Volume 34 — New York Reports

<p>To entitle a person, injured by an accident happening to a train of cars on which he is a passenger, to recover damages of the railroad company for such injury, he must establish affirmatively (1) that he was guilty of no negligence which contributed to the injury, and (2) that the company was guilty of such negligence.</p> <p>The negligence of the defendant is the gist of the action; and the absence of negligence on the part of the plaintiff is equally important.</p> <p>The court are justified in nonsuiting the plaintiff, when a verdict for the plaintiff would be set aside for want of evidence to sustain it.</p>

<p>Defendants, in possession of land under a contract of purchase and a license to cut the timber, &o., are not liable for cutting the timber thereon while the license is operative, even though, by non-compliance with the terms of the contract of purchase, they forfeit their right to the land and to the possession of the same.</p> <p>The license being established by proper evidence, everything done under it, before forfeiture, is lawfully done, for which no claim of damage could accrue to the plaintiff.</p>

The appeal was from a judgment of the Supreme- Court, affirming the judgment rendered by Mr. Justice Allen, at ■the Onondaga Circuit, dismissing the complaint with costs. The action was brought by the plaintiff to recover money collected by the defendant from the State, under an irrevocable power of attorney from the contractors, through whom the plaintiff claimed by assignment subsequent to the execution of the power.

<p>In an action by the husband for injury by negligence, the declaration of his wife that the defendant was free from negligence cannot be treated as an admission of the fact by him.</p>

<p>This is an action in the nature of a suit in equity, against Robert Schuyler and several hundred other defendants. The complaint was sustained by this court on demurrer, as will appear by reference to the reported case in 17 N. Y., 592. The object of the complaint was to have a large number "of alleged false and fraudulent certificates and transfers of pretended \stock of the company, made by Schuyler, and charged to be held by the defendants, adjudged spurious and void; and to compel the certificates to be brought into court and canceled; and to enjoin the several defendants from further prosecuting actions then pending, and from bringing suits against the company to enforce such certificates and transfers, or to recover damages for any reasons connected therewith. After alleging the various facts upon "which the plaintiffs claimed the relief, and setting forth the several suits then pending, the complaint proceeds to allege: That the plaintiffs-are informed and believe that it is the intention of other holders of the said false and fraudulent transfers of stock and certificates of stock to commence other actions against" the plaintiffs, for refusing to transfer the said stock so purporting to be represented by the said false and fraudulent certificates as genuine stock; that said actions will be very numerous, and, as the plaintiffs believe, exceeding one hundred, and will subject the plaintiffs, and the parties to those actions respectively, to great and unnecessary expense, trouble and- litigation; and that such actions, if commenced, and especially if followed up by attachments, will greatly injure and damage the interests of the plaintiffs, and the interests of the genuine stockholders of the company and its creditors, and other persons interested in its stock, effects and earnings; that the plaintiffs are advised and believe that the rights of all the said holders of the said false and fraudulent certificates, and of the said fraudndent transfers, may be determined and adjusted in one action without prejudice to the rights of any of them, and so as greatl/y to promote the convenience and advance the interests of all persons interested in said company, whether as holders of the genuine stock or of the illegal and fraudulent certificates and transfers.” * * * * That the said company “ are not authorized or empowered, as they are advised and believe, to acknowledge or recognize any of the said false and fraudulent certificates of stock, or any of the said transfers of stock, or as constituting any claim against the company, without an adjudication by some sort of competent jurisdiction • requiring them so to do; and that, under the circumstances, they cannot -make any dividends to genuine stockholders, nor can they with safety or accuracy determine who are entitled to vote at the elections for directors of said company; nor can they open the transfer books of said company, as they are desirous of doing; and that this action is commenced for the purpose of impleading all the said holders and claimants wider the sold illegal and fraudulent certificates and transfers, in order that the duties and obligations of the plaintiffs and the rights and claims of the holders of said certificates may be settled in one suit, and to the end that a multiplicity of' actions, and the delay, expense and litigation attendant thereon, may he molded</p> <p>The complaint concludes with a prayer for judgment, to the effect that the alleged false and fraudulent certificates and transfers may be adjudged illegal and void, and be canceled, as not representing any stock in the company, and as not constituting any claim or obligation upon the company; and that the holders thereof should be enjoined and restrained from bringing any suit, action or bill in equity against the plaintiffs for or on account of the said certificates, or any of them, or of the stock purported to be represented thereby, or qf the act of the said Robert Schuyler, in creating or issuing the same, and that the defendants who had commenced suits, be enjoined from prosecuting the sanie, and that those several actions be consolidated and tried with this action, &c.</p> <p>A large number of the defendants answered, setting forth various facts and grounds upon which they claimed that the plaintiffs were not entitled to the relief sought, and that the certificates or transfers respectively held by them were, or ought to be, treated as valid and binding on the company; or -damages awarded to them for injuries sustained by the • alleged frauds of Schuyler, and many asking for relief by way of judgments for damages against the company.</p> <p>The case was tried at Special Term, before the Hon. Daniel P. Ingbaham, and occupied several months in the trial. The court found various facts (hereinafter more particularly stated), .upon which he adjudged that the plaintiffs were entitled to the relief sought by their complaint, as to most of the defendants, and ordered judgment accordingly. He also found facts in respect to a large number of the defendants, upon which he decided that the plaintiffs were liable to them respectively for the damages sustained in consequence of their certificates or transfers turning out to be false and fraudulent, and were entitled separately to maintain actions against the plaintiffs for such damages, but that such damages could not be appropriately, under the pleadings in the. case, adjudged to them in this action.</p> <p>From the judgment entered in Hovember, 1860, as of September 18, 1860, on the decision of the court, the plaintiffs appealed to the General Term from all that portion relating to the rights of the defendants to recover damages for the injuries to them and to maintain actions against the plaintiffs therefor; and some of the defendants appealed from so much of the decision as adjudged their certificates and transfers invalid, and annulled the same; and some from such decision and from the decision that relief by cross-judgments for damages could not be awarded in this suit.</p> <p>On these appeals the General Term of the first district affirmed the judgment (with some modifications as to a few of the parties not now important to refer to) and decided, in substance, that upon the facts found by the Special Term, as to the several defendants, it was the duty of the court to have proceeded and assessed the amount of their damages respectively, and awarded judgments in this action against the plaintiffs therefor, and they ordered the case to be sent back to the Special Term for that purpose, and directed that court to proceed and assess such damages in favor of the said several defendants who should establish the amounts of their respective claims, and give judgment therefor so that final judgments might be entered in the action, both for and against, the plaintiffs and the several defendants entitled thereto. Thereupon the Special Term, before the same judge, proceeded to make the said assessments; and upon the further proofs and allegations of the parties, as well as upon the proofs and findings before given and found in the case, he found further facts touching the amount of damages, &c., upon which judgments were ordered in favor of said defendants respectively, to be entered as part of the original judgment and as an amendment thereof. The plaintiffs took exceptions to the proceedings to assess in respect to every defendant in whose favor an assessment was made, and numerous exceptions to the judgments as ordered and entered.</p> <p>The last or amended judgment was entered June 30, 1864, and from this judgment the plaintiffs again appealed to the General Term, where the same was affirmed; and from such affirmance the plaintiffs appeal to this court.</p> <p>Separate appeals are also brought by the defendants, Jacob Surget, Morris Ketchum and Edward Bement, survivors, &c., Henry Chauncey, and Emily, his wife, Clara P. Alsop and Cornelius Vanderbilt.</p> <p>The appeals of Surget and Ketchum and Bement áre from orders of the General Term dismissing their respective appeals; but it is stipulated by the parties, in substance, that in case this court shall be of opinion that the General Term should have entertained their appeals, this court shall be at liberty to consider their cases on the merits, as though judgments had been given upon them by the General Term.</p> <p>The defendant Surget did not appeal from the judgment entered on the decision of the Special Term in 1860. Damages were assessed in his favor after the case was ordered back for that purpose, and from the amended judgment entered in June, 1864, he appealed to the General Term, claiming the right to review the various questions affecting him, both in the original and amended judgments.</p> <p>Ketchum and Bement, survivors of the firm of Ketchum, Rogers & Bement, were found to be holders and owners of certificates for 740 shares, which were adjudged to be spurious. It was also found that Morris Ketchum, one of the firm, was, during all the period in which Schuyler was perpetrating his frauds, one of the .directors of the company; and it was held that the firm were not entitled to damages. They did not appeal from the judgment entered in 1860, but after the amended judgment was entered they appealed, claiming, in effect, to review the decision touching the validity of their stock and their right to recover for the injuries sustained by the frauds.</p> <p>The General Term dismissed these appeals on the ground that they were taken too late. The other defendants who now appeal were also appellants from the original judgment; they came in and had their damages assessed, and have judgments therefor in the amended judgment; they appealed from the latter, and claim, in substance, to have reviewed the questions as to the validity of their stock and their title to be recognized by the company as stockholders, in case their right to recover the damages assessed to them shall be adjudicated against them.</p> <p>The particular facts of individual cases, or classes of cases, are stated so far as necessary in the course .of the opinion. The general facts as found by the court on the trial, as they appear from the pleadings and case, are, in substance, as follows:</p> <p>That the plaintiffs were duly incorporated by the legislature .of the State of Connecticut in 1844; and by an act of the legislature of this State, passed in 1846, were authorized to extend their road into this State, and clothed with necessary powers for conducting its business in this State; that the act of incorporation provided that the capital stock of the company should be two millions, of dollars, with the privilege of increasing the same to three millions, to be divided into shares of one hundred dollars each, which shares should be deemed personal property and be transferred in such manner and in such places as the by-laws of said company should direct; and that the directors should have full power to make and prescribe such by-laws, rules and regulations, as they should deem needful and proper, touching the disposition and management of the stock, property, estate and effects of the said company, the transfer of the shares, the duties and conduct of their officers and servants, the election and meetings of the directors, and all matters whatsoever which might appertain to the concerns of said company.</p> <p>That the original corporators failed to obtain subscriptions for stock sufficient to organize the company till 1846. That on the 19th of May, 1846, a board of directors was elected, who organized their body on the same day by electing Robert Schuyler president, which office he continued to hold till his resignation thereof July 4, 1854. That on the 9th of July, 1846, the board of directors established, by certain by-laws adopted by .them, a system concerning the transfer of stock of the company and the issuing of certificates therefor, according to which stocks were i/ransferable only on the bodies of the company by the shareholder or his attorney duly appointed, and on the surrender of the certificate held by him when any certificate had been issued. The same by-laws prescribed the form of the transfer, as follows:</p> <p>1 q | k £ <8 g I* 1° £ ^ ^</p> <p>Hew York and Hew Haven Railboad Company.</p> <p>Ho. 10,002.</p> <p>Capital $3,000,000. Shares $100 each.</p> <p>Hew York Office.</p> <p>. For value received........hereby assign and transfer unto ........ all right, title and interest in........ shares in the capital stock of the Hew York and Hew Haven Railroad Company. Hew Yobk,........, 18..</p> <p>And transfer books were provided for the use of the agents, in which transfers of this form were printed in blank; and the by-laws also directed that a form of stock certificate should be adopted; and one was adopted and invariably used, as averred by the complaint, for the purpose of facilitating transfers of stock by the holders thereof, with a blank •assignment and power of attorney printed upon the back of it, as follows: ■</p> <p>New York and New Haven Railroad Company.</p> <p>New York and New Haven Railroad Company. No. 5,294.</p> <p>Capital $3,000,000. Shares $100 each.</p> <p>New York Office.</p> <p>Be it known, that........entitled to........shares of the capital stock of the New York and New Haven Railroad Company, transferable on the books of the company, at its office, in the city of .New York, by the said ........or .... attorney, on the surrender of this certificate.</p> <p>.New York,........, 18..</p> <p>................, Transfer Agent.</p> <p>Enow all men by these presents, that......for value received, ha.. bargained, sold, assigned and transferred, and by these presents do bargain, sell, assign and transfer unto........of................shares in the capital stock of the New York and New Haven Railroad Company, standing in........name on the boobs of the said company, and transferable only at its office in the city of New York. And .... do hereby constitute and appoint ........true and lawful attorney irrevocable, for .... and in .... name and stead, but to____, use, to sell, assign, transfer and set over all or any part of the said stock; and for that purpose to make and execute all necessary acts of assignments and transfer, and one or more persons to substitute with like full power, hereby ratifying and confirming all that......said attorney or .... substitute or substitutes shall lawfully do by virtue hereof. In witness hereof .... hereunto set .... hand and seal, the ...... day of......, one thousand eight hundred and fifty .....</p> <p>Sealed and delivered in the presence of......'......</p> <p>These certificates, with the blank assignment and power of attorney upon them, were printed and bound in books with margins for entering the time of issuing the certificate, the number of shares, the number of the certificate and to whom issued; which margins remained bound in the books after the certificates were cut out and issued, and constituted a memorandum of all the certificates issued; these books were furnished by the company to the transfer agents. A stock ledger was also kept, in which each stockholder was credited with the shares transferred to him and debited with those transferred by him, and in a separate column in each stockholder’s account was entered the number of shares represented by each certificate issued to him and the number of the certificate, and when a certificate was surrendered, a line was drawn through this entry, so that the uncanceled charges in the certificate column indicated the amount of each stockholder’s stock represented by outstanding certificates, and by a comparison of the aggregate of such charges with the aggregate balances of every stockholder’s account, any over-issue of certificates would be made to appear. These books were not accessible to the public, and dealers in stock had no means of information as to the title of parties proposing to dispose of stock, except such as was furnished by the certificates above mentioned or by the agents of the company.</p> <p>That on the 3d day of February, 1847, Robert Schuyler was appointed transfer agent of the company at the city of New York, and a transfer office was established in that city; other offices and agencies were also established in the cities of Boston and New Haven. From that time forward to and including July 3d, 1854, the entire control and management of the transfer office and agency at New York was left in the hands of said Schuyler, without any examination or interference on the part of said company or its directors, he being also, during the whole period, the president of the company and one of its directors (and the meetings of the board of directors appear from the minutes to have been held át his office in New York).</p> <p>That in August, 1851, the board of directors resolved to fill up the capital stock to $3,000,000, being 30,000. shares, and directed that the same be apportioned amongst the existing shareholders as then standing on the stock ledger; such distribution was made, and the stock (except 68 shares not taken, which remained, in part, undisposed of till October 15, 1849) was taken by such distributees; that the stock originally subscribed, 'and that afterwards distributed, was, in most cases, transferred on behalf of the company by one of the transfer agents to the person entitled, and certificates were issued by such agent in the form above set forth; that during the time Schuyler was such agent, transfers of stock were made on the books to the transfer agents on account of the company, and such stock afterwards disposed of by such agents; that Robert Schuyler was a member of the firm of R. & Gr. L. Schuyler; that said firm held large amounts of the stock of the company, and from its organization to July 3, 1864, were large and constant dealers therein, and Robert Schuyler, as transfer agent during this whole period, attended to transfers and issued certificates to them in the same manner that he did of stock standing in the names of other persons, and no restriction appears at any time to have been put by the company upon his official action toward or with his said firm.</p> <p>On the first day of February, 1848, Robert Schuyler, as such transfer agent, commenced the over-issue of certificates to his said firm, and on that day such over-issue was sixty shares; and such over-issue continued thenceforth, and at all times thereafter there was an over-issue of certificates in the stock account of R. & Gr. L. Schuyler. On the 20th of March, 1848, the over-issue by transfer commenced, and on that day the number of shares transferred by R. & Gr. L. Schuyler exceeded the number transferred to them by sixty shares. Such excessive transfers continued till January, 1849, the amount thereof fluctuating from time to time as transfers were made to and by R. & Gr. L. Schuyler, but the balance on the books of the company was against them at all times during that period. The excessive issues of such stock so transferred on the books of the company by R. & Gr. L. Schuyler, were credited to the transferees in their respective accounts, and when retransferred were charged in such accounts and credited to the new transferee. These transfers were made in great part under the power of attorney executed in "blank by R. & G. L. Schuyler indorsed on the over-issued certificates, by the holders thereof, and such certificates were, on making such transfers, brought in, surrendered and canceled. During this period, the amount of the over-issued certificates and over-issued transfers was not in excess of the 30,000 shares of the authorized capital of the company.</p> <p>On the 10th of January, 1849, the excessive transfers amounted to 1,191 shares, but between that day and the 31st of January, shares were transferred to R. & G. L. Schuyler by various persons, sufficient to turn the balance of transfers in their favor. In August, 1851, when the 5,000 additional stock was distributed, the firm of R. & G. L. Schuyler had standing to their credit 854 shares; and in making the distribution and dividend in that month, the stocks previously transferred to the various persons holding the over-issued certificates, were treated by the company as genuine stock; there was at this time outstanding certificates issued to that film, beyond the amount of their credits, for 1,277 shares; that the over-issued certificates continued to increase till October 17, 1853, at which time it had reached 7,042 shares, but the number of incoming certificates up to that time had not exceeded the credits of R. & G. L. Schuyler by transfers made to them, so that on the 17th of October, 1853, their account showed a balance by transfer to them of four shares. On that day a transfer of 100 shares was charged to them, and thenceforward to and including July 3,1854, the balance of transfers against them continued to increase until it reached 17,497 shares, and at the same date the outstanding certificates against them amounted to 1,648 shares. All the certificates issued, including the false and over-issued certificates, were regularly entered in numerical order in the certificate books and stock ledger, and an examination of such books would at all times have shown what certificates were outstanding, and. a comparison between the footings of the several books would have shown whether R. & G. L. Schuyler were or were not entitled to receive certificates.</p> <p>The over-issued certificates and transfers were, in all cases in which judgments have been given to defendants, purchased or received by them in good faith on the payment or advance of money. It was an established usage in the city of New York to make purchases of stock and make loans thereon on the faith of such certificates, with the assignment and power of attorney thereon executed in blank by the party to whom originally issued, and they were transferred in the course of business from hand to hand by delivery. It was a usage also to take transfers of stock in the course of dealing on the books of the corporation without receiving a certificate; and according to the ordinary mode of business transfers were not allowed by corporations without the surrender and cancellation of the outstanding certificate when one had been issued; and according to the usage among corporations in New York, dealers in their stock were not allowed access to their books, and it was not the custom for dealers to make examinations thereof, That the stock of the New York & New Haven Railroad Company was largely dealt in, in the city of New York by the delivery of certificates and assignments in blank, and large amounts of such certificates were constantly in circulation, and many of them purported to be issued to R. & G. L. Schuyler, and were signed by Robert Schuyler as transfer ageut."</p> <p>In many cases where valid certificates of stock had been issued to R. & G. L. Schuyler for stock actually belonging to them, and outstanding to their credit on the books at the time, and while such certificates, with the usual assignments and powers of attorney executed in blank were outstanding in the hands of bona fide holders, the stock was permitted to be transferred by R. Schuyler in the firm name to other persons, who took the same for value in good faith, without the surrender of the outstanding certificates. The rule on this subject, as established by the by-laws, was generally observed, but in the case of R. & G. L. Schuyler and a few other persons, it was disregarded by R. Schuyler and the clerks of his office.</p> <p>. That the railroad company kept no bank account for the deposit of moneys; that money received on behalf of the company on construction account from time to time by Robert. Schuyler,' as president or transfer agent, was, from time to time, deposited by him in the bank accounts of the firm of R. & GL L. Schuyler, and when payments were made by Schuyler on behalf of the company, the money was obtained by R. Schuyler; that large amounts were so obtained from time to time, and frequently from the firm of R. & G. L. Schuyler; that said moneys were drawn out from time to time as needed on their checks; that the money so obtained by R. Schuyler was raised by the said Robert Schuyler in the name of his said firm of R. & G. L. Schuyler indiscriminately on genuine and spurious certificates of the stock of said company; but it is not found to what time such moneys continued to be raised.</p> <p>The firm of R. & G. L. Schuyler failed July 3, 1854, and R. Schuyler, on the morning of the 4th of July, by letter, resigned the offices of president, director and transfer agent, and called the attention of the board of directors to the over-issues appearing in the books. It is also found by the court that up to that time “ there was no evidence of any actual knowledge by any of the other directors of any fraudulent acts on the part of Schuyler in the performance of his duties as transfer agent,” and the evidence tended to establish that he stood high in the confidence of community as a man of integrity and business capacity; but the court further found “ that a proper examination of the books by the directors would have enabled them to discover the frauds which were perpetrated by Schuyler, and that the board of directors was guilty of negligence in not making such examination, and in leaving the entire charge and control of the transfer of shares and giving of certificates with Schuyler without making such examinations,” and that the plaintiffs, by their transfer agent or clerks, carelessly, negligently and improperly conducted, in relation to the transfer of the stock on the books of the company and the issuing of certificates therefor, in the allowance of transfers of shares of stock on the books of the company and in issuing certificates therefor, when no such shares existed, or when such certificates were not true, and in permitting transfers of spurious stock to be made on the books of the company and certificates of spurious stock to be issued to persons who, in good faith, advanced money or other property thereon, and in permitting shares of stock to be transferred to other persons than those holding the certificates thereof without requiring a surrender of such certificates.”</p> <p>“That the defendants received their transfers of stock through the acts and neglect of the transfer agent, or of the officers of" said company, or certificates issued by the acts and neglect of the transfer agent and officers of the company, or certificates of stock valid when issued, but rendered valueless by the fraudulent or negligent pursuance of transfers of such stock to subsequent bona fide purchasers without the sur- • render of the outstanding certificates; and have been misled by the acts and neglect of the transfer agent or officers of said company, in relation to such .transfers and certificates, and have, in good faith, and without any violation on their part or in their knowledge of the by-laws and rules of the company, advanced money and other considerations on the faith of such transfers and certificates.” •</p>

This action is trespass, for cutting down and carrying away trees; was tried at Ontario Circuit, by a judge without a jury. Judgment was given for the defendant for costs. This judgment was affirmed at General Term in the Sixth District, from which an appeal was brought to this court.

This action was brought in the Yew York Common Pleas, to recover for a balance due on the sale of a quantity of live hogs, sold by plaintiffs to defendants. The defense is, that the plaintiffs warranted the hogs to be corn fed hogs, and suitable for the Yew York market; that on the contrary, that many of them were not corn fed hogs, and that they were unfit for market. Also, a small counterclaim which was allowed, and about which no question arises.

<p>The whole duty of the holder of a protested bill is discharged by notice to his immediate indorser; and all parties to the bill or note will be charged, if they receive notice in due course from their immediate subsequent indorsers.</p> <p>When the collecting agent of the holder resides in the same city with one of the indorsers of the bill, it does not modify the rule as above stated.</p>

<p>A person disturbing a religious meeting, and interrupting its order and decorum, may be removed therefrom by the application of force sufficient for that purpose.</p> <p>To justify the application of force for the removal of a person interrupting the order and decorum of such meeting, it is not necessary that the disturbance should be willful.</p> <p>It seems that, in Catholic meetings, it is appropriate that the priest, as the presiding officer of the meeting, should preserve order and rebuke all violations of it.</p>

Action on a promissory note for $2,000, made by the defendant, on the 18th of September, 1857, payable to Patrick Hogarty, and indorsed by him. The cause was tried before Judge Hilton and a jury, in-the Hew York Common Pleas. The plaintiff recovered, and the judgment was affirmed at the General Term, on appeal.

The appeal is from the affirmance, in the Hew York Common Pleas, of a judgment entered upon the verdict of the jury in favor of the plaintiff for $5,197.92, on the trial before Judge Beady. The complaint was inartificially drawn; but its defects were supplied by the answer, the proof, and the verdict.

<p>Testamentary capacity is mainly a question of fact, to he determined by the testimony of witnesses examined before the surrogate when the wiil is propounded for record, &o.</p> <p>To establish undue influence over the testator at the time of executing his will, it must be made to appear that the importunity or influence was such as to deprive the testator, at the time, of the free exercise of his will.</p> <p>Influence arising from gratitude, affection, or esteem, is not sufficient.</p>

<p>Where the justice at Special Term finds, as facts, that the assignee of certain bonds and mortgages, and donee of a certain check of the assignor, was the clerk of the attorneys, &c., of the assignor, and had charge of much of the business of the assignor, &c„ and was familiar with the extent and nature of her property, and enjoyed her confidence and esteem; and that the assignment was a gift, freely and voluntarily made by the assignor to the assignee, without any fraud, deceit, or undue influence on the part of the assignee, or advantage taken by reason of his business relation, &c.; the law will uphold the transaction.</p> <p>Where persons standing in confidential relations make bargains with, or receive benefits from, the person for whom they are counsel, &e., the transaction is to be scrutinized with the extremest vigilance, and regarded with the utmost jealousy. Per Hunt, J.</p> <p>The presumption is against such a transaction; and the onus is upon the party seeking to establish the'gift, &e. Per Hunt, J.</p>

<p>Where there has been a voluntary assignment for the benefit of creditors, a partial payment of a debt by the assignee does not take the case out of the statute of limitations.</p> <p>The act of the assignee in paying a portion of the debt is beyond the control of the assignor, who cannot accompany the payment with a qualification or disclaimer, as when made by himself.</p>

This action is brought to compel the defendants, as executors, to pay over certain moneys, which it is alleged were received by their testator, in his lifetime, in trust for the plaintiff, under the will of Solomon Bundle, her late husband.

This is an action upon a covenant of the defendant’s testator, John Yan Dyke, made on the 12th of June, 1828, wherein, after reciting that his father, then deceased, had devised one-third of his real estate to this plaintiff, and that the plaintiff had sold and conveyed the same to defendant’s testator, he, the testator, for a valuable consideration, agreed with the plaintiff “ to pay all such sum or sums of money, legacies and charges, and perform all such duties and…

The testator died in his seventy-seventh year, at Argyle, in the county of Washington. He left a small property, amounting to some $1,800 or $2,000. The contest is between, his daughters, Mrs. Fullerton and Mrs. Clapp, who are his only children and sole legatees. He made the will, in question, on the 10th of December, 1861, giving all his property to Mrs. Clapp except a legacy of $100 to Mrs. Fullerton.

The testator, Isaac Getty, was a resident of Salem, and died in February, 1856, being then about eighty years old. Held: that the provision in their favor entitled them only to the avails of the real estate owned by the testator at his decease, and that the bond and mortgage passed to the widow, under the absolute bequest to her of all his personal property.

56. The action was for damages caused by the negligence of the proprietors of steamer Cayuga in towing the boat Camden, by which the latter was sunk in the Hudson river, and the bulk of the cargo lost. The defendant Brainard was one of the proprietors of the ‘Cayuga, and the Steam navigation Company was another.

The plaintiff in error was indicted and tried at the St. Lawrence Oyer and Terminer, in February, 1865, on a charge of administering poison to one Julius Denny, with intent to kill, which poison, by the said administering, was actually taken by said Denny, &c. (See 2 B. S., 666, § SL) The indictment contained four counts, all charging the same offense, though in different words.

The action was for the recovery of certain real property, situate in the town of Springfield, in the county of Otsego, and was commenced in 1859, by Charles Gilchrist, the ancestor of the present plaintiffs, who died pending the suit, and his heirs-at-law have been substituted. The cause was tried at the Otsego Circuit, in December, 1859, before Mr. Justice Masoh and a jury.

The action was against the defendants as maker and indorser of a promissory note for $350, with interest, payable six months after date. The defense was that the consideration was illegal, and that the plaintiff was not a hona fide holder. The cause was tried before Judge Welles, at the Steuben Circuit, and resulted in a verdict for the plaintiff.

Court. The actions were for the recovery of personal property taken and detained by the defendant, as an officer, under an attachment against Clapp, one of the respondents.

Action to recover back money paid on two promissory notes, dated 16th November, 1848, one for §341.03, and the other for §341.73, given by the assignors of the plaintiff to the defendant. The cause was tried at the New York Circuit, in January, 1865, before Mr. Justice Morris, without a jury.

<p>Under the statute (Laws, 1841, eh. 455), giving a remedy for the undervaluation of land by the highway commissioners, it is not essential that the justice who issued the summons for the jury should certify their verdict.</p> <p>The statute, in that respect, is merely directory, and the verdict may be certified by another justice, ¿e.</p> <p>Remarks upon the nature of directory statutes, by Leonard, JT.</p>

This action is upon a bond of indemnity given to the plaintiffs by the defendants, under the following circumstances : In March, 1855, the plaintiffs, a Connecticut insurance company, insured Wage and Scott, of Buffalo, $1,000 on their stock of goods for one year. In May, the goods were' damaged by fire, and Wage and Scott claimed a loss of 850 dollars. The plaintiffs admitted a loss of $603.45, and were ready to pay that sum on the 16th July, when it became payable.

<p>In an action for use and occupation, it is not necessary to prove the defendant to have been in manual occupation of the premises during the time for which recovery is sought. If the power to Occupy and enjoy is given by the landlord to the tenant, so far as the landlord is concerned, he has performed on his part,.and the action is maintainable.</p> <p>Where defendants leased a barn for the term of three years, and took possession and actually occupied the same for one year, and continued to keep the key, but did not actually occupy: Selds he was liable in an action for use and occupation,</p>

The plaintiff’s complaint was in trespass, charging the defendant with the taking and conversion of a pair of bobsleds and eight hogs belonging to her, to her damage of $100.

<p>Declarations of a party. The declarations of a party in possession are admissible in evidence against the party making them, or his privies in blood and estate.</p> <p>But such declarations are not competent as evidence to attack or destroy the title which is of record, &c.: Per Hunt, <T.</p>

<p>A fraudulent use of the statutes for the prevention of frauds, &c., will not bo permitted; and a court of equity will interfere against a party intending to make such statute an instrument of fraud.</p> <p>Where a purchaser under a foreclosure sale undertakes to purchase for the benefit of the mortgagor, and thus acquires the title at a price greatly below its value, he will be deemed the trustee of the party for whom he has undertaken the purchase, and, on tender to him of the purchase-money and interest, he will be compelled to convey the property to the party equitably entitled.</p> <p>It is no objection that the agreement, by which he undertook to purchase for the benefit of the owner of the equity of redemption, was not in writing.</p> <p>The law makes him a trustee ex maleficio.</p>

<p>Merger never takes place, except where the legal and equitable estate unite in the same person; and not even then, when it is the clear intent of all parties in interest-that it shall not take place.</p>

<p>Where several judgments have been filed and docketed, and the one having a prior lien has afterwards been vacated by an order of the Special Term, which order, on appeal to the General Term, is subsequently vacated, and the original judgment affirmed, the lien which was thus suspended is restored on the affirmation of the judgment by the General Term ¡ and where no new rights have been acquired by the other judgment creditors by proceedings under ' their several judgments, all parties are restored to their original rights.</p> <p>Where the lien of a judgment is suspended by an order vacating the judgment, when such order ceases to have any validity by being vacated, the lien is revived, as though it had never been suspended.</p>

The plaintiff, as .executor and legatee under the will of Porter Wood, deceased, brought this suit against the defendant, his co-executor, to obtain an injunction and a decree revoking his appointment as one of the executors, .on the ground of his misconduct.

On the 19th of June, 1848, Amariah Hammond made his will, by which he gave and devised a farm of land to his daughter, the plaintiff, and appointed defendant one of his executors. Testator died on the 5th of Hovember, 1850, seized of that farm, and on the Slst of December, 1850, letters testamentary were issued to his executor.

Writ of error to the Supreme Court. The plaintiff in error was indicted in the Court of General Sessions in the city and county of New York, for obtaining forty dollars in money of Charles H. Ludington, by false pretenses.

The action was commenced in 1854. It was tried at the circuit, and judgment went in favor of the plaintiff. On appeal, the General Term reversed the judgment, and ordered a' new trial. It was tried a second time, at the Monroe Circuit, in October, 1857, and judgment was ordered for the defendant. From this judgment the plaintiff appealed to the General Term, and then to this court, in both of which courts the judgment was affirmed.

This was, or would have been, under the old law, a bill filed against the respondent, Philomela, a married woman, to enforce an equitable claim against her separate estate. The amount claimed to be due was less than $100, and for that cause the Supreme Court dismissed the complaint, with costs,, on the ground that that court had no jurisdiction of the matter. On appeal to the General Term this decree was affirmed, and the plaintiffs appealed to this court.

The receiver in this matter presented a petition to the Supreme Court, setting forth a proposed complaint, in which he alleged his… Held: and that another assessment or apportionment must be made; that, if the relief he asks be granted, he can pay off the debts of the company without calling in the whole amount of the premium notes; if it be denied, the costs and expenses of suits at law for the colle9* tion of said premium notes “ will be so great as to consume the…

The action was brought to recover about three tons of hay, claimed to be the property of the plaintiffs, and which, at the commencement of the action in July, 1856, was, in pursuance of the statute, delivered to the plaintiffs by the sheriff of Orleans 'county. The defendant answered, denying that the plaintiffs owned the hay.

<p>Where, upon an agreement to sell and deliver a quantity of hops, the vendee agrees to advance $125 to pay pickers, and at the same time advances to ■ tho vendor that amount, and takes his note for the same, payable one day after the date thereof, the transactions maybe treated as one and tho same;; and the note may be deemed a receipt for the money advanced.</p>

<p>Where the judgment of the referee is reversed by the General Term, and it is stated in the judgment of reversal that such reversal was made upon questions of fact, it is the duty of this court to examine the .facts of the case, as well as the law, and to decide whether the judgment should have been reversed by the General Term upon the facts. The whole case, upon the facts, is presented to this court for review.</p> <p>Where the plaintiff entered into a contract with the defendant “ to make the plans, elevations, sections and specifications ” of a dwelling house intended to be erected by him, and to “ superintend the progress ” of the building, and where the mason also had a separate contract with the defendant “ well and sufficiently to erect and finish the building, -agreeably to drawings and specifications” made by the plaintiff, and where the mason agreed also “to lay out his work himself," and there was a defect in the building, in that the balcony ■ in front and the front parlor windows were two and three quarters inches higher from the parlor floor than was shown upon the plans, and the same distance higher from the floor than the back parlor windows, and where it was proved that the plaintiff had diligently superintended the progress of the. work&emdash;Meld, that such defects are not chargeable upon the plaintiff, and formed no ground for withholding payment of the amount agreed to be paid for his services as such architect.</p> <p>Meld, further, that the judgment of the General Term, overruling the decision of the referee in favor of the claim of the architect, was erroneous, and should be reversed.</p> <p>The circumstance that the defendant paid his masons the balance due to them for their work, when he could have withheld the same, until they presented a certificate from the plaintiff, which he refused to give, held unimportant. The defendant might select his remedy against either party, as by law entitled; and the neglect of the one, or payment to him, would constitute no defense to the party prosecuted. The statement of the facts, on this branch of the case, held not to interfere with the judgment of the referee, as his judgment is not based upon such a theory.</p>

The plaintiff sued to recover on an alleged subscription for shares of its capital stock.

<p>Where a sheriff levied upon certain articles, on an execution against B., as his property, and an action of replevin is brought by A., who claimed to be the owner, against the sheriff, and where the property has been delivered to A., in the action, the recovery of the sheriff, upon a verdict in his favor, is not limited to the amount of the execution on which the levy Was made, but should be for the value of the property.</p> <p>To make an exception to the judge’s charge effectual, it must be distinct and explicit, or the judge must be requested to charge to the effect desired by the party excepting.</p> <p>An objection that the verdict was against the evidence, cannot be raised.in this court, when it was not presented at the Circuit or to the General Term, and where the evidence was discussed before the jury and passed upon by them. In the present case, held that there was sufficient evidence on which to base the verdict of the jury.</p> <p>An objection that the judgment is erroneous in form, cannot be raised in this court. It is a question of practice, which is the proper subject of an application to the Special Term; as that a judgment in replevin erroneously directed the payment of money, in addition to awarding a return of the property.</p>

The action was to recover possession of personal property of the plaintiffs, which the defendant, as deputy sheriff, attached and sold as the property of Hulett P. Bedell and Egbert S. Bedell. The cause was tried before Judge Hogeboom, at the Greene Circuit, and the jury found a verdict in favor of the plaintiffs for $2,115.09.

<p>One who, by contract with the State, assumes the duties and is invested with the powers of a public officer, is liable to an individual who sustains special damage by a neglect properly to perform such duties.</p> <p>By the statutes of this State, the canal board is authorized to let the repairs upon any or all of the sections of the canals of this State to be made by contract; and the contractor is invested with the same general powers formerly given to superintendents of repairs, and the same general duties are imposed upon him.</p> <p>Held, that when the lock-gates upon one of the sections so let by contract were defective and out of repair, of which notice had been given to the contractor, and in consequence of such defect the plaintiff’s boat and its furniture, while passing through such gates, were injured by the giving way thereof, the contractor was liable for the damage thus sustained.</p> <p>A public officer, or a contractor engaged to perform the duties of a public officer, is liable for negligence or malfeasance to any one sustaining special damage in consequence thereof.</p>

On the 15th of May, 1859, plaintiff was a passenger on defendant’s express train of cars from Buffalo to Syracuse, which train ran off the track, about 10 o’clock in the forenoon, near Jordan station, in Cayuga county, and injured plaintiff, for which cause this action is prosecuted.

Appeal -from the judgment of the Supreme Court in the fourth district, reversing a judgment for the defendant upon the report of a referee.

Action in Superior Court'of Hew-York to recover $2,569.77, the price of a cargó of rye sold to defendant in the city of Hew York, on the 27th of August, 1858. The sale was ' negotiated by a grain broker, but before the delivery of the grain the defendant • was aware of the plaintiffs being the owners. The plaintiffs lived in Albany, and were dealers’ in grain. The rye was delivered on the 30th of August.

■ Appeal from Supreme Court. Action to recover the value of a horse killed on the railroad of defendants by one of their engines; the horse having got upon the road, as alleged, by the neglect of the defendants to construct and maintain a “ cattle guard ” at a road crossing.

<p>The defendant, H. B., had executed his bond and mortgage for $2,000. to A. B., which was afterwards assigned by A. B. to T. E. B. and A. B., Jr. After the death of T. E. B., the mortgagor, H. B. procured the wife and son of T. E. B. to assign to him their interest in the said mortgage, úpon the promise to pay them $1,000 for said assignment. All the debts of T. E. B. were paid. In an action by the assignee of the wife and son to recover the $1,000, Held, that the wife and son, being the distributees of the estate of T. E. B., could sell the substantial interest in the mortgage, and that their assignment was a sufficient consideration for the promise to pay the $1,000.</p> <p>Also, that the consideration passing between Ti E. B. and A. B., upon the transfer'of the mortgage to the former, was immaterial, and could not be inquired into in the present action.</p> <p>Also, that the declarations of T. E. B„ or of the son, were not admissible ini evidence against the present plaintiff. Such declarations are only admissible where the interests of the parties remain unchanged by the apparent transaction, and where an identity of interest exists between the assignor and assignee.</p> <p>Held, further, that the assignment was valid and effectual, notwithstanding, one object in making it was to enable the assignor to become a witness in the action. If it was the intent of the parties that the proceeds of the suit should be under the exclusive control of the assignee, the assignment was effectual.</p> <p>Held, further, that the case was fairly and properly submitted to the. ju.ry upon the facts, and that the comments of the judge on the evidence are not a subject of exception.</p>

The action was brought to recover the one-fifth part of a sum of money which the plaintiff had paid in satisfaction of a promissory note executed by the plaintiff, the defendant’s intestate, and three other persons.

<p>Where the defense of usury is made by the drawers of a draft, on the ground that the same was an accommodation draft, in the hands of the acceptors, and was discounted by their agents to the plaintiff, at a greater rate of interest than of seven per cent per annum, the proof of such rate of discount cannot be made, by producing an extract from the books of such agents, reciting facts, from which such usurious discount can be inferred. Such proof must be made by the oral testimony of living witnesses, or by the other recognized modes of establishing facts.</p>

<p>Under section 399 of the amended Code of 1859, enacting that “an assignor shall not be admitted to be examined in behalf of any person deriving title through or for him, against an assignee or an" executor or administrator, unless the other party to such contract or thing in action,, whom the plaintiff or defendant represents, is living, and his testimony can be procured,” &c.: Held, that an assignor was not excluded from testifying against a “legatee,” when suit'was brought to recover from such legatee the amount of a judgment against the testator. A legatee is not within the meaning of the words, .“an assignee or executor or administrator.”</p>

<p>A right of way over a man’s land affects his title, and a justice of the peace has no jurisdiction to try such a right.</p> <p>The owner may interpose á plea of title, when sued by the commissioner to recover the penalty given by 1 B. S. (p. 521, § 102), for obstructing an alleged highway over his premises. The case of Parker v. Van. Souten (1 Wend,, 145), questioned: Per Morgan, J.</p> <p>But such an answer is a nullity in a justice’s court, unless accompanied by an undertaking, as required by section 58 of the Code.</p> <p>The defendant, having gone to trial in a justice’s court, upon an answer containing a general denial of the complaint, and, also, a second answer denying that the locus in quo was a public highway—after proof, by the commissioner, that the highway in question had been opened and traveled as such for a year and over — offered evidence tending to prove that the locus in quo was not included in the boundaries as contained in the order filed in the clerk’s oEce laying out the highway: ffeld, that such evidence raised a question of title, • and was properly excluded by the justice.</p> <p>Evidence of user by the public of the locus in quo as a public highway, although for a period less than twenty years, is prima fade suEcient to support the action, all other essential facts being proved: Per Smith, J.</p> <p>The defendant, not being in the actual occupation of the locus in quo, cannot overcome such evidence in a justice’s court by production of his title deeds, or by proof that he is in possession of the adjacent premises: Per Morgan, J.</p>

<p>The defendant, being in possession of the plaintiff’s goods, under an agreement which had expired, refused to deliver them up to the plaintiff on demand, for the reason that they had been attached by the sheriff as the property of one Quinton Sogers, under a claim that the plaintiff held the title in trust for and in fraud of the creditors of Quinton Sogers. The jury having negatived the fraud, held, that there was sufficient evidence of a conversion by the defendant.</p> <p>A bailee, who sets up the title of another as an excuse for not delivering up the goods to the owner, makes himself a party to the controversy, and must stand or fall by his title.</p> <p>The law, it seems, will protect the bailee in a case of doubt, if, instead of refusing the demand, he remains neutral, and suffers the claimant to take the goods upon his own responsibility.</p> <p>So, it seems, if he qualifies his refusal by answering that he is ready to deliver the goods as soon as he has made some reasonable inquiry as to the evidence of the title, provided such excuse is made in good faith.</p> <p>A sheriff, who seizes the goods of another than the defendant in the attachment, is liable to the true owner in an action of trespass.</p> <p>The principle that goods levied upon by the sheriff, under an attachment, are in the custody of law, only applies as between the sheriff and the defendant in the attachment suit.</p> <p>Whether it applies as between the sheriff and the true owner, when seized under a writ of replevin against another party: Quere?</p>

<p>Where a vendor, who has been defrauded in the sale of his goods, proceeds to judgment against the vendee upon, the contract of sale, after being fully-apprised of the fraud, his election is determined, and he cannot afterward follow the goods, or the proceeds thereof, into the hands of third persons, on the ground of fraud.</p> <p>Where a principal, with full knowledge of a fraud, perpetrated by his agent in the disposition of property purchased with his money, elects to prosecute to judgment for the money so misappropriated, he affirms the acts of his agent, and cannot afterward pursue the property; which he had elected to treat as that of his agent.</p>

<p>An action to remove a cloud from title cannot be sustained, where it is apparent, upon the face of the pleading, that the facts alleged, if true, would not legally affect the title of the plaintiff.</p>

This action was brought in the Superior Court of the city of ¡New York. The complaint stated that in August, 1852, the defendants, by a contract in writing, in consideration of $2,586 paid to them by the plaintiff, assigned to him a judgment recovered by Archibald Brown against Justus Wyman, in the State of Alabama, March 5th, 1838, for $6,574.70 damages, with costs, and which had been transferred to the defendants.

<p>An executory contract for the sale of personal property does not pass the title to the same.</p> <p>Where goods are wrongfully taken and converted, in an action to recover damages for the same, the rule of damage is, the highest market price of such goods at the place of the taking, between the time of the taking and that of the trial,</p>

Action to recover of the defendants the value of a quantity of marble, alleged to have been lost while in their charge as common carriers.

This action was brought in the Superior Court of the city of New York, by a receiver, appointed in proceedings supplementary to execution, to set -aside conveyances of real estate, and an assignment of a lease of real estate, in said city, made by the defendant, George Murphy, the judgment debtor, to the defendants, Mary Murphy, his wife, Edward Murphy, his son, and Ann Maria Murphy, his daughter, as fraudulent and void, on the ground that they were made by the debtor with…

<p>Every intendment is to be in favor of the performance of duty by a notary, who certifies to the protest of negotiable paper for non-payment.</p> <p>The certificate should be read in harmony with the performance of official duty, unless the contrary construction is clearly indicated.</p>

Certiorari for the review of certain proceedings of the defendants, hereinafter mentioned, relating to bounties to volunteers mustered into the military service of the United States.

The action was to recover for damages sustained by the plaintiffs by means of an overflow of the Croton water upon their premises, alleged to have occurred from the negligence of the defendants. The cause was tried before Mr. J ustiee Bosworth and a jury in June, 1860, and resulted in a verdict for the defendants.

<p>The fact that one of the parties interested in the partition of an estate is an infant, lunatic, &c,, will not deprive other parties in such interest of their right to a partition and sale of the premises so held in common by them.</p> <p>But, before the interest of the infant or lunatic therein can be disposed of, and his title be vested in a purchaser, he must, in some proper form, be brought before the court, and his rights be passed upon and protected.</p> <p>If, in bringing the ward into court, or in the proceedings before the court, there has been any irregularity, that may be cured by subsequent amendment under the order of the court having jurisdiction of the parties and the subject-matter.</p>

The action was brought to recover the value of a trunk and its contents, the property of Vincent Dunn, the plaintiff’s assignor, which, it was alleged, was delivered to the defendants, to be carried by them, with its owner, over their railroad from Dunkirk to Buffalo, for hire, and which they refused to deliver or account for to Dunn or the plaintiff. The cause was tried by the justice, without a jury.

On the 27th of February, 1862, Gabriel Winter died intestate, seized of real estate situate in New York and Queens counties of the value of $200,000, and personal estate of the value of $25,000, leaving him surviving his widow Jane Winter (who died April 19th, 1862), and William Winter, his son, and Mortimer Livingston and Henry W. Livingston, his grandchildren by his daughter Mary Jane (who died March 29th, 1858), his only heirs.

The appeal is from a judgment affirming the decree of the surrogate of the county of Hew York, made July 3d, 1860, on the final accounting of Lewis B. Brown, executor of the will of David Hiehols, deceased.

The plaintiff sued the railroad company for damages for negligently running a steam engine against him while crossing the track on St. Joseph street, in the city of Rochester. The evidence shows that the plaintiff was passing on the east side of South St. Joseph street, from north to south,'when he saw a long train coming up from the west, and he waited until it had passed. He stood on the second track on the sidewalk.

<p>Breach of warranty, and bulb of damage. Where there is a special warranty, and a breach, the plaintiff is entitled to such damages as were the natural and necessary consequences of the breach.</p> <p>Where the defendant sold cabbage seed, and warranted the same to produce Bristol cabbages, which warranty was untrue, Held, the damages would be tha value of a crop of Bristol cabbages, such as ordinarily would have been produced that year, deducting the expense of raising the crop, and also the value of the crop actually raised therefrom.</p>

<p>An action for the breach of a contract of marriage, between parties in this State, cannot be maintained where one of the parties was, by law, incapable of entering into the marriage relation at the time of making the contract.</p> <p>Where a divorce has been granted on the ground of the adultery of the husband, he cannot, in this State, make a valid contract of marriage during the lifetime of his wife who obtained the divorce.</p>

This cause came up on appeal from a judgment of the General Term, reversing a judgment of the Special Term, and dismissing the complaint, with costs.

Appeals from the Supreme Court. The first two of the above entitled causes are appeals from judgments of the General Term of the Supreme Court in the first judicial district, recovered against the defendants by the Metropolitan Board of Excise created by the act of April 14, 1866 (Laws of 1866, chap. 578), for penalties for publicly selling liquors without license, in violation of such statute, such sale in the Barrie case being on a week day, and in Currier’s case on Sunday.

Justice Lott, in October, 1859. The case as heard at Special Term by Judge Emott on a motion for a new trial, is reported in 32 Barb., 398. The action was for damages resulting from injuries received by the plaintiff and his minor son through the negligence of the defendant.