Volume 32 — New York Supreme Court Reports

<p>Injunction — must rest on allegations of complaint — the affidavits only corroborative — Injunction to restrain the doing of an act “ to the injury of the plaintiff,” denied— Vovencmt in absolute restraint of trade, not presumed.</p> <p>On an application for an injunction, facts as to which the complaint does not contain any allegations, must not be alleged in the affidavits, as the affidavits are to be considered only as evidence of the allegations made in the complaint.</p> <p>An injunction will be denied where it is asked not to restrain the doing of an act, but the doing of the act ’to the injury of the plaintiff; such injunction will be denied because of the inconvenience of enforcing an injunction, for every alleged breach of which a trial must be had in order to determine whether the act was or was not injurious to the plaintiff.</p> <p>What is not a violation of an agreement not to solicit customers on a certain milk route, to buy milk or to injure a certain business.</p> <p>A covenant in absolute restraint of trade is not to be implied from doubtful-words.</p>

Appeal by the defendant from an order of the Monroe Special Term, setting aside a nonsuit ordered herein and granting a new trial.

<p>"Witt — suspension of power of alienation — Bight of an administratin' with the will annexed to exercise a power of sale.</p> <p>A testator gave one-third of his estate to a son for life, and. directed that on the son’s decease such third should be added to the other two-thirds of which the interest was directed to be paid to the testator’s grandchildren, share and share alike; and further provided by his will, “and then from and after the decease of my grandchildren, I direct my executor to pay the amount remaining after paying all expenses of settlement and disbursements thereof, to each of my great-grandchildren share and share alike.”</p> <p>Held, that the gift to the grandchildren was to each of them in severalty and not to them jointly, and that on the death of each grandchild his share would pass directly to the great-grandchildren as absolute owners. That therefore as to the one-third of the estate given to James for life, the power of alienation was not suspended for more than two lives in being, and as to the remaining two-thirds of the estate for only one life.</p> <p>The will provided that in case certain of the grandchildren neglected to support their parents, “ the said legacy in payment to them to be stopped and the said payment shall revert to the general fund for the benefit of my other grandchildren and great-grandchildren as hereinbefore mentioned.”</p> <p>Held, that the effect of a failure on the part of the grandchildren to support their parents, would be to work a forfeiture of the remainder of their life estates and transfer such life estates to the other grandchildren, who would hold such forfeited estates only during the lives of the grandchildren by whom they had been forfeited, and on the death of the latter such interests would uass to the great-grandchildren.</p> <p>Held, further, that the title to the personal property vested in the administrator with the will annexed, in trust for the purposes of the will.</p> <p>That the title to the real estate was vested in the devisees, subject to a power of sale to be implied from the provisions of the will.</p> <p>That it appeared from the provisions of the will that the testator intended to clothe his executor with a power of sale over the real estate, and as such power was essential to the discharge of his duties, and not discretionary, that such power vested in the administrator with the will annexed.</p>

<p>Appeal from an order of the Chautauqua Special Term setting aside a judgment, entered on a verdict rendered herein in favor of the plaintiff, and granting the defendant’s motion for a new trial on a case and exceptions.</p>

<p>Appeal from an order of the Monroe Special Term, denying a motion made December, 1880, on the part of the plaintiff for an attachment or other process against the directors of the defendant, to compel the payment of the judgment for costs herein, and to appropriate the money in the hands of the receiver to that purpose, so far as the same will go.</p> <p>The action was brought to vacate the charter and annul the existence of the defendant corporation, because of its abuse of its corporate7 powers, and judgment annulling the charter and for costs was recovered by the plaintiffs.</p>

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

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

<p>Appeal by certain of the defendants from an interlocutory judgment overruling a demurrer served in this action, with leave to the defendants to withdraw their demurrer and put in an answer within twenty days upon payment of costs. The judgment further appointed a referee to report as to the waste in the complaint alleged to have been committed.</p>

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

There was a verdict at the Jefferson Circuit, for the plaintiff for the amount due upon two notes made by the defendant. One note was for $200, and the other for $600. The defense presented related solely to the note of $600. The defendant was a married woman and made her note to the order of George Otis, her husband, and the same was indorsed by him and then indorsed by the plaintiff, and used to borrow $600 of one Davis.

<p>Appeal by plaintiff from a judgment, entered upon the report of a referee, who found that she sustained $300 damages by slipping and falling upon the defendant’s sidewalk, negligently left in an unsafe and insecure condition, but gave judgment in favor of defendant because notice of the claim was not hied within three months. The referee says : “As conclusions of law I find that the defendant became liable to pay to the plaintiff the sum of $300 for the damage sustained by her by reason of the said pain and suffering and personal injuries. * * * That the failure of the plaintiff to present to the common council of said city, her said claim in writing properly verified, describing the time, place, cause and extent of her damages or injury, withm three months from the happening of said damage or injury, is a bar to this action, and the defendant is entitled to a dismissal of the complaint herein upon the merits, and I therefore order that judgment.”</p>

Appeal by tbe defendant Rodger from a judgment, entered in Onondaga county upon the report of a referee. The action was brought upon a promissory note made by Margaret A. Rhoades and indorsed by the defendant, William C. Rodger, dated January 27, 1876, for $500, payable two months after date.

” The trial was had at the Jefferson Circuit, held by Mr. Justice Mullin. The action was to recover upon an indorsement by the intestate for the accommodation of Harvey D. Littlefield, of his note for $240, dated December 3, 1875. The note was given for a loan of money to the maker.

Appeal by the plaintiff from part of a judgment in its favor, rendered against De Witt Parshall in his lifetime, and in which action said Parshall’s executors have been substituted in his place ; also from part of an interlocutory judgment and from two certain orders herein.

Appeal by the defendant Botcliford from two orders entered at the Onondaga Special Term, made respectively as of the twenty-fourth and twenty-seventh of August, adjudging the defendant guilty of a contempt of court for violating an injunction order issued in the action.

<p>Appeal from an order of the Special Term, directing payment of the surplus moneys, arising on a sale of mortgaged premises in the above entitled action, to the surrogate of New York.</p>

<p>Appeal by the defendant from a judgment, entered upon a verdict directed by the court.</p>

<p>Assignment, for the benefit of creditors, by a copa/rtnm'ship— who must join in it — Emdence that one is a partner.</p> <p>The rule which requires all the copartners to unite in an assignment for the benefit of creditors, does not include parties who, by reason of certain acts, have made themselves liable as partners to third persons, but only those who are partners as between each other.</p> <p>It is competent on the trial of the question as to whether or not one is a partner, to ask him whether he was asked to become a partner, and what the result of the proposition was, and whether he had any interest in the oapital or stock of the firm.</p> <p>Senible, that the participation in the profits of a business which makes a person a partner as to third persons, must be a participation in the profits as such, under circumstances which give him a proprietary interest in the profits before „ division, as a principal trader.</p>

Appeal by the defendant from a judgment in favor of the plaintiff, entered on the verdict of a jury. The action was brought to recover $3,500 and interest, on a certain bond executed by the defendant, and purchased in good faith and for a valuable consideration by the plaintiff, to which the mortgage mentioned in the following opinion was collateral.

Appeal by the plaintiffs from an order granted on the petition of Edouard de Nobele and Eelix Yanderstichelen, as curateurs or foreign assignees in bankruptcy, under the laws of Belgium, of the estate of the defendants, John Pfeffer & Co., making such curateurs additional defendants in this action, and allowing them to appear and answer and defend the same, and staying entry of judgment against John Pfeffer and others, the original defendants, until the determination of the…

Appeal by the defendants from a judgment recovered on a trial at the Circuit, and from an order denying a motion for a new trial, made on the minutes of the court before which the action was tried.

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

This action was brought against the appellants, who are copartners doing business in the city of New York as auctioneers, to recover alleged excessive charges made upon personal property sold by them as such auctioneers, and also the penalty given by statute.

The action was brought to recover damages because of the defendant having spoken slanderous words concerning the plaintiff, to wit: “You are a thief. You are a damned thief. You God damned thief, you were arrested during the war for robbing soldiers and taken to Washington in irons. You robbed soldiers.

Appeal by the plaintiff from a judgment in favor of the defendant, entered in Tompkins county on the report of a referee. The Pennsylvania and Sodus Bay Railroad Company was organized May 24, 1870. The defendant was a subscriber for capital stock of the company. This railroad company mortgaged its railroad to the Union Trust Company to secure' certain bonds issued by the company.

<p>Appeal from a judgment entered at the Schuyler County Special Term dismissing the plaintiff’s complaint. The action was brought to foreclose a mortgage executed by George G. Freer and wife to Josiah D. Payne, as trustee for the Schuyler County Bank. The mortgage was given to secure the payment of $52,383, and was intended as a security for the payment of certain moneys due from said Freer to said bank.</p> <p>This action was tried before the court without a jury.</p> <p>The court found, among other things, that on or about the 20th of March, 1813, George G. Freer, Josiah D. Payne and William M. Pellet entered into an agreement in writing, called articles of co-partnership, with the intention and for the purpose, as therein expressed, of forming a partnership in the business of private banking in the firm, name and style of The Schuyler County Bank, for the term of ten years, unless sooner dissolved, and thereby it was provided that the business of the firm should be carried on at Watkins, N. Y., and that it should be confined exclusively to that of private banking, and be conducted on the same principle, so far as practicable, as that of national banking associations, etc., and it was thereby stipulated as follows: “ To each or either of the said co-partners, there shall be allowed a rate of six and one-half per cent on the average amount of his deposits, to be computed on the first Monday of January in each and every year, and on over-drafts, either and each who may overdraw his accounts shall pay interest on the average of such over-drafts at the rate of ten per bent per annum, to be eomputed and paid on the said first Monday of Janu ary in eaeh year, but in this conneetion it is understood that neither of said co-partners shall overdraw his account in said bank without the consent of the other partners,” and it was thereby further agreed and understood that the members named therein should eaeh put in, in their notes or money, $20,000, as capital, but they afterwards modified that provision so as to make the amount each should thus put in as capital, $10,000, for which they put in their notes respectively. That it was also provided by their said agreement that other persons might be let into the firm by the unanimous consent of the members thereof, and pursuant to that provision, etc., soon after the date of the agreement, John Knight, William N. Love and Edgar S. Payne were let into and became members of said firm, and that the said firm commenced business on or about the first day of April, 1873.</p> <p>That the firm had books of accounts and opened and kept therein an account with each member thereof, and with its customers, giving him and them credit for his and their • several deposits, and charging to him and them the several sums of money advanced to and for him and them by the firm, upon his and their checks drawn upon the said Schuyler County Bank and otherwise.</p> <p>That from and after the expiration of the first year of the business of said bank, the books of said bank showed quite uniformly a balance against George G. Eroer, whose executors are parties defendant to this action, in his account with the said bank, and that the firm (The Schuyler County Bank) computed and charged to him, in his said account, each and every year, interest at the rate of ten per cent per annum upon all the debit items of his account in excess of his credits on the books.</p> <p>That the interest, at the rate of ten per cent per annum, so computed upon the debit items of his account and charged to him, were as follows:</p> <p>April 13th, 1874................................. $145 25</p> <p>April 15th, 1875 .......................■.......... 657 04</p> <p>April 15th, 1876 ................................. 1,230 50</p> <p>November 10th, 1876............................. 1>336 10</p> <p>Making................................... $3 > 368 89</p> <p>Exclusive of interest on the $10,000 stock note, so-called, upon which interest was computed at the rate of seven per cent per annum.</p> <p>It appeared that the Schuyler County Bank advanced the money and paid certain notes of said George G. Freer, among others a note given to G. G. Hill, some time prior to the dates under which •charges therefor were made to him in the books. That in those instances interest at the rate of ten per cent was computed by said bank upon the amount so advanced, which constitute entries so made on his account therefor.</p> <p>That the provisions of said agreement, called articles of co-partnership, whereby it was agreed that the said George G. Freer should pay interest at the rate of ten per cent per annum on over-drafts, was not inserted in and made part of the agreement for the purpose nor with the intent that the said Schuyler County Bank should receive, and the said George G. Freer should pay a greater rate than seven per cent per annum for the loan or forbearance of money, which the said Schuyler County Bank should or might make to him ; that an over-draft within the meaning of the contract was not a loan of money, but an advancement out of the common funds, and the interest returned therefor was for the common benefit, and partook of the risks and hazards of the business.</p> <p>As conclusions of law the court found —</p> <p>1. That the articles of co-partnership are not per se usurious.</p> <p>2. That a portion of the items in the account which formed the indebtedness which the mortgage in question was given to secure, being properly over-drafts within the meaning of the articles of co-partnership, and not loans of money, and ten per cent interest being charged thereon in pursuance to said articles, are not usurious.</p> <p>3. That the transaction in regard to the Hill notes and some other transactions, not being over-drafts within the meaning and intention of the articles of co-partnership, the same must be deemed loans of money, and ten per cent interest being charged thereon, under a corrupt and usurious agreement and understanding with said Freer, come within the prohibition of the statute in such case made and provided, and that such usurious items having entered into and formed a part of the debt which the mortgage in question is given to secure, the mortgage is therefore usurious and void, and must be set aside and held for nothing.</p>

<p>Certiorari to review the action of the Board of Supervisors of St. Lawrence County.</p> <p>The following proceedings of the board were contained in the return made pursuant to such writ:</p> <p>“ Resolved,, That Messrs. Sanford, Babcock and Richardson be a committee to locate and purchase a site for a Children’s Home; that they take into consideration the present offers from Ogdensburg, Norwood and Canton, and locate the same, where, in their judgment,- the interests of the county require, and that provisions be made to raise a sum not to exceed $10,000 for the purpose of site, building, etc., which bill shall also provide for a building committee.</p> <p>“Mr. J. M. Wells moved to amend the substitute by adding Messrs. Abram and Fleetham, and the motion prevailed by the following vote:</p> <p>“Yeas, * * * 18. Nays, * * * 14.</p> <p>“ The substitute, as amended, was then carried by the following vote:</p> <p>“Yeas, * * * 28. Nays, * * * 4.</p> <p>“Mr. Godard moved that the committee to locate site have power to appoint a building committee for the erection of the Children’s Home. (Carried.)</p> <p>“ Mr Godard introduced a bill entitled 'An act to authorize the treasurer of the county of St. Lawrence to issue certificates of indebtedness and borrow money on the credit of the county of St. Lawrence for the erection of a Children’s Home,’ and asked unanimous consent that the same .be referred to the committee of the whole.</p> <p>“ So ordered.</p> <p>“ The board then went' into committee of the whole on said bill. Mr. Robinson in the chair. On the rising of the committee the chairman thereof reported that the committee of the whole had had the said bill under consideration, had made some progress therein and asked leave to sit again.</p> <p>“ Report agreed to and leave granted.</p> <p>******* *</p> <p>“Thursday, Dec. 2, 1880.</p> <p>* * ******</p> <p>“ By Mr. Godard:</p> <p>“Resolved, That the building committee for a Children’s Home receive and perfect plans and specifications for the erection of a Children’s Home, or repairs thereon, and furnishing the same. That said committee receive proposals for the building of said Children’s Home, or repairs and furnishing, and accept the most favorable proposals for the county, which shall not exceed $10,000, including site; such proposals to be accompanied with a bond conditioned for the faithful performance of the contract, in the sum of $5,000, with sufficient sureties, and which committee shall have power, as fast as different stages of the work are completed, to authorize the county treasurer to make partial payments upon such work, and shall have power to direct as to details in the building or repairs not fully provided for in the plans and specifications.</p> <p>“ Adopted.</p> <p>“ By Mr. Idler:</p> <p>“ Resolved, That the committee heretofore appointed by this board to locate a site for the Children’s Home be and they hereby are authorized, directed and empowered to purchase for, and in the name of the county of St. Lawrence, such site as they shall locate for said home, the purchase-price of which the treasurer of said county is hereby directed and empowered to pay upon proper certificates from said committee out of the funds provided therefor.</p> <p>“Adopted.</p> <p>********</p> <p>“ The Board of Supervisors of St. Lawrence county do enact as follows:</p> <p>“Section 1. The treasurer of the county of St. Lawrence is authorized and directed to issue certificates of indebtedness of said county to the amount of $10,000, in denominations of not less than fifty dollars, nor exceeding $1,000, payable to bearer, dated March 1, 1881, with interest payable annually, one-half of which bonds shall mature within two years, and one-half within three years from said date, and which said county treasurer is authorized and directed to sell at a price not less than par and accrued interest, and apply the proceeds in payment for the site of said Children’s Home, and the-repairs and furnishing thereof, in accordance with the resolutions of said board, provided that such issue of certificates shall not exceed the bid accepted by the building committee, and cost of site.</p>

The action was brought to recover $200 rent, alleged to be due from the defendants under the following lease: This indenture, made this 5th day of February, 1872, between James W. Whitford, of the town of New Lisbon, county of Otsego and State of New York, of the first part, and Thomas Laidler, president; Norris Gilbert, William Elliott, Elias C. Mather and Hiram A. Matteson, vice-presidents; William J. Kellogg, secretary ; Hiram C. Potter, treasurer, and Adam H. Elliott,…

,Appeal by plaintiff from a judgment of nonsuit. The action was brought to recover damages for injuries sustained by the plaintiff, owing to a pair of car-wheels rolling off a “ jigger,” a track or incline to connect the rails with the platform of a car in loading car-wheels. The defendant, in the year 1872, was one of the board of trusteed and managers of the Yermont Central Railroad, who were operating the Ogdensburg & Lake Champlain Railroad under a written contract.

The action was for crim. con., and the complaint was duly verified. The defendant served an unverified answer, which plaintiff elected to treat as a nullity, and so notified the defendant, who afterwards served an “ amended ” answer, which was also unverified, and which was in like manner disregarded by plaintiff, and the notice required by section 528 of the Code of Civil Procedure, served.

This action was brought to recover upon coupons owned by the plaintiff, which are detached from bonds which purport to have been issued pursuant to two acts of the legislature of the State of New York, viz.: Chapter 398 of the Laws of 1866, and chapter 917 of the Laws of 1867.

The first paragraph of the defendant’s answer admitted certain allegations of the complaint. The second paragraph alleged that as to certain payments “ this defendant has not information sufficient upon which to form a belief.” The third and last paragraph was as follows: “ The defendant further answering denies each and every allegation set forth in the complaint, except as herein admitted, qualified or explained.”

The action was brought by the plaintiff to recover damages fora libel written concerning him by the defendant, who was a justice of the peace. The plaintiff was an attorney-at-law, and acted as attorney for one Mary J. Brooks, against whom judgment was recovered before the defendant as justice of the peace, and appealed from such judgment to the Otsego County Court.

The action was brought to foreclose a mortgage executed by the defendant Frank H. Hathorn to John Newland, the plaintiff’s testator, December 1, 1874, to secure notes amounting to $6,000, and covered one undivided half of the property known as Hathorn Spring. The notes which were secured and the bond accompanying the mortgage were made by the mortgagors Frank H. Hathorn and Henry H. Hathorn.

The action was brought to recover damages caused by the death of the plaintiff’s intestate, resulting from the falling of a derrick.

This action was commenced to recover upon a promissory note, of which the following is a copy: $200. Cooperstown, April 2, 1877. On the first day of April next (1878), for value received, I promise to pay John Marsh, or order, two hundred dollars, with interest. HARYEY L. SMITH. MENZO DUNCKEL. ADELBERT SMITH.

Appeal by the defendant, Judson Smith, from a judgment, entered on the decision of the court in favor of the plaintiff. The aqtion was brought against Judson Smith, the appellant, and Barna B. Johnson and Yelles Belcher, to recover on an administrator’s bond, signed by defendant Johnson as principal, and by the other, defendants as sureties. The defendants appeared and defended separately. Trial was had at the Broome Circuit, before Mr. Justice Follett, without a jury.

<p>Judgment in ejectment against a tenant— not conclusive upon Ms landlord.</p> <p>A judgment in ejectment, recovered against a tenant in possession of the land in question, is not binding upon his landlord (not a party to the action), although notice of the pendency of the action was given to him by the tenant, and he refused to defend.</p>

attachment issue, etc., and vacating and setting aside an injunction order and judgment, obtained by Morgan L. Taylor, restraining the said president, chamberlain and trustees from paying the said amount.

The court at General Term said: “We have here five cases, all between the same parties, and alike in all respects from their commencement to the present time, in so far as the question of law involved in the appeals are concerned. They have been hitherto considered together (22 Hun, 278), and the present appeals in them were argued and submitted on like papers, briefs and points, and they in reality involve one and the same question, both in fact and law.

The action was brought to recover damages for the conversion of personal property and was twice tried. Upon the first trial the plaintiff had a verdict for the sum of ten dollars. A motion was made for a new trial on the minutes and denied, and a judgment was entered in favor of the defendant for costs.

Appeal by M. S. Reeve, the relator in the above entitled action, from an order of the Kings County Special Term, setting aside the summons herein and dismissing the action.

Appeal by the plaintiff above named from an order made at the Westchester County Special Term, on the 29th of January, 1881, denying a motion made by plaintiff’s attorney to vacate an order granted by Mr. Justice Dykman on the 5th day of May, 1880, ordering the defendant Bridget Delehanty to pay to William H. Sweny, alleged assignee of a judgment in favor of the said Bridget against the plaintiff, the sum of fifty dollars, by her admitted, on examination as a third party in…

Appeal by the plaintiff from an order made at the Kings county Special Term, denying the plaintiff’s motion to vacate and set aside the defendant’s bill of costs and disbursements as taxed.

Controversy submitted without action. The following is a statement of the case as agreed upon: I. On the 23d day of September, 1856, one Henry Swift, of the city of Poughkeepsie, with the intent to make a sure provision and advancement for his daughter, Frances Goldsmith, the plaintiff above named, executed and delivered to his son, Charles W. Swift, a certain deed of trust, in and by which he transferred and set over to his said son 100 shares of the capital stock of the…

Appeal by the defendant Josiab T. Smith from a judgment against him, entered on the verdict of a jury at the Kings County ■Circuit against said Josiah T. Smith and one John Stevenson (to which latter a new trial was granted), and also from an order denying a motion for a new trial as to the defendant Smith. This action was brought for the purpose of recovering damages for the benefit of the next of kin of plaintiff’s intestate.

The convict was engaged in work for the defendant under a contract between the county of Kings and the defendant, containing the following, among other provisions: The said party of the first part doth let out, and by these presents has let and farmed out to the said party of the second part, the labor and services of 400 male convicts and fifty female convicts confined or imprisoned in the Kings County Penitentiary.

The action was brought to recover a balance of rent alleged to be due from the defendant under a lease of certain premises in Rye, Westchester county, at the rent of $250 a year. The defendant answered alleging that she was a married women living with her husband at Rye.

A bill of the particulars of the “ plaintiff’s actions, conduct and habits,” upon which the opinions of the defendants James S. Green and Joseph B. Morton, respecting the sanity or mental condition of the plaintiff, mentioned or referred to in the eighth paragraph of the answer of the said defendants Green and Morton, as having been observed by them respectively, were respectively based, formed or founded. II.

Case agreed upon in a controversy submitted without action. Clemence B. Bloomfield claims to recover of Stephen A. Ketcham the sum of $1,000, and Stephen A. Ketcham resists the said claim. The following are the facts upon which the said controversy depends: Smith Bloomfield died on the lith day of May, 1865, being the owner in fee simple of the property in question which formed a part of a large tract of land owned by him at the time of his death.

Appeal by the defendant David J. Brown from a judgment in favor of the plaintiff, by the provisions of which the defendant Brown is required to pay any deficiency that may exist on the sale of certain mortgaged premises.

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

<p>Appeal from a.n order made at the Onondaga Special Term, denying the plaintiff’s motion to charge Thomas Dowdall with the costs of this action.</p>

<p>County court — an order of, granting lecrne to issue an execution upon a justice's judgment, is not appealable— Code of Civil Procedure, §§ 376, 382, sub. 7, relate to remedy by action only.</p> <p>No appeal lies to the General Term from an order of a County Court, granting leave to issue an execution upon a judgment recovered in a Justices’ Court, where a transcript thereof was filed and judgment thereon docketed in the clerk’s office of the county in 1866.</p> <p>The sections of the Code of Civil Procedure (§§ 376, 382, sub. 7) prescribing the times within which actions upon judgments must be brought, relate only to the remedy by action and do not affect the remedy by execution.!</p>

<p>Husband and wife — right of the former to the househwld sen'rices of the latt&r — when an agreement to pay her therefor is void as against his areditoi's.</p> <p>In 1869 the defendant Burr entered into an agreement with his wife by which he agreed to pay her five dollars a week for services to be rendered by her in; nursing and taking care of his mother, who was then aged, paralytic and helpless, and who resided in his house under an agreement by which he had undertaken to support her during her life in consideration of her having conveyed certain land to him. At the timé of the mother’s death there was due to the wife for such services the sum of $2,175, in payment of which the husband conveyed to her through the intervention of a third person certain real estate, including that received from his mother. At the time of making the conveyance Burr was, to his own knowledge, insolvent and his creditors were pressing him for payment. The agreement between Burr was fairly and honestly made, with little expectation that the life of the mother would be so greatly prolonged, and the sum agreed upon was no more than a fair and reasonable compensation for her services.</p> <p>This action was brought by a judgment creditor of thi? husband, after the return of an execution unsatisfied, to set aside the conveyance to the wife as fraudulent and void.</p> <p>Held, that the services so rendered by the wife belonged to her husband, jure mariti, and that, as against his creditors, they constituted no valid consideration for the conveyance, and that the same should be set aside.</p>

<p>Railroad corporation — it cannot lease its road to an individual — when a lessee is estopped from setting up the invalidity of his lease — by whom an action upon a covenant must be brought.</p> <p>A railroad corporation has no power, under the laws of this State, to lease to an individual its entire road, properties and franchises for the full unexpired term of its charter.</p> <p>It seems, however, that when such a lease has been in fact executed and the lessee has, with the consent of the lessor, entered into and had possession of the railroad, he is estopped from setting up the invalidity of the lease as a defense to a claim by the lessor for compensation for the use of the road.</p> <p>The plaintiff, upon the execution to him of such a lease by the Erie and Genesee Valley Railroad Company, agreed with it to pay or provide for the renewal of certain bonds issued by it, and secured by a mortgage executed to three trustees, and also to pay the interest coupons on the said bonds as they matured at a bank in New York city. Thereafter the plaintiff transferred the said lease to the Erie Railway Company, which entered into the possession of and ran the said road. In an action by the plaintiff against the said Erie Railway Company and its receiver to compel the payment of the coupons due and to become due on said bonds:</p> <p>Held, that as the lease to the plaintiff was void, and as his covenant to pay the bonds and the coupons to become due thereon was invalid, the defendant was not estopped as against him in this action from setting up the invalidity of the lease.</p> <p>That even if the lease was valid the plaintiff could not maintain the action without showing that he had paid the bonds or the coupons, or some of them. In the absence of such payments an action could only be maintained by the holders of the bonds or the trustees of the mortgage.</p>

<p>Evidence — in a civil action, a crwne set up as a defense need not be proved beyond all reasonable doubt.</p> <p>Where, in an action upon a policy of insurance against fire, the defense is that the fire was set by the fraudulent act or procurement of the insured, the defendant is not required to adduce evidence of the same quality and degree as would be required to sustain an indictment for arson; it is sufficient if the charge be supported by a preponderance of the evidence, even though such evidence be insufficient to exclude all reasonable doubt.</p>

<p>Taxation of costs by the clerh — his power is spent upon the first application — Order to show cause returnable in less than eight days at a Special Term — cannot be made by a county judge.</p> <p>An order having been made at a circuit putting off the trial of the action and requiring the defendant to pay costs, the parties, upon a notice served by the plaintiff, appeared before the clerk who refused to tax the costs claimed by the plaintiff on the ground that his affidavits were defective. Thereafter the plaintiff upon new affidavits and upon notice to the defendant again applied to the clerk for a taxation of his costs.</p> <p>Held, that the power of the clerk was exhausted on the first application, and that he had no power to entertain the second application without a special o'rder of the court.</p> <p>Under section 780 of the Code of Civil Procedure a county judge cannot make an order, requiring a party to show cause why an application should not be granted, which is returnable in less than eight days at a Special Term of the Supreme Court. An order shortening the term of service can only ,be made by the court before which the order is returnable or a judge thereof, ¡</p>

<p>Appeal from a judgment, entered upon a decision dismissing the complaint, rendered at the Chautauqua Circuit, on a trial by the court without a jury.</p>

<p>Ohapter 311 of 1861 — applies to roads dedicated by the owners, as well as those laid out — it is generad in its operation.</p> <p>Chapter 311 of 1861 providing that “ every public highway and private road already laid out and dedicated to the use of the public, that shall not have been opened and worked within six years from the time of its being so laid out * * * shall cease to be a road for any purpose whatever,” applies to highways or roads dedicated to the public use by the owner of the soil, as well as those laid out by proceedings in invitum.</p> <p>The act is general in its operation, and repeals or modifies such provisions of charters of municipal corporations theretofore gx-anted as ai'e inconsistent with it.</p>

<p>Appeal by the plaintiff from an order made at the Erie Special Term, upon an appeal from a taxation of costs in each of the above entitled actions. The plaintiff brought an action against the makers and indorser upon a promissory note, by a summons served personally upon all the defendants except Cohen.</p> <p>Haherstro, the indorser of the note in suit, put in an answer. Haas and Klein, the makers, omitted to put in an answer, and judgment wás entered against them September 11, 1878. After Haberstro had answered, an application was made by Haas and Klein for leave to answer, and it was granted upon terms which directed that the judgment stand as security until the final determination of the action. "When the original judgment against the makers was entered, an order was- entered allowing the action to proceed against the other defendant, and for that purpose the action was severed.</p> <p>In January, 1881, the answer of Haas and Klein was, by stipulation, withdrawn, and judgment entered ; and a like stipulation for judgment was given by Ilaberstro. It does not appear that the stipulations determined whether there should be one or two bills of costs taxed, “ the parties differing as to whether the plaintiff was entitled to ” two bills of costs.</p> <p>The clerk allowed two bills, and the Special Term, set aside the taxation, and allowed one bill of costs to be taxed and all disbursements.</p>

<p>Injunction — when the execution of a warrant issued on a final order in summary proceedings cannot he stayed hy it.</p> <p>“Under the Code of Civil Procedure an injunction staying the execution of a warrant issued upon a final order, made in summary proceedings for the recovery of the possession of real property, can only be granted in a case where one would be granted to stay the execution of the final judgment in an action of ejectment.</p> <p>To justify the granting of the injunction, it must be shown that the plaintiff is making an oppressive use of the judgment, or that he has ceased to own the premises, or that the defendant has, subsequently to its recovery, acquired sorpe interest or equity in the property which should be protected, or that the judgment was obtained by fraud or collusion.</p>

<p>Evidence — testimony of a deceased party— when it is admissible upon a new trial, though he isas not cross-examined upon the former one.</p> <p>This action was brought to recover as damages the value of certain spearmint oil loaned by the plaintiff’s intestate to the defendant, upon his promise to return a like quantity-and quality of oil. December 6, 1876, the intestate recovered a judgment, upon an inquest taken at the circuit, which was, on July.29,1878, opened upon the application of a committee appointed for the defendant, upon his being adjudged an habitual drunkard. October 8, 1878, the intestate died, and thereafter the action was revived and continued by the plaintiff. Upon the trial the plaintiff gave evidence tending to show that upon the inquest the intestate was sworn in the presence of the defendant and gave evidence tending to show that such a demand as was required by the contract had been made. A witness was asked by the plaintiff if, upon the inquest, the defendant had an opportunity to examine the intestate. Upon the defendant’s objection the answer was excluded. Thereafter the evidence as to the testimony given by the intestate upon the inquest was stricken out.</p> <p>Held, that this was error, as it did not appear that the failure of the defendant to cross-examine the plaintiff’s intestate was due to any fault or omission on the part of the latter.</p>

Tbe respondent was charged before tbe justice with violating tbe provisions of sections 21 and 22 of chapter 10 of tbe ordinances of tbe city of Buffalo, which prohibit tbe selling of farm and garden produce except at “tbe groceries, stores and stands during market hours.” Tbe ordinances imposed a penalty of ten dollars for violation of them. Tbe respondent, upon being charged with such violation before tbe justice, denied it.

<p>Appeal from an order denying the plaintiffs’ motion for leave to enter a judgment for the amount admitted to be due by the defendant’s answer.</p>

The plaintiffs brought this action for the recovery of money only/ for use and occupation, in a Justices’ Court, and recovered. The defendant appealed to the County Court, where the judgment was modified so as to stand for eighty-seven dollars damages. The defendant then appealed to this court and the judgment was affirmed, the decision being silent as to costs. The plaintiff taxed them and the Special Term, on motion, struck them out.

By the case as settled, on which the motion was made, it appears that “ the court thereupon granted a nonsuit and decided that the plaintiff be nonsuited, to which decision of the court granting such nonsuit plaintiff’s counsel duly excepted. The judge presiding at the trial directed an order to be entered that the exceptions so taken be heard in the first instance at the General Term, and that judgment be suspended in the meantime.

<p>County treasurer — when an increase of his duties does not discharge his sureties — his boohs and reports are admissible as against his sureties — interest — when it is allowed upon an unascertained balance.</p> <p>Upon the trial of this action, brought against the sureties upon the official bond of a county treasurer, it appeared that aftor its execution his duties and responsibilities had been greatly increased by acts of the legislature and resolutions of the board of supervisors, he having been required thereby to borrow large sums of money, and issue bonds therefor, to pay bounties to recruits. Some of the defalcations complained of occurred in the bounty fund, and the residue in the other funds intrusted to his care.</p> <p>Held, that the sureties were not liaule for the wrongful acts or omissions of the treasurer in so far as they affected the bounty fund, but that they were liable for his failure to faithfully care for and pay over the other funds intrusted to his care.</p> <p>The books which the county treasurer is required by law to keep, and his accounts and official reports to the board of supervisors, are admissible as against him and his sureties to prove what funds have come into his hands.</p> <p>When a county treasurer fails to pay over money in his hands interest should be charged upon the amount found to be due, from the time that his successor qualified and entered upon the discharge of the duties of his office.</p>

<p>Set-off — when allowed in case of insolvency.</p> <p>The plaintiff, as the assignee of an insolvent firm, sought to recover from the defendants moneys held in trust for one of the partners, to the possession of which he had become entitled after the date of the assignment. The indi vidual debts of the partners had been paid out of their private property. At the time of the assignment the firm was indebted to the defendants for trust moneys deposited with it.</p> <p>Held, that the defendants .were entitled to set-off the amount due from the firm, against the amount due to the said partner.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.</p> <p>On the 15th day of July, 1876, the defendant Elias W. Beach made a contract in writing with the plaintiff, by which, for the consideration of $2,400, he agreed to convey to the plaintiff a tract of land in Allegany county, in this State, containing about eighty-six acres. By the same paper the plaintiff agreed to pay such consideration as follows: By the assignment to Elias "W. Beach of a mortgage on property in Erie county, $500; by the conveyance of a house and lot on Eolsom street, in the city of Buffalo, $1,400; by a mortgage on the Allegany county land, collateral to the plaintiff’s bond, $500.</p> <p>On the 22d day of July, 1876, the contract was performed by the respective parties, the defendant Susannah Beach, who was the sole owner of the lands, executing a deed to the plaintiff of the Allegany county lands, and the plaintiff executing to her a deed of the Eolsom street lot, and a bond for the payment of $500, with a mortgage collateral thereto on the Allegany county lands. At the same time, and in further performance of the contract, the plaintiff executed to the defendant Elias W. Beach an assignment of a bond and mortgage for $600 executed to him by one John Huber.</p> <p>It was' alleged in the complaint and claimed on the trial that, as an inducement to the plaintiff to enter into the contract, false representations as to the situation, condition and value of the Allegany county lands were made to him by the defendant Elias 'W. Beach.</p> <p>On the trial of the action, the plaintiff offered to show that the value of twenty acres of land, which it was claimed that the defendant Elias W. Beach had pointed out to the plaintiff as a part of the lands which he proposed to sell, but which in fact was not embraced in the deed, was of the value of. twenty dollars per acre.</p> <p>On the trial, the defendants offered to show what was the value of the Eolsom street house and lot at the time of the contract and the conveyance of the same. The evidence, upon the plaintiff’s objection, was excluded.</p> <p>It was proved upon said trial that the value of the Allegany county lands so conveyed to the plaintiff was at least $300, and that the same had not been reconveyed by the plaintiff, and that he had never, offered to reconvey the same.</p>

Appeal by Horace H. Brockway from an order of the surrogate of the county of New York, directing his appearanee and examination for the discovery of property.

<p>Policy upon the life of a husband for the benefit of his wife — the creditors of the latter cannot attach an assignment of it, made by her in trust for her children.</p> <p>In March, 1878, Mrs. Tetens assigned to the plaintiff in trust for all the children of herself and hushand, two policies of insurance issued upon the life of her husband payable to her in case she survived, and to his children in case she did not survive him. All the premiums upon the policies had been paid by the husband. Upon the husband’s death, subsequently, in March, 1879, the amount due upon the policies was paid into court. In May, 1879, an execution was issued upon a judgment for a deficiency, entered against Mrs. Tetens after the date of the assignment, in an action brought to foreclose a bond and mortgage given by her prior thereto, and thereafter a receiver of her property was duly appointed.</p> <p>In an action to determine the rights of the parties to the insurance moneys:</p> <p>Held, that Mrs. Tetens’ creditors could not claim that the assignment of the policies was void because of Mrs. Tetens inability to assign them; that the right to avoid the assignment, if such right existed, was personal to her.</p> <p>That the creditors had no such legal or equitable right to Mrs. Tetens’ interest in the policies as to render her assignment to the trustee fraudulent as to them.</p>

This action was brought by the plaintiffs, who are copartners under the firm name and style of J. Rosenthal & Co., against the defendants, who, at the time of the commencement of this action, were the surviving partners of the firm of J. M. & J. N. Plumb & Go., upon two causes of action set forth in the complaint; the first upon a promissory note for $2,975.80 made by the said firm of J. M. & J. N. Plumb & Go., and the second upon an account for goods sold and delivered by…

<p>Appeal from a decree of the surrogate of tbe county of New York, settling the accounts of tbe appellant as collector of tbe state of James Mairs, deceased.</p>

The action was brought to foreclose a mortgage, and for a judgment in personam against the defendants for any deficiency that might arise upon a sale.

<p>Appeal from a judgment in favor of the defendant, entered upon a dismissal of the complaint ordered at the circuit.</p>

The complaint alleged: 1. That on or about the 6th day of April, 1878, one Jeremiah Williams falsely pretending and alleging that the plaintiff had died intestate applied to the surrogate of the county of New York for letters of administration on the estate of the plaintiff. 2.

This action, the venue of which is laid in the city and county of New York, was commenced by the plaintiff against the Eockaway Beach Improvement Company (limited) for the appointment of a receiver of the corporation, on the ground of its insolvency or immediate danger of insolvency. On August 2, 1880, John A. Eice was appointed receiver and took possession of the property.

<p>Foreign judgment — what credit is to be given to it — all the prerequisites to the courts jurisdiction must appear by proof or recitals.</p> <p>In this action, brought upon a judgment recovered against the defendant by a Pennsylvania corporation, in an action brought in a court of that State, the plaintiff claimed title to the judgment by virtue of an assignment from one who had been appointed a sequestrator of the property of the corporation by a court of general jurisdiction in that State.</p> <p>Under the statute of Pennsylvania no power exists in the court to appoint a sequestrator of corporate property, until an execution has been issued upon the judgment-against the corporation and returned unsatisfied in whole or in part.</p> <p>The recovery of the judgment against the corporation was proved, but the record of the appointment of the sequestrator contained no recitals showing the issue of any execution upon the judgment, nor was its issue proved upon the trial.</p> <p>Held, that in the absence of such recitals and proof no power was shown in the court to appoint the sequestrator, and that the plaintiff, having failed to show title to the judgment in his assignor, could not recover.</p>

<p>Evidence — opinion of witness as to the value of property — when it is admissible.</p> <p>In an action to recover damages for a failure by tbe defendant to perform a contract for tbe sale of real estate, where tbe value of tbe real estate at tbe time of tbe breach is to be determined, a witness, who was at that time engaged in a business which required his attention to be directed to tbe marketable value of property of tbe kind in question, and who was acquainted with that and other property of tbe same character in its vicinity, and knew at what prices such property was held by the persons owning and controlling it, is competent to express an opinion as to the value of the property in question.</p>

This is an appeal from an ordei denying a motion made by and on behalf of the defendant Dart to vacate and modify an attachment issued against property held by a firm in which he was a partner.

The action was brought to restrain the defendants from using the word “ Grocer,” either separately or in conjunction with any other word, as a name for a trade newspaper published by them. The plaintiffs are a corporation and for many years prior to the publication of the first number of the defendant’s paper published a paper in the city of New York called the American Grocer, which was known as and commonly called the Grocer.

<p>Appeal from an order made at circuit, dismissing tbe complaint, and directing the exceptions to be heard in the first instance at the General Term.</p>

Appeal by the administratrix and by Conrad Stein, a general creditor of the intestate, from an order confinning the report of a referee and directing a distribution of the surplus moneys arising upon a sale in foreclosure, and from an order denying the application of Stein to become a party to the proceeding, made after the entry of the order confirming the report of the referee, and from an order denying a motion to resettle one of such orders.

<p>Bond of foreign executor — when an action will tie against Ms sureties, although the statutory prerequisites ham not been complied with.</p> <p>The defendants became sureties upon a bond given in the form prescribed by-statute (3 R. S. [6th ed.], 73, § 7) by one Edward Fox, a resident of the State of Pennsylvania, upon the issue to him of letters testamentary upon the estate of one Richard Fox, who had died in the city of New York, by the surrogate of that county. After his appointment the executor received and converted to his own use certain property of the estate, and thereafter died in the State of Pennsylvania wholly insolvent. Letters of administration with the will annexed having been thereafter issued by the surrogate of New York to the plaintiff, she, as such administratrix and as a legatee, brought this action against the sureties to recover the amount misappropriated by their principal.</p> <p>Held, that although the statutory prerequisites to an action upon the bond could not in this case be complied with, yet as the statute contained no provision, either in terms or by fair implication, restricting the rights of the parties entitled to indemnity to the proceedings prescribed by it, the plaintiff was entitled to maintain this action in equity, as otherwise she would be remediless.</p>

<p>Conveyance of land subject to a mortgage — vests the'legal title in the grantee — his title is not altered by his purchasing the land at a sale on the foreclosure of the mortgage — he does not thereby relieve the property from easements to which it was ■ subjected by the provision of a deed executed subsequently to the mortgage.</p> <p>March 3, 1859, the plaintiff, which owned certain premises in the city of New York, sold in pursuance of a prior agreement a portion thereof to the defendant John Mack, subject to a mortgage of $11,000, which the grantee assumed and agreed to pay, reserving an easement of light for certain of the windows in a building belonging to the plaintiff and situated on the adjoining lot. In May, 1863, Mack conveyed the premises to C., who on the same, day conveyed them to the defendant Rhoda, the wife of John Mack; both the conveyances being made subject to the said mortgage. Rhoda, after she became the owner, procured the mortgage to be foreclosed, and having purchased the premises at the sale claimed to have thereby acquired a title to them free from the servitude imposed by the plaintiff’s conveyance.</p> <p>Held, that the deed to the defendant Rhoda vested the legal title to the property in her, the mortgage being merely a lien or security for the payment of the mortgage debt.</p> <p>That this legal title was neither changed nor divested by the sale in the action for the foreclosure of the mortgage. '</p> <p>That the deed executed to her upon such sale operated simply as a release of the mortgage, and did not relieve the property from the burdens and restrictions imposed upon it by the plaintiff’s conveyance.</p>

Writ of error to the New York Court of Oyer and Terminer to review the trial and conviction of the plaintiff in error for a felony in violating the election laws.

Mount, executor of Charles B. Spicer, one of the defendants in the above entitled action, to set aside the service of the summons and complaint and to set aside and vacate the judgment entered by default. ' This action was brought upon a prior judgment, without the leave of the court being first obtained.

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

This action was brought upon an insurance policy issued upon the plaintiff’s building, which was used for drying hair.

Writ of error to the Court of Sessions of Schenectady county to review the conviction and sentence of the plaintiff in error of receiving stolen goods, knowing them to have been stolen.

The defendant “Remington’s Agricultural Works” is a manufacturing corporation organized under the laws of the State of New York. The contract, for the alleged non-performance of which this action was brought, was not executed by the said defendant “ Remington’s Agricultural Works,” but was executed by the “ Remington Agricultural Company,” which then was and is a general copartnership composed of Philo Remington, Samuel Remington and Eliphalet Remington.

Appeals from orders made by tbe surrogate of Ulster county, denying petitions filed by tbe plaintiffs, by wbicb they sought to have the defendant compelled to appear and account as surviving executor of Solomon Terpenning, and to procure payment of the legacies due to tbe petitioners.

<p>Merger — when a mortgage purchased by an owner of land to protect his title is not thereby extinguished — dower of wife is cut off by a purchase-money mortgage.</p> <p>In 1848 the plaintiff’s then husband purchased certain premises for $6,000, $1,000 of which was paid in cash, $1,000 in promissory notes and $4,000 by a purchase-money mortgage, executed by the husband alone. In January, 1840, the plaintiff, who was then an infant, united with her husband in con veying the property to one Van Dusen, subject to the $4,000 mortgage, which mortgage was, in April, 1850, purchased by and assigned to the said Van Dusen, he taking an assignment instead of a satisfaction of the mortgage, by advice of his counsel, in order to protect his title. Thereafter Van Dusen conveyed the premises by a full covenant deed to the defendants’ grantors. In 1874, the plaintiff’s husband died, and thereafter this action was brought by her to recover her dower in the said premises.</p> <p>The Special Term decided that the $4,000 mortgage was merged when purchased and assigned to Van Dusen, and that the plaintiff, being an infant when she executed the conveyance, was entitled to recover her dower in the whole premises.</p> <p>Held, that this was error.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury, and from orders made at a Special Term denying a motion for a new trial, made upon the minutes of the judge before whom certain issues had been tried; denying a new trial, on the ground of surprise, and denying a motion to amend an order settling issues in the action.</p>

The complaint set forth two causes of action. The first cause foi the seduction of the plaintiff’s daughter and the consequent injury; which seduction occurred about January 24, 1879. The second for debauching the daughter and servant of plaintiff, on account of which she became pregnant and the plaintiff lost her services. This is alleged to have occurred February 12, 1880. The jury found a verdict for the plaintiff for $400.

E. Darrow & Co., who were lumber dealers, composed of Frank E. Darrow and his mother, Mary J. Darrow, and doing business at Saratoga Springs, and directing the proceeds thereof, collected by Harvey, to be paid to the plaintiff on the ground that the said assignments and chattel mortgages were fraudulent as to;creditors and the plaintiff as such assignee.

John A. Eice from his position as receiver and appointing James W. Hnsted a receiver in his place. Whether the defendant, the Bockaway Beach Improvement Company (limited), is a corporation or a parnership is not distinctly, shown. In July or August, 1880, the plaintiff, who is alleged to-be the largest stockholder of the defendant, commenced this action.

<p>Oommissionec' of highways — right of to sue his predecessor to recover moneys held by the latter.</p> <p>A commissioner of highways can maintain an action against his predecessor in office to recover moneys received by the latter as commissioner, and remaining unexpended in his hands on the expiration of his official term. (Learned, P. J., dissenting.)</p>

<p>Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the defendant directed at the circuit.</p>

The action was brought in a Justices’ Court to replevy a team of horses sold by the plaintiff to one Hanna on condition that the title thereto should remain in the vendor until the purchase-price was fully paid. The defendant claimed to have purchased the team from Hanna in good faith and without notice of the plaintiff’s title.

Appeal by Peters, as receiver, etc., the plaintiff in the second above entitled action, from an order made in said action at a Special Term directing that unless the plaintiff would consent to. accept a sum, fixed by the order, in full satisfaction of the judgment, which was for a larger sum, that then the judgment roll should be taken from the files and the decision be amended and modified, and that a new and reduced judgment should be entered up thereon.

<p>Appeal from a decree of the surrogate of Ulster county admitting a will to probate.</p>

This action was brought by the plaintiff to recover damages for a false return made by the defendant, a justice of the peace of the town of Edmeston, in Otsego county, on an appeal from a judgment for forty-nine dollars and ninety-five cents damages and costs rendered by him in a civil action, wherein Charles H. Pope was plaintiff, and this plaintiff, Mary Jane Brooks, was defendant.

<p>Appeal from orders made at a Special Term denying motions for leave to serve a supplemental answer.</p>

<p>Appeal from a judgment, entered upon an order sustaining a demurrer to the complaint.</p>

<p>Evidence — action for slander — right of the plaintiff to prow a pritr utterance of the same slander for which the action is brought.</p> <p>Upon the trial of an action for slander, the plaintiff may, to show malice, prove the utterance of the same slanderous words, for which the action is brought, by the defendant at a time prior to that set forth in the complaint, although an action has heretofore been brought for the utterance of the words so spoken, which has been discontinued upon a settlement made by the defendant.</p>

This action was brought to restrain the collection of a tax assessed by the board of assessors of the city of Brooklyn upon the capital stock and personal property of the plaintiff in August, 1880.

<p>Appeal from a judgment, entered upon the trial of this action at a Special Term, ordering the cancellation on the record of certain certificates of satisfaction of two several mortgages of real estate, executed by the defendants, Orennan and wife, to the plaintiff, and adjudging the said mortgages to be good and valid liens to secure the sums named therein with interest, and ordering the defendants to deliver the said mortgages, and the bonds secured thereby, to the plaintiff or his attorney.</p>

Appear from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury. The action was brought to foreclose a mortgage given by one Hannah Sparks in September, 1861, to one Wheaton upon the purchase from him of certain land in Westchester county. Subsequently the mortgage was, by various mesne conveyances, transferred to the plaintiff, the assignment to him being dated June 24, 1871, but not recorded until May 13, 1879.

The action was brought to procure a construction of the will of John Walsh, deceased. John Walsh died in the city of New York on the 29th day of October, 1836. Eliza Walsh, his widow, his son James Walsh and nephews and nieces survived him. He left a will and codicil which were admitted to probate by the surrogate of New York in November, 1836.

Clark Brooks to deliver to the sheriff certain property of the defendant, against whom a warrant of attachment had been issued in this action.

On the 27th of April, 1881, the appellant, a married daughter of deceased, filed a petition praying that letters of administration be granted jointly to her and respondent, an unmarried daughter of deceased; and a citation was issued returnable May 11, 1881. On the 7th of May, 1881, a petition was filed by the respondent, praying that letters of administration be granted to her.

The action was brought by the plaintiff, as receiver of the Loaners’ Bank of the city of New York, to recover the amount unpaid upon certain, shares of its capital stock owned by the defendant. On June 6, 1870, one Edgar F. Brown subscribed for all the stock of the bank. In December of that year he sold and assigned to the defendant fifty shares of the stock, on account of a larger indebtedness then due from Brown to him.

Justice Pratt vacating a judgment, entered by the plaintiff on March 2J, 1881. The action was brought to recover fifty-nine dollars and thirty-three cents claimed to be due to the plaintiff on a policy of insurance issued by the defendant on the life of one Maria Duffy. The answer was served and the cause placed at issue March 16, 1881.

The plaintiff is a plankroad company organized under the general law.

<p>Appeal from an order made by a justice of the Supreme Court, dismissing the petition upon which a writ of habeas corpus to inquire into the grounds of the imprisonment of the relator had been granted, and quashing the writ.</p> <p>In March, 1881, a judgment was entered in the City Court of Brooklyn in favor of one Caroline Lanfahrt against Peter and Eva Fries, as trustees, for $688.67, which contained a clause by which the defendants, as trustees, were “ ordered, adjudged, decreed and commanded to pay to the above-named plaintiff, Caroline Lanfahrt, or her attorney, forthwith, on demand, the said sum of $688.67.” March 9, 1881, a payment of $106.12 was made. June 2, 1881, upon the return of an order to show cause, an order was made by the said City Court of Brooklyn, adjudging that the defendants had “ committed the offense of willfully disobeying the judgment, order or mandate of the court,” in refusing to pay the said sum on demand, imposing upon them a fine of $610.55, and committing them to the county jail until the said sum, together with the costs and expenses of the proceeding, should be paid.</p> <p>The writ was dismissed upon the ground that the only remedy of the relator was by an appeal from, or a motion to correct the judgment of the City Court.</p>

The action was brought by the plaintiffs’ testatrix, who died soon after the trial, to recover the arrears of interest due upon a $5,000 fund, bequeated to her by her husband, the defendants’ testator.

<p>Submission of a controversy upon an agreed, statement of facts made in pursuance of section 1279, etc., of the Code of Civil Procedure.</p> <p>The question submitted was the following: Is the clerk of the City Court of Brooklyn under existing laws entitled to have and retain in his own right the fees received by him in his official capacity since the 1st day of September, 1880, when section 3284 of the new Code went into effect, in addition to his salary, or should he pay the same into the treasury of the county of Kings ?</p>

<p>Conveyance to a prn'ty other than the one paying the consideration — effect of a covenant by the grantee to convey to the appointee of the party paying for the land— rights of the hews-at-law of the party paying for the land to compel its p&rformanoe.</p> <p>In 1861 certain land was conveyed by the owner thereof, to Kingsbury, Gilbert and Fessenden, as joint tenants, at the request of said Kingsbury and in execution of a contract theretofore made by the owner with said Kingsbury to convey the same to him. All the consideration was furnished by Kingsbury, the other two furnishing no portion thereof. It did not appear that Kingsbury had at that time any creditors. At the same time Gilbert and Fessenden executed an agreement whereby they covenanted and agreed to grant and convey the land according to Kingsbury’s appointment. Kingsbury thereafter died intestate without having made any valid disposition of the said land. Thereafter Fessenden died, and finally Gilbert, who was at the time of his death in possession of the land, and the same was thereafter possessed, occupied and used by his heirs-at-law.</p> <p>Held, that the covenant of Gilbert and Fessenden gave to Kingsbury the fee of the land and a right to have it conveyed to his appointee, and that as no valid appointment was made by him during his life, and as he died intestate, his interest therein descended to his heirs-at-law.</p> <p>That if the fee did not vest in him by virtue of the deed and his absolute power of disposition over the shares of his co-tenants, he acquired an equitable right to have them compelled to convey to his appointee, which passed to his lieirs upon his death and could be enforced by them.</p>

Upon his trial the relator sought to give testimony himself, and to have the testimony of certain witnesses produced by him taken, in order to establish the truth of the facts set up as a defense. The justice refused to receive the evidence.

<p>Action against a receiver — when it cannot be maintained after his discha/rge— 1874, chap. 430 —power of the court to substitute one defendant for another sole defendant.</p> <p>The plaintiff brought this action in March, 1880, against the defendant, as receiver of the Erie Railway Company, to recover for services rendered to him from December 1, 1875, to January 81, 1877. More than sixty days prior to the commencement of this action all the property and franchises of the old company had been sold, and the purchasers had, pursuant to chapter 430 of 1874, formed a new corporation and the defendant had been discharged from his receivership. By these facts the plaintiff was, ruder section 3 of chapter 440 of 1876 prevented from maintaining the action against the receiver, but the new company was thereby subjected to the same liability as had formerly existed against him.</p> <p>Held, that it was proper to allow the plaintiff to amend the summons and complaint by striking out tbe name of the defendant and substituting that of the new corporation, although issues had been joined in the action and sent to a referee for trial, but that as the reference had been ordered by consent that order should be vacated.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.</p> <p>The action was brought to recover $500 and interest upon a certificate of indebtedness of the town of White Plains, alleged to have been issued and negotiated by the supervisor trader the provisions of section 2 of chapter 193 of the Laws of 18YY.</p> <p>That portion of section 2 which is material to the consideration of this case, reads as follows, viz.:</p> <p>Section 2. Whenever the supervisor shall receive from the collector or receiver of taxes an account of unpaid taxes as required in the next preceding section, he shall, on or before the first day of •May next thereafter, under the direction and authority of a board composed of such supervisor, the justices of the peace and town clerk of the town, or a majority of them, borrow upon the credit of the town a sum not exceeding the amount of unpaid taxes so returned. For the sum so borrowed he shall issue in the name and under the seal of the town the bonds or certificates of indebtedness thereof, signed by such supervisor and countersigned by the town clerk, the same to bear interest at not more than the rate of seven per cent per annum, to be in amounts not more than one thousand nor less than one hundred dollars each, to be payable at such time as shall be determined by said board, not longer than one year from the date thereof, and to be disposed of by such supervisor for not less than the par value thereof. A record of such bonds and of the amount and time of payment thereof shall be kept by the town clerk. The supervisor shall pay to the county treasurer the amount of unpaid taxes included in such return, and such taxes with the interest, per centage and expenses shall be collected as hereinafter provided.</p>

<p>Bond of a constable — what acts constitute a breach of it — 2 B. B., 346, sec. 21 — 1872, chap. 788.</p> <p>A bond given by a constable in tbe form required by section 21 of 2 Revised Statutes, 346, before it was amended by chapter 788 of 1872, and conditioned for the payment of all such sums of money as the constable might become liable to pay on account of any execution which should be delivered to him for collection, covers a wrongful levy made by him under an execution against the property of a person other than the judgment debtor, and the sureties upon the bond are liable for the damages thereby occasioned.</p>

<p>Appeal from an order made at a Special Term changing the place of trial of this action from the county of Kings to the county of New York.</p>

The action was brought by the plaintiff against the defendants, the aldermen of Long Island City, to recover damages for their failure to award to it the contract for lighting the said city; the plaintiff claiming to have been the lowest bidder, and that under the charter it was the duty of the defendants to award the contract to it.

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

The action was brought upon the guaranty of the defendant, of the payment of the following note: “ $800. Eor value received I promise to pay Shepard Bartholomew, or order, the sum of eight hundred dollars, with interest, at seven per cent per annum, from date, which interest is to be paid half yearly.

<p> Liability of a husband for the support of an insane wife. </p> <p>Neither a husband nor his executors are liable for the expenses incurred by a county in supporting his wife, who, after leaving his house, was found to be insane and was subsequently delivered over to the county authorities in pursuance of an order made by the court upon the discharge of a committee of her person and estate, the husband having had no notice of such proceedings.</p>

<p>Unincorporated association — its members cannot le sued until an action has leen brought against its president or treasurer ■— Code of Ciml Procedure, sec. 1919.</p> <p>When an unincorporated association, consisting of more than seven members, has been formed, and has adopted by-laws and elected a treasurer, an action cannot be maintained against the individual members thereof upon a debt due from the association, unless an action has first been brought against its president or treasurer, as prescribed by section 1919 of the Code of Civil Procedure.</p> <p>Park v. Spaulding (10 Hun, 128) distinguished and-criticised.</p>

<p>Appeal from a judgment entered at a Special Term, overruling a demurrer interposed by the plaintiff to the answer of the defendant.</p>

<p>Certiorari to review the assessment of the relator for personal property, upon which a tax for municipal purposes was to be levied.</p>

<p>■Lessor — liability of, for injuries sustained by one coming upon the premises at the request of the lessee, by reason of their being unsuited to the purposes for which they were used by the lessee.</p> <p>One Kelly leased from the defendant a building owned by it, for the purpose of having therein a pedestrian contest, to which the public were to be admitted on the payment of an entrance fee. All changes in the interior which Kelly might desire to make were first to be submitted to and approved by the defendant. In the building was a temporary gallery which had been erected by a society when holding .a masquerade ball therein. It was divided into boxes capable of holding from four to six persons which were supplied with tables and chairs; and it was sufficiently strong for that purpose. Kelly removed the tables and chairs and allowed the boxes to be filled by a boisterous and excited crowd, and while the crowd was moving about and stamping the gallery gave way and fell upon and injured the plaintiff.</p> <p>In an action brought by him against the lessor to recover damages for the injuries so sustained, held, that as the injuries resulted not from any defects existing at the time of the demise, but from the manner in which the premises were used by the lessee, the defendant was not liable.</p>

Motion to quash a writ of error to the Court of Sessions of Suffolk county, to review the proceedings had upon the trial of the plaintiff in error upon an indictment charging him with burglary in the first degree and petit larceny.