Volume 37 — Barbour's New York Supreme Court Reports

THIS was an appeal from an order made at a special term, allowing a demurrer to the complaint. The necessary facts are set forth in the opinion of the court.

THIS was an appeal from a judgment entered upon the report of a referee as to the amount of damages, in an action for specific performance.

This action was brought before a justice of the peace, where the plaintiff, George W. Lansing, complained of the defendant, Daniel D. Stone, that he rented a house of the defendant, in the year 1858, in the town of Cazenovia, and placed his household furniture in it; that the defendant afterwards entered the house in the absence of the plaintiff and his family, and through the negligence and carelessness of the defendant the house took fire and plaintiff’s furniture therein…

THIS was an appeal from an order made at a special term, directing a purchaser at a sale of premises in' partition to accept a deed and pay the purchase money. George W. Cavanagh and others presented a petition to this court under the provisions of the revised statutes (2 B. S. 317, § 1) for the partition of a lot of land with a dwelling ho.use thereon, in the city of New York.

The action was brought by the plaintiff as receiver of Alfred Disbrow, a judgment debtor, against the said Alfred Disbrow and others, to set aside a transfer made by Disbrow and William Strang, his assignee, of Alfred DisbroVs distributive share in the estate of Stephen B. Disbrow, his deceased brother. In November, 1852, G. S. Martin recovered a judgment against Alfred Disbrow and one Wheeler.

THIS action was brought by the plaintiff as receiver of the Rensselaer Insurance Company, against the defendants, to recover the amount of a premium note for $350, given by them to said company, and dated the 25th day of April, 1850.

THIS was ah appeal from a judgment entered upon the report of a referee. The action was commenced to set aside a conveyance of certain premises owned by the defendant Henry Reuter, made by the said defendant to the defendant Henry Rechenbergh, and a conveyance of the same premises made by the said Rechenbergh and wife to the de~ fendant Maria B. Renter, the wife of Henry Reuter.

THE defendant in this action, in the spring of 1861, fenced np a street in the village of Jordan, Onondaga county, called Water street, and this action was brought to recover a penalty of five dollars, imposed by statute, for such obstruction. The suit was brought in a justice’s court. The defendant pleaded title, and the action was brought into this court, and tried by the court without a jury, at a circuit court held in the city of Syracuse in October, 1861.

<p>A condition, in a mortgage, that upon default in the payment of interest for twenty days after the time limited for the payment thereof, the principal sum, together with- all arrears of interest, shall, at the option of the mortgagee, become and be due and payable immediately, is not in the nature of a forfeiture, to be relieved against by a court of equity, or which a court of equity will not enforce.</p> <p>It is an agreement which the parties have a right to make, and the extension of credit is lawfully made dependent rrpon the punctual payment of interest.</p> <p>Upon the failure of the mortgagor to perform the condition, the principal becomes due and payable, by the terms of his contract. And, in the absence of fraud, this, like any other contract, will be enforced by a court of equity.</p>

<p>Where the plaintiffs deposited money with the defendants, who were bankers, at Chicago, and" received from them a certificate stating that the plaintiffs had deposited in their office “ $1781.42, Ills, cy., payable to the order of themselves” on the return of the certificate; Held that the fair construction of the terms “Ills, cy.,” if applied to the payment of the certificate, was that the same might be paid in bills of banks which at the time of payment were received and passed as ordinary currency in Illinois, in the usual-transactions of business; but that payment could not be made in the same bills which were received by the defendants.</p> <p>Held also, that it was erroneous to hold that the defendants were bound to pay in specie, or in bills which passed at par in Chicago.</p>

MOTION by the defendant on a case with exceptions, to set aside a verdict taken at the Steuben circuit in January, 1861, and for a new trial. Exceptions ordered to be heard at the general term, in the first instance.

THE complaint in this action alleged that the defendant, in June and July, 1860, occupied certain lands in Brooklyn fronting on East river. That said lands were and are beyond and below low water mark, and the East river is an arm of the sea and a public highway. That the front of said premises is a bulkhead or wharf where vessels engaged in commerce lie, moor, lade and unlade, &c., and the legal and customary use of such a structure is such use and occupation by vessels.

THIS was an appeal from an order made at a special term discharging the defendant Erastus Davison from arrest. Judgment was rendered in this action on the 7th of May, 1856, on the report of a referee, requiring the defendants specifically to perform their contract with the plaintiffs to convey to them a house and lot in Twenty-sixth street in the city of Hew York, and for which the plaintiffs had principally paid. This judgment was never appealed from.

William H. Kenzel, the respondent, on the 1st September, 1856, was a store keeper in Jersey City, dealing with vessels. On that day, William C. Rogers, whom he knew to be master of the schooner Moonlight, came into his store and bought an -outfit in provisions for the schooner, for a round voyage he was about making to the West-Indies and other ports. The amount of the bill was $296.88. The bill was purchased in the name of the vessel, on a credit -of three months.

The action was brought by the plaintiffs, as assignees of William H. Boyd, to recover the value of two boxes of books, shipped, by said Boyd at New York, on one of the defendant’s. steamers, to be delivered to' him or his assigns at New Orleans, and which they failed to deliver pursuant to the bill of lading. Except the fact of the shipment of the two boxes and the issuing the bill of lading, the defendant put in issue all the allegations of the complaint.

THIS was an appeal from an order made at a special term, superseding a common law writ of certiorari. The writ was issued to the Board of Commissioners of Pilots, commanding them to certify their record and proceedings in suspending the relator from acting as a pilot of the port of Hew York.

Thé plaintiff alleged in the complaint that, the defendant was and is a corporation duly created under the laws of the state of Sew York.

<p>A trustee, who holds the title to property by conveyance from a debtor or borrower of money, in trust to secure a creditor or lender, where no compensation is provided in the conveyance, and no service is performed, or liability incurred, by the trustee, under his powers in the deed, and no request to act as trustee is made by the borrower, can have no recourse to the borrower or debtor by action for commissions or compensation, although the trustee accepted the trust, if the original demand so secured has been voluntarily paid by the debtor, without any resort to the security.</p> <p>In case the trustee has advertised the property for sale, and incurred expenses and rendered services in respect thereto, by the direction of the creditor, when nothing was due or payable by the terms of the conveyance, the trustee must look to the party who gave him his instructions, for the payment of such services and expenses, and not to the borrower.</p>

PPEAL from a judgment entered at a special term. The action was brought by the plaintiff, as executor of Rachel .Weeks, deceased, against the husband and legatees and next of kin of the deceased, for the construction of her will.

The complaint alleged that the plaintiff Francis Dolcher, being the owner of certain real estate, situate in the county of Kings, particularly. described in the complaint, on or about the 20th day of September,, 1856, executed a mortgage upon said premises to Bernard Dezendorf and Charles Hicks, executors of the last will and testament of one Andrew Dezendorf, deceased, which mortgage was duly recorded in the office of the register of the county of Kings on the 24th day of…

THIS action was brought by the plaintiff against the defendant to recover damages for false imprisonment.

PPEAL from a decree of the surrogate of the county of Westchester. The surrogate appointed Frederick Diaper guardian of the estate of his daughter Elizabeth Gr. S. Diaper. During her infancy she married Henry E. Anderson.

The action was brought against the defendant, as sheriff of King’s county, for not holding a defendant to bail on an attachment issued by order of the county judge, in proceedings supplementary to execution in an action brought by Morton & Canda (the plaintiffs herein) against one Seth B. Cole.

THIS was an appeal from a judgment entered on the report of a referee. The action was brought by the plaintiff, as holder, against the defendants as makers, of thirteen promissory notes for $1000 each, payable to Asahel Gooding, or hearer. Sands signed each note as surety for Adams, the other maker.

THIS action was brought to recover of the defendant as guarantor of a note, made by John S. Warner, for $100, payable to A. D. Lusk or bearer, on the 7th day of ¡November, 1859, with use, dated July 7, 1859. The defense was usury. The note was made without consideration, to raise money for Warner; who delivered' it to Lusk to negotiate a sale of it as Warner’s agent.

The deceased, who was a resident of the town of Perrin ton in the county of Monroe, died on the 13th day of November, 1859. He left a will dated July 28, 1856, by which he made his wife, Harriet Manchester, his sole devisee and legatee, and appointed her his sole executrix. She proved the will, before the surrogate of Monroe county, on the 25th day of January, 1860, and on the same day received letters testamentary thereon.

THIS was an appeal from a judgment given at the circuit, on the verdict of a jury.

PEIOE to 1852 the parties, plaintiff and defendant, had been partners in businéss. After the dissolution, and on the 9th of January, 1852, Potter, the defendant, executed and delivered to the plaintiff, Olute, his negotiable promissory note for $242, payable 90 days after date.

The complaint sets forth, that on the 14th of September, 1853, the Albany Northern Rail Road Co. “being indebted to John Shine and Dennis Scanlin for work, labor and services performed by them and their servants or agents, under the firm name of Shine & Scanlin, copartners, doing the business of contractors with the said Albany Northern Rail Road Company, for the construction of some part of its said rail road track, made its promissory note in writing, bearing date on that…

THIS is an appeal from an order made at special term overruling a demurrer to the complaint. The complaint sets out the will of Stephen Germond, of Lansingburgh, dated 27th of» August, 1836. By this will, first, all the testator's estate, real and personal, was given to Smith Germond in trust to sell and pay debts and legacies, as therein particularly specified. The next seven items contained various legacies given to his relatives. Ninth.

<p>It seems that no positive obligation to build a rail road, either in whole or in part, rests upon the company from its having obtained a charter for that purpose. Nor can qny clear and imperative obligation to complete the entire route of a road be deduced from the fact that the company has completed a portion of it.</p> <p>The question of abandonment, is somewhat different from that of construction. The right to abandon does not inevitably result from the right not to build.</p> <p>It may be that a rail road company, having accepted a charter, obtained subscriptions to the stock, acquired the right of eminent domain, procured an assessment of damages on the.faitli of completing the road, finished the road, put it in operation, exacted tolls and fares, diverted travel, and assumed to become common carriers of passengers and merchandise, has also incurred some obligations to the public which it is bound to fulfill. The public must have some rights. Per Hogebooji. J.</p> <p>Yet it is not by any means clear that a rail road company has not the right to; abandon its whole road, if it elects to do so. Per Hogebooii, J.</p> <p>But the right to abandon a part of a road necessary to the preservation of an unbroken line of rail road communication, if it exists, is not absolute and unrestricted, but may, in a proper case, be interfered with, or controlled.</p> <p>Although, in ordinary cases, an appeal to the legislature, to take away the charter, or to the courts to forfeit it for nonuser, may be the more pertinent and available remedy, yet in extreme and urgent circumstances, where sudden and serious injurious consequences are likely to ensue, the remedy by injunction, to prevent the taking up of the track, or other dismantling of the road, ->r by mandamus, to compel its restoration, may be had. 11s</p>

THIS is an application by James B, Sanders, who has a deposit in the Bank of Albany to an amount exceeding a note of his held by said bank at the time of its insolvency, and about to mature, to direct the receiver to apply said note, at maturity, upon the account or debt due to the petitioner.

Proceedings on the report of a referee, to whom a claim against the estate of a deceased person was referred. I.—October, 1860. Appeal from a judgment on the report of the referee. Euth C. Ooe, the plaintiff, presented a claim, upon a promissory note, against William C. Coe, deceased, to his administrators, Abigail Coe and Joseph Mason, the defendants, who doubted the justice of it, but entered into an agreement with the plaintiff, Euth C. Coe, to refer the same to a referee.

APPEAL by.the plaintiffs from a judgment entered on the report of a referee. The action was brought to recover a claimed balance of freight, for transportation of lumber from Montreal to Troy, alleged to be about 137,000 feet, and found by the referee to be 126,357 feet. J. A. Perkins, of Montreal, was the owner and consignor of the lumber, and the defendant the cpnsignee.

The action was brought against the defendant to recover of the defendant the possession of certain land covered by a mill pond. On the 21st day of April, 1821, John.W. Carpenter and wife conveyed to Eliphalet Smith, by a full covenant warranty deed, a farm described as containing 135 acres, and including within its boundaries the premises in question.

PPBAL from a judgment entered at a special term, after a trial at the circuit, before the court without a jury. The action was brought for an accounting between the parties relative to the crops and produce of a farm leased by the plaintiff to the defendant on the 1st day of May, 1859, for the term of one year. The rent to be paid by the defendant was one half of the products and crops which should he raised on the farm by the defendant.

A PPEAL from a judgment entered o upon a verdict taken -Ol at the circuit, in Ontario county, in May, 1860j in favor of the plaintiff.

The action was brought against Alexander Babcock to recover damages against him for forcibly and wrongfully taking from the possession of the plaintiff, and carrying away, certain personal property. The plaintiff claimed the property by virtue of a chattel mortgage executed by one Thomas Youngs on the 6th of February, 1856, to the plaintiff, reciting a present indebtedness of $1000, as for money advanced by the plaintiff to Youngs.

THIS was an appeal from the county court of Yates county, affirming the judgment of a justice’s court. The action was brought to recover, (1.) For a breach of a contract entered into between the parties for the working of a farm of the plaintiff’s by the defendant on shares, claiming that the defendant did the work and labor in so negligent, unskillful and unworkmanlike a manner that the crops were lost, injured and destroyed.

THE plaintiff brought his action to recover damages to property stored in his cellar, caused by the flow of water thrown from the common sewer of the city, through the drain of the plaintiff.

ACTION of trespass, tried, before Morgan, J. and a jury, at the Onondaga circuit. The act complained of was the removal of a fence which the plaintiff had built within the line of a public highway. There was conflicting evidence whether the fence obstructed or hindered the travel in the road, or interfered with the use of the road by the public.

ACTION for rent upon a sealed agreement for leasing a dwelling house in the city of Syracuse, for one year ; the plaintiff averring in his complaint that the defendant “ entered into the possession of the premises so leased to him as aforesaid.” The defendant, in his answer, alleged that the plaintiff, at the time of the letting, fraudulently represented the house to be in good condition and fit for occupation for a family, &c., and that the same was not tenantable, &c.…

<p>It is well settled that an accord and satisfaction hy one of several obligors or wrongdoers is a satisfaction as to all; and a partial satisfaction hy one of several wrongdoers is a satisfaction, pro tanto, as to all.</p> <p>In an action against the defendant for fraud in the negotiation of a loan from the plaintiff to H., upon his bond and mortgage, and for fraudulent representations and concealments relative to the mortgaged premises, it appeared that the negotiation of the loan was conducted by 0., an attorney employed hy the defendant: that on the discovery of the fraud, C. being charged therewith, executed, together with one T., a bond to the plaintiff, conditioned for the payment of the mortgage debt; that C., subsequently confessed judgment in favor of the plaintiff for the amount then unpaid upon the mortgage debt, and paid a portion of such judgment. JETeld that if there was any evidence to connect C. with the fraud and to show a guilty complicity on his part, it should have been submitted to the jury, with instructions that if they found the defendant and C. were both engaged in practicing a fraud upon the plaintiff, then the sum paid hy C. on his bond, and the judgment recovered thereon, should he allowed to the defendant in diminution of the damages, to that amount.</p> <p>And that the jury should have been further instructed that if they found the defendant and 0. together practiced the fraud upon the plaintiff, and that upon C.’s being charged with it, he and T. executed their bond to the plaintiff in settlement and satisfaction of the cause of action then existing, the plaintiff was not entitled to recover. Bacon, J". dissented.</p>

<p>In an action upon a bond, the obligor proved the payment, by him, of the principal and interest due thereon, in February, 1857. To overcome this proof, the plaintiff was allowed to prove an indorsement upon the bond, in the handwriting of the obligee, dated in February, 1858, of a payment of the interest then due; also the declarations of the obligee, made in March, 1858, before going to the house of the obligor, and while on his way there, in the absence of the obligor, that the bond was still unpaid, and that he was going for his interest upon it. Held that these acts and declarations of the obligee were inadmissible, under the general rules of evidence which exclude the acts and declarations of a party, made in the absence of his adversary, as evidence in his own favor; they not being in any sense a part of the res gestee, or of any transaction with the obligor. Moeoan, J. dissented.</p> <p>Held, also, that whether the indorsement made in 1858 was or was not favorable to the party making it, depended entirely upon the question whether the principal debt was paid in 1857, which was the issue to be determined ; and hence the indorsement could not be legitimate evidence to establish the fact, to wit, the non-payment in 1857, upon which it depended for admissibility.</p> <p>Held, further, that evidence showing the amount of money deposited by the ' obligee in the bank with which he kept an account during the months of ■ Eebi-uary and March, 1857, was inadmissible; the inference that he did not receive the money, because he did not deposit it in a particular bank, being too remote.</p>

<p>One having only a mortgage interest in premises cannot maintain an action of ejectment.</p> <p>On the 28th of November, 1848, F. became the purchaser of certain premises, at a mortgage sale. On the 12th of December, thereafter, he executed and delivered to H., the previous owner of the premises, a paper by which he acknowledged the receipt of certain securities from H., and declared that such securities, and their proceeds, should remain as collateral security for advances which might be made or liabilities incurred by F. on the purchase of certain property of H. then advertised for sale, or which he had already incurred on the purchase of the premises in question; and that whenever such advances were repaid, or such liability extinguished, he (F.) was to account to H. for said securities or their proceeds. Held that this was a written declaration in effect that F. made the purchase for the benefit of H.; that he had advanced the purchase money, or incurred liabilities therefor ; and that he held the choses in action as security for the liabilities thus incurred. And that whether those liabilities had been discharged by H. or still remained, one claiming under F. could not maintain ejectment for the premises.</p> <p>And F. thus having an interest in the premises, not absolute, but only qualified, by way of mortgage or security, the defendant as devisee of H. entered into the possession, with the consent of F., not as his tenant or to pay rent, but to keep possession, keep the fences in repair, pay the taxes and enjoy the rents and profits, not recognizing an absolute title in F., but only a title in him as mortgagee; Held that the defendant was not, by thus going into possession, estopped from controverting the title of F. by showing the real facts of the case.</p>

<p>It is not an insuperable objection to the valid execution of a will that one of the subscribing witnesses makes his mark, instead of writing his name. It is still a signing of his name, or subscription, within the meaning of the statute in regard to the execution of wills.</p> <p>But such an attestation may render the establishment of the will more difficult, in case of the death of the witness; for the difficulty or impossibility of authenticating the mark, might detract much from the presumption of due execution which arises from an apparent compliance with the statute, evidenced by the will itself, by an attestation clause in due form reciting a compliance with the statute formalities, and the signatures of the testator and the subscribing witnesses in their appropriate place upon the instrument itself.</p> <p>Where a witness who had attested the execution of a will by making his mark, was examined at the trial, (the other attesting witness being dead,) and although his recollection was very imperfect and he failed to .make out a due execution of the will, yet he stated nothing inconsistent with the theory of a due execution of it, but much in its favor, and the other evidence, in connection with his, led strongly if not irresistibly to the conclusion that the will was duly executed in all the particulars required by law; Held, that adding to this the legal presumption of the observance of those formalities, which would have been supplied by the evidence of the deceased witness, and which arose from his death and apparently due attestation of the will, it was a case manifestly proper to be submitted to the jury, and fit for their consideration.</p> <p>Held also, that this was a case in which the judge should, for the purpose of presenting the question of due execution to the jury, have permitted the paper to be read in evidence, or read before the jury, and then have submitted the question of due execution, to them, upon the facts of the case.</p>

<p>An agreement between B. and G. H. recited that certain promissory notes were to be executed by G. H. and P. H. to B. and placed in the hands of T., to be held by him until certain criminal prosecutions against G. H., then pending, should be “ discontinued and ended,” and then the notes were to be delivered by T. to B. A further condition on which the notes were to be delivered to B. was that he should not arrest G. H., or cause him to be arrested, on any process whatever, but should cease all proceedings against him. Notes were executed in pursuance of this agreement, and put into the hands of T. In an action thereon, by a subsequent holder; Meld that in effect both agreements were similar, and that the object and intent of both was to obstruct the course of justice, for a pecuniary consideration.</p> <p>That they implied that B. should drop the criminal prosecutions, so far as he was concerned; that he would not appear against G. H.; and that he would, if possible, cause the criminal proceedings to be brought to a close. And that it was therefore a contract forbidden by law, and immoral and corrupt upon its face.</p> <p>Meld also, that this being the plain meaning of the contract, upon its face, it was not open to explanation by paroi. That hence paroi evidence to show that there was no agreement or understanding to suppress or withhold evidence on the trial, or to put an end to the indictments; or that the consideration was not for such a purpose, nor to compound a felony or criminal offense, or do any other unlawful act, was inadmissible.</p> <p>Meld, further, that evidence of the subsequent action of the parties—as that B. did not put an end to the indictments—was inadmissible; the vice of the transaction lying in the corrupt intent, and not merely in its successful accomplishment.</p> <p>And that the facts being undisputed and uncontradicted, there was no error in the judge directing a verdict for the defendant, and refusing to submit the evidence to the jury to determine the question of fact, whether the notes were given to settle or a compound criminal offense, or for any unlawful consideration.</p>

The action was ejectment, brought to recover, seventeen undivided twenty-fourth parts of a lot of land situate in the town of Fremont, in the county of Sullivan, and was tried before Justice Gould, at the Sullivan circuit, in September, 1861. The complaint charged both of the defendants with an unlawful entry into the premises and unlawfully withholding the same from the plaintiff.

<p>The act of the legislature, passed April 17,1860, to authorize the construction of a rail road in the seventh avenue, and in certain other streets and avenues in the city of New York, is not to he construed as granting the use of the streets, &c. only after compensation made to, or agreed upon with, all owners of any interest in the lands forming the streets, and as not establishing such right absolutely and unconditionally.</p> <p>It is apparent from the whole scope and tenor of the act that the legislature, in passing it, assumed the right to grant the franchise absolutely and unconditionally, so far as the occupation of the streets and avenues mentioned, for the purposes of the rail road, was involved.</p> <p>The act is not void as being repugnant to the constitutional prohibition against the taking of private property for public use, without compensation, for the reason that it omits making any provision for compensation to the corporation of the city of New York, or to property owners, for the franchise granted.</p> <p>The fee of the streets and avenues resides in the corporation of the city of New York, in trust, to keep them open forever as streets for the use of the public. Lbonabd, J. dissented.</p> <p>The trust vested in the corporation procéeded from the sovereign power, either of the crown of Great Britain, or of the state of New York, or from both; and exists for the use and benefit of all the people of the state, who are the beneficiaries or cestuis que trust for whom the trust was created, and by whom, through their legislature, it is sustained and continued.</p> <p>The power to exempt the grantees from the payment of any damages or compensation for the franchise granted by the act of April 17,1860, was clearly within the scope of legislative authority.</p> <p>The occupation of the streets for the purpose of constructing and operating the rail road authorized by that act, does not involve the talcing of (property, in such a sense as to come within the prohibition of the constitution; which implies first, a private owner; second, a taking from Mm; and third, the property or thing taken having the legal qualities of | property, and the owner’s interest in which is capable of legal estimate.</p> <p>The streets are not in the hands of private owners, and whatever is authorized by the act to be taken is not private property. The grant in the statute is of a franchise. And the act authorizing the grantees to construct and operate the rail road, with its turnouts and switches, is a mere legislative license to do so.</p> <p>The act of April 17, I860, does not transfer any property to the grantees of the franchise. It only grants to them the liberty to use—not to take—■ public property for public use, without excluding other persons from the use thereof.</p> <p>That act does not contravene section 9 of article 1 of the constitution, by appropriating the public property for a private purpose, in surrendering to the grantees a portion of the public easement in the streets, without having been passed by a-two-thirds vote.</p> <p>If the legislature had the power to authorize the grantees to construct and operate the rail road mentioned in the act, without the consent of the owner or owners of the fee of the streets and avenues upon or through which it was to be constructed, whether such fee be in the city corporation or the abutting lot owners, and without making any compensation to such owner or owners, the act gives them, and was intended to give them, such authority. Per StJTHBKLAND, J.</p> <p>Whether the streets of the city of New York have been opened and devoted to public use under the street acts, or have come by grant, dedication or usage, they are public highways.</p> <p>And if the privilege conferred on the grantees, of using the streets for the construction and operating of their rail road is consistent with the public use as highways for which the streets were so opened; dedicated or appropriated, it is immaterial where the fee of the streets is; for then such use of the streets, though it may be a new mode of using them for public travel, is within the purpose for which they were devoted to public use; and such new mode of using them cannot be said to deprive the owner or owners of the fee, of any private property, or private possessory right, in, or to the streets. Per Sutherland, J.</p> <p>It may be stated as a well settled American doctrine, that the state legislatures have unlimited power over public rights in a highway; and can obstruct, modify, impair or extinguish them, as to any highway, or portion of a highway, except so far as the state power is qualified by the commercial clause in the constitution of the United States, without making any compensation to individuals for resulting or consequential damages. Per Sutherland, J.</p> <p>The legislature had the constitutional power to authorize the grantees mentioned in the act of April 17., 1860, to construct and operate the rail road therein mentioned, as to the public, and also as to abutting lot owners, without making any compensation to them for consequential damages.</p> <p>It also had the constitutional power to authorize the grantees to construct and operate the rail road, through or upon the streets of the city, without the consent of the city corporation.</p> <p>The legislature has full power over the governmental or political franchises of the city of New York. Per Sutherland, J.</p> <p>Neither the people of the state, nor individuals owning property abutting upon the streets, can maintain an action against the grantees mentioned in the act of April 17, 1860, and the corporation of New York, to restrain such grantees from constructing the rail road authorized by that act, and the corporation from giving its assent to the construction of such rail road; none of the plaintiffs having any legal ground of complaint, or any legal standing in court.</p>

THIS was an appeal from the decision of the surrogate of the city and county of Hew York, upon an application for letters of administration upon the estate of Henry 0. Patchen, deceased, by Maria F. Devin, testamentary guardian of a brother of said Patchen. The citation was - addressed to “ Mary G. Melvin, otherwise called Sparks or Patchen, claiming to be the widow of Henry 0.

<p>Summary Proceedings.—Certiorari.—Affidavit of Tenancy.</p> <p>The fact that summary proceedings for the possession of lands are conducted in a harsh and oppressive manner, and that the tenant may not have had actual notice of them, are not grounds upon which the proceedings can be reversed on certiorari.</p> <p>An affidavit to found summary proceedings for the possession of land, is not sufficient to give the magistrate jurisdiction, unless it shows the existence of the conventional relation of landlord and tenant, created by agreement or recognized by the acts of the party in possession.*</p> <p>Where the affidavit showed that the plaintiff was a grantee claiming under the defendant, and that the defendant had not given up possession, and alleged that defendant became a tenant at sufferance of the plaintiff, and that said tenancy was terminated by a notice of one month ;—Held, that this was not sufficient ; for here is no tenancy, but on the contrary, it is shown that the defendant was in reality a grantor yet in possession.</p> <p>The case of People a. Ulrich (2 AJbbottP Pr., 28),—questioned.</p>

<p>In an action brought to set aside a conveyance of personal property made by a debtor of the plaintiff to the defendant T., on the ground of fraud, the court declared the sale to be fraudulent and void as against the plaintiff and other creditors of the grantor, ordered the conveyance to be set aside, and directed T. to pay to a receiver a specified sum for the property so received by him, with costs. Held that the plaintiff could not, on the return of an execution issued on such judgment, against the property of T., unsatisfied, issue an execution against the person of T., without leave of the court.</p> <p>In an action against the grantee in a conveyance, to set the same aside as having been made in fraud of the grantor’s creditors, the grantee is not liable to be arrested on the ground of fraud in “ contracting the debt or incurring the obligation to enforce which the action was brought.”</p> <p>Heither the 1st section of the act to abolish imprisonment for debt, nor the 4th subdivision of section 179 of the code, apply to the case of a proceeding in equity to set aside a conveyance or assignment of personal property.</p>

THE Croton, aqueduct board, having advertised for proposals for building the gate houses in the new reservoir, duly awarded the contract therefor to the relators, who were the lowest bidders. But the common council refused either to confirm the award to the relators, or to make an appropriation therefor.

<p>A holder can claim protection from the defense of a party whose note or other negotiable mercantile obligation has been obtained by fraud, only in case he has parted with some value, or suffered some injury, upon the faith of it.</p> <p>Where the holder will lose no right of which he was possessed when he obtained the note, and will be fully reinstated if he fails to recover, he is not a holder for value, and the equities of the party whose note has been obtained by fraud will be preferred.</p> <p>One who purchases a promissory note, made by another, and pays for it partly in cash and partly by discharging a precedent debt due to him from the person of whom he buys it, is a bona fide holder, to the extent of the money paid by him; and may recover that sum of the maker. But if the jury finds that the note was fraudulently obtained, this will constitute a valid defense to the action, to the amount of the debt discharged. Ingraham, P. J. dissented, on the ground that a precedent debt, canceled by the party receiving the note, was a good consideration.</p>

<p>Where a mortgage is made to executors, as such, and the money is payable to them and their survivors and successors, one of such executors may receive payment and satisfy the mortgage, on the record, as well as all; and it is the duty of the register, in such a case, to file and enter the satisfaction. And upon his refusal, a mandamus will lie.</p> <p>In case of a mortgage executed in that form, there can he no pretense that the mortgagees hold in a personal capacity. They are estopped from making such a claim.</p> <p>The register has no right to require the person producing the satisfaction to prove a negative; viz. that the mortgagees are not trustees of an express trust, by producing and filing a certified copy of the will under which the authority is claimed for one executor to acknowledge satisfaction of such mortgage. Per Leonard, J.</p>

<p>The intermarriage of the maker with the payee and holder of a note operates to discharge the note, and all liability thereon on the part of the maker.</p> <p>Where the plaintiff purchased of the defendant a note made by the defendant’s wife, with knowledge that it was made by her while she was sole, and that she had intermarried with the defendant while he was the owner and holder thereof, it was held that there was no implied warranty in respect to the validity of the note.</p> <p>Held, also, that there was no implied warranty that the law, upon the facts disclosed, did not declare the note discharged, by the intermarriage of the maker and the payee.</p> <p>Where the facts are known to the parties, there is never any implied warranty that the law upon those facts is or is not as the parties may think or desire it to be.</p> <p>It is a maxim of the law that parties are presumed to know the law upon the undisputed facts of the case. " Hence a warranty that the law is different from what it is, and from what it is presumed the parties know it to be, cannot be implied by operation of law.</p>

ACTION tried at the Herkimer circuit, before Allen, J. It was brought upon a promissory note made by the defendants, payable to Burrill Bice and Esther Jane Bice, or bearer, and transferred to the plaintiff before due. The defense was, that the note was given on the compounding of a felony.

THIS is a case agreed upon and submitted without action, pursuant to section 372 of the code. The facts stated in the submission are substantially these: The testator, Alvah Hunt, died on the 30th of October, 1858, leaving a will of ' real and personal estate, which has been duly proved in the surrogate’s court, and appointing the defendants executors thereof, and they have duly qualified and entered upon their duties as such executors.

THIS matter comes- before the court upon a statutory certiorari, to review the proceedings before the justice of the district court in the city of Hew York for the 7th judicial district, instituted to recover summary possession, under the statute relative to landlord and .tenant, of the premises known as Hermitage Hall, situated on the southwesterly corner of Houston and Allen streets, in that' city.

THIS action was for the recovery of the possession of a quantity of wheat shipped on hoard the ship Great Western, at the city of Hew York, by the defendants Meyer & Eee, in September, 1857. The defendant Marshall was sued as the owner of the ship, and the defendant Furber as master.

THIS was an appeal by the defendant from a judgment of the Bensselaer county court. The action was originally commenced before a justice of the peace, to recover the value of a cow belonging to the plaintiff killed by the train of cars of the defendant upon its road, in October, 1854. The plaintiff claimed to recover, upon the ground that the defendant negligently and carelessly ran over and killed the cow.

THIS was an action against the defendant as one of the sureties in a bond taken by the surrogate of the county of Albany, from Huldah M. Clapp and William Gr. Howard, as administrator and administratrix of &e. of Eeuel Clapp, late of Albany, deceased. The botid is in the penal sum of $200,000, dated January 24, 1850, and is signed by Huldah M. Clapp, administratrix, William G-. Howard, administrator, and the defendant and Oliver W. Clapp as sureties.

THE complaint in this action avers, that previous to and on the first day of August, 1853, a building was being erected in Richmondville, Schoharie county, under and by the direction of the trustees of the plaintiff; that the defendant and numerous other persons were desirous that said building should be completed, and in pursuance of said object and for the purpose of completing said building, the defendant and various other persons mutually agreed, to and with each other,…

CHARLES BURR died at Saratoga Springs, in the month of August, 1860, intestate. On the 23d of August, 1860, letters of administration were issued to Mary S. Burr, his widow, by the surrogate of Saratoga county. She accepted and qualified. The appellant had an account and claim against the estate, which the respondent had knowledge of when she became administratrix, as she soon after sent her agent to get it.

THIS action was brought to recover certain goods on the alleged ground that they had been purchased by William F. Le Roy, under fraudulent representations as to Jiis cn> cumstances and responsibility. A few weeks after the purchase, Le Boy made an assignment for the benefit of creditors, to the defendants. The property, which consisted of groceries, &c., was replevied out of the possession of the defendants, shortly after the assignment.

THIS action was brought for the claim and delivery of 846 barrels spirits turpentine as detained by the defendants, being the property of the plaintiffs. The defendant Champion answered, 1. Denying the wrongful detaining, and that the goods belonged to the plaintiffs. 2.

THE plaintiff claims the title to a large amount of personal property sold to him by Garner & Co., who held as mortgagees thereof in possession, or by transfer from Seaman & Muir, the former owners and also the mortgagors, voluntarily made in consideration of an antecedent debt due to, and liabilities previously incurred by, Garner & Co., for Seaman & Muir. The mortgage covered the whole stock of the debtors.

Henry W. Hasbrouck died intestate October 9, 1859, leaving the respondents, Isabella Hasbrouck, his widow, Maria Hasbrouck, an infant daughter, and Henry M. Hasbrouck, an infant son, born after the intestate’s decease, his only heirs.

<p>APPEAL from an order made at a special term, overruling the demurrer of the plaintiffs to the answer of the defendants Wm. H. and G. H. Cooper. The action was brought by the plaintiffs as executors of the will of Lewis Howell, deceased. The complaint alleged that on the 15th day of November, 1845, pursuant to the act of the legislature passed April 5, 1813, entitled “An act to provide for the incorporation of religious societies,” the defendants the rector, churchwardens and vestrymen of Christ Church in the village of Sag Harbor, became a religious incorporation by that name. And that such corporation has ever since been, and still is, acting as such, at Sag Harbor aforesaid.</p> <p>That on the 15th day of March, 1860, the plaintiffs, in another action in which they were plaintiffs, and the said rector, churchwardens and vestrymen were defendants, by the consideration and judgment of this court, recovered against the said rector, churchwardens and vestrymen the sum of $1148.53, damages and costs; and such judgment was duly docketed in the office of the clerk of the county of Suffolk on the 16th day of the same month; that the same remains wholly unpaid and unsatisfied, and in full force. That on the said 15th of March, 1860, the defendants Wm. H. and Gilbert H. Cooper filed in the same clerk’s office a notice of the pendency of an action in this court, brought by them as executors of the will of William Cooper, deceased, against the said rector, churchwardens and vestrymen, for the foreclosure of a mortgage, and the sale of the lands and premises covered by a mortgage alleged to have been given by the said rector, churchwardens and vestrymen to the said William Cooper, deceased, in his lifetime, to secure the payment of $1200 and interest, bearing date on the 23d of November, 1847, and recorded in the said clerk’s office on the 14th of December in the same year. That such foreclosure action was then pending, and is still pending; and that the complaint therein was filed in the said clerk’s office on the same 15th of March; and that there is in said clerk’s office a record of such a mortgage. That the- said alleged mortgage was, on or about the day of its date, executed by the said rector, churchwardens and vestrymen, so far as they had power, to the said William Cooper, in his lifetime; and that the same contains the usual power of sale. That the said rector, churchwardens and vestrymen were never authorized or permitted by any chancellor, vice chancellor, court or magistrate, of or acting under the authority of" this state, to execute or give the said alleged mortgage, or otherwise mortgage or convey the lands and premises, or any part of the lands and premises, described-in or purporting to be mortgaged thereby", nor was the said alleged mortgage executed by or with the authority, permission or consent of any such chancellor, vice chancellor, court or magistrate. The description of the premises embraced in the mortgage was set forth in the complaint. The plaintiffs alleged that the land was, with a church building thereon, granted and conveyed to the said rector, churchwardens and vestrymen, in fee, by the trustees of the First Church and congregation in Sag Harbor, another religious incorporation, long before November, 1847, and on or about the month of December, 1846; and that the said rector, churchwardens and vestrymen have ever since owned and been in possession of the same; and that the same was not, nor was any part thereof, ever conveyed to them by the said William Cooper, deceased, or by any person or party holding in trust for him, or for his benefit or account. That as soon as the plaintiffs learned of the commencement of the said foreclosure, they applied to the attorneys for the plaintiffs therein to be made parties defendant thereto, stating the invalidity of the said alleged mortgage, and the grounds of such invality, but such request was refused. They have also requested the plaintiffs in such foreclosure suit to discontinue the same, but have received no answer to such request, although they notified them that the said mortgage was invalid, as not having been authorized by any court or judicial magistrate, and that these plaintiffs must contest it if prosecuted. The plaintiffs therefore demanded judgment that the said alleged mortgage be .declared and adjudged invalid, and the said action for its foreclosure dismissed, or perpetually stayed and enjoined, with costs, &c.; or for such further or other relief, &c.</p> <p>The defendants the rector &c. of Christ Church did not appear in the action.</p> <p>The defendants William H. Cooper and Gilbert H. Cooper, executors of the will of William Cooper, deceased, separately answered the complaint, and alleged that the whole sum of $1200, for which the mortgage to William Cooper was given, was by him loaned to the mortgagors for the purpose of enabling them to make repairs and improvements upon the mortgaged premises and the buildings thereon, and that the whole of the said sum was used and expended for that purpose ; and also, that the said William Cooper loaned the said sum of money wholly upon the credit of the mortgaged premises, believing the premises to be free and clear of all incumbrance, legal or equitable, and without any knowledge, information or suspicion that any incumbrance existed. And the defendants further stated that they were advised and believed, as matter of law, that it was not necessary to the validity of the said mortgage that authority or permission from any chancellor, vice chancellor, court or magistrate, should have .been granted to the' said religious corporation, or any of its officers, to execute the same; and that even-if the said mortgage should be adjudged to be insufficient as a legal security, in consequence of any or all the defects alleged by the plaintiffs, yet the said sum of money, the payment of which the said mortgage was intended to secure, was, from the time such mortgage was given, and still is, an equitable lien, paramount to all others upon the said mortgaged premises. And. these defendants further submitted, as matter of law, that the plaintiffs were strangers in respect to any question between these defendants and the said rector, churchwardens, &c. as it regards the proper execution of the mortgage, or the authority which the said religious corporation had to execute it, or- the validity of the equitable lien of these defendants upon the mortgaged premises for the amount of money loaned by their testator to the said religious corporation ; and that the plaintiffs have no .right to interfere between these defendants and the said_ religious corporation, for any or all the causes set forth in the .said complaint; and that therefore the plaintiffs have not stated facts sufficient to constitute a cause of action.</p> <p>To this answer the plaintiffs demurred, on the ground that it does not state facts constituting or raising a defense to the complaint.</p>

APPEAL by the defendant Thomas Auld from a judgment of foreclosure and sale, rendered at special term. The action was brought for the foreclosure of a mortgage to secure the payment of a bond' of $4000 and interest, made by the defendants Ira A. Allen and J ohn W. Stevens to the Home Insurance Company, and by said mortgagees assigned to the plaintiff.

THIS is an appeal from, a judgment recovered by the plaintiff at the Rensselaer circuit in October, 1861, before Justice G-ould and a jury.

PPEAL by the defendant from a judgment in favor of the plaintiff, rendered at the Eensselaer circuit, for $129.50 and costs, on a trial had before Justice Gould, in October, 1861. The facts are sufficiently stated in the following opinion.

<p>APPEAL from an order of the county judge of Genesee county imposing a fine of $500 on the defendant, for th'e violation of an injunction order made by said judge in a proceeding in this action supplemental to execution.</p>

<p>After an assignment for the benefit of creditors, not reserving thé power of revocation, has been executed and delivered, and accepted by the assignees, the assignors have no such control over the property assigned as will enable them to make a new assignment, so as to confer upon the assignees any additional title to, or authority over, the assigned property, or to render the title which they have already obtained valid as against the creditors » of the assignors, where the original assignment was void ns to them, though valid as to the assignors.</p>

THIS action was brought upon a premium note given by the defendant to the Genesee Mutual Insurance Company, upon taking a policy of insurance in that company. It was tried at the Genesee circuit, before the court, without a jury, and judgment was ordered for the plaintiff for the amount remaining unpaid on the note, with interest.

THE relator, the Hanover Bank, having a capital of one million dollars, were assessed at $908,119, the assessors having deducted from the capital the value of the real estate, and stocks in other corporations.