Volume 33 — Barbour's New York Supreme Court Reports

<p>A piece of land was conveyed by W. and wife to Y., in March, 1847, by an absolute deed. But the purchase was made, and the deed taken, under an understanding and agreement between Y. and the parents of the plaintiff, S. that it should be taken and held for the benefit of the plaintiff, who was then an infant and knew nothing of the transaction. The grantors, wishing to invest $1000 for her, they negotiated the purchase of the property in question, and procured Y. to take the title, he agreeing to hold it for her benefit, and at a future day to convey the property to her. Y. paid no part of the consideration, nor did he ever assert any actual ownership of the land, or expect or intend to claim any title in hostility to the plaintiff, or to the trust or agreement under which he took the title. But of this agreement no written evidence existed, nor any written declaration of a trust for the plaintiff. The possession of the property, and the enjoyment of its profits, were had and taken by the plaintiff’s parents, in accordance with the actual ownership. On the 6th of March, 1849, 8. recovered a judgment against Y. which was duly docketed. In May, 1863, Y. and his wife conveyed the land, in pursuance of the trust, and the intention of all the parties, to the plaintiff. On the 20th of June, in the same year, Y. being examined in proceedings supplementary to the execution under the judgment of 8. testified to the above facts. After this, on the 23d of August, 1863, all the right and title of Y. in and to the premises was sold, under an execution issued on the S. judgment. A. became the purchaser, and subsequently assigned the certificate which he received from the sheriff, on that sale, to the defendant, and the sheriff made his deed of the premises to the latter. A. paid S. for the judgment by giving him credit in an account which he had against S. For the assignment and subsequent deed to the defendant, no consideration was paid by her.</p> <p>Held, 1. That upon the payment of the money for the plaintiff -while she was an infant, and without her knowledge, the consequent conveyance to Y. and his agreement to hold for her and convey to her, Y. became a trustee for the plaintiff.</p> <p>2. That this trust being a creation of law, not resting on the paroi agreement, hut on all the facts and the payment of the money under the agreement, was not within the statute of frauds.</p> <p>3. That it was not a resulting trust, such as is forbidden by section 51 of the statute of uses and trusts.</p> <p>4. That even if the trust could not have been enforced had Y. denied its existence, yet he having not only confessed hut executed it, the title, thus made and supported by such equities, was paramount to the general liens of Y.’s judgment creditors, although antecedent in time to the conveyance made in performance of the trust.</p> <p>5. That the trust was not one resulting from the payment of purchase money only, and measured by that payment, hut it affected the entire estate.</p> <p>6. That it was a trust to take the title to the land, to hold it for the plaintiff and finally convey it to her; and that the claims of Y.’s creditors could not</p> <p>. attach at all upon land which had been acquired and held under such a trust, after it should he properly established or executed. Lott, Jr dissented.</p> <p>When a trustee has admitted and acted upon the trust, and has conveyed the property to its true and equitable owner, it cannot be tolerated that the creditors of the trustee should question the title, or attempt to assert their lien upon what was really never his. Per Emott, J.</p> <p>A person claiming to be the real owner of premises, by virtue of a conveyance to him in fee, may ask the interposition of a court of equity to restrain the prosecution of an action of ejectment- brought by one claiming under a sheriff’s deed which vests an apparently perfect title in the grantee; and to have such sheriff’s deed delivered up and canceled, as being a cloud upon the plaintiff’s title.</p>

<p>APPEAL by the defendant from a judgment recovered in the city court of Brooklyn.</p>

<p>Creditob’s Araron.—Pabties.—Cause of Actios.</p> <p>Where the plaintiffs who are judgment-creditors, seek to obtain the debtor’s property from persons to whom it was fraudulently passed away, they may unite such persons in one action, although such persons received the property in separate and distinct parcels.</p> <p>In such case the cause of action is the same, viz., the fraudulent disposition of the debtor’s property to the several defendants, although in several parcels. Hence it is an entire cause of action, affecting all the defendants, within section 167 of the Code of Procedure.</p> <p>Form of a complaint in a creditor’s action by numerous plaintiffs to set aside several distinct judgments, suffered in favor of, and transfers made to, numerous defendants, held sufficient on demurrer.</p>

BY the will of one Richard L. Ludlam, who died on the 3d day of April, 1838, leaving him surviving a widow and two infant children, Maximo M. and Anna R. Ludlam, aE the residue of his personal, and aE his real estate (by the wiE directed to be converted into personal estate) was to be equally divided in equal parts, share and share aEke, between aE his children and the lawful heirs of such as might have deceased, when his youngest surviving child should have arrived at the…

H. Van Cott, Esq., justice of the district court of the city of New York, for the fourth judicial district, to remove proceedings had before him for the removal of the defendants from premises, under the statute relative to summary proceedings to recover the possession of land. On February 8th, 1853, Mary Griffin, as executrix of the will of Francis Griffin, deceased, and Benjamin Stephens, as executor of the will of JohnL.

THIS is an appeal from an order or decree of the surrogate of Oneida county, admitting a paper writing, purporting to he the last will and testament of J ohn Goodhue, late of Augusta, in said county, to prohate. The facts in the case, as they appear from the surrogate’s return, are as follows : The testator, J ohn Goodhue, died on the 24th day of December, 1856. His occupation had been that of a farmer.

This complaint stated, that in March, 1860, James McBride and others recovered judgment in this court against the defendants for the sum of $947.89, which judgment was duly assigned to the plaintiff and remained unpaid; and demanded judgment for the sum, with interest and costs.

rjpHB plaintiffs claimed to recover the amount of two notes, X made by Dillaye and indorsed to Leland & Co. who indorsed the same to the plaintiffs. The defense was usury.

The action was upon a promissory note made by the defendants on the 18th of June, 1857, for fl870, payable in four months, to the order of M. L. Samuel & Co., and indorsed by the latter. The plaintiffs claimed to be the lawful owners and holders of the note.

<p>The test by Which to determine whether the denials or statements in an an-. swer are material or relevant, is to inquire whether they tend to make or constitute a defense. If they do so tend, they cannot be considered irrelevant.</p> <p>In an action to recover money alleged in the complaint to have been deposited by the plaintiffs, in March, 1854, with the defendants, doing business as partners under the firm name of A. & Co., at P. in California, and for which a certificate of deposit was given, the complaint alleged that during the ' whole of that month “ the. defendants were copartners, and as such were engaged and doing business in P., in the state of California and elsewhere, as bankers and common carriers, under the name, style and firm of A, & Co." The answer denied this statement, substantially in the words of the slatemént. Held that the statement in the complaint was material, and that the denial thereof, in the answer, could not be considered irrelevant. Ingeaham, J. dissented.</p> <p>Tlie second and third paragraphs of the same answer alleged that the defendants had never been within the state of California, and had never personally transacted any business therein, and had no personal knowledge of what therein occurred; and that they had no personal knowledge, and no information sufficient to form a belief, and therefore they denied that at the time, &c. or at any other time, the plaintiffs made the deposit of money in the complaint mentioned. Held that these statements were relevant and proper for the purpose of rebutting, the. presumption that the money was deposited with the defendants in person and that they had personal knowledge thereof, and of denying the allegation of the complaint; and that such statements should, therefore, not have been struck out of the answer as irrelevant.</p> <p>In the 7th paragraph of the same answer, the defendants alleged, on information and belief, that “ if any such certificate of deposit as in the complaint is alleged ever was issued, the same has been paid.” Held that by this statement the defendants intended to set Up the defense of payment of the alleged deposit; that such defense, if properly pleaded and proved, would be' a good defense to the action; and that, therefore, the statement of that defense, even though it were defective in form, could not be considered irrelevant.</p> <p>Hypothetical pleading condemned. Per Hogeboom, J.</p> <p>Whether a plaintiff can be permitted to say that a denial, in proper form, of . any statement in his complaint is irrelevant, although such statement may not be necessary to constitute a cause of action 7 Dubitatur, per Bonney, J.</p>

THE complaint in this action states that in 1851 and 1852 John C. Gulick and Eichard M. Gulick resided in. California, and that John became indebted to Eichard in the sum of $2300. That in April, 1852, Eichard died, in California, intestate, and John took possession of his personal property, and converted the same into money, to the amount of $2000.

THIS action was brought by the plaintiff for the purpose of having certain agreements, made between him and the defendant, The American Benefit Building Association, and several mortgages executed by him to the association in pursuance of such agreements, adjudged to be void as being usurious, and to be delivered up and canceled; and for a judgment directing the money which the plaintiff has paid ujDon such agreements and mortgages, to be repaid to him with interest.

ERTIORARI to review the action and decision of the commissioners of taxes and assessments for the city and county of Hew York, by which they denied an application made to them by the relator for the remission of a tax assessed upon his personal estate, for the year 1860.

<p>APPEAL from an order overruling a demurrer to the complaint. See same case at special term, ante, vol. 32, p. 601, where the substance of the pleadings is given.</p>

THE plaintiffs in this action recovered three judgments against the defendant, Poultney, as follows ; July 18th, 1859, for $1309.12; August 15th, 1859, for $231.89 ; August 20th, 1859, for $416.05; and after the return of executions thereon unsatisfied, commenced this action to set aside an assignment from Poultney to the defendant Skinner, dated and executed on the 19th of May, 1859.

THE plaintiff, on affidavits and an order to show cause, applied to the court for an order for the discovery of a contract on which this action is brought, and which is in the possession of the defendants, and that it be deposited with the clerk of the court. After service' of the order to show cause, the defendants’ attorneys gave notice to the plaintiff’s attorneys that the contract was at their office and for three days might be there seen and copied.

<p>APPEAL from a judgment entered at a special term. The opinion of the court contains the material facts.</p>

<p>MOTION, upon a case, to set aside a verdict, and fora' new trial.</p>

THE plaintiff in her complaint states that she is the owner of certain lots of land on or near 77th street in the city of Hew York; that the defendants instituted proceedings for regulating that street, and in October, 1858, demanded of her on the equitable and just assessment on such lots and on her as the owner thereof, for that inrprovement, the sum of $2641.52, with some interest; that she left the matter to her husband, as her agent, and he, being informed and believing…

<p>What facts should he stated in the affidavit by which summary proceedings for the removal of a tenant are initiated.</p> <p>Where the affidavit stated that “ The estate of S. N., deceased,” was landlord of the premises, which statement was not denied by the tenant; Held that the statement must be deemed to be admitted, and the court could not go behind it, to inquire whether “ the estate ” was a corporation, or an individual, or an association of several persons.</p> <p>It is not necessary to state, in the affidavit, how the landlord acquired title to the premises.</p> <p>It is sufficient if it shows that the relation of landlord and tenant was created between the parties, by an agreement of hiring made by the tenant with the agent of the landlord, and that the tenant made default in the payment of rent, after it was due, and after demand for payment thereof made.</p>

1847 an attachment was granted by a justice of this court against the estate of Coates & Go., as insolvent debtors, under which attachment, and the proceedings therein the plaintiffs were appointed trustees. And in that capacity they, in October, 1849, brought this action against the defendants, for certain property and the proceeds thereof, alleged to be held by the defendants, belonging to Coates & Co. or to their estate.

THIS action was commenced before a justice of the peace. The plaintiffs were the assignees of Mary Ogden, who had carried on the millinery business in the village of Binghamton. She made a general assignment to the plaintiffs, in trust for the benefit of her creditors, on the 15th day of June, 1859.

THIS was an appeal from a judgment for costs entered'at a special term upon a verdict for the defendants. The action was brought to recover the value of certain personal property, taken by the defendant, Hugh McCartney, then the sheriff of Livingston county, from the plaintiffs, by the direction of the other defendants. The plaintiffs claimed the property as the assignees of William T. Cuyler, in an assignment in trust for the benefit of creditors.

THIS was an action of ejectment for land in Steuben county. The answer denied the facts stated in the complaint, and alleged that the defendant was the owner in fee and entitled to the possession of the premises in question.

<p>JAMBS B. SMITH assigned to Adam Miller a contract for .the sale of land, for which Miller gave his two notes of $50 each, payable one year from date with interest. The notes were dated Jqly 8, 1857, and were signed by Hoffman the plaintiff, as surety for Miller. Subsequently, and on the 18th November, 1857, Miller assigned the same contract to the defendant, who made an agreement with Miller in part consideration thereof, to pay the notes which had been given to Smith by the latter. Hoffman paid the notes and brings this action against the defendant, to recover the amount so paid. The case was tried at the circuit court held in Steuben county, January, 1860, and the plaintiff was nonsuited, on the ground that there was no privity of contract between Hoffman and the defendant. The plaintiff had leave to make a bill of exceptions, and the same was ordered to be heard in the first instance at the general term.</p>

OH the 2d day of June, 1851, Daniel L. Decker was appointed secretary of the plaintiffs’ company, and thereupon entered into a bond, in the penal sum of §500, with Thomas Clark as his surety, apd conditioned as follows: “ Whereas the above bounden Daniel L. Decker hath been duly appointed secretary of the Kingston Mutual Insurance Company; now the condition of this obligation is such, that if the said Daniel L. Decker shall well and truly in all things perform and execute…

THIS action was brought upon a contract to recover the sum of $200, which the plaintiff alleged the defendant promised to pay for the finishing of a certain marble inonumenti- „The answer was a general denial. The action was tried at a circuit court in the county of Wayne, in October, 1859, before Hon. T. E. Strong, and a jury.

THIS is an appeal from an order made at a special term, granting the defendant’s motion for a new trial. The action was replevin, for a buggy. The answer was a general denial. The plaintiff proved that he bought out the shop of the defendant, at West Bloomfield; with his materials and stock as a wagon maker, in the spring of 1853, and after that) the defendant worked for the plaintiff, as his servant or laborer, for wages.

of a referee. The action was brought by the plaintiff against John Meyer and Valentine Schlaeffer, on a promissory note for $300, dated July 18, 1857, at 30 days. Meyer was the maker, and Schlaeffer the indorser.

THIS was an action upon a promissory note,' made by the defendant Eleazer Conkey and one Justus Yale, and indorsed by the defendant Joshua Conkey. The answer admitted the making and indorsing of the note, and set up the defense of usury. The action was tried at the Monroe circuit, January 13,1860, before Hon. E. Darwin Smith and a jury. After the jury had been impanneled, Mr. Martindale, for the plaintiff, rose to open the case to the jury.

ACTION on a promissory note made by the defendants Williams and Chamberlain, with two others as sureties, dated 5th July, 1854, for $6000, payable 1st July, 1857, with interest annually, to the order of the plaintiff, at the Metropolitan Bank, New York. Defense, usury, which, as the defendants alleged, consisted in the giving of a note to the plaintiff for $4000, at the s.ame time the note in suit was given, as a bonus or premium for a loan of $27,000.

The complaint alleged that the defendants, on the 1st day of December, 1855, entered into an agreement with the plaintiff to lease or rent of him a quantity of household furniture, from the 1st day of December, 1855, to the 1st day of April, 1857; that the defendants took possession of said furniture and continued to use the same until the 4fch day of April, 1859, at which time the defendants surrendered a portion of said furniture, but neglected to surrender the balance;…

THE complaint in this action alleged that on or about the 10th day of November, 1858, the plaintiff, being the owner of a span of bay horses of the value of $800, he delivered the same to Erasmus D. Pierson, of Eochester, to be taken by him to Sringfield, Massachusetts, and there exhibited at a fair about to be held at that place, with authority to sell the horses for the best price to be obtained, not less than $500.

The following opinion, delivered hy the judge, at special term, on allowing the demurrer, states the substance of the pleadings.

THE parties plaintiffs and defendant were • copartners in trade and business in the city of Brooklyn, in buying and selling building materials, under the name and style of Morton & Canda. The capital employed was §15,000, each partner contributing the one-third part thereof.

PPEAL from a judgment entered at a special term, upon the report of a referee, who had heen directed to state the account of the property of the plaintiff’s intestate which had come to the defendant’s hands.

<p>Commissions are a customary mode of compensation to merchants, agents and factors who buy and sell property and merchandise for others and pay out and receive the price therefor; and to that class of agents who deal in real property for other persons and neither pay out nor receive into their own hands the purchase money.</p> <p>But they are not a proper measure of compensation for services which consist in nothing more than introducing one neighbor who desires to purchase, to another neighbor who desires to sell, a farm of land; where the agent is not a broker, nor engaged in the business of buying and selling land, and is not employed as a broker or land agent, by his principal; and where the negotiation is conducted and the sale and purchase effected, by the parties themselves,</p>

<p>An assignment of a lease for lives, by the personal representatives of an assignee of the lessee, is void if the premises are, at the time, in the actual possession of persons claiming title thereto adversely. Bocees, J. dissented.</p> <p>The assignee of a lease for lives has a freehold estate in the premises, which, upon his death, becomes a chattel real, and the estate passes, as assets, to his personal representatives.</p> <p>Such personal representatives have an estate in the land, and being entitled to the possession, they may maintain ejectment therefor.</p>

<p>In an action on the case for criminal conversation, matters of mitigation growing out of the relations existing between the parties at the time of the alleged offense, may be given in evidence, under a general denial of the complaint.</p> <p>In such an action, circumstances of mitigation existing at the time do not, properly speaking, constitute any defense to the suit. They are not brought forward as new matters of defense, but as matters already involved in the issue to be tried between the parties.</p>

<p>When the legislature devolves upon tnree justices the power of making an appointment to office, by warrant under their hands and seals, they cannot appoint one of their own number.</p> <p>An individual cannot be the grantor and the grantee in the same warrant, which confers a public franchise. Hence an appointment, by a body authorized by statute to appoint, of one of their own number, is a mere nullity.</p> <p>It is a principle of universal application, as well as of public decency, that a public trust committed to .an individual by name shall not be discharged for his own benefit, op to promote his private interest.</p> <p>Whether the neglect of the electors to fill a vacancy in the office of supervisor, under section 3§ of article 3, title 3, chap. 11 of the first part of the revised statutes, where it occurs by reason of the omission of the clerk to give the requisite notice under section 34, is sufficient to justify an appointment by three justices'? Qucere.</p>

<p>On the eigtheenth of October the plaintiff purchased of S. a note made by the defendant, which was overdue. The defendant at that time held a note made by S. which was also overdue, upon which, on the twentieth of October, he brought an action against S. and on the twenty^ruimth of that month recovered a judgment. In an action by the plaintiff", upon the note made by the defendant; Held,</p> <p>1. That the defendant could not use the note made by S. as a set-off", counterclaim or defense, because it was merged in the judgment, and was not a subsisting demand at the time this action was commenced.</p> <p>2. That he could not use his judgment recovered against S., inasmuch as it was not rendered until after the plaintiff purchased the note in suit, and was not a demand against S. at that time.</p> <p>3. That the fact of the defendant having no notice of the transfer of the note in suit by S., before he recovered his judgment against S., did not change the rule.</p>

OX appeal to the general term from the judgment of the special term, dismissing the complaint herein-with costs, The relator is a minister of the Reformed Protestant Dutch Church, officiating over an incorporated church of that denomination in the city of Xew York.

The action was for an assault and battery. The complaint was the ordinary complaint in such cases.

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

<p>THE defendants were sued as makers of notes executed in the name of their firm, (W. C. Annan & Co.,) hy “ DeWitt 0. Brown, Atty.” The defendant, Embury, denied in his answer that Brown ever had authority to sign those notes for the defendants. Upon the trial of the cause the signature of the attorney was proved by himself. He testified that he was the attorney of the firm, when the notes were signed. It was also proven that Brown was the general agent of the firm, by a written power of attorney and by verbal authority; and that his acts in raising money for the firm and borrowing money for them, had been communicated to Embury and acquiesced in by him. The firm of W. C. Annan & Co. were engaged in the California shipping and commission business. Annan was the managing partner in Hew York; Embury & Hassard in California. But all of the partners were in California when the notes in suit were signed—December, 1856. An-nan started for San Francisco, October 20, 1856, and left the agent, Brown, in charge of the business in Hew York. Em-bury had been in California over a year, at the dates of the notes. The notes were given in the regular course of business of the firm, for butter bought of Platt & Brown, and shipped to the firm in San Francisco, of which Embury was the managing partner; and the firm there acknowledged the arrival of the vessel in which the butter was shipped. Embury’s partnership at the dates of the notes was undisputed. When the firm of W. C. Annan & Co. commenced business, in April, 1856, Annan & Hassard were the only partners. Brown’s employment as agent commenced in June, 1856. Embury came in as partner in September, 1856; but there was no change in the firm name. Proof of the power of attorney having been delivered to one of the firm was given, and he proved that he had looked for it and was unable to find it.</p> <p>The case was tried without a jury, and judgment was rendered for the plaintiffs.</p>

<p>When a party appears in court, in a legal proceeding against him of which the court has jurisdiction, and consents. that a receiver be appointed to take possession of his property, for the purpose of paying claims against him, it does not lie in the mouth of any-debtor to dispute the regularity of the appointment.</p> <p>The party against whom such proceedings are taken may waive all such irregularities ; and if he does so, no other person can take the objection.</p> <p>Where there is no collusion or fraud shown, and no intent proven, on the part of the plaintiff or his attorney, to prevent a levy on the property of the debtor, the sheriff is not obliged to keep an execution sixty days, before returning it.</p> <p>The objection that an execution has been returned too soon, cannot be raised collaterally. It can only be available on a direct motion to set aside the return of the writ.</p> <p>If the debtor does not make the objection himself, no other person can take advantage of it.</p> <p>Where the plaintiff claimed to recover a lease and mortgage which the defendant held, and which the plaintiff alleged belonged to the person for whom he had been appointed receiver, and the answer denied his right thereto, because there were moneys due to the defendant, for which he held the lease and mortgage as security; held that the answer did not set up a counter-claim.</p> <p>A counter-claim is where the demand is against the plaintiff, and for which a judgment might be recovered against him.</p> <p>Where a party omits to except to a referee’s report, the court cannot, on appeal, give him any relief as to decisions upon matters of law.</p>

THIS appeal is taken from an order of the surrogate of Hew York, appointing Edward G-. Thompson, jun. administrator with the will annexed of Abraham Q-. Thompson. The appeal is taken by Henry Hill, who claimed the right to administration as the residuary legatee under the will. Hill .has no personal interest in the estate, but is the trustee for a religious or charitable society, which with other societies, is entitled to the residue of the estate.

THIS action wag upon the promissory note of the defendants, dated March 18th, 1856, for $1671.81, payable twelve months after date to the “Globe Mutual Insurance Company or order.” The complaint was in the usual form, averring that “said note was duly indorsed and transferred by said company according to law,” and that the same, before its maturity and for a valuable consideration, became and then was the property of the plaintiffs.

This case arose on a return to a certiorari directed to the board of health of the city of New York, commanding them to return to this court certain proceedings before them, “ by which they adjudged, adjudicated, and determined, that the business carried on by the relator, in depositing manure on lots between First Avenue and East River, and Thirty-eighth and Thirty-ninth streets, was a nuisance.” The writ also called for a return whether any complaint was made to the board…

THIS action was brought to recover for a stock of goods sold by the plaintiff’s,intestate to the defendants’ firm. The defendants pleaded payment, and upon the trial produced receipts which they contended were evidence of payment for the goods, and which the plaintiff claimed to have been payments on other accounts between the parties.

THIS action was brought by the plaintiff as indorsee, against the defendants as makers and indorser, of a promissory note made by the defendants Sergeant and Akin, under the firm name of E. Sergeant & Go., on the 27th of March, 1857, by which they promised to pay to the order of F. E. Houghton, six months after date, $1584.16. The note was indorsed by Houghton, to the plaintiff.

THE plaintiff and the defendants were trustees of a manufacturing company incorporated pursuant to the laws of this state, and, as such trustees, neglected to make the report of capital, &c. as required hy the 12th section of the statute under which they were incorporated.

THE plaintiff sued the defendant as the indorser of a promissory note made by one Peter Voorhis. The answer set up two defenses: 1. Usury. 2. A former action, and a recovery in favor of the defendant. The issues were tried at ‘the Hew York circuit, in April, 1859, before the Hon. T, B. Strong, a justice of this court, and a jury.

<p>Where, at the time of a descent cast hy the death of an individual seised of land, his hpirs at law are aliens, and by the common law incapable of inheriting or taking lands by descent, their subsequent naturalization will not have a retroactive effect, so as to vest in them a title to the lands of their ancestor.</p> <p>Though an alien may take lands hj purchase, and will hold them for the benefit of the state, by a title defeasible upon office found, yet no title or estate whatever, can pass to an alien by operation of law.</p> <p>When the ancestor dies, the estate cannot be in abeyance; and if the persons who would otherwise inherit are aliens, it passes by them, and not through them, and vests at once in the state.</p> <p>The disability of aliens to take lands by descent is not removed by the statute of 1843. (Laws of 1843, p. 62, ch. 87.)</p> <p>The meaning and effect of that act is not that every alien upon whom a descent was cast, either before or since the act, may, by becoming naturalized, "at any time, take the real estate descended, as he would have done if he had been a citizen at the death of the person seised.</p>

THIS was an action for partition of a farm situate in the town of Westchester. Being at issue on the complaint and answers, it was referred to J. W. Tompkins, Esq. as referee, to report upon the facts set up in the pleadings.

THIS action was brought to foreclose a mortgage made by the defendant Bannon. The defendants, other than Ban-non, were made parties as subsequent incumbrancers. On the 18th September, 1855, the plaintiffs held certain promissory notes made or indorsed by the defendant Bannon, which they had discounted for him, amounting to $24,260.74.

THIS was an action to recover the possession of real estate situate in the county of Suffolk. The action was tried at the Suffolk circuit, in June, 1860, before Justice Emott and a jury. A verdict was taken for the plaintiff, for the premises in fee, subject to the opinion of the court at general term, on a case. The opinion of the court contains a statement of all the material facts.

On the 22d of July, 1857, the plaintiff, at auction in the city of New York, sold a farm of 107 acres of land in New Jersey, which was struck off at the price or sum of $2675, to the defendant, who signed the terms of sale and paid 10 per cent on his hid and auctioneer’s fees. The terms and memorandum of sale were set out in the case. They required the payment of ten per cent of the purchase money at the time of sale, and the residue on the 4th day of August, 1857.

TAMES MYEBS, the plaintiff, prosecuted this action el against the defendant James L. Burns, who was his tenant of certain premises in the city of Brooklyn, to recover $1000, balance of a quarter’s rent due on the 1st of August, 1858.

<p>THE complaint in this action sought to restrain the defendants from removing an engine, boilers and other property from the premises lately occupied hy them in Brooklyn. The plaintiff obtained a temporary injunction at the commencement of the action, with an order to show cause why the same should not he made perpetual. On the return of this order, the plaintiff amended his complaint, and the proceedings were thereupon adjourned; and at the adjourned day the motion was heard upon pleadings and affidavits, and the' temporary injunction dissolved. From the order dissolving the injunction the plaintiff appealed to the general term.</p>

THIS action was brought against the defendants, for negligently leaving their turnpike road out of repair, in consequence of which a valuable horse of the plaintiff had his leg broken, and was rendered comparatively valueless. The action was tried .before a justice of the peace of the town of Mamaroneck, and a jury. A verdict of §100 for the plaintiff was rendered, and judgment thereupon entered up.

<p>APPEAL from an order made at a special term, denying a motion for a preliminary injunction.</p>

THIS action was brought to recover the value of certain goods seized by the defendants, as sheriff and'.under-sheriff of the county of Monroe, upon certain executions delivered to the defendant, Chauncey B. Woodworth, as such sheriff, against Timothy Chapman. The plaintiffs claimed these goods as the assignees of Timothy Chapman, the defendant in the executions, under an assignment bearing date the 10th day of August 1853.

<p>Under what circumstances an individual suing a rail road company, to recover damages for injuries sustained by him in consequence of being run over by an engine on a public street in a city, should be nonsuited on the ground that his own negligence contributed to the iiyury.</p>

mHIS action was brought upon a deposit or stock note made A by Hiram Greenman, the defendant’s testator, payable to the H. Y. Protection Insurance Company, or its treasurer for the time being, which company was incorporated under ■the general act to provide for the incorporation of insurance companies, passed in 1849, (Laws of 1849, p. 441,) the assets of which company have passed to the plaintiff as receiver thereof.

THIS was an action by the plaintiff against the defendants as acceptors of a draft, of which the following is a copy: “$600. Syracuse, Dec. 27, 1858. Two months after date, pay to the order of E. B. Meeks, esq., cashier &c., sis hundred dollars, value rec’d, and charge the same to the account of J. P. & I. T. Ballard. To Messrs.

ON the petition of Claudius Dord, an attachment, under part 2, ch. 5, title 1, article 1, of the revised statutes of New York, (3 R. S. 5th ed. p. 78,) was issued in December, 1847, to the sheriff of New York, against the. estate of Edward Bonaffe and Auguste Bonaffe, non-resident debtors; and such proceedings have been thereon had that trustees ■ have been appointed, who have received the estate of said nonresident debtors in New York, and converted the same into money and…

THIS action was brought to recover the possession of two pieces of land in the town of Marlborough, Ulster county.

THIS action was brought by the plaintiff as receiver appointed under, and by virtue of, supplementary .proceedings against Catharine Coats, a judgment debtor.

THIS was an action by the plaintiff, as administratrix of her deceased husband, to recover damages of the defendant for wrongfully killing him; As is' usual in cases of this nature, it involves two questions : First, whether the defendant was guilty of negligence causing the injury. Second,'whether the deceased was also guilty of negligence contributing to it. The plaintiff recovered a verdict. Judgment was perfected, and the defendant appealed.

<p>Subdivision 3 of section 10 of chapter 329 of the laws of 1854 must be construed to mean that the terms of the contract into which a successful bidder is required to enter, shall be prescribed by the contracting board not after the bidding and before the execution of the contract itself, but before the bidding; so that the bidder may see what kind of a contract he is to execute, and perform, and may bid accordingly.</p> <p>Where proposals for work, made to the contracting board in pursuance of an advertisement published by the board, are on their face palpably fraudulent, and calculated to defraud the state, the board is not bound to accept the bid, but may, in its discretion, disregard and reject the same.</p> <p>And after the contracting board has, by resolution, rejected such a bid, a mandamus will not be issued, to compel the board to award a contract to the bidder.</p>

<p>Arrest.—Fraud beyond the State.—Affidavit on Information.</p> <p>The offence of disposing of property to defraud creditors, committed in a foreign country between foreigners, does not render the fraudulent debtor liable to arrest in an action brought here by his creditor.</p> <p>An affidavit on which to obtain an order of arrest setting forth facts on information and belief, ihust state the sources of information.</p>

<p>Whéré an attorney waited seven years after his client had settled with the other party and satisfied the judgment of record, and then moved to set aside the satisfaction, because his costs were not paid, the defendant with whom the settlement Was made having died in the meantime, it was held too late to make the motion, or to open a satisfaction of a judgment for such a purpose,</p>

The plaintiff in his complaint described himself as “Henry Scrantom as executor of the last will and testament of Thomas M. Watson, deceased.” The complaint alleged the due incorporation of the defendant as a coporation, under the general banking law, and alleged that on the 22d of May, 1858, at Rochester, the defendants “were justly indebted to the plaintiff as such executor as aforesaid in the sum. of $72.37, being the balance due to the plaintiff as such executor…

APPEAL by the defendant from a judgment entered upon the verdict of a jury, after a trial at the circuit. The action was brought by the assignee of a bill of lading, to recover freight upon a cargo of wheat transported from Buffalo to Rochester. The following facts were established by the evidence : The defendant purchased of one A. W. Horton, at Buffalo, a cargo of wheat, in bulk, to he delivered on board of a canal boat.

THE present action was brought on behalf of the Bank of Hornellsville as assignee of certain goods and merchandise, and of the claim of William W. Fulton and Charles N. Paine the assignors, for the taking and conversion of the same.

The action was brought to recover damages of the defendants for refusing to perform a contract entered into by them, through one Rosenkrans, their agent, for the purchase of a quantity of barley of the plaintiff. ; The contract, as proved by the plaintiff’s own testimony, was as follows: “ I called at Wallace’s station and saw Rosenkrans, and told biin I would like to get §40 to pay for- some sheep I had bought; I had before then talked with Rosenkran's about selling him my…

On the 5th day of July, 1860, the defendant was indicted in that court for an alleged misdemeanor in giving theatrical exhibitions on Sunday, the 20th day of May, 1860, contrary to the provisions of the “ Act to preserve the public peace and order on the first day of the week, commonly called Sunday,” passed April 17, 1860, (Laws of 1860, p. 999.) On the 17th of November, 1860, the defendant was arraigned on said indictment, in the court of oyer and terminer, and pleaded not…

THIS was an appeal from, an order made at a special term, continuing the injunction, and appointing a receiver, in the action. The action was brought by the plaintiff, a stockholder of the American Hard Rubber Company—a corporation created for manufacturing purposes under the laws of the state of Connecticut.—on behalf of himself and of all other stockholders of said company, for the purpose of having a certain transfer of its property to Poppenhusen, Konig and .

The plaintiff was the widow of one Hiram Bust, who died, as it appears, intestate, leaving her and seven children in possession of a farm, upon which she then lived and now lives. Four of these children still remain with her; the eldest of whom is eighteen and the youngest ten years old. There was no evidence of administration upon the estate of her deceased husband, (Bust,) nor of the extent of his personal property to be administered upon.

<p>fTlHIS was an appeal from the county court of Saratoga. JL The facts sufficiently appear in the opinion.</p>

THE action was brought by the receiver of the Mohawk Valley Insurance Company on a note, of which the following is a copy: “ $84.00.

DEMURRER to the third count, or cause of action stated in thé complaint. The complaint contains three counts in slander. • By each of the first two counts the defendant is charged with slandering the plaintiff in his profession as a physician and surgeon, and each of them contains an inducement, colloquium and innuendoes appropriate to be stated in order to give meaning and point to* the words alleged to have been uttered.

THIS action was brought against the defendants as indorsers of a promissory note. The ■ complaint was in the form usual against indorsers.

THIS is an appeal from a judgment entered upon an order overruling a demurrer to an answer. The facts sufficiently appear in the opinion of the court.

THESE actions were tried before the Hon. William F. Allen, and a jury, May 14, 1858. The plaintiff recovered a verdict. Upon the rendition of the verdict, it was stipulated that the defendants have forty days to make a case and exceptions, and in the meantime) and until judgment upon the same, if security given, all proceedings on the part of the plaintiff, except entry óf judgment and adjustment of costs, to he stayed.

THIS action was brought to recover certain sums of money, for alleged overcharges, made by the defendants as the agents in Paris of the plaintiffs, in purchasing the article known as blue Guimet, from 1846 to September 1, 1851. Such overcharges were in the prices, and in the cases and packing. The plaintiffs, at the time of said transaction, resided and still reside in the city of New York. And the defendants, at the same time, resided and still reside in France.

The order was originally granted on the grounds of false representations made by the defendants in contracting the debt, and a fraudulent disposition made of the property purchased, of the plaintiffs, by them.

The plaintiffs are, and have been since 1848, paper merchants in the city of Hew York. The defendant and one Putnam, from about 1850 to the making of the agreement hereinafter named, were paper manufacturers in Saratoga county, the plaintiffs being consignees of their paper. During that period the plaintiffs had advanced to Ingalls & Putnam, from time to time, various sums of money, so that on the 1st March, 1854, they were indebted to the plaintiffs in the sum of $10,000.