroller of the city of New York, and the relator sued out a writ of mandamus to procure payment of additional compensation which he claimed as justice of the Supreme Court, under the act of 1852. The facts are fully stated in the opinion.

<p>APPEAL from an order of Judge Bacon, requiring the plaintiff to elect upon and for which of two causes of action set forth in the complaint he would proceed.</p>

<p>A religious corporation, through its trustees, who are hy statute invested with the temporalities of the corporation, has the right to regulate the use of the meeting house, to make repairs, alterations and improvements; and the pew-owners take and hold their privileges in subordination to the rights of the corporation.</p> <p>A pew-owner has no separate or individual property in the timber or materials of which the house, or any of its parts, is composed, or in the soil below the pew, but his right is that of occupancy of the pew during public worship; and this right of occupancy must yield to circumstances of hécéssity, convenience and expediency, growing out of the rights ih^mmoix.ofi' the society.</p> <p>Although the change in the internal arrangement of a church edifice is merely expedient, or matter of convenience to the society, still the trustees, in behalf of the corporation, may legally direct the alteration, and the pew-owners who shall be deprived of their rights in their pews, must be content with a just and adequate compensation.</p> <p>The right of a pew-owner, not being absolute, but qualified by, and subject to, the right of the trustees to alter the internal arrangement of the church as the good of the society may require, no constitutional objection arises when, in the exercise of such right by the trustees, the pew is destroyed from necessity, or for purposes of expediency or convenience.</p> <p>Although there is a presumption in favor of the acts of trustees, as agents or officers of the corporation, yet pew-owners will not be concluded by the exercise of an arbitrary and despotic will, on the part of the trustees, in determining the question of necessity, expediency and convenience.</p> <p>They must carry out the reasonable and legal will and wishes of the corporation. They will be presumed to do this, in regard to repairs, improvements and changes made on the church property, in the absence of any allegation that they are acting against the will and wishes of the body they represent.</p>

<p>ACTION to set aside assignments made for the benefit of creditors.</p>

OH the 26th day of February, 1859, the defendants conveyed to the plaintiff about seventy acres of land, part of lot Ho. 62, in the town of Marathon, in the county of Cortland. The consideration for the sale was #1400. Of this the plaintiff paid down #400 in money, and delivered to the defendants the note of her husband for #100, and the balance was secured by her bond and mortgage on the premises for #900, payable in installments.

THIS was an action for breach of a covenant contained in a deed; and was submitted to the court upon a statement of facts agreed upon by the parties.

THIS was an. action to recover the possession of real estate. It was tried at the Delaware circuit, before Justice Balcom. The plaintiff showed a perfect paper title, against the defendant. The defense was adverse possession. The defendant proved that he had been in possession of the premises, claiming them as owner, for 26 or 27 years; and that he had inclosed the same, and cleared and cultivated them.

THE plaintiff brought his action on the case, for obstructing the waters of the Oriskany creek by means of a dam, and causing them to set back upon the- premises of the plaintiff, to his damage. Upon the trial, at the Oneida circuit, in October, 1859. before Allen, justice, and a jury, it appeared that the defendants were the owners of a factory water privilege on the Oriskany creek.

THE defendant appeals from a judgment entered on the report of a referee, in an action of ejectment. The plaintiffs claim title under one Truman Hildreth, hy virtue of a sale on a judgment and execution. An action was commenced by the service of a summons and complaint, in which the defendant was named Freeman Hildreth. They were served upon Truman Hildreth.

THE plaintiff was nonsuited on the trial before Pratt, J. and a jury, at the Onondaga circuit. The action was against the defendant as the indorser of the promissory note of one Eno, payable at the Bank of Salina, and due January 29th, 1858.

THE plaintiff brought his action to cancel and set aside a mortgage given by him to Strickland, and by the latter assigned to the Watertown Bank and Loan Company, for usury. The case was tried at the Jefferson circuit, before Justice Bacon, and judgment given for the plaintiff, declaring the mortgage and the bond accompanying the same usurious and void, and enjoining and restraining the foreclosure of the mortgage. Upon the trial the usury was not controverted.

THIS was an appeal from a judgment of the county court of the county of Yates in favor of Prosser against Dains. Dains sued Prosser in a justice’s court to recover the value of a wagon taken by Prosser and sold. Prosser justified the taking, as a constable, under an execution against Dains, and Dains claimed that the property was exempt as constituting a part of a team.

The action was for the wrongful tailing and conversion of a cow, horse, wagon and other personal property.

A PPEAL from a judgment entered upon the report of a jljl referee. The firm of J. F. & C. Hicks, on the 11th day of July, 1857, borrowed of the plaintiff $1000, and gave their joint note with the defendants as accommodation indorsers, to the plaintiff, to secure the payment of the loan in thirty days. Also, on August 11th, 1857, said firm made another loan of the plaintiff of $1750, on like security, payable in two months.

The plaintiff, in his complaint, alleged that the firm of J. L. Greenman & Co., which is composed of J. L. Greenman and Joseph S. Potter, on the 6th day of October, 1858, assigned to him certain claims which said firm had against Jerome B. Fellows and others. That said Potter, one of said firm, after a dissolution of their partnership and on the 23d day of December, 1858, compromised and settled the said claims with Fellows, and released him therefrom.

THIS was an action on a promissory note for $3000, dated August 31st, 1857, made by John McQueen and indorsed by the defendant, payable sixty days from date, at the Albany City Bank. The defendant was an accommodation indorser, and the defense set up was that the note was indorsed for a specific purpose, and was diverted by the maker and transferred to the plaintiff as security for a precedent debt, and therefore that the plaintiffs were not bona fide holders of the note.

The action was brought by,the holder of notes, against the indorser, who indorsed them in blank before due. The notes were made by J. F. Peck. The defendant claimed that he indorsed them for the accommodation of the maker, who paid, or procured them to be paid, for his benefit; and that the plaintiff received the notes with full knowledge that they had been paid by or on account of the maker.

APPEAL'from a judgment entered upon the verdict of a jury, after a trial at the circuit. The action was for slander.

The action was brought against the defendant to recover the value of certain parcels of dry goods, sold by the plaintiffs to one Fay, upon his fraudulent representations as to his pecuniary ability and circumstances. The goods were sold at various dates, from September 23 to October 19, 1857, amounting in all to $2014.65. Three other parcels of goods had been purchased of them, in respect to which no fraud was pretended or found, amounting to $486.80.

<p>T. W. died in 1812, leaving a will by which he devised all his lands to his son T. M. W. in fee, charged with the payment of his debts, with a provision for his wife, arid with a legacy to another son, J. W. He also left a codicil to his will, which recited the devise in thri will, and proceeded thus: “Now I do order that if my son T. M. W. shall decease without leaving any male issue, the real estate given to my son T. shall be disposed of as follows: and I do dispose thereof, that his widow and child shall have the use of one half of the real estate as long as she-remains his widow, and after her death or marriage it shall be equally divided between my son J., my daughter E., and my son T. M. W.’s child, or children.” When the testator died, he left surviving him his sons T. M. W. and J. W., and E. P. a daughter. T. M. W. entered under the devise, and continued in possession until his death. He died in 1824, without male issue, but leaving a widow, who died in 1857, and three daughters, M., A. and S., who are still living. E. P. also survived her brother T. M. AV., and died in 1866, leaving a son, a daughter and the children of a third daughter. In June, 1812, after the death of T. W., (the testator,) E. P. executed and delivered a release and quitclaim to T. M. W. of all claim or right of claim which she then had, or which might thereafter arise to her or to her heirs or assigns to the real estate, by virtue of the codicil. On the 1st of July, 1823, T. -M. W. mortgaged to J. W., the plaintiff, 24 acres, part of the land devised to him, to secure the payment of $1561.25. On the 17th of February, 1825, after T. M. W.’s death, J. W. assigned this mortgage to M. The assignment contained no covenants, but it purported to assign, transfer and set over not only the mortgage but “ the land and premises therein described.”</p> <p>Held, 1. That the testator contemplated the period of the death of T. M. W., as the time when the limitation over upon the event of failure of male issue of T. M. W. should take effect, and the estates limited upon such failure should vest successively.</p> <p>2. That T. M. W., by the will and codicil, took a defeasible fee in the whole of the lands, and that upon his death without issue, and the death of his widow, the lands passed by executory devise to J. W., E. P., and the children of T. M. W. in fee, unless the share of E. P. had been previously conveyed by her release to T. M. W.</p> <p>3. That the release executed by E. P. to T. M. W. was, within the case of Miller v. Emans, (19 N. T. Rep. 384,) valid and effectual to pass to T. M. W. all her contingent right, so that it afterwards became a vested estate in the releasee.</p> <p>4. That E. P., previous to the execution of the release, could have made a valid mortgage upon her contingent interest in the lands devised, and that her assignee T. M. W. was equally competent to execute such an instrument. Accordingly held, that the mortgage executed by T. M. W. to J. W. was a lien, not only on his own estate under the codicil, in all the lands described, which determined at his death, but also upon the fee in one-third of those lands, which his children took as heirs to their father, through the release of E. P.</p> <p>5. That J. W. having assigned, without qualification, a mortgage which described the premises generally or the estate of the mortgagor as if he owned the whole, was not at liberty to assert that he, the assignor, was the owner of a share of the lands not subject to the mortgage, but was bound to make the mortgage good out of his own share of the property.</p>

<p>In 1835 L. and G. entered into an agreement in writing, by which L. undertook to fill in with earth, &c., certain lands under water, owned by G., and as a compensation for the labor, G. covenanted to convey to L. one-third part of such lands, in fee. L. proceeded to fill in the lots, having previously made a survey of the same, in which he was aided by T., the then owner of the adjoining lots on the south. On such survey T. placed stakes, and made a monument, to indicate the boundary line between him and L., and 11. filled in the lots to correspond with the stakes and monument. T. was repeatedly upon the ground, while the work was in progress, and made no objection thereto. Held, that the line between the two adjoining owners being thus established, and located by the acts and acquiescence of the parties themselves, and L. having expended money and labor in making valuable and permanent improvements upon the lots, in the faith and confidence that the line so marked was the true line, it must be regarded as such; and .that persons claiming title under T. were estopped from controverting the line as thus established and located.</p> <p>Where a bill of foreclosure stated that a portion of the mortgaged premises had been released from the operation of the mortgage, by the mortgagee, and that the mortgage was not a lien thereon; and the decree excepted that portion from the effect of the decree of foreclosure; but the master’s deed, through inadvertence, embraced the whole mortgaged premises ; it was held, that the premises released did not pass to the purchaser at the master’s sale, and that the deed had no effect whatever upon the title of the true owner of the premises released.</p> <p>1. entered into possession of lots, under an agreement in writing between him and G., by which it was stipulated that L. should fill in the same and other lots owned by G., and that in consideration thereof G. should, on the completion of the work, convey to L. one-third of the lands, in fee. L. caused his agreement with G. to be recorded in the county clerk’s office, and continued in possession after the completion of the work. Held, that although the agreement was not a conveyance, within the meaning of the recording act, yet that it tended to show the character of L.’s possession; that such possession, under claim of title to a' deed from G., was notice to subsequent mortgagees and others, of his interest and claim; and that the lien of a subsequent mortgage given by G. was subject to L.’s right to a deed, under his contract.</p>

<p>A surrogate cannot take cognizance of disputed claims against an estate, and adjudicate upon their validity or invalidity, hut must refer them to the common law tribunals, for adjudication, , before he can make a decree for their payment.</p> <p>Where a creditor has obtained a judgment against his debtor, in the supreme court, and upon an appeal to the general term, an order denying a motion to set aside the judgment is subsequently made, and from that order an appeal is taken, by the executor of the defendant, after the death of the latter, to the court of appeals; the surrogate cannot, while such appeal is still pending and undetermined, entertain jurisdiction for the purpose of enforcing the payment of the judgment.</p> <p>His proper course is to adjourn over the proceedings before him, and suspend the accounting and distribution during the pendency of the litigation in the court of appeals.</p>

THESE were appeals from an order made at a special term, dissolving an injunction obtained by the BrooHyn City Bail Boad Company; and from an order denying the motion of that company to dissolve an injunction obtained by the BrooHyn Central Bail Boad Company.

<p>APPEAL from a judgment entered at a special term, after a trial at the circuit, by the court without a jury.</p>

<p>D. and his wife, by their deed of conveyance, for a valuable consideration, granted, bargained and sold to the Long Island Rail Road Company, and to their successors apd assigns forever, a certain piece of land therein particularly described, comprising an area of sixty square rods, expressing it to be “ for the uses and purposes of the road proper.” “ Also, in addition to which 60 square rods, the Long Island Rail Road Company may be further entitled to an extra additional width of 70 feet on the south side of the said rail road, for the uses and purposes of a side track, engine house, depot, or such buildings and appendages to said road as may be considered necessary ; provided such buildings may be used for the purposes of said road only, and which additional land contains an area of 61 square rods, more or less habendum “ all and singular the above mentioned and described premises to the Rail Road Company, their successors and assigns forever;” with the usual covenant of warranty. Held that the purpose of the grantors, in inserting the words “ may be,” in the clause relative to the second parcel of land described, appearing, from an examination of the whole instrument, to have been to vest the title to that parcel in the grantee, the words “ may be,” might be read “ shall bethe court not being bound to adhere to the literal and grammatical sense of the words used.</p> <p>And that, inasmuch as by the terms of the deed, the grantees were to take and enjoy the first described lot for the uses of the road proper, and the second described lot for the uses of a side track, engine house and depot, and whatever was granted in the premises of the deed was, by the habendum, to be held in fee, with a covenant of warranty, it was the intention of the grantors to pass the title to both parcels of land described in the deed; and such was its legal effect.</p> <p>Where the grammatical sense of the words is not in harmony with the obvious intention of the parties, the courts do not hesitate to substitute one word for another, for the purpose of giving effect to such intention. Per Brown, J.</p>

<p>Where the record of proceedings before a surrogate, for the proof of a will, shows that the testator, at and immediately before his death, was an inhabitant of the county where the will is proved; that all the necessary parties were properly brought into the surrogate’s court, and the witnesses duly examined and their testimony recorded; and that in the execution and publication of the instrument all the requisites of the statute of wills have been ■ duly complied with; it seems the jurisdictional fact of residence will be presumed to have been determined by the surrogate; and that the proceedings before him cannot be attacked and subverted, collaterally, by proof that the testator in fact resided in a different county, at the time of his death; for the purpose of destroying the title to real property devised under the will.</p> <p>It seems the court will he reluctant to recognize it as a rule of evidence that the residence or habitation of a testator is open to litigation and controversy, long after his will has been proved and admitted to record, and valuable rights have been acquired under it.</p> <p>After forfeiture and condition broken, the mortgagee, if he be in possession, is considered as having the legal estate, and an action of ejectment cannot be maintained against him.</p>

<p>To render a demand and refusal to deliver goods equivalent to direct proof of a conversion, it must appear that the party had the actual possession, at the time of the demand, and thus had power to comply with it; or that he had, before that time, parted with the goods fraudulently, with a view to evade the demand, or for his own benefit.</p> <p>If, at the time the demand is made, the goods are in the actual possession of another, and the person of whom the demand is made has not, and never had, any control over them, the fact that he claims the goods, and declares they are his own property, will not amount to a conversion.</p> <p>Nor will the fact of his giving an undertaking, to prevent the delivery of the property by the sheriff, to the plaintiff in an action brought to recover the possession, operate as an estoppel in, pais.</p>

The plaintiff, by his complaint, sought to charge the defendant, in damages, for injuries sustained by him while riding upon the cars of the defendants; and also for loss of his son’s services, &c. occasioned by injuries to his son at the same time, and by the same accident. The plaintiff and his son, Benjamin Willis, (a minor,) were passengers on a train of cars on the defendants’ road, in September, 1857.

<p>Appeal from order dissolving injunction.</p> <p>The facts are fully declared in the opinion.</p>

THIS was an appeal by the plaintiffs from a judgment rendered on the report of a referee in favor of the defendants Rockwell Putnam and Sidney Yerheck, dismissing the complaint with costs as to them,… Held: and dismissed the complaint as to them. He also allowed to the defendant Putnam a counter-claim of $305,46 for that amount which he had been compelled to pay upon a debt of the association incurred during his membership.

APPEAL by the defendant from an order made at a special term, sustaining the plaintiff’s demurrer to the answer of the defendant. The facts are sufficiently stated in the opinion of the court.

OK or about the 1st of June, 1851, the defendants, being contractors for work both upon the Troy and Bennington rail road, and also the Harlem rail road, an agreement was made between the plaintiff and defendants, by which the former was to furnish to the latter all the meal they wanted for their works, at stipulated prices, for which he was to be paid monthly; one half in cash, one quarter in the stock of the Troy and Bennington Bail Boad Company, and one quarter in the…

THIS action was brought before a justice of the peace of the town of Virgil. Both parties resided in the town of Marathon, and the defendant raised the objection that the justice had not jurisdiction, for the reason that he did not reside in a town in which either party resided, or in a town next adjoining the residence of the plaintiff or defendant.

<p>Where, upon the joining of issue in a justice’s court, the defendant moves for an adjournment, to which the plaintiff objects, and demands that the defendant be first required to make oath and give bail, which the defendant refuses to do, it is erroneous for the justice to grant the adjournment, upon such motion, without oath or bail.</p> <p>Although a justice has the power, in his discretion, to adjourn a cause not exceeding eight days, upon his own motion, with or without the consent of parties, yet where it appears that he did not exercise such discretion, but granted an adjournment, upon the application of the defendant, without requiring him to make oath or gi^e bail, such adjournment will be deemed an irregularity.</p> <p>The effect of an irregular and unauthorized adjournment is that the cause is • out of court, and the justice loses jurisdiction.</p> <p>A party will not waive his objection to an irregular adjournment, by renewing his old subpoena.</p>

rpHIS action was ejectment, brought to recover of the de.1 fendant about 28 acres of land, in Petersburgh, Bensselaer county. It was alleged and proved that on the 2d day of April, 1793, a deed was made, by and between Stephen Van Bensselaer, as party of the first part, and Jonathan Irish and Augustus Sheldon, as parties of the second part.

THE plaintiff set forth, in his complaint, a conveyance in fee reserving rent, with covenants on the part of the grantee, his heirs and assigns, to pay said rent to the grantor, his heirs and assigns, and containing also clauses of distress imd re-entry in default of payment.

THE plaintiff alleges in his complaint that on the 22d day of September, 1792, Stephen Van Rensselaer granted, bargained, sold, remised, released and confirmed to one Timothy Cooper a certain farm of about 176 acres of land in Berne, Albany county. That the said Cooper covenanted for himself, his heirs and assigns, to deliver to the grantor thirty skipples of wheat and four fat fowls, and to perform one day’s service with carriage and horses for his vendor annually.

THE relator sued out an alternative mandamus, -requiring the defendants to audit and levy the sum of $990 damages, re-assessed to the relator, for the laying out of a highway over his premises, or show cause &c. The writ alleges the laying out of the highway—the assessment of the damages therefor, by commissioners; that the relator, feeling aggrieved, served a notice under § 85, 2 R. S., 397, 5th eel, asking for a jury to re-assess the damages, and specify a time when the…

’JJ the month of July, 1855, the 7th regiment of the U. T. .1 state militia, commanded by the defendant as colonel, was duly encamped, pursuant to official orders, near the village of Kingston, for several days.

THIS was an action to recover a quantity of corn. On the former trial of this cause the defendants had a verdict. A new trial was granted by the supreme court in the third district, (see 16 Barb. 72.) The cause was tried the second time before Hon. Wm. B. Wright, without a jury, .and resulted in a judgment in favor of the plaintiffs.

THE Bank of the Commonwealth, the relator in this case, is a hanking association in the city of Hew York, formed under the act to authorize the business of banking, passed April 18th, 1838.

THIS action was brought on a promissory note stated to have been made by the defendant, payable to his own order, and by him indorsed and delivered to George Mountjoy, who indorsed and delivered the same to a third person, by whom, it was alleged, the note was, before maturity, transferred and delivered to the plaintiff for a valuable consideration.

THIS '-waY-an action brought against the defendant George Selleck’as indorser, and Benjamin Selleck as maker of the following'nbte: “Dollars 3,378 -fj/v. New Tori, August 19, 1857. Bight months after date, I the subscriber, of Beloit, Bock county5 state of Wisconsin, promise to pay to the order of George Selleck, thitty-three hundred seventy-eight and 75-100 dollars, at George Selleck’s Bank, Morris, Illinois, value received with current exchange on Hew York. Benj.

The action was upon a promissory note, for $641.25, made by the defendant on the 22d of May, 1855, payable to the order of the Atlas Mutual Insurance Co. twelve months after date. The action was tried at the blew York circuit, in February, 1858, before a justice of the court without a jury, a jury being waived.

<p>APPEAL from an order made at a special term, allowing a demurrer to the complaint. The action was for the partition of land of which Paul M. P. Durando died seised.</p>

HIS was an appeal from a judgment entered upon the report of a réferee. The action was brought to recover damages of the defendant for neglecting to deliver a telegraphic dispatch from New Orleans to New York, according to agreement. The referee reported in favor of the plaintiffs for #16.09.

<p>APPEAL from an order granted at a special term, permitting the plaintiff to amend the judgment in this action hy which the complaint was dismissed.</p>

THE complaint in this action, commenced in March, 1857, states among other things that the Emigrant Industrial Savings Bank, in August, 1856, commenced an action in this court against William Lynch and several others of the defendants in this suit, for the foreclosure of a mortgage, dated 7th July, 1852, for $12,000, made by said Lynch, upon premises in Hew York known as Ho. 323 Greenwich street, and on the 11th of December, 1856, obtained a judgment, in the usual form, for…

Miner from certain premises alleged to have been held over by him after the expiration of his term as tenant of William J. Burling.

<p>APPEAL from a judgment entered at the circuit, dismissing the complaint.</p>

THIS was an appeal from a judgment rendered at special term, dismissing the complaint in an action for malicious prosecution and for false imprisonment. It was tried at the Hew York circuit before Justice Davis and a jury, October 15th, 1858.

THE plaintiff brought this action to recover of the defendant Avery his share or proportion of a sum of money received by him for salvage of the bark Delegate. The other salvors were made parties defendants, but were not served with process.

THE plaintiff brought this action to foreclose a mortgage executed by John Hurson and wife, dated October 16th 1855, to secure the payment of $21,537 on the 16th day of October, 1865, with interest semi-annually. The defense was usury. The cause was referred to W. H. Leonard, Esq. by whom it was tried. On the trial evidence was given of an indebtedness from the mortgagor to the plaintiff, at the date of the mortgage, for money lent.

THE plaintiff sued to recover a balance claimed to be due to him for services rendered to the defendants as their secretary and shipping agent, from January 9th to. May 15th, 1858. It was in proof, that the plaintiff acted as the defendants’ secretary during that period; and the question in dispute was, whether these services were rendered under a contract, whereby the defendants had agreed to pay therefor at' the rate of $1200 per annum.

APPEAL by the defendant from a judgment given at the circuit, on a trial before Justice BaLOom and a jury. The action was case for negligence, for carelessly and negligently running over and killing a mare of the plaintiff. So much of the case as is necessary to ah understanding of the questions considered is stated in the opinion.

THE plaintiff, as executor of William A. Heermans, deceased, sued upon a special contract, to recover for services performed by the testator for the defendant in California.

THIS action was brought by the plaintiff in behalf of himself and all other creditors of one Joseph McMurray, who should come in and contribute towards the expense of the action, to compel an accounting by the defendants as assignees of McMurray for the benefit of creditors.

DEMURRER to complaint. The complaint states that the plaintiff is sheriff of the city and county of Hew York; that in April, 1860, he received a warrant of attachment, duly issued out of this court, and to him directed, in an action against Hermann Schmidt, whereby he was directed to attach and keep all the property of Schmidt, in his county. That the defendant then had in his possession $300, belonging to Schmidt.

THIS action was brought for the recovery of real property. The premises in controversy were conveyed to George T. Benham, May 7, 1853. In 1855, Benham contracted with the defendant to convey to him the premises, on being paid $160, and the defendant went into possession under this contract. About January 1, 1856, Benham absconded, leaving the defendant in possession under the contract of purchase, on which he had paid only the sum of $43.97.

TO an alternative mandamus commanding him. to satisfy of record the mortgage, hereinafter mentioned, or show cause &c., the register of ¡New York made return, to which the relator demurred.

. Articles of association, pursuant to the general rail road act of 1850, were prepared, dated July 11th, 1851, and signed hy some 250 persons, promising to take an amount of stock which was sufficient, according to the statute. A proper affidavit was annexed to the articles, taken March 8th, 1852, and those articles were filed in the office of the secretary of state, on the 12th of March, 1852, and the plaintiffs became duly incorporated.

<p>MOTION for a new trial upon exceptions first heard at a general term.</p>

<p>APPEAL from a judgment entered on a verdict. Exceptions taken on the trial.</p>

MOTION to set aside a nonsuit, granted upon the opening of the plaintiff’s counsel, and for a new trial.

<p>UPON substituted service of the summons and complaint .in this action, made pursuant to an order of a judge of this court, judgment was entered by default, in favor of the plaintiff on .the 3d of December, 1858, for $437.92. In March, 1859, supplementary proceedings against the defendant Ryan were commenced, in which he appeared, with counsel, and. such proceedings were continued from time to time, and proceeded with, until May 7, 1859, so far as appears, without objection to the validity of the judgment. On the 15th of .March, 1860, the defendant Ryan moved, at a special term, to vacate that judgment, on the ground that jurisdiction of his person had not been , acquired in the suit, and .the judgment'was.consequently void.</p> <p>.-.From., thé papers read on the. motion it appeared that, on an affidavit of George A.' Moore, a deputy sheriff, sworn to on the 10th of November, 1858, .and sfating that.he had made proper and diligent efforts to serve the summons and complaint on the defendants; that he had made inquiries at the residences of said defendants, as tp where they were; that the families of the defendants, at such residences, stated they were not able to tell where the defendants could be found; that the residence of' Ryan was at 248 West 26th street, in the city of New York, and the residence of the other defendant at No. 376 in 7th avenue in said city; and that by and after due and proper and diligent effort by him, the deponent, the defendants could not be found; an order, dated 10th November, 1858, was made by a justice of this court, that said summons and complaint be served by leaving copies thereof at the residence of each of said defendants, with some person of proper age, &c., and service was made accordingly. An affidavit of the defendant Ryan (not disputed) stated that on the 6fh of September, 1858, he sailed from the city of New York, in company with the other defendant, for San Francisco, in California, by way of the Isthmus of Panama, and arrived there on the 30th of September, or 1st of October, and remained in California until January 5, 1859, when he sailed for Hew York.</p> <p>The motion was denied, and from the order denying it the defendant appealed.</p>

WHEH this case was called for trial, at the circuit, the parties appeared, and the pleadings were read. Ho evidence was offered by either party. The questions raised by the pleadings were argued by counsel, and the court thereupon decided that the plaintiff was entitled to judgment upon the pleadings, for the amount claimed in the complaint, and directed the jury to find a verdict accordingly. To this decision and direction the defendant’s counsel excepted.

<p>Under the provisions of the code, a party to an action may not only be examined, at the option of the adverse party, in the same manner as any other witness, but he may also be required and compelled to produce, on such examination, books, papers, &c. which are under his control.</p> <p>The proper mode of proceeding, under an order for the examination of a party, where a production of books &e. is sought, is to continue the examination of the witness until it shall be ascertained whether or not he has under his control any, and if any, what books or papers, admissible as evidence in the action or necessary for the purposes of the examination; and then for the judge to direct what books or papers (if any) shall be produced, and when and where they shall be produced.</p> <p>A party calling his adversary as a witness has no right to examine any books or papers, or parts of books or papers, which are neither pertinent to the issues in the action, nor connected with, or relevant to, the matters in controversy.</p>

APPEAL by the defendants from a judgment rendered in favor of the plaintiff for $450 damages besides costs, in a suit tried before Mr. Justice Baloom, at a circuit in New York on the 4th day of November, 1858.

<p>APPEAL from an order made at a special term, denying the defendant’s motion to vacate an order of arrest.</p>

L November, 1860.—This was an appeal from an order of the special term, setting aside a judgment of affirmance entered upon order of the general term. The cause had been tried at circuit in Few York, before Mr. Justice Wright, and judgment rendered for the plaintiff. Defendant appealed, and gave the requisite undertaking to stay-proceedings, and subsequently served a proposed case and exceptions : the plaintiff proposed amendments.