Volume 37 — New York Reports

<p>Appeal from the general term of the Supreme Court, in the first district, where a judgment in favor of the defendants, in a case of mandamus, had been affirmed.</p> <p>This was an alternative mandamus, at the suit of me National Broadway Bank, commanding the Mayor of New York, the comptroller, and the clerk of the board of supervisors, to sign, countersign and seal certain bonds for the repayment of the taxes which had been assessed upon and paid by the bank for the years 1863 and 1864, or show cause to the contrary.</p> <p>On 30th April 1866, an act was passed authorizing and directing the board of supervisors of the county of New York to refund to any bank which might have paid taxes in that county for the years 1863 or 1864, such an amount of said tax as was imposed or levied upon said bank in respect to any portion of its capital s^oc^ invested in securities of the *United States, by law exempt from taxation; and, for that purpose, to cause to be issued county bonds, signed, sealed and attested, as thereby required, for the amount of the claim of such bank, after it should have been audited and allowed by said board, and approved by the mayor and corporation counsel. (Laws of 1866, vol. 2, p. 1996.)</p> <p>The Broadway Bank, having paid such tax, presented its claim to the board, and the same was audited and allowed at the sum of $53,132.31, as of the 1st May 1866, and such auditing and allowance was approved by the mayor and corporation counsel, and bonds for that amount were ordered by the board to be issued to said bank.</p> <p>In pursuance of an ordinance of the said board, passed the 7th January 1867, county bonds, in the form prescribed by the act of 30th April 1866, and said ordinance, were prepared and ready to be signed, sealed and issued to the said bank ; but the defendants refused to execute or deliver the same. The ground of this refusal was, that a portion of the capital stock of the Broadway Bank, on which the aforesaid taxes of 1863 and 1864 were levied, was invested in certificates of indebtedness, issued under the act of congress of the 1st March 1862; and the defendants claimed that such certificates were not securities of the United States by law exempt from taxation, and that it had been so adjudged by a branch of the supreme court, since the decision of the board of supervisors.</p> <p>The Broadway Bank, thereupon, sued out a writ of mandamus, to compel the signing, countersigning and sealing of the said bonds; an answer was put in to the alternative writ, setting up the foregoing defence; and the court, on hearing, being of opinion with the defendants, gave judgment for the defendants denying a peremptory writ.</p> <p>The judgment was subsequently affirmed at general term, and the bank took this appeal.</p>

<p>Appeal from the general term of the Supreme Court, in the first district, where a judgment rendered in favor of the defendants had been affirmed.</p> <p>This was a mandamus sued out by the Bank of New York to the Board of Supervisors of the county of New York. It was in all respects similar to the last case, with the single exception, that the question was, whether the legal-tender notes issued by the United States government were, or were not, taxable by the state authorities.</p>

This was an equitable action by Asahel P. Haviland against John P. Hayes, to set aside a deed executed by Park Haviland and wife to Albert Haviland, on the 14th June 1848, and also a deed of confirmation, by the said Park Haviland to the defendant, on the 13th December 1851, on the ground of the insanity of the grantor.

<p>Married Women — Separate Estate — Liability — Deficiency on Foreclosure— Contracts — Statutes o/1848 and 1849.</p> <p>The effect of the Married Women’s Acts of 1848 and 1849 is not to remove the general disability of married women to bind themselves by their contracts, but to enable them to hold to their separate use, and to convey and devise their real and personal estate as if unmarried, substantially in the manner and to the extent previously authorized by the rules of equity.</p> <p>The principle is, that under such acts the married woman may charge her separate estate for any debt she may contract on the credit of, or for the benefit of her separate estate.</p>

<p>Devise to children.—When it includes grand-children.— Construction.</p> <p>A testator devised property to his daughter, for life, and after her decease “ to such children as shall he living at the time of her death,” with a devise over, in case she should die without leaving such living children : held, that the word “children” included grand-children and remoter descendants;</p> <p>No portion of a. will can he rejected, unless in irreconcilable conflict with its other provisions.</p>

<p>Effect of judgment.—Sale in partition.</p> <p>A decree of the court of chancery finding that a late resident of another state1 died intestate, with respect to his lands in this state, is conclusive upon the question of such intestacy.</p> <p>A judgment in partition is binding upon all the parties, though minors or non-residents, if the court acquired jurisdiction of them, and of the sui. ject-matter.</p> <p>A sale under proceedings in partition is effectual to bar the future contingent interests of persons not in esse, though no notice be published to bring in unknown parties; and though such parties, not then in esse, may take as purchasers under a deed or will, and not as claimants under any of the parties to the suit.</p>

This was an action by John T. Lee and George C. Hall, commission-merchants, against Arunah M. Adsit and Enoch H. Rosekrans, to recover a balance of… Held: at the time of the fire, policies of insurance to the aggregate amount of $30,000, then in force, whereby the insurers “ do insure Lee & Hall against loss or damage by fire, on lumber, their own or held by them in trust, or on commission, or sold but not delivered, contained on lots numbers,” &c.—the premises in question.

The Plaintiffs were merchants of the city of Oswego, and the action was to recover damages for the conversion of money, embezzled by the Defendant, as their clerk.

<p>Appeal from a judgment of the superior court of the city of Buffalo.</p> <p>The action was brought by Freeland T. Barney, Lester S. Hubbard, and William Durbin, against Samuel Worthiugton, to recover the amount due on a draft drawn on the defendant by Burton & Hubbard, and discounted by the plaintiffs.</p> <p>The complaint contained three counts : two upon a promise to accept and pay each bill; a third for money lent.</p> <p>On the trial of the cause, the following’ facts, among others, appeared. The firm of Burton & Hubbard was composed of Marshal Burton and Lucius P. Hubbard. They were in the produce and shipping business in the State of Ohio. They were in the habit of consigning their produce to the defendant, who was a commission merchant at B uffal o, and drawing drafts against it,- which he had always accepted. He had made advances to them, prior to the date of the draft, to an amount several thousand dollars in excess of the estimated value of the property he had received as their consignee; but this fact was unknown to the plaintiffs.</p> <p>On November 14, 1860, two days before the date of the draft, Lucius P. Hubbard, one of the firm, was at the defendant’s office in Buffalo. The defendant wished them (Burton & Hubbard), to furnish him some money. ' Hubbard rejDlied that it would be impossible without his assistance. The defendant asked Hubbard if they could raise some money at the West. Hubbard said they probably could by making drafts on the defendant payable in New York; and if the defendant thought it best, he would write to his partner to make such drafts. The defendant told him he had better do so. Hubbard said that, in order to raise money in that way, it might be necesssry to have his acceptance or letter of credit, to show that he would accept the paper. The defendant replied that this would not be necessary ; that he would write to Burton and arrange all that. Hubbard suggested that the paper should be made payable at ICetchum, Son & Co.’s, or at the Union Bank. The defendant left that to their preference ; and directed them to make the drafts for $2,500 or $3,000 at first, and to send the proceeds to him.</p> <p>The defendant afterwards told Hubbard that he had written to Burton- to make drafts on Mm, payable in Hew York, and raise money on them. The letter was as follows:</p> <p>Buffalo, November 14, 1860.</p> <p>“M. Buetow, Esq. :</p> <p>“Deab Sib:—Mr. H. has written you the state of things here. We have shipped all we could, and sold the balance. How, in order to get along, and put up the necessary margins here which Hew York houses will require, it will be necessary to have more ready funds. Our banks are tightened up, and throw off all the customers they can. I have given them the canal bills, without consignees as yet, and am waiting to hear from TV.,' and R. H. & Co. "</p> <p>“You will make your draft for $3,000, or two drafts for $2,500 each, on as long time as you can, and forward the funds as early as you can, as I must on the 18th arrange a portion of the drafts here.</p> <p>“I hope markets will improve and pay well for the expense and trouble we are to in getting this grain forwarded. Don’t delay in arranging and remitting.</p> <p>“ Yours truly,</p> <p>“S. K. WOBTHXNG-TOjST.’’</p> <p>It was proved that the -drafts or acceptances referred to in the letter, which the defendant had to meet, were personal papers of his own, with which Burton & Hubbard had nothing to do, and that there were no outstanding drafts by them; and the last of his acceptances for them had been paid by him twelve days before the letter was written.</p> <p>The defendant, who was sworn on the trial, admitted that his dealings were with the firm ; that he never had any individual transactions with Burton, and that there was no arrangement for his making any individual draft upon him.</p> <p>On receiving the letter of the defendant, with one from Hubbard, Burton went on Hovemberl6, to the plaintiff’s, who were bankers at Sandusky; made a draft, in the name of Ms -firm, on the defendant for $3,000, payable sixty days after date at the office of Ketchum, Son & Co., New York; communicated to them the contents of defendant’s letter, and the fact that the proceeds were to be remitted to him, and they thereupon discounted the draft on the faith of the defendant’s responsibility. The defendant admitted that he received the proceeds, and that he supposed them to be the avails- of this draft, at the time he received th'em.</p> <p>Specific objections were taken to the introduction of the letter and the draft, and to the admission of parol proof of the antecedent and surrounding circumstances ; and exceptions were duly taken to the several rulings of the court.</p> <p>The judge found, in substance, the following facts: On November 14, 1860, the defendant, in writing, directed and empowered Burton & Hubbard to draw upon him the draft in question; and such direction and authority were intended by him as a letter of credit to enable them to procure the draft to be discounted. On November 16, Burton & Hubbard procured it to be discounted ; and the discount was made on the faith of such direction, authority, and letter of credit. The proceeds were paid to the drawers, and remitted by them to the defendant. On due presentation of the draft he refused to accept it, and he afterwards refused to pay it at maturity. The judge gave judgment in favor of the plaintiffs for $3,113.75, the amount of the draft, with interest.</p> <p>This judgment was affirmed on appeal to the general term, and from the judgment of affirmance the defendant now appealed.</p>

Writ of error to the supreme court in the sixth district. The defendant was tried for larceny, at the March term of the Cortland county court of sessions. -The indictment contained two counts.

<p>Party-wall.—Incumbrance.</p> <p>The right of an adjoining proprietor to use a party-wall, is not a legal incumbranee; a purchaser at public auction cannot refuse to complete Ms purchase on such ground.2</p>

<p> Bills of exchange. </p> <p>Where a person authorizes another to draw on him, for the purpose of getting the draft discounted, and remitting the proceeds to the drawee, he becomes-primarily liable, independently of the question of acceptance.</p>

<p> Indictment.—Caption.—Larceny.—Jurors. </p> <p>The grand jurors need not be named in the body of the indictment; the proper place is the caption.</p> <p>If goods purchased for the support of the poor, by direction of the superintendent, be stolen, the property may be laid either in the county or the superintendent; he is but an agent of the county.</p> <p>An inhabitant of the county is not incompetent to sit as a juror, on the trial of an indictment for stealing the property of the county</p>

The action was to recover damages for the conversion by tbe Defendant of two boilers and a quantity of brick, with, some other articles of minor value. These had been put in a building on Defendant’s premises, in the summer of 1858, by his tenants, Durkee & Case, to be used by them in their business, which was the manufacture of soda, sale-ratus, and drugs.

The action was upon a bill of exchange for $3,500, drawn on the 7tli of Nov., 1860, at Toledo, Ohio, by Stevens & Chase, of that place, discounted by the Marine Bank at Toledo for the drawers, and after acceptance by the Defendant, to whom it was addressed, rediscounted by the Plaintiff, a bank at Buffalo.

<p>Appeal from the general term of the Supreme Court, in the first district, where a judgment rendered in favor of the plaintiffs, in a case tried before the court, without a jury, had been affirmed. (Reported below, 36 Barb. 310, and at special term, 32 Id. 235.)</p> <p>This was an equitable action by Alexander Spaulding, a judgment-creditor of the firm of Bradner & Furman, against the members of the said firm and Peter O. Strang, their assignee for the benefit of creditors, to set aside the assignment, on the ground, that it was fraudulent and void as against the plaintiff, and other creditors of the said firm. The defendant, Bradner, died pending the suit.</p> <p>The complaint alleged, that in March 1855, the plaintiff recovered a judgment against the assignors, for nearly $3000, and that, in the ordinary way, he had exhausted his legal remedies to realize the amount of his judgment, but without success; thus putting himself properly in a condition to apply for equitable relief.</p> <p>On the trial of the cause, before Sutherland, J., without a jury, it appeared, that about the 16th November 1854, the firm offered to their creditors a proposition, in substance, that they should, on or before the 1st December 1854, accept fifty per cent, of their respective claims, in full satisfaction thereof, and that those thus accepting should, in case the firm should be unable to comply with the terms of the proposition, and an assignment should become necessary, be placed in the second class of preferred ^creditors in such assignment, for fifty per cent. of their respective claims. Upon the basis of this proposition, a release, substantially in accordance with the proposition, was prepared and presented to the creditors, and was executed under seal, by^more than fifty of said creditors, representing an aggregate indebtedness of about $90,000. This release bore date the 16th November 1854. The firm failed to comply with the proposition and terms of release; and on the 1st December 1854, the said firm, as such, and the individual members thereof, as to their individual property, made general assignments to the defendant Strang, in trust to pay, first, their confidential and accommodation creditors; secondly, the creditors who had executed the conditional release, fifty per cent, on their claims; and. thirdly, the residue of the creditors.</p> <p>The learned judge decided, that the assignment and agreement were fraudulent and void as against the plaintiff, and directed a judgment in his favor, providing for a payment of his claim out of the funds in the hands of the assignee Strang; and the same having been affirmed at general term, the surviving defendants appealed to this court.</p>

<p>Tiie action was brought- in February, 1861, to compel the specific performance by Nathan 0. Platt, the original Defendant, since deceased, and now represented in the action by the present Defendants, of an agreement to purchase real estate in the city of New York, which agreement was made September 6, 1860. The Defendant not having, complied with the terms of the agreement, for the alleged reason that outstanding judgments unsatisfied existed as a lien upon the property, and not having answered the complaint, judgment was entered in favor of the Plaintiffs on the 15th of March, 1862. By this judgment it was determined that the balance of the purchase-money unpaid, with interest, was $78,412.60, and it directed the Defendant to complete the purchase within ten days, by paying' the costs of suit, &e., and $22,160.60 of the purchase-money due, and to execute and deliver his bond and a mortgage on the premises for $56,250, payable October 6,1866, with semi-annual interest; and that in default of so doing the premises should be sold at public auction; and that the Defendant should be liable for any deficiency that might occur on such sale.</p> <p>The Defendant did not appeal from this judgment, nor comply with the terms thereof. Accordingly, the premises were adver-tisecT for sale, -under tlie terms of tlie judgment, on tlie 18th. November, 1862, and tlie same were sold at public auction on December 2,1862, when tlie property was bought in by or on behalf of the Plaintiffs, at a price which left a deficiency of about $10,000 against the Defendant; and on December 22, 1862, the premises were conveyed by the referee on the sale to the Plaintiffs, the report having been duly confirmed.</p> <p>On February 12, 1863, the Defendant procured an order requiring the Plaintiffs to show cause why the sale should not be set aside, and a resale ordered. The affidavits to sustain this order, and the motion made thereon, disclosed the following causes or grounds of complaint:</p> <p>1. That the sale was made on the day of a charter election in the city of New York</p> <p>2. That the auctioneer named in the notice of sale did not personally officiate at its commencement.</p> <p>3. That the price bid was inadequate.</p> <p>4. That the Plaintiffs approached bidders at the sale, and deterred them from bidding, and prevented competition.</p> <p>The counter-allegations denied Nos. 3 and 4 of these charges, and, on the hearing of the motion at Special Term, it was referred to a referee “ to take proof whether any, and if so, what, inducements, communications, or representations were made or held out by the Plaintiffs or their agents, or in their behalf, or by the referee, to deter or prevent bidding at the sale.”</p> <p>On the coming in of the report, made in pursuance of said order, and on the 18th December, 1863, the motion was denied.</p> <p>On an appeal to the General Term, the order of denial was affirmed, J an nary 23, 1865. The Defendant now comes to this Court, on appeal from the order of the General Term.</p>

The action was for injury by the negligence of the defendants to the medical library of the plaintiff, which was delivered to them as carriers for transportation. The books were received by the defendants, properly boxed, in perfect order, at Rolling Prairie, Indiana, on the 5th of April, 1854.

This was an action by Franklin W. Hunt against the Michigan Southern and Northern Indiana Railroad Company, for injury to the plaintiff’s medical library, which had been delivered to the defendants… Held: that the damage was due to the defendants’ negligence; and the judgment was affirmed by the court of common pleas, whereupon, the defendants took this appeal.

Tbis was an action by Philip Pfeiffer and Samuel Franbenheimer against Yettey Adler, upon a verbal promise by the defendant to pay a debt due from her deceased husband to the plaintiffs. Upon the trial before the referee, it appeared, that the plaintiffs sold goods to the defendant’s husband, in the years 1850 and 1851.

(Reported below, 9 Bosw. 350.) This was an action by Isaac H. Bronner and others, comprising the firm of Bronner & Brother, against Samuel Frauenthal, to recover a bill of $759.26, for goods sold and delivered, in 1856. The defence was, that the goods were sold to one Samuel Lowenstein and not to the defendant. The case came into this court, on exceptions to questions of evidence, which are fully stated in the opinions.

<p>Chattel mortgage — Renewal—Filing—Non-residence.</p> <p>Where the mortgagor of chattels has sold his interest therein and removed from the State, so as to render it impossible for the mortgagee to comply with the statute to continue the lien by a refiling of the mortgage, &c., the mortgagee must avail himself of his rights against the property within the year, if he would protect himself against subsequent boná fide purchasers.</p> <p>The mortgagor having removed from the State within the year, renders it impossible to refile the mortgage in the office of the clerk, &c., where the mortgagor is then residing.</p>

The- plaintiff in error was indicted by a grand jury of the county of Westchester, in September, 1866, for administering poison to his wife. In December following, a court of oyer and terminer convened at the court-house in White Plains, in said county, and it was ordered, and proclamation made, that the same be adjourned to the 14th day of January, 1867, at the court-house in Bedford in that county.

(Reported below, 9 Bosw. 361.) This was an action by Samuel A. Swinnerton and Thomas W. Dawson against the Columbian Insurance Company, upon a policy of insurance, whereby the defendants, on the 7th September 1860, insured one C. S. Nelson, “ on account of whom it may concern,” upon two-sixteenths of the schooner Lawrence Waterbury, for the term of one year from that 'date.

<p>Appeal from the general term of the Supreme Court, in the first district, where a judgment entered upon a verdict in favor of the plaintiffs had been reversed, and a new trial awarded; the relators stipulating for judgment absolute, in case of affirmance.</p> <p>This was an action in the nature of a quo warranto, at the relation of Juste Laucliantin and others, against Pierre A. Lacoste and others, to determine the rights of the respective parties to the offices of warden and vestrymen of the French Protestant Episcopal church. du St. Esprit, in the city of New York.</p> <p>The complaint alleged that at an annual election of church-wardens and vestrymen of said church, held on Easter Monday, the 17th April 1865, pursuant to notice thereof given by the rector, and pursuant to the statute, the relator Lauchantin was elected church-warden, and the other relators were elected vestrymen of the said church. It further stated, in substance, that Lacoste and the other defendants, as church-wardens and vestrymen, respectively, had, at the time of the commencement of the action, for more than a month, held and exercised, and still continued so to do, those offices, without any legal election, appointment, warrant or authority whatever. That the relators were rightfully entitled to hold and exercise said offices, and that the defendants had usurped, intruded into, and unlawfully held and exercised, and still did unlawfully hold and exercise the same. It further stated, that said church was a religious Episcopal corporation, formed and organized under the laws of this state.</p> <p>In their answer, the defendants joined issue on all the allegations of the complaint, except as to the fact of an election held pursuant to notice, by the rector, and in accordance with the statutes, and "the allegation that the said church was a religious Episcopal corporation, formed under the laws of this state. They alleged, in addition, that they had been lawfully elected to, the respective offices held by them, and that they had since held and used said offices, as they had a lawful right to do.</p> <p>*On the trial before Smith, J., the defendants ’ having offered no testimony, the learned judge directed a verdict in favor of the plaintiffs. The evidence given on the part of the plaintiffs, to which exceptions were taken, is fully stated in the opinion. On appeal to the general term, the judgment entered upon the verdict was reversed, and a new trial awarded; whereupon, the plaintiffs appealed to this court, giving the usual stipulation.</p>

The action was brought to recover the price of stone which the Plaintiffs, in their complaint, alleged that they had sold to the Defendant. The answer denied such purchase by Defendant.

<p>Condition precedent — Tender, not necessary when it is an idle ceremony — Contract— Construction.</p> <p>The law does not impose upon a party the duty of performing an idle ceremony. When it appears in evidence from the party claiming that a tender should have been made to him, that he would not have accepted 'it if made, to insist that a tender should have been made by the other party is to insist upon an idle ceremony, which the law will not require.</p>

<p>Writ oe Error to the Supreme Court, sitting in the second district, where a conviction of the plaintiff in error, in the Oyer and Terminer of Westchester county, of the offence of administering poison to his wife, with intent to kill, had been affirmed, on certiorari. (Reported below, 50 Barb. 147.)</p> <p>Calvin M. Northrup, the plaintiff in error, was indicted, in Westchester county, in September 1866, for the offence of administering poison to Eliza W. Northrup, his wife, with intent to kill.</p> <p>In December following, a court of oyer and terminer convened at the court-house in White Plains, in said county, and it was ordered, and proclamation made, that the same be adjourned to the 14th day of January 1867, at the court-house in Bedford, in that county. At the adjourned day, at Bedford, only ten petit jurors answered, and the court directed that seventy-five tales-men be summoned by the sheriff, for the following morning, until which time the court adjourned. These talesmen were accordingly summoned from the town of Bedford, and, of them, some sat upon the trial of the indictment.</p> <p>Before the jury were called, certain objections were made by the counsel for the prisoner to the legality of the court, as thus sitting, and to the jury as thus constituted. The district-attorney having moved the indictment for trial, the defendant’s counsel showed, that in the appointment, by the justices of the .second judicial district, of terms for the holding of courts, no appointment for the holding of any court of oyer and terminer, to be held at Bedford, for the county of Westchester, had been made, for either of the years 1866 or 1867; and it was, therefore, contended, that the court then and there sitting had no rightful power or authority to proceed with the trial. This objection was overru^’ an^ ^ie dofendant excepted. * Another objection was, that, only ten petit jurors, of those summoned,' having appeared, “ the court then ordered the clerk to prepare ballots of the jurors in said town of Bedford, and ordered the sheriff to proceed and draw seventy-five jurors from the box containing the names of said jurors in said town of Bedford, to act as talesmen.” This objection was placed on the ground, that the order should have been to summon enough jurors from the county at large, or from the bystanders, to make the whole number at least twenty-four, from which to draw a jury. . This objection was overruled, and another exception taken.</p> <p>The jury found the prisoner guilty of the offence charged in the indictment, and he was sentenced to twelve years’ imprisonment in the penitentiary; the conviction was subsequently affirmed by the supreme court, upon a bill of exceptions; and the prisoner thereupon sued out this writ.</p>

This was an action by William Milton against the Hudson River Steamboat Company, to recover damages for the loss of a portion of the cargo of the canal-boat Caloric, which was washed overboard and lost, on the voyage from Albany to New York.

<p> Title to personal property.—Fraud.—Defence of uswry. </p> <p>. An executory contract to manufacture and deliver certain articles to the plaintiff, vests no title until delivery and acceptance; and a subsequent' payment for the same, upon the false and fraudulent representation that they had been completed and delivered to the plaintiff’s agent, according to the terms of the contract, confers no title as against a bond fide purchaser from the manufacturer.</p> <p>The defence of usury is a personal one, and cannot be set up by a stranger to the contract.</p>

<p>Ejectment — Title to closed road — Adjacent owners — Colonial laws.</p> <p>The rule of civil law which prevailed in all the colonial provinces of the Dutch was, that no one could claim a present or reversionary title in the soil of a public highway, on the grouud that he was the grantee of all lands through which it was laid out.</p> <p>Plaintiffs owning- premises on the west side of the road formerly leading from Jamaica and Platbush to Brooklyn cannot maintain ejectment for the recovery of the abandoned road-bed, because under the rule of law above .stated the legal title to said bed does not accompany the transfer of title of the premises adjoining said road on the west side thereof.</p>

The Plaintiffs brought their action to recover the value of a horse and cart, and a load of merchandise. On the trial they proved that in March, 1858, their carman drove upon one of the public piers in the city of New York, with a load of merchandise, to deliver it on board of a steamer lying there; that whilst there the horse became unmanageable, backed into the river, and was drowned.

<p>Appeal from the general term of the Supreme Court, in the first district, where an order of the special term-, denying the defendant's motion to set aside a previous order, adjudging him guilty of a contempt of court, and committing him therefor, had been reversed, and the defendant discharged from imprisonment under the attachment. (Reported below, 37 Barb. 97; and at special term, 12 Abb. Pr. 385.)</p> <p>This was an action by Charles Pitt and William Pitt against Erastus Davison and others, for the specific performance of a contract, by which Joseph Davison agreed to convey certain premises to the plaintiffs. Judgment was rendered adjudging the plaintiffs entitled to a specific performance of the contract, and directing this defendant (to whom Joseph Davison had, fraudulently, as against the plaintiffs, conveyed the premises) to convey them to the plaintiffs, free from any incumbrance which he had put upon them. A certified copy of the judgment was served upon the defendant, personally, and he was duly required to appear before the referee named in the judgment, at a specified time and place, and make the conveyance under his- direction.</p> <p>The defendant did not appear before the referee, but, at the time and place specified, his counsel appeared and offered to read an affidavit of the defendant, in excuse of his non-compliance with that part of the judgment which required him to convey—showing that, subsequently to the contract *of sale to the plaintiffs, but prior to the commencement of this suit, he mortgaged the premises for $5000, which mortgage, prior to the said judgment, was foreclosed, and the premises sold, for which reason, the defendant was unable to convey the premises to the plaintiffs. The referee refused to receive the affidavit as an excuse, and demanded a compliance with the judgment, which was refused. He then made his report to the court, showing the non-compliance of the defendant with the requirement of the judgment, and the reasons therefor set forth in said affidavit.</p> <p>Afterwards, the plaintiffs obtained from a justice of the court, at chambers, an order requiring the defendant to show cause at a special term, “ why an attachment should not be issued against him, and he be punished for his alleged contempt and misconduct in not having conveyed,” &c. This order was founded upon the judgment entered in the action; the summons and underwriting -of the referee, requiring the defendant to appear before him and convey; the affidavit of service thereof, with a certified copy of the judgment; and the report of the referee; and it contained a direction that it be served on the defendant’s attorney. It was so served, but no service was made on the defendant personally.</p> <p>At the special term at which the order was returnable, upon reading the judgment-roll in the action, together with the said papers on which the order to show cause was granted, and the order to show cause, with the admission of service of the same upon th6 defendant’s attorney, and after hearing counsel for the respective parties, the court adjudged the defendant guilty of a contempt of court, in wilfully neglecting and refusing to comply with the terms and provisions of the judgment, and ordered that he be committed to the common jail of the city and county of New York, and there be closely confined and kept, until he should comply with the requirements of the judgment. The defendant was subsequently arrested, upon a precept issued pursuant to the order, and committed to jail.</p> <p>The defendant then made the motion to set aside the order under which he was committed, and to be dis-°liarge^ from imprisonment, *which motion was founded upon the papers on which that order was based, together with affidavits showing that he had no personal knowledge of the order to show cause, above mentioned, until after the granting of the order directing his imprisonment. In opposition to the motion, affidavits were read on the part of the plaintiffs, showing that, after the referee had reported, and some nine months before the granting of the said order to show cause, a similar order to show cause had been made, without any direction as to its service, and after diligent search, the plaintiffs were unable to make personal service thereof, also controverting the fact stated in defendant’s affidavit, of his want of knowledge of the last order to show cause.</p> <p>The motion was denied at special term (12 Abb. Pr. 385); but on appeal to the general term, the order was reversed, and the defendant discharged from imprisonment, upon condition that no action should be brought (37 Barb. 97); whereupon, the plaintiffs appealed to this court.</p>

<p>Appeal from the general term of the Supreme Court, where a judgment entered in favor of the plaintiff, upon the report of a referee, had been reversed, and a new trial awarded; the plaintiff stipulating for judgment absolute, in case of affirmance.</p> <p>This was an .equitable action, brought by Abraham Eveland against Rufus G. Bowman, for the cancellation of a bond and mortgage, then in process of foreclosure by the defendant. The latter died pending the suit, and George Wheeler, his administrator, was substituted.</p> <p>The case was tried before a referee, who found the following state of facts: In March 1855, the plaintiff and Rufus G. Bowman entered into a written contract, by which the latter agreed to sell and convey to the plaintiff, a certain farm in the town of Castile, and county of Wyoming, containing about one hundred and six acres, for the sum (as expressed in the written contract) of $3000. On the same day, the plaintiff, with one Charles Strong as his surety, executed and delivered to Bowman his bond in the penal sum of $3130, conditioned for the payment to the latter of the sum of $1565.31, with interest, in instalments, as therein stated; and at the same time, the plaintiff, with his wife, executed and delivered to the said Bowman a mortgage to accompany said bond, upon other lands, to secure sum meWioned *in the condition of that instrument; which mortgage was duly acknowledged, and was recorded in the county of Wyoming,'where the lands covered thereby were situated. The 4th, 5th, 6th, 7th and 8th findings were in the following words:</p> <p>4. The price or sum for which said tract of land, containing 106xVn acres, was contracted to be sold, was $43 an acre, or $4565.31; and the said agreement above mentioned, and said bond and said mortgage, were executed and delivered to secure to the plaintiff the conveyance of the said tract of land described in the contract, and to secure to said defendant the purchase-price of said land, and for no other object, purpose, consideration or qualification, except as particularly stated and set forth in said written contract.</p> <p>5. The plaintiff, immediately after the making, executing and delivery of said contract, bond and mortgage, entered into the possession and occupancy of said tract of land described in said contract, and used, occupied and enjoyed the same, and received the rents, profits and proceeds thereof, and made repairs and improvements thereon, for the period of about four years after the making, execution and delivery of said contract, bond and mortgage, and made various payments upon said contract, and one payment upon said bond and mortgage, amounting to between $400 and $500 in the aggregate.</p> <p>6. It was, afterwards, either in the year 1858, or spring of 1859, mqtually agreed between the plaintiff and defendant, that said written contract should be cancelled and annulled, and that said plaintiff should surrender up and relinquish to the defendant said tract, piece or parcel of land described therein, and all claim, right, title or interest in and to the same, and to all payments made on said contract, bond and mortgage; and also that the plaintiff should work said farm on shares, and the defendant was to have one-half of the crops raised thereon.</p> <p>*7. The plaintiff did work said land on shares, and the defendant received his half or share of the crops raised thereon; and said written contract was, afterwards on or about the 1st of April 1860, cancelled, by cutting or tearing off the seals of the same, and the defendant resumed the exclusive possession and control of said tract, piece or parcel of land.</p> <p>8. No agreement was ever made or entered into between plaintiff and defendant, as to the cancellation of said bond and mortgage, or whether the same should or should not be deemed cancelled or discharged by the cancellation of said contract; on the contrary thereof, it was the design and intention of the defendant to retain and keep said bond and mortgage in full force and effect, and the plaintiff designed and intended that said contract, bond and mortgage should all be cancelled and annulled.</p> <p>Upon this state of facts, the referee held and decided as matter of law, that the contract and bond and mortgage constituted one indivisible contract, and that the cancellation and annulling of the written contract was, in law, a cancellation of the bond and mortgage; and he directed judgment for the plaintiff, accordingly. Judgment was entered in pursuance of the report, directing that the mortgage be discharged of record; that the bond be delivered up and cancelled; and that the mortgagee be perpetually enjoined from any further attempt to enforce them as valid instruments.</p> <p>The judgment, however, was reversed by the general term, and a new trial awarded, on the ground, as appeared by the opinion there delivered, that although the written agreement, bond and mortgage were given at the same time, and related to the same subject, and for the purposes of construction, were to be regarded as one contract, yet, that they were divisible in theii nature, and should, under the facts found, be deemed to stand separate and independent of each other; and, consequently, that the cancellation of the written contract, of itself, did not affect the validitj'- of the bond and mortgage. The plaintiff, thereupon, appealed to this court, giving the usual stipulation.</p>

The Plaintiff brought tliis action, under the statute, as administrator of Mrs. Susannah Knight, deceased, in behalf of her next of kin, to recover damages for her death, alleged to have been caused by the negligence of the emjDloyés of the Defendant, in November, 1859.

<p> Presumption.—Appointment of trustees. </p> <p>Where a testamentary trustee neglects to qualify as such, for a period of twenty years, he will be presumed to have renounced the trust.</p> <p>The supreme court may appoint a trustee, in case of a vacancy, on notice to such parties as they, in their discretion, may think proper to direct.</p>

<p>Appeal from the general term of the Superior Court of the city of Buffalo, where judgment had been rendered in favor of the defendant, upon demurrer to the complaint.</p> <p>This was an action by Stephen W. Howell against the City of Buffalo, brought on the authority of the act of 1864, ch. 438, to test the validity of a certain assessment made by the corporation upon the lands of the plaintiff and others, by virtue of the act of 21st April 1863, entitled !! an act authorizing the common council of the city of Buffalo to make re-assessments to defray the expenses of local improvements on Niagara street, in said city.” (Laws of 1863, ch. 196.)</p> <p>The defendant was a municipal corporation, and had power, under certain restrictions, to canse streets to be paved, and other local improvements to be made, and the expense thereof to be assessed upon the parcels of land, in such city, to be benefited by the improvement, in proportion to such benefit.</p> <p>The complaint averred, that in 1859, the defendant ordered Niagara street to be graded and paved, and the expense thereof to be assessed upon the real estate bene fited thereby. That "the assessment was accordingly made, amounting to $37,762, whereby the plaintiff’s lands, among others, were assessed. That the defendant contracted for the making of the improvement, at the sum above mentioned, and it was made, and the contractor fully paid and satisfied therefor; $8700 of the required sum being received from parties assessed, *w-k° voluntarily paid their assessments, and the balance, over $29,000, being borrowed from the general fund of the city. That the lands, the assessments on which were not paid, including the plaintiff’s, were sold for the non-payment of the respective assessments thereon; and were bid off at such sale, by the defendant, in default of other bidders, pursuant to a requirement in its charter, for the term of one hundred years. That the general fund was subsequently made good for the sum so borrowed from it, by the issue and negotiation of bonds of the city, pursuant to another provision of the charter. That the order directing the said improvement to be made was adjudged by the superior court of the city of Buffalo, in November 1862, to be without jurisdiction and void, by reason of the want of the certificate of the city assessors, required by § 19, of tit. 8, of the city charter, as amended by the act of 1854. (Laws of 1854, ch. 69.) That, thereupon, the defendant applied to the legislature of the state, and procured the passage of the act of 21st April 1863, above referred to, which act, after reciting the fact of the aforesaid order for the grading and paving of Niagara street, in said city of Buffalo, and of ■ the said ássessment, and that the same had been declared null and void, and that the said improvement h.ad been fully completed, and that it was just and equitable that the expense thereof should be paid by the owners of the real estate benefited thereby, and that the same should not be a charge upon all the taxable property of said city, enacted, that the common council of the city of Buffalo, for the purpose of defraying the expenses of said improvement, were authorized and empowered to re-assess the sum of $32,266.'76, on the real estate benefited by said improvement. That on the 21st of September 1863, the common council of the city of Buffalo directed the city assessors to assess that sum upon the real estate in said city benefited by said improvement, in proportion to the benefit resulting thereto. Whereupon, the assessors, pursuant to the authority of said direction and said act, made a re-assessment of said sum on said real estate, including the real estate of the plaintiff *in the complaint described, which re-assessment was confirmed by the common council of said city, and the roll of said re-assessment was placed in the hands of the receiver of taxes for said city, for collection. The plaintiff averred, that if the sum of $2000 and upwards (parcel of said re-assessment of $32,266.76) so assessed upon the premises of the plaintiff, should not be paid, the said several parcels of land of the plaintiff would be sold for such non-payment. And he demanded judgment, declaring the said re-assessments, as to the lands of the plaintiff, illegal and void, and that the defendant and its agents be perpetually enjoined from enforcing or collecting the same.</p> <p>The defendant demurred to.the complaint, and the court, at general term, sustained the demurrer and gave judgment for the defendant; whereupon, the plaintiff appealed to this court.</p>

<p>Parol Evidence — Explanation or Contradiction of Receipt — Payment by Note— Fraud.</p> <p>A receipt may be contradicted or explained by parol evidence.</p>

<p> Wharves and piers m New York </p> <p>The wharves and piers of the city of New York are streets of the city, subject to the free passage of all citizens ; and wharfage is not due to the lessees thereof, unless a vessel he made fast to the wharf, or to another ship already fastened thereto; they are not entitled to compensation for any other use of the wharf, such as the removal of a vessel, which has sunk at the end thereof, without any fault on the part of her owners.</p> <p>It seems, that by accepting an abandonment-, the underwriters incur no liability for the obstruction of the channel, by the sunken vessel. Davies, C. J.</p>

This action was brought in 1859, to compel the specific performance of an alleged agreement on the part of the Respondents to purchase from the Appellant certain lands .situate on Ward’s Island, in the East River, of a large part of which island the Respondents were already the owners, or to recover damages for the breach of such alleged agreement.

This action was brought by Fredrick T. Carrington and Myron Pardee, against Lucius B. Crocker, upon an award made by arbitrators against the defendant. •The respondent, Carrington, and Myron Pardee, were partners in trade, and in the course of their business the appellant became indebted to them, as they claimed ; and differences having arisen, either as to the existence of the indebtedness or its amount, the respective parties submitted themselves to an arbitration, the…

<p>Appeal from the general term of the Supreme Couit, in the seventh district, where a judgment rendered in favor of the plaintiffs, in a case tried before the court, without a jury, had been affirmed. (Reported below, 38 Barb. 124.)</p> <p>This was an action by James T. Howe against the New York Central Railroad Company, to recover an indemnity for damages to which the plaintiff had been subjected, as a conductor of the compai y, by obeying its orders, in expelling a passenger from its cars for non-payment of fare.</p> <p>On the trial of the cause, before Johnson, J., without a jury, it appeared, that the plaintiff was a conductor on the defendants’ road, in January 1858, and was charged with the duty of collecting and receiving fare from passengers. He was instructed by the company not to accept or receive in payment of fare, any ticket, purporting to be issued by another corporation, the New York arid Erie Railroad Company, and indorsed “good for six days only from date,” after the time so limited; and he was required to exact payment of fare from any passenger presenting such ticket. He understood and believed, that the defendants had the right to give this order, and that he was bound to obey it.</p> <p>On the 21st of that month, a Mr. Hotchkin presented to the plaintiff a ticket of that description, more than six days from its date, as evidence of the payment of his fare. The plaintiff refused to accept it, demanded the fare, and upon the refusal of Hotchkin to pay it, stopped the train and put him off, believing that he had the right to do so, and using no more force than was necessary.</p> <p>Hotchkin subsequently brought an action in the supreme court, for the injury and detention occasioned by this act of *the conductor. The defendants J were immediately notified of the suit, and employed and paid the attorneys and counsel to defend it. Hotchkin recovered judgment for $312.68, which was docketed on the 20th of May 1859. Execution was issued against the body of the plaintiff, under which he was arrested and imprisoned. The judgment was assigned by Hotchkin to David Rumsey, to whom the plaintiff gave his note for the amount, with interest, which was accepted in full payment and satisfaction by Mr. Rumsey; and the plaintiff was, thereupon, discharged from imprisonment.</p> <p>Upon this state of facts, the learned judge held, as matter of law, that the defendants were liable to the plaintiff, and directed a judgment in his favor for $356.68; to which the defendants excepted. And the judgment having been affirmed at general term, they took this appeal.</p>

<p>Common and Special Carriers — Distinction defined.</p> <p>Where a person, being the owner of a sloop, and not engaged in public transportation, is specially employed to transport a cargo of wheat from one port to another, he is not to be deemed a common ca/rricr, but only a special carrier, and he is not to be held to the strict accountability of a common carrier.</p> <p>The distinction between a common and a special carrier defined and commented upon by Parker, J.</p>

It appeared by the moving papers, that in December 1850, the defendant, Azor Hoyt, executed a mortgage to the plaintiff for $4000, covering the premises known as No. 239 West Twenty-third street, in the city of New York. In August 1851, the mortgagor conveyed the premises to one Dresser.

<p> Confession of prisoner. </p> <p>If a confession be wholly voluntary, it is admissible, though made to a police-officer, in reply to a question concerning the guilt of the prisoner.1</p>

The action was for the recovery of a pair of horses and a double harness. The Defendant claimed to justify the taking under an execution against the Plaintiffs in favor of Miller and Grainer. The only question in the case was, -whether the team was exempt from seizure and sale on execution. The cause was tried before Alexander Storrs, as sole referee.

The action was for tlie foreclosure of a mortgage to tlie Plaintiff, as a continuing security for the payment of all commercial papers then or thereafter to be held by tlie Plaintiff, on which Daniel M. Joslyn was liable, or might become .so at any subsequent period. The complaint originally framed alleged his liability in the sum of $1,500, with interest, for which the Plaintiff held his note, bearing date the 24th of Dec., 1860, payable thirty days from date.

This was an action by William Buswell, as assignee of the firm of Buswell & Sons, lumber-merchants of Troy, against Horace J. Poineer, to recover the amount of four several bills of lumber sold by that firm to the defendant, a resident of Newark, in New Jersey, in the summer of 1856.

(Reported below, 38 Barb. 181.) This was a suit by Isaac Butts for himself, and'on behalf of the other stockholders of the Rochester and Webster Plank-road Company, against William Wood, Daniel Wood and John Cornwall, three of the five directors of that company (the corporation also being made a party defendant), among other things, to set aside the proceedings of the said directors in voting to the defendant Daniel Wood, a sum of $933.33, for extra compensation as secretary…

This was an action by .the President, Directors and Company of the Westfield Bank against Peter P. Cornen, upon a promissory note for $3000, purporting to have been made by the defendant, by.his attorney, EL A. Bartlett, dated the 18th September 1860, payable three months from date, to the order of Carson & Hard, and by them indorsed to Jessup & Laflin, who indorsed it to the plaintiffs.

This action was brought by Thomas R. H. Depuy and others (the present appellants) against Austin Strong and others (the, respondents), to recover damages for entering upon lands, cutting timber, and removing therefrom timber and bark. The complaint set forth that the plaintiffs owned certain individual interests in the lands in question, with other necessary averments charging the defendants with trespassing thereon.

(Reported below, 9 Bosw. 483.) This was an action by James Patrick and Alexander McDougal against Benjamin F. Metcalf and Samuel Duncan, for the recovery of a sum of money received by the defendants, from officers of the government of the United States, for the transportation of certain government stores from New York to the navy-yard at Mare’s Island, California.

<p>Appeal from the general term of the Supreme Court, where a judgment rendered in favor of the plaintiff, in a case tried before the court, without a jury, had been affirmed.</p> <p>This was an action by Frederick T. Carrington and Myron Pardee against Lucius B. Crocker, upon an award of arbitrators.</p> <p>Carrington and Pardee were partners in trade, and the defendant became indebted to them in the course of their business, as they claimed; and differences having arisen, either as to the existence of the indebtedness, or its amount, the respective parties submitted themselves to an arbitration, the result of which was an award, on the 3d December 1852, in favor of Carrington & Pardee against Crocker, for the sum of $785.07. This action was brought to enforce the award.</p> <p>The defendant set up, as matter of defence: 1. The statute of limitations: 2. A release to him by Pardee of one-half the award, in consideration of $200: 3. That Pardee was improperly joined as a- party plaintiff.</p> <p>At the trial, the plaintiffs gave in evidence the awaid, which the defendant admitted to have been made on the 3d December 1852, and offered to show that a payment had been made on it, within six years. The defendant objected, on the ground, that.such proof was inadmissible under the complaint, it not having alleged a new promise within six years. This objection was overruled, the justice deciding that the complaint might be amended, according to *the facts. A receipt was then produced, indorsed upon a copy of the award, dated the 27th August 1858. This was the plaintiff’s case.</p> <p>The defendant' introduced a release dated the 8th April 1859, made by Pardee to the defendant, in consideration of $200, of his (Pardee’s) one-half of the award, and insisted on the objection of misjoinder of parties; but the court held that the objection might be remedied, by striking out the name of Pardee as plaintiff. On the conclusion of the trial, the court ordered judgment in favor of Carrington, as sole plaintiff, for one-half of the award, and interest from its date, with costs.</p> <p>Judgment was accordingly entered in favor of Carrington, and the same having been affirmed at general term, an appeal was taken to this court.</p>

(Keported below, 53 Barb. 547.) This was an application by William B. Stephens, supervisor of the town of Fremont, in the county of Steuben, for a writ of mandamus, to be directed to Peter Halsey, the treasurer of said county, commanding him to issue his warrant for the collection of a certain tax.

(Reported below, 9 Bosw. 552; and at special term, 23 How. Pr. 476.) This was an action by the Chatham Bank against Frederick B. Betts and others, the makers and indorsers of a promissory note for $2350, dated t&e 18th September 1862, made by the defendant Betts, payable three months after date, at the Mechanics’ Bank, to the order of A. A. Thomas, and by him indorsed, and also by Samuel B. Potter, for whom it was discounted by the plaintiff. Betts, the maker, alone defended.

This was an application by Herman Thomas and others for a mandamus, to be directed to the Commissioners of Highways of the town of Milton, in Saratoga county, commanding them to open a certain highway in that town, which, upon appeal from the order of the commissioners, had been ordered by referees to be laid out and opened.

<p>This action was brought upon a joint and several promissory note, dated September 11th, 1851, for the payment of $2,553.71, made by the Defendant and one Andrew Bigham to the order of, and endorsed by, Bates & Griffin.</p> <p>On the trial, the Defendant’s counsel made a motion for judgment upon the pleadings, upon the ground that the Plaintiff had not replied to the counter-claims of the Defendant contained in the answer.</p> <p>The Court overruled the motion, and the Defendant’s counsel excepted. The Plaintiff’s counsel then read in evidence the note above described, and found the amount of interest due upon the same.</p> <p>The Defendant’s counsel then read in evidence a former complaint in the action, verified by the Plaintiffj in which it was alleged that, after the making, and before the maturity of the note sued upon, “ the Defendant, in consideration of his indebtedness upon said note, and to provide for the payment of the principal of the same, made and delivered to the Plaintiff another promissory note, dated,” &o.; that neither of said notes was paid, and that the Plaintiff was the owner of both of them.</p> <p>The Plaintiff’s counsel then produced and cancelled the note last mentioned.</p> <p>The Defendant’s counsel insisted that the defence of payment was established by the evidence thus introduced, and requested the Court so to instruct the jury, and requested to go to tbe jury on that question. The Court declined each of these requests, and the Defendant’s counsel excepted.</p> <p>The Court directed a verdict for the Plaintiff for the amount of the note.</p> <p>The General Term affirmed'the judgment entered upon the verdict, and the Defendant now brings his appeal to this Court.</p>

Writ of error to the supreme court of the second district. Held: at and against the said Ellen Hicks, then and there feloniously, willfully, and of his malice aforethought, did shoot off and discharge; and that the said Thomas Fitzgerrold, with the leaden bullet aforesaid, by means of shooting off and discharging the said gun, so loaded, to and against the said Ellen Hicks, aforesaid, did then and…

In May 1866, the Monroe County Savings Bank was assessed, under the act of 23d April 1866 (Laws of 1866, vol. 2, p. 1674), upon a “ valuation of personal property” amounting to $83,000, and the Rochester Savings Bank upon $126,000, and the assessments were duly confirmed by the common council of the city of Rochester.

This was an action by Thomas P. H. De Puy and wife, and Moses De Puy, against Austin Strong and Medad T. Morss, for a trespass upon the plaintiffs’ lands. The complaint averred, that the plaintiffs were the owners of certain undivided interests in the lands in question, and that the defendants had trespassed thereon. The defendants demurred, on the ground of the non-joinder of the other tenants in common. The demurrer, however, was overruled, with leave to answer, upon terms.

This was an action by John H. Williams against Chester F. Shelly, sheriff of Niagara county, for the seizure and conversion of a quantity of dry goods, under an execution against the firm of Mitchell & Derry.

This is an action in the nature of a quo warranto, brought against James M. Raymond, a commissioner of taxes and assessments in the city of New York, an office to which he was appointed by the governor of the state of New York, by and with the advice and consent of the senate, under and in pursuance of the provisions of an act of the legislature of the state of New York, passed April 17, 1867 (eh. 410 Latos of 1867).

After the final decision of this court upon the several appeals taken by the respective parties (1 Abb. Dec. 525 ; 4 Id. 662), a question arose as to the power of the court to order an extra allowance of costs and counsel fees. The facts are fully stated in the opinion. A similar question arose in the case' of De Courval v. Ray, in October 1867, in which the court adopted the opinion delivered in Downing v. Marshall, as the law of the ease.

* The Plaintiff sought in this action a judgment declaring cer- • tain six notes (made by the Plaintiff, and given to the Appellants’ testator,- Ayrault)—two dated April 3-, 185,4, for-$5,000 each, and four dated July 1, 1854, for $5,000, $6,000, $6,000, and- $4,000 respectively, amounting .in the'.aggregate to $31,000, and a mortgage; upon land in Ohio, given by the Plaintiff to secure the payment of the six-notes, void for -usury, and adjudging and decreeing-that they be…

(Reported below; 10 Bosw. 16.) This was an action by John C. Martin and John W. Graydon, assignees for the benefit of the creditors of Graydon, McCreery & Co., against Charles Kunzmuller and Frederick Kunzmuller, to recover a claim oi $3107.42, for goods sold and delivered by the assignors to the defendants.

The Plaintiffs being owners in possession of the barge called the “ Globe,” let it to the Defendant Mellen on the 19th of March, 1860, until the first of October thereafter, for the price or “rent” of $400.

This was an action by Robert Greene and Benjamin F. Greene against James M. White, for the breach of a contract in writing between the parties, in the following terms : “ Agreement made thirteenth day of September 1860, between James M. White, of the one part, and Robert Greene and Benjamin F. Greene, of the other part, as follows: The said White hereby agrees to sell to said R. & B. F. Greene, the schooner called the Lucy Orchard, her tackle, apparel, furniture and boat…

Writ op Error to the Supreme Court, sitting in the second district, where the conviction of Thomas Fitzgerrold, the plaintiff in error,… Held: at and against the said Ellen Hicks, then and there feloniously, wilfully and of his malice aforethought, did shoot off and discharge ; and that the said Thomas Fitzgerrold, with the leaden bullet aforesaid, by means of shooting off and discharging the said gun, so loaded, to and against the said Ellen Hicks, aforesaid, did then and…

<p> Former Judgment—Estoppel—Prospective Damages. </p> <p>■ Where ihe same embankment, the same ditches, &c., which by a former, judgment have been adjudged to have caused damages to the Plaintiff, are continued, causing subsequently similar injuries, the Defendant will be estopped by such judgment from denying his liability in a subsequent action to recover for like subsequent injuries caused by the continuance of said embankment, &c.</p> <p>When prospective damages may be recovered discussed by Olerke, T.</p>

This was an action in the nature of a quo warranto, brought by the Attorney-General, to test the right of James M. Raymond to the office of commissioner of taxes and assessments of the city and county of New York, to which he had been appointed by the governor, by and with the advice and consent of the senate, pursuant to the provisions of the act of 17th April 1867. (Laws of 1867, ch. 410.) The only question involved was the constitutionality of that act.

<p>Attorney and Client—Authority to appear—Bight of Defendant—Ejectment—■ Granteds Bight to sue in name of Grantor.</p> <p>The law warrants a party in giving faith and confidence to one who by law is authorized to hold himself out as a public officer clothed with authority to represent others in the Courts.</p> <p>Where an attorney appears for a party, the general rule applicable is, that a retainer will be presumed; and the adverse party, having no notice to the contrary, may act upon such presumption.</p> <p>The object of Section 111 of the Code of Procedure as amended is to limit the operation of the section as previously enacted, not to create any new authority as between the grantor and grantee for the use of the name of the former by the latter.</p>

This was an action by Mary Jane Blossom against William L. Hall, to recover damages fop fraudulently and deceitfully inducing the plaintiff to marry and cohabit with him—he having a former wife living, from whom he had been divorced, on the ground of his adultery. The complaint also contained a count for assault and battery. The facts are fully stated in the opinion.

This was an action by Milo Pratt against Lucien D„ Coman, upon a promissory note for $3000, made by the defendant, on the 4th June 1869, payable six months after date to the order of one Agnew, and by him indorsed to the plaintiff. The answer set up the defence that Agnew, by false representations, induced Coman to buy certain stock in the iEtna Mining and Manufacturing Company, and that the defendant gave the note in suit, in payment thereof.

This is an appeal from an order made by the General Term of the Court of Common Pleas for the city and county of Hew York, reversing a judgment, entered upon the report of a referee, in favor of the Appellant, and against the Respondents, for $1,505.60, and ordering a new trial, with costs to abide the event.

Ok the 27th of January, 1853, John La Farge and Charles Wright entered into an agreement in writing and under seal, by which La Farge demised to Wright the premises then built up and known as Metropolitan Ha'll, and the premises adjoining, fronting on Broadway, in the city of Hew York (on which La Farge was then erecting a hotel), for the period of ten years, from May 1, 1853, at the annual rent of $48,000, payable in equal monthly payments of $4,000 each, “on the first day…

<p>Appeal from an order of the supreme court, duly affirmed by the general term in the first district.</p> <p>This action was commenced by the plaintiffs on the 9th ef January, 1866; but on the 23d of the same month, and before the defendants’ appeared, receivers of the plaintiffs’ property were appointed by the supreme court, and the action was prosecuted by the receivers and their successor to trial. The action was an ordinary suit at law for the recovery of money only. On a trial before a referee, the defendants obtained a report upon which judgment was entered for their costs of suit.</p> <p>The defendants thereupon applied by motion for an order that the receiver pay such costs out of funds in his hands, showing by affidavit that he had funds' in his possession as such receiver to a much larger amount.</p> <p>The nature of the receivership was not shown by the papers, nor does it appear to what extent there are claims of creditors or others to the funds in the hands of the receivers» The motion was denied at special term and the order was affirmed in general term.</p> <p>The defendants appealed to this court.</p>

This was an action by Waterman L. Ormsby against Benjamin Douglass, to recover damages for a verbal slander. It appeared on the trial, before Piebbepont, J., that the defendant kept a mercantile agency, in New York city, the business of which was to obtain information as to the credit and responsibility of persons in business, and to furnish such information to those who had occasion to use it.

This was an action brought to recover damages for injuries sustained by the Plaintiff in falling into an excavation made in the sidewalk of a public avenue in the city of Hew York, and not sufficiently guarded, in front of a building on such avenue, of which the Defendant Euckman had a lease, and of which building he was the owner.

This was an action by Jane Baldwin, executrix of W. B. Hawley, who was the executor of Alpheus Baldwin, deceased, 'against Norman Van Deusen, upon a promissory note for $85, dated the 28th March 1857, made by the defendant. The case was tried before a referee, who found, in substance, that, on the 20th September 1856, one Douglass Onley made his note for $155, payable one year after date, of which the plaintiff was the owner and holder, on the 28th March 1857.

This was an action by William Armitage against Frank Pulver, William W. Pulver and Peter A. Pulver, to recover contribution from the defendants as co-sureties with the plaintiff for one Delos Gary.

This action was Brought By William F. Russell and his co-administrators of the goods and chattels of Jeremiah Russell, deceased, against Davis Winne, sheriff of Ulster county. The object of the action was to recover damages of the defendant for the alleged conversion By him of a quantity of stone.

This was an action by Charles W. Swift against the City of Poughkeepsie, to recover back the- amount of a tax upon the plaintiff’s property, illegally assessed, collected and paid over to the defendant’s treasurer. It appeared, by the case submitted, that the assessors of Poughkeepsie, in the year 1865, assessed the plaintiff as the owner of certain shares of stock in the Farmers’ and Mechanics’ National Bank, at their par value.

The action was tried before the Hon. JohnM. Parker, Justice, and a jury, at the Chemung Circuit, in February, 1865, and was brought upon a bond made by Anson C. Ely, as principal, and John Parmenter, deceased, as surety, dated June 13, 1854. The condition was that Ely should, on or before July 1, 1855, pay, take up, and deliver to Lowman, two mortgages executed by him, amounting to $10,000, with interest upon them from January 1, 1854.

This was an action by Buford A. Tracy against the First National Bank of Selma, in Alabama, to recover the amount, of certain checks drawn by the defendant upon the Ocean National Bank of New York, amounting in the aggregate to $8500. The plaintiff procured an attachment to be issued, which was levied upon a sum of money standing to the credit of the defendant in the Ocean Bank.

This action was brought against the Defendant as endorser upon a promissory note, made by Lewis Dunham to the order of T. H. Sweezey, dated Oct. 2, 1855, and payable in six months from date. On the back of the note there is a guarantee of collection, dated the 27th of October, 1855, and signed by Sweezey, and under this is written a waiver of protest, signed by Sweezey, but bearing no date, and then the name of the Defendant.

This was an ordinary suit at law by the Columbian Insurance Company against Samuel Stevens and Henry W. Peabody, for the recovery of money only. Shortly after its commencement, and before an appearance by the defendants, receivers were appointed by the supreme court of the plaintiff’s effects, and thereafter the action was prosecuted by them and their successor. On the trial of the cause before a referee, the latter reported a judgment in favor of the defendants, with costs.

<p>Joint-debtors— Contribution— Corporation— Co-pwrtnership.</p> <p>The rule that joint-debtors, &c., are severally liable to contribute each for any excess beyond his proportion paid to relieve from a common liability, is not unqualified in settling the equities between the parties themselves.</p> <p>In such case, as between debtors joint in form and jointly liable to third parties, it is competent to show that one became bound for the benefit of all the others, or for his own personal benefit.</p> <p>Subscription to the stock of a proposed seminary to be incorporated, does not constitute the subscribers co-partners, or authorize any one to contract debts or advance money on the credit of such subscription, with a view to make the subscribers liable therefor.</p>

(Reported below, 9 Bosw. 532.) This was an action by John A. Yan Blarcom and Oliver J. Hayes against the Broadway Bank, to recover the proceeds of certain stocks pledged to the bank by one Christopher Champlin, and subsequently assigned to the plaintiffs. Hayes died pending this appeal, .which was prosecuted by Von Blarcom, the survivor.

<p> Nonsuit—Negligence—Facts for the Jury to determine. </p> <p>Where Plaintiff’s intestate was killed by a stone hurled by a blast of rocks on Defendant’s premises while intestate was crossing the same by a footpath in use for many years,—held, that he was not a trespasser on said premises, and was not to be deemed guilty of negligence for crossing said premises according to his daily custom for many years.</p> <p>Held, that although the throwing of the stone by the blast, by means of' which the intestate was killed, was quite unusual, yet the known possibility of such an event imposed on the Defendant the duty of warning all persons within reach of danger, that they might seek a place of safety at the time of. discharging the blast.</p>

This action is brought to recover from the estate of Elias Reynolds, who was a stockholder in a corporation called the Westchester Iron Company, an alleged debt of some $1,800, for services claimed to have been performed for the company by Robert J. Coffin, the assignor of the Plaintiff.

(Reported below, 31 How. Pr. 12.8.) James Gill, of Poughkeepsie, in Dutchess county, died on the 26th February 1856, leaving him surviving as his only next of kin and heirs-at-law, a brother, Theophilus A. Gill, a sister, Sarah Wilhelmina Anthony, wife of Theophilus Anthony, and the five children of a deceased brother, Thomas Gill, to wit, John R. Gill, Robert T. Gill, Ann Gill, Sarah W. Gill and Elizabeth Gill.

(Reported below, 23 How. Pr. 260, and 15 Abb. Pr. 406.) This was an action by James Gibson, assignee of Hugh McCrossan, against William C. Haggerty and others, composing the firm of Haggerty & Co., to recover a sum of $105.46, the balance of the proceeds of a promissory note which McCrossan had transferred to the defendants, as collateral security for an indebtedness to them.

This was an action by Elizabeth V. Henry, assignee of Elizabeth Henry, against Charles Wilkes, to recover a sum of $2080, alleged to have been loaned by plaintiff’s assignor to the defendant, through his alleged agent, Henry Wilkes, and to have been applied by said agent to pay off a mortgage on certain lands in New York city, the property'of the defendant, which, by an agreement between Henry Wilkes and the defendant, was to be paid by the former.

(Reported below, 9 Bosw. 79.) This was an action by John B. Bingeldein against the Third Avenue Railroad Company, to recover the excess of his expenditure in building a public sewer in the Third Avenue, one of the public streets of the city of New York, beyond the sum received by him therefor, from the city corporation.

This was an action of Catharine S. Gibson against the American Mutual Life Insurance Company, upon a policy of insurance upon the life of her deceased husband, Marcus W. Gibson, dated the 8th March 1858, for the term of seven years, payable in case of death to the widow.

This was an action brought in the name of the People against Byron P. Tubbs, Marenus Tubbs and James Withers, upon a recognisance in the sum of $1000, conditioned for the appearance of the said Byron P. Tubbs at a court of sessions, to be held at Morrisville, in and for the county of Madison, on the 22d March 1863, to answer to an indictment for perjury, &c. The answer denied all the allegations in the complaint, except that Tubbs was indicted, and further averred, that at…

This was an action in the nature of trover by William F. Russell and others, administrators of Jeremiah Russell, deceased, against David Winne, sheriff of Ulster county, for the alleged conversion of a quantity of stone.

This was an equitable action by James R. Whiting against the Mayor, Aldermen and Commonalty of the City of New York, to restrain the defendants from altering the established grade of Worth street, in that city. The defendants demurred to the complaint, but their demurrer was overruled, with leave to answer. They declined to answer, and took an appeal from the judgment; and the same having been affirmed at general term, a further appeal to this court.

This was an action in the nature of a replevin by Israel Casey, assignee for the benefit of the creditors of John P. Casey, against Henry M. Janes, deputy-sheriff of Livingston county, to recover possession of certain goods, of the value of $999.15, which were included in the assignment, and which the defendant had subsequently levied on and taken possession of, by virtue of an execution issued upon a judgment recovered by Hoppock and others, on the 31st December 1857,…

(Reported below, 24 How. Pr. 213.) This was an action by Stephen H. Griffin and others, trustees for the benefit of the creditors of Bruce McKinney, against William Banks and others, trustees for the benefit of the creditors of Mary B. McKinney, to determine the right to certain personal property, which each party claimed under their respective assignments.

This was an action by Christian F. Holtz against John A. Boppe, as indorser of a promissory note made by Hartman & Ilch, payable six months after date. The only question was, whether there had been a due presentment and demand of payment upon the makers, so as to charge the defendant.

This was an action by the Fulton Fire Insurance Company, assignee of J. Van Burén, Jr., against Charles T. Baldwin, a contractor for repairing the canals, to recover damages to ,the cargo of a canal-boat of the plaintiff’s assignor.

(Eeported below, 34 Barb. 349.) This was an ejectment by Obadiah W. Candee against Holloway G. Hayward, to recover possession of Lot 8, block 192, B, of lands lying south of the Erie canal and east of West street, in Syracuse. The plaintiff claimed title directly from the State, by virtue of letters-patent, issued on the 1st February 1860, to Henry D. Dennison.

This was an action by T. B. Gates, receiver of the effects of the firm of Bridger & Bishop, against G. V. N. Andrews and others, their assignees for the benefit, of creditors, to recover the assets of the firm in the hands of the defendants. The facts are sufficiently stated in the opinion.

* Appeals from the general term of the Supreme Court, in the first district, where judgmeats had been rendered adverse to the Board of Health, in four several cases submitted under the Code. In the first case, the Metropolitan Board of Health claimed to recover from Jacob Heister, the defendant, the penalty prescribed by the act of 1866, ch. 74, for a violation of its order.