Volume 37 — New York Supreme Court Reports

<p>Loan of shares of stock — when the identical certificate need not he returned.</p> <p>The defendant signed an instrument by which he acknowledged that he had . received from the plaintiff 100 shares of the stock of a railroad company as a loan to be returned by him on or before a day named, or at his option to bo paid for at a price specified. The certificate loaned was in the usual form. Upon its back was a power of attorney, signed by the plaintiff, authorizing the transfer of the stock upon the books of the company.</p> <p>Held, that it was the intention of the parties that the .defendant should use the shares of stock borrowed, and if necessary put .the certificate into circulation in the ordinary way; that it was not necessary that he should return the identical certificate borrowed, but it was sufficient if he restored 100 shares of the stock of the corporation, no change having occurred by reason of which they did not represent the same proportion and value of the capital of the company as those loaned.</p>

<p>Summons — service of, upon unknown owners — requisites of such service, under subdivision 5 of section 135 of the Code of Procedure, as amended ¿«I860 — a purchaser will not be compelled to take- a doubtful title.</p> <p>In an action to foreclose a mortgage the summons was served upon the unknown heirs of one Ringland, the owner of the equity of redemption, under an order made in pursuance of subdivision 5 of section 135 of the Code of Procedure, as amended in 1860. It was granted upon an affidavit made by the plaintiff’s attorney, which stated no reason why it was not made by the plaintiff. It stated the death of Ringland; that the deponent had made diligent search and inquiry for his heirs-at-law and next of kin, but had been unable to find any of them or any of. his relations; that he had visited Ringland’s former neighbors and could only hear that he once had a sister but could not find out her name or residence.</p> <p>Held; that the affidavit, thus made by the attorney, was defective in that it did not show that the names or residences of the parties in interest were unknown to the plaintiff, and in that it failed to state the sources from which the attorney’s information was derived.</p> <p>That the title acquired at a.sale under a judgment of foreclosure entered in the action was so defective that a purchaser should not be compelled to accept it.</p>

<p>Arrest — an actual and guilty intent to\ defraud must he shown, to subject the , ga/rty to it.</p> <p>The fact that one member of a firm, with knowledge of its insolvency, has paid . certain of his individual debts out of the firm moneys with the intent to give them a preference over the firm debts, is not sufficient to establish such a guilty intent to dispose of his property for the purpose of defrauding his creditors • as is required to justify his arrest under the provisions of the Code of Civil . Procedure.</p>

<p>Assessment — wiU be set aside because of the inclusion of illegal (excessive) interest, however small its amount.</p> <p>An application was made to vacate the sale of a lot for the non-payment of an assessment upon the ground that the amount of the latter was unlawfully-increased by the addition of illegal interest. It appeared that the excessive interest amounted to one dollar and arose from charging interest from November 1, 1869, the date of the confirmation of the assessment, instead of from March 31, 1870, the date of the entry of the assessment in the record of titles of assessments confirmed, kept in the office of the street commissioner, and in a like record kept in the office of the clerk of arrears.</p> <p>Held, that the assessment should be vacated.</p>

CONTROVERSY submitted upon an agreed statement of facts under section 1279 of tbe Code of Civil Procedure. Tbe agreement for submission is as follows: Tbe parties to tbe above entitled action being all of full age agree upon tbe following case for submission to tbe General Term of tbe Supreme Court for tbe First Department: First.

<p>Legacy payable on the death of a Ufe beneficiary — when it nests upon the death of the testator — when remaindermen must take the fund at the death of its life tenant in its then existing condition.</p> <p>A testator "by his will directed Ms executors to invest a sufficient sum to produce a dividend or income of $500 a year, and pay over the same to his brother during his life, and upon his death to pay over the sum thus invested to such person or persons as the brother might by an instrument in writing appoint. By a codicil this was changed by a direction that the executors were to invest a sum sufficient to produce a dividend of $1,000 a year. By a subsequent codicil they were directed to invest a sum sufficient to produce an income of £250 sterling a year, which was to be paid over to the brother, and upon his death the sum thus invested was “to be paid over to my (his) sister Margaret and her heirs.” The rest and residue of his estate was divided into six equal parts and given to different persons named in the will.</p> <p>Held, that the principal of the sum to be invested vested in Margaret at the testator’s death, and passed to her representative upon her death during the lifetime ■of her brother.</p> <p>The executors, upon their final accounting in 1878, set aside for the brother the sum of $26,390.63 and invested it in United States bonds. Subsequently the bonds were called in and the sum of $25,000 paid for them by the government; $24,650 of this amount was reinvested in government securities. The first investment produced a greater and the second a less income than that required to be paid to the brother.</p> <p>Held, that the representatives of the sister must take the fund as diminished at the time of the death of the life tenant.</p>

<p>Appeal from an order made at a Special Term refusing to vacate an award.</p>

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

Tbe defendant was a corporation created and existing under tbe laws of tbe State of New Jersey, and tbe accident, to recover tbe damages resulting from wliicb tbis action was brought, happened in that State.

<p>Appeal from an order made at a Special Term, denying a motion to vacate an attachment.</p>

<p>Letters of administration — •the action of a surrogate in issuing them cannot be attaches, coltatei-ally— a power of attorney may be acknowledged before a vice-consul.</p> <p>This action was brought upon three promissory notes made by the defendant to the order of the plaintiffs intestate. It appeared that the intestate died in London, leaving a will which it was claimed had been there admitted to probate. The plaintiff applied under a power of attorney executed by a temporary administrator and an executor, who had been appointed in England, for ancillary letters of administration as provided by sections 2695, 2696 of the Code of Civil Procedure. The petition for the letters was in proper form and stated all facts required to sustain the application. The papers produced in support of it, however, were irregular and insufficiently authenticated.</p> <p>Meld, that as the subject to which the proof was directed, the granting of ancillary letters of administration, was clearly within the jurisdiction of the surrogate, the validity of the letters granted by him thereon could not be attacked collaterally in this action; even though it could he shown that he erred in granting them and that his determination would have been reversed upon appeal.</p> <p>Rodorigas v. Bast Rivw Swings Institution (63 N. Y., 460, and Id., 76 N. Y., 316), followed.</p> <p>A power of attorney may he acknowledged before a vice-consul of the United States.</p>

<p>Contract to ship and deliver — when such a contract requires that the pa/rty selling should himself ship the articles— a refusal on the part of the defendant to perform, excuses afirrmal tender.</p> <p>The defendant entered into a contract dated New York, January 20, 1880, by which he acknowledged that he had bought of the plaintiffs " about five hundred (500) tons No. 1 ‘Eglinton’ Scotch pig iron, for shipment in March, 1880, from Great Britain to New York, by sail or steam vessels, at sellers' option, deliverable ‘ex vessels’ on arrival” at New York. The plaintiffs neither owned nor shipped from Great Britain, in March, 1880, any iron of the kind specified in the contract, but in April, 1880, they entered into negotiations, and on May fourteenth received a contract for the purchase of the required quantity of the kind of iron specified in the contract, which had been shipped from a pórt in Great Britain in March, 1880, by other persons, and which had arrived in New York on May seventh. The defendant having refused to accept the iron, upon the ground that it had not been shipped by the plaintiffs as required by the contract, this action was brought to recover the damages thereby sustained by them.</p> <p>Held, that the defendant was only bound to aócept iron to be shipped by the plaintiffs themselves; that he could not be compelled to accept that purchased by the plaintiffs in New York, and that the action could not be maintained.</p> <p>• The express refusal of a party to perform his contract, or to accept the goods to be delivered thereunder, relieves the other party from the necessity of making any further offer or tender, as required by the contract..</p>

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

<p>Costs — discretion qf the court as to, in equity cases — when it will not he reviewed hy the General Term.</p> <p>In this action, brought to foreclose a mortgage, it was claimed that the whole amount had become due by reason of the failure of the mortgagor to pay the sum of seventeen dollars and fifty cents of interest, within thirty days from ’ the time it fell due. The court held that the payment of the interest was deferred with the consent of the plaintiffs agent and in her interest, and under such circumstances as to prevent her from electing to consider the whole amount of principal secured by the mortgage as due. It further held that no sufficient tender of the interest had been made, and directed the usual judgment of foreclosure and sale, for the amount of interest due when the action was commenced, without costs.</p> <p>Held, that the action of the court in so doing, and in not awarding costs to the defendant, was not so unreasonable or oppressive as to require the review of its judgment.</p>

Term, after a verdict had been directed for the plaintiff at the circuit. The action was brought to recover upon four promissory notes, dated respectively May 1, 1871, August 25, 1871, August 3, 1872, and April 3,1873, made by Michael Warner, the father and intestate of the defendants. On the 2d day of April, 1875, Michael Warner executed and acknowledged a deed to his three sons (two of whom are the defendants in this action) of certain real estate in Rensselaer county.

The complaint sets up that on the 25th day of March, 1875, the. defendant conveyed to the plaintiffs in fee a certain parcel of land which contained a water-power and grist mill, with the water-power and mill privileges appurtenant thereto. It avers that the value of the premises consisted almost wholly in their use for such purposes, and that the premises were bought by plaintiffs for such purposes, as was known to defendant.

<p>Ejectment — where a wife is lining upon a farm with her husband, what evidence requires the submission to the jury of the question as to which is the actuad occupant thereof.</p> <p>This action was brought, in 1860, by the plaintiff, as the assignee of a lessor, to recover the.possession of certain premises for the non-payment of the rent reserved by the lease. It appeared that in 1856, one Lansing, who then owned the leasehold interest, went to the defendant’s house and told the defendant’s wife, who was Lansing’s daughter, that if she would move upon the premises he would make her a present of the place; that she could go on and build upon it and he would give her a deed whenever she called for it. The defendant and his wife moved upon the place and lived there as husband and wife for twenty-two years. Buildings were put up and other improvements made. The wife had no separate estate when she went there. She hired the maid-servants, and he the men on the farm. He managed the farm and sold the produce. The defendant was examined as a witness for the plaintiff before trial and testified that he was in the possession of the farm at the time of the commencement of the action. While the action was pending he and his wife made an affidavit in which they stated that they were occupants of the premises.</p> <p>Held, that the evidence would not have justified the court in holding as a matter , of law that the defendant, the husband, was the actual occupa-nt of this premises, and that it properly submitted that question to the juay.</p> <p>That a verdict finding that he was not the actual occupant would not be disturbed.</p>

<p>Appeal from an order of reference made at a Special Term.</p> <p>The Universal Life Insurance Company was, prior to its fail ure and the appointment of a receiver of it, the lessee of St. Peter’s church, under a lease giving a term of twenty-one years from May 1, 1874. When the receiver was appointed he continued to use and occupy, by himself or by his sub-tenants, the leased property. He so occiqfied the property for the half year from November first to May first, except the few days from November first to November fifth, the date of his appointment. On the first of May a half year’s rent became payable, which he has not paid. The church applied to the court either to direct him to pay or to permit him to be sued. Instead of granting either request the court referred the matter- to a general referee, who had previously been appointed to pass on claims against the company, its assets or the receiver.</p>

<p>Case and exceptions^-when a resettlement of it will be ordered — the evidence should not be set forth in bsec verba — Buie Sfo. 34.</p> <p>For a failure to comply with Rule 34, requiring tbe facts of tbe case, together with tbe rulings on tbe trial, to be stated in a narrative form, and providing that tbe evidence shall not be set forth in hose verba, or by question and answer, unless so ordered by tbe justice, surrogate or referee by or before whom tbe ease is settled, tbe case will be sent back for resettlement.</p>

Appeal by the board of supervisors of Ulster county from an order made at a Special Term awarding a peremptory mandamus. The relator recovered two judgments in a justice’s court against the town of Kingston, which were docketed in th'e Ulster county clerk’s office. He applied to the supervisors to levy and assess the amount on the said town or pro rata on the towns of Kingston, Ulster and so much of Woodstock as comprises the territory formerly in Kingston.

Ulster and Kingston, and so much of the town of Woodstock as m{ April, 1879, formed part of the town of Kingston upon the assessed valuation of 1882.

Appeal by the defendant from parts of an order of reference made at a Special Term. The action was brought to compel an accounting by the defendant who is an assignee for the benefit of creditors.

Appeal by the plaintiff from an order denying a motion to confirm the report of a'referee, and for a judgment thereon in an action for divorce upon the ground of adultery.

On the 15th of November, 1881, the comptroller sold lands of the plaintiff for non-payment of taxes of 1873,1874,1875 and 1876, and on snch sale the lands were bid in by the comptroller. A certificate of sale was made as required by law. A short time before the sale the plaintiff explained to the comptroller or his deputy the plaintiff’s objections to the assessments and requested him to cancel the tax and stop the sale. This the comptroller through his deputy declined to do.

This action was commenced in a Justice’s Court by personal service of the summons on the defendant on the 19th day of January, 1881. On the return day plaintiff complained on a justice’s judgment between the same parties. The defendant claimed that the court had no jurisdiction for the reason that the judgment sued on was a judgment of a court of record, and that leave of the court to bring the action had not been obtained.

This action was originally brought in the Delaware County Court to recover damages for an alleged unlawful ejection -from one of the defendant’s trains, and a verdict was rendered for the plaintiff for $125 and costs. A motion before the Special Term on a case and exceptions for a new trial was denied. The plaintiff entered judgment and the defendant appealed to the General Term where the order and’judgment was reversed and a new trial directed.

<p>Appeal from an interlocutory judgment, entered upon an order sustaining a demurrer interposed by the town of Tompkins, upon the ground that the complaint did not state a cause of action against it.</p>

Tbe action was brought by tbe plaintiff to recover a legacy given to her by tbe will of her deceased husband, and to have the same adjudged to be a charge upon and payable out of tbe real estate left by the deceased.

The premises sought to be partitioned are four lots in the city of Cohoes covered with one large tenement-house. On the 6th day of July, 1869, these lots were conveyed to Zephirin Perrault and Theophile Perrault by a lease in fee. On the 15th day of February, 1871, the said Zephirin Perrault and wi$e executed an assignment of their undivided half of said lots to Theophile Perrault. This assignment was left for record at the clerk’s office May 2,1872.

By chapter 130 of tbe Laws of 1862 the congress of the United States gave to the several States certain public lands for tbe purpose of aiding colleges which should teach agriculture, etc. The moneys derived from the sale of these lands or land scrip were to be invested in safe stocks, yielding not less than five per cent, were to constitute a perpetual fund, the capital of which was to .remain for-fever undiminished and the income to be applied as above stated» The assent…

The plaintiff is the wife of Philip Snyder, one of the defendants. She brings this action to recover for services rendered to William Snyder, deceased, the testator and the father of Philip. On the trial of the action the plaintiff called as a witness defendant Philip, and, under the objection of the defendant Sylvester, proved the care which his wife and daughter took of his father.

The action was brought by the plaintiff, as the receiver of the property of the defendant Frederick H. Noteware, to set aside a mortgage given by him to the defendant Harriet, his wife, upon the ground that it was fraudulent and void as to creditors. The receiver was appointed .under a judgment recovered in an action for slander, brought by Alice E. Conant against the defendant Frederick Noteware.

Lawrence county On the 22d of October, 1877, Joseph Thompson made an assignment to Abiel E. Helmer for the benefit of creditors without preferences.

<p>TTmry — construction of cm agreement to pay interest in adma/nce — when such an agreement is not usurious.•</p> <p>March 27, 1876, the defendant executed and delivered a bond and mortgage conditioned for the payment of $1,500 in one year from date, with interest “semi- annually in advance.” In an action to foreclose the mortgage the defendant claimed that the agreement to pay the interest in advance rendered the instrument usurious and void. It was found that the agreement was entered into in good faith, without intent to evade the statute, and that the parties did not intend to .pay or receive, nor did they suppose or believe that the- instrument provided for the payment or reception of usurious interest.</p> <p>Held, that as there was no agreement to pay any precise sum the instruments shQuld be construed as providing for the payment of such an amount only as could be legally and lawfully charged, that is, of the sum of fifty dollars and seventy-two cents, and not of fifty-two dollars and fifty cents at the commencement of each period of six months.</p> <p>That even if this were not so, the well established rule authorizing interest and not discount to be deducted from commercial paper having a short time to run should be applied to these instruments, and that within that rule the agreement to pay full interest in advance was lawful.</p>

The order provided “ that the summons herein be served on the said defendant by publishing the same in two newspapers printed and published in the city of Schenectady once a week, for six successive weeks, to wit, the Schenectady Evening Star and the Schenectady Daily Union, and that on or before the day of the first publication of said summons, as aforesaid, the plaintiff deposit in the post-office at Schenectady a copy of said summons, complaint, and of this order,…

<p>Appeal from an order made at a Special Term in Oneida county, and entered in Jefferson county, awarding the defendant’ costs and disbursements. - • _</p>

<p>Judgment creditor — right of, to Tyring an action (after the making ef a general assignment Tyg Ms judgment debtor), to vacate a fraudulent mortgage given before the execution of such general assignment; the judgment having been recovered after the execu-. tion of the assignment. ,</p> <p>A judgment creditor cannot maintain an action to have a chattel mortgage executed by his debtor declared fraudulent and void, where the latter has executed, after the execution of the mortgage and before the recovery of the judgment, a general assignment for the benefit of his creditors.</p>

<p>Appeal from a judgment in favor of tbe plaintiff, entered upon tbe decision of tbe County Court of Cayuga' county.</p>

<p>Livery stable keeper — lien of, upon horses kept under an agreement with the owner— rights of a chattel mortgagee —1873, chap. 498.</p> <p>Section 1 of chapter 498 of 1873 authorizes livery stable keepers and other persons keeping or hoarding horses, under any agreement with the owners thereof, to detain such horses until all charges due under the agreement shall have been paid; “provided, however, that notice in writing shall first be given to such owner in person or at his last known place of residence, of the amount of such charges and the intention to detain such horse or horses until such charges shall be paid.” Section 3 provides that “ from the time of giving such notice, and while such horse or horses are so detained and no longer, such livery stable keeper or other person shall have a lien upon such horse or horses for the purpose of satisfying any execution which may be issued upon a judgment obtained for such charges.”</p> <p>Held, that a livery stable keeper who had, under an agreement with the owner, boarded a horse upon which a chattel mortgage had been given and duly filed, could uot, by serving tbe notice required by tbe statute upon tbe owner or mortgagee, acquire, as against tbe mortgagee, a lien upon tbe borse for tbe charges incurred for bis keeping prior to tbe time of tbe giving of tbe notice, but only for such as should be incurred thereafter.</p> <p>That bis right to acquire such a lien was not affected by tbe fact that tbe mortgagee knew that be was keeping tbe horse under such agreement.</p> <p>Quasre, as to whether a lien for past charges could be acquired as against the owner.</p> <p>The statute gives no lien upon any wagons, harness or robes that may be kept with the borse, but only upon tbe'horse itself.</p>

<p>Duress — when threats of a lawful 'prosecution amount to duress — compounding a, felony — when the parties a/re not in pari delicto.</p> <p>The defendant, in whose employ the plaintiff’s son was, accused the latter of having embezzled money and proposed that the plaintiff should arrange the matter by giving his note, indorsed by his wife, for $350. The note was given and subsequently paid by the plaintiff to one who had acquired it in good faith before maturity. This action'was brought to recover the amount so paid upon the ground that the execution of the note was procured by duress. Upon the trial evidence was given tending to show that the defendant attempted to influence the action of the plaintiff by operating upon his family pride, his fear of disgrace and his desire to save his son from the ruinous effects of a prosecution, and thereby induced him to execute the note.</p> <p>Meld, that such threats so made amounted to such duress or pressure as would avoid the contract thereby obtained.</p> <p>That the fact that the note was given for the purpose of compounding a felony did not prevent the maintenance of the action as the parties were not in part delicto, the note having been procured from the plaintiff by duress.</p>

<p>Appeal from an order of the Special Term made in a proceeding by certiorari, under chapter 269 of the Laws of 1880, directing an assessment-roll made by the assessors of said town to be corrected by striking out part of the assessment against the relator contained therein.</p>

<p>Exemption from execution — when it is waived by a failure to assert it — Oode of Civil Procedure, see. 1391.</p> <p>Under an execution issued upon a judgment a constable levied upon a span of mules owned and used by the debtor in bis business of farming and boating. He was a householder and had no other team. It did not appear what other property he then had. He did not at the time the levy was made, or at any other time, claim that the mules were exempt.</p> <p>Held, that he thereby waived any exeipptjjvi to which he might have been entitled under section 1391 of the Code of Civil Procedure.</p>

<p>Appeal from an' order of the Monroe Special Term, striking out certain items of costs taxed by the plaintiffs and ordering a readjustment.</p>

<p>Attachment — affidavit made by the plaintiffs’ attorney — sources of his knowledge must be stated — Oode of Giml Procedure, sec. 636.</p> <p>An attachment was granted herein upon an affidavit made by one of the plaintiffs’ attorneys, in which he stated that the amount named was due to the - plaintiffs "over and above all counter-claims, discounts and set-offs known to the plaintiffs or the deponent.” The affidavit stated that it was made by the attorney, because the plaintiffs resided out of the county, and that the deponent’s knowledge as to the debt was derived from a statement of the account upon which the action was founded, sent to him by his clients in a letter.</p> <p>Held, that the attachment was properly vacated upon the moving papers, as the affidavit did not show either that the attorney had any knowledge, or the sources of his knowledge, that the amount named was due, over and above all counterclaims known to the plaintiffs.</p>

<p>Evidence — presumption that public officials haroe discharged ihei/r duty — ancient -deeds — admissibility of, in evidence — wh¿n the existence of a power of attorney-may be inferred from other facts..</p> <p>Upon the trial of an action of ejectment a deed, executed and recorded forty-eight year's before, was offered in evidence hy the plaintiffs. It was-executed hyone of the grantors personally, and hy him as the attorney in fact for the others. The officer taking the acknowledgment stated that the .grantor so-executing the deed was personally known to him to he the person who did so, and that he acknowledged that he executed the same as his act and deed, as-well as the act and deed of the other grantors.</p> <p>Held, that the presumption was that neither the officer taking the acknowledg- ■ ment, nor the county clerk recording the deed, would have respectively performed and verified such official acts had there not been presented to them legal proof of the existence of a written power of attorney, executed hy the-other grantors under their hands and seals.</p> <p>It seems, that an ancient deed, over thirty years old, is admissible in evidence upon its bare production, without proof of acts of possession under it being first given.</p> <p>The facts of this case stated and held to entitle the plaintiffs to have them submitted to the jury, with instructions that they should decide whether or not from such facts, and the inferences and presumption arising therefrom, the existence of a valid power of attorney was established.</p>

<p>Married women — a/re liable for money borrowed by them, independent of the uses to which they may apply it.</p> <p>A married woman is liable upon a several promissory note given by herself and her husband for money borrowed by and loaned to her, without regard to the purposes for which the money was borrowed or used. If she borrowed it she is liable to repay it, whether it was expended for the benefit of her husband or for that of her separate estate or business, or disbursed by her for any other purpose.</p>

Appeal' by Charles M. Yallean, one of the assignees and a creditor, from that part of the decree of the Niagara County Court made on a final accounting by tbe assignees, which allowed John T. Rush the appellant’s co-assignee commissions on $119,000, the unincumbered value of certain of the assigned property, instead of on $31,500 the amount actually received in cash by the assignees for the incum. bered interest sold. There was some additional personal property.

The action was brought in Í879, upon a judgment entered in Monroe county in an action brought in 1860 to foreclose a mortgage and to recover any deficiency arising upon a sale of the mortgaged premises. The answer contained certain denials but did not set up any affirmative defense. .

<p>Gua/raqity of collection — what laches of the creditor in cueing the debtor will release the guarantor.</p> <p>The complaint in this action alleged that on March 7,1875, one Cursen made his note for fifty dollars, payable to the defendant, or hearer, on the first day of April then next; that, at or about the same time the defendant guaranteed the collection of the note and transferred it for a valuable consideration; that subsequently the plaintiff became the owner and holder of the note so guaranteed; that on November 3, 1880, the plaintiff commenced an action against the maker in Orleans county and recovered a judgment therein upon which an execution was issued, and returned unsatisfied by the sheriff of that county on November 29, 1880. This action was commenced on the last named day. The note was dated at Ridgeway in Orleans county.</p> <p>Meld, that the unexcused delay of five years and six months in bringing an action against the maker discharged the defendant from all liability upon his guaranty. That the complaint was properly dismissed upon the ground that it did not state facts sufficient to constitute a cause of action.</p>

Minorris Smith died intestate in the year 1863, leaving him surviving Margaret Smith his widow, Elijah Smith, one of the defendants, and Morgan H. Smith, his sons, and the plaintiff Maria E. Tibbits, the only child of a deceased daughter, his only heirs-at-law and next’ of kin.

This action was brought to recover damages for personal injuries alleged to have been occasioned by the defendant’s negligence. At the time of the injury the plaintiff was in the service of the defendant as a laborer.

<p>Appeal from a judgment, entered upon the report of a referee, •whereby the plaintiff recovered the sum of $730.71, with costs.</p>

<p>Motions for a new trial on exceptions ordered to be heard in the first instance at the General Term, after verdicts had been rendered in favor of the respective plaintiffs. .</p> <p>.These actions were tried at the Cayuga Circuit' and by consent were tried together as one cause, the jury rendering a verdict in each case for the sum of fifty-seven dollars and fifty cents.</p> <p>The route of the defendant’s road bridges the Seneca canal at the foot of Cayuga lake. The bridge is so low that it requires a ■ draw to enable boats navigating the canal to pass the bridge. On the day mentioned in the pleadings while a canal boat was passing the bridge and the draw was open, by an act of negligence on the part of the defendant a locomotive engine vras thrown into the draw and upon the canal boat, sinking 'the same; in consequence of which navigation was suspended at that point for a.period of five days. The defendant’s negligence in operating the draw and running the engine into the canal was not disputed'upon the trial,'and was admitted upon the argument of this appeal.</p> <p>At the time of this occurrence the plaintiffs’ boats were engaged in carrying coal from Ithaca to Geneva. During that season of the year it required from three to four days to make the round trip. At the time of the accident the boat owned by the plaintiff Briggs had just-passed through the draw, going south ‘on her way to Ithaca. After securing her cargo and returning to the foot of the lake, which was at the end of two days, the boat was detained for four days on account of the obstruction. In Schuyler’s case his boat was at Ithaca at the time of the accident and came down to the place of obstruction with a cargo and was also detained for four days. In Sterling’s case his boat was.north of the bridge and near by at the. time of the accident on her way to Ithaca to obtain a load of coal, and his boat was detained five days before she could pass through the draw. ■ Immediately after the accident the defendant, with all proper force and appliances and with due diligence, commenced to remove the obstructions and repair the bridge. The superintendent of canals visited the place and rendered some assistance in restoring navigation, but the work was chiefly done by the defendant. When the obstructions were all removed and navigation resumed fifty canal boats were at this place waiting passage.</p> <p>At the close-of the evidence the defendant moved in each case for a nonsuit on the ground that the plaintiff had failed to establish a case, for the following reasons : First. That the damages, in case any have been sustained, are damages which are consequential, common to all the owners of boats who were navigating the canal at the time in question and were delayed by this obstruction, and therefore he cannot recover damages for the detention in an action of this character. Second. That the damages, if any, are too remote. Third. That the plaintiff has failed to show that he was running upon the canal with any rightful authority, and that he must show that he has filed his certificate of registry before he has any right to travel on the canal. The motion was denied and the defendant excepted. The exceptions were ordered to be heard at the General Term in the first instance.</p>

The action was brought against the” defendants as officers of the Marshall Packing Company, of which the plaintiff was receiver, for having participated in making a loan by said company to one W. C. Marshall, a stockholder thereof.

<p>ApIeal from a judgment in favor of the plaintiffs, entered by direction of the court upon a trial at circuit.</p>

<p>Medical colleges — cannot be incorporated under chapter 319 of 1848 — chapter 367 of 1882 did not apply to colleges theretofore formed under the act of 1848.</p> <p>A medical college cannot be incorporated and organized under chapter 319 of 1848, and the acts amendatory thereof, providing for the formation of benevolent, charitable, scientific and missionary societies.</p> <p>People v. Ootltran (27 Hun, 344) followed.</p> <p>Chapter 367 of 1882, entitled “An act to restrict the formation of corporations under chapter 319 of 1848, * * * and to legalize the incorporation of certain societies organized thereunder, and to regulate the same, ” provided, in its second section, that ” all scientific and all literary colleges and universities organized under said acts which shall have reported to the said regents within the two years last past are hereby declared legally incorporated, and all degrees heretofore and hereafter conferred by them are declared valid.”</p> <p>Held, that the act related to scientific and literary colleges and universities, eo nomine, as distinguished from medical colleges, and that it was not intended to thereby legalize and declare duly incorporated medical colleges which had unlawfully attempted to organize under the said act of 1848, and which had made the said reports to the regents within the time mentioned in the act-.</p>

<p>General assignment — tile of the assignee to personal property of the assignoi' situated in another State — rights of attaching creditors thereto.</p> <p>March 1, 1881, one Weld, at Jamestown, in Chautauqua county in the State of New York} executed and delivered to the plaintiff a general assignment for .the benefit of creditors, which was recorded in the office of the clerk of that'county at eight a. M. on March second. It was recorded in the office of the recorder of deeds of Crawford county, Pennsylvania, on the eighteenth, and in the office of the recorder of deeds of Warren county, Pennsylvania, on the nineteenth of that month. On March 1, 1881, after the delivery, hut before the recording of the assignment, the defendants, residents of this State, obtained attachments in actions commenced by them in the Courts of Common Pleas of Crawford and Warren counties, Pennsylvania, and under such attachments seized the .goods and merchandise which the assignor had in those counties where he had maintained stores for carrying on a mercantile business.</p> <p>A statute of Pennsylvania provides that whenever an assignment for the benefit of creditors shall be made by any person residing out of.tlie State “such assignment may be recorded iu any county Where such estate, real and personal, may be, and take effect from its date, provided that no dona fide purchaser, mortgagee or creditor having a lien thereon before the recording in the same county, and not having had previous actual notice thereof, shall be affected or prejudiced.”</p> <p>Held, that the defendants acquired a valid lien upon the goods seized under the •attachments, and could not be enjoined from proceeding under them in an action brought against them in this State by the assignee,</p>

<p>Trust for the benefit of a married woman — right to have the property conveyed to her— 1849, chap. 375, sec. 2 — to what cases it is a/ppUcahle.</p> <p>On October 27, 1857, the plaintiff, being seized as tenant in common with her sister of certain real estate, and being about to marry one Clark, made a marriage settlement whereby she conveyed to two trustees all her estate, both real and personal, in trust, to apply the rents and income thereof to her use during her natural life, and upon her decease to convey, assign and deliver the same in such way and manner as she should by her last will and testament appoint; and in default of such appointment, and in case her husband was then dead, then to convey, assign and deliver the same to such person or persons, and in the same manner, shares and proportions as the said estate would have descended if said conveyance had'not been made.</p> <p>The instrument recited that it was intended to place all the property of the plaintiff in trust for her sole and separate use and benefit, free from all debts of her husband, and of any future husband, and of and from his management and control. Clark married the plaintiff and died in 1862. In 1865 the plaintiff married one Thebaud, who is still living. She has two children, one by the first marriage of full age, one by the second a minor.</p> <p>In March, 1872, she applied, under chapter 375 of 1849, to a justice of the Supreme Court and procured from him a certificate stating that she had sufficient capacity to manage and control her property, and authorizing the surviving trustee to convey it to her for her sole and separate use and benefit. Thereafter and in 1872 the surviving trustee duly conveyed to her, her heirs and assigns, all the said trust estate.</p> <p>Meld, that the case was within the provisions of the second section of the said act authorizing a'Conveyance to be made in such a case, and that by the conveyance from the trustee she acquired a valid title in fee to the said lands.</p>

Osgood, as receiver, be revived and continued against his personal representatives, and that they come in and be made parties to the present accounting.

<p>Contract — is to be governed by the law of the place of its performance — when the question as to what lam is to goven'n should he submitted to the jury.</p> <p>This action was brought upon a promissory note given by the defendants, residents of Indiana, to the plaintiffs, residents of Cincinnati, Ohio. The defendant John being indebted to the plaintiffs it was agreed that a note should be given for the amount due, signed by him and his wife, and that the latter should charge her separate estate with its payment. The note in suit was accordingly given, and a clause so binding the property of the wife inserted. It was made and delivered in Indiana, dated Cincinnati, and made payable at-.</p> <p>By the laws of Indiana such a note was not, and by those of Cincinnati it was,' binding upon the wife.</p> <p>Upon the trial the plaintiffs’ counsel asked to be allowed to go to the jury upon the question as to where the parties intended the contract should be performed, and with reference to what law they contracted.</p> <p>Held, that the court erred in refusing the request and nonsuiting the plaintiffs.</p>

<p>Partition — when an action may be maintained by tenants in remainder— Code of Civil Procedure, sec. 1533.</p> <p>Persons holding, as joint tenants or tenants in common, a vested remainder or reversion in real property can only maintain an action for its partition, during the continuance of the prior estate therein, in the particular cases specified in section 1533 of the Code of Civil Procedure.</p> <p>Such an action can only he maintained where an actual division can he made between the claimants, without great prejudice to the owners.</p> <p>In no case can a sale of the property he ordered.</p>

Bacbe, recovered on tbe verdict of a jury, and from an order denying a motion for a new trial, made upon tbe minutes of tbe justice before whom tbe action was tried.

The action was brought against the defendant, as drawer of a bill of exchange for £1,500 upon the firm of Samuel Johnston & Co., of Liverpool, which the plaintiffs discounted.

Motion by the plaintiffs for a new trial upon exceptions, ordered •to be first heard at the General Term, after a verdict had been directed in favor of the defendant.

The assessment list was confirmed May 25,1869. The petitioner moved to vacate it upon the ground, among others, that a prior assessment for paving the same street had been laid upon the lots and paid. It appeared that an assessment for curbing, guttering and flagging Third avenue was laid upon the lots in question December 21, 1819, which was paid February 2, 1850. The lots were then owned by the city, which conveyed them to the petitioner in 1867.

The will was executed in duplicate November 29, 1879, and admitted to probate by the surrogate of, Kings county January 28, 1881. Four of the present contestants appeared by counsel on the probate, who examined the witnesses to tlie will at that time. Hpon the wili being admitted to probate the executors duly -qualified.

<p>Negligence — an employer is not liable for the negligence of his contractor — a remit constructed in the street, with the permission of the city authorities, is not a nuisance.</p> <p>The defendant entered into contracts for tbe erection of a building upon a lot owned by it in Nassau street, in the city of New York, one witb one O’Brien,' by which he was to take down the old building and do the excavating for the cellar and a vault in the street and build the walls to the level of the curb, and the other with one Batterson, by which he was to furnish all the granite work. In pursuance of permits procured from the proper city authorities by the defendant, O’Brien had excavated and was constructing a vault extending twelve feet beyond the curb line in the street, and while engaged in so doing he had built a fence i’n the street to inclose the same. This fence was blown against the plaintiff, who was passing, and threw him down, striking his head against some blocks of granite left in the street by Batterson.</p> <p>In an action to recover damages for the injuries so occasioned:</p> <p>Held, that the defendant was not liable for the negligence of its contractors.</p> <p>That the construction of the vault in the street under the permit from the city was not a trespass or a nuisance.</p> <p>That the defendant was not liable for the injuries sustained by the plaintiff.</p>

H. H. Tyson to pay certain costs or to be committed as for a contempt of court. The costs were imposed by an order reversing a judgment of a court-martial upon the return to a writ of cerbiorari. The opinion of the court upon the hearing of the matter brought before it by the certiorari is reported in 27 Hun, 564.

The' action was brought to recover of the defendant certain chattels seized and levied upon by him, as sheriff of Suffolk county, under an execution issued to him as such sheriff against the property of one Caleb T. Smith. The jury had rendered a verdict in favor of the defendant.

The plaintiff was duly appointed a patrolman of the Brooklyn police force, and continued to act as such down to January 5,1881, or thereabouts. His compensation as such patrolman, as fixed by section 9 of' title 11 of chapter 863 of the Laws of 1873 and chapter 459 of 1877, was $1,100, but during the years 1879 and 1880 he received for his services only $1,000 per annum. This action is to recover the difference.

The action was brought to recover damages for the alleged negligent killing of the plaintiff’s intestate by the defendant.

Goddard, the other dated March 9, 1883, awarding letters of administration of said' estate to George B. Abbott, public administrator. The Brooklyn Trust Company was organized as a corporation by the Laws of 1866 (chap. 571). By section 2 of said act certain, general and special powers were conferred on the said corporation, not including the power to administer upon estates of intestates.

<p>Submission of a controversy upon an agreed statement of facts.'</p>

<p>Appeal from a judgment dismissing the complaint, upon the -ground that it did not state facts sufficient to constitute a cause of action.</p>

<p>'Recording — rights of an assignee of a mortgage whose assignment is fii'st recorded, oner an unrecorded assignment — right to compel one homing a lien upon two funds to resort to one of them — right of a second mortgagee to compel an assignment of a prior mortgage, and alsp of a collateral guaranty of its payment held by the owners of the psior mortgage..</p> <p>Miller gave a mortgage upon premises owned by him to Impson, which was recorded February 21,1856. On April 80,1856, Impson assigned the mortgage to Matilda Durland, who on April 1, 1861, assigned it to'James Durland, by whom it was on'January 13, 1880, assigned to the plaintiff, who brought this action, to foreclose it. None of the assignments were recorded, but the papers were at all times in the possession of the assignees. May 1, 1863, Miller conveyed the premises to McNeal. October 11, 1873, Impson, without receiving any payment or consideration therefor, delivered to McNeal a satisfaction of the mortgage, which was duly recorded. January 22, 1878, McNeal, in order to secure an antecedent indebtedness, gave a mortgage covering the same and other premises to Ramsdell and others, who had notice of the existence of the prior mortgage. This mortgage was recorded January 26,1876. Subsequently Mackin and others took an assignment of this, mortgage for value and without notice of the existence of the plaintiff’s- mortgage, their assignment being duly recorded on February 2, 1877. In this assignment Ramsdell and the others guaranteed the payment of the mortgage. Under a foreclosure of this mortgage all the premises, other than those described in the first mortgage, were sold, realizing but a small sum. The premises left are insufficient in value to satisfy both mortgages.</p> <p>Held, in this action brought to foreclose the mortgage given by Miller to Impson, that the mortgage held by Mackin was entitled to priority over that held by the plaintiff.</p> <p>That the plaintiff could not compel the owners of the second mortgage before satisfying it out of the land, to first enforce the covenant of guaranty given by Ramsdell and the others upon the assignment thereof.</p> <p>That he was not entitled upon paying the amount due upon the second mortgage to compel the owners thereof to assign the same to him, together with all their rights to] and in the guaranty held as collateral security for its payment.</p>

<p>Appeal from au order setting aside a verdict iu favor of the-plaintiff directed at the circuit and granting a new trial.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon •the trial of this action by the court -without a jury.</p> <p>The plaintiff sued in ejectment to recover the possession of premises situate partly in Jamaica and partly in Flushing, Queens county. . The defendant answered setting up. title' in himself. Upon the trial the plaintiff claimed title under a deed from a referee. The defendant claimed title under two tax -leases from the treasurer of Queens county, one dated August 24, 1878, of the Jamaica part of the property on a sale for the taxes of 1873, the sale having been made on September 1, 1875, for twenty years,'and the other of the Flushing part of the property, dated January 16, 1881, on.a sale for the taxes of 1877, made on July 10, 1879,-for 10,000 years. The defendant relied upon' the tax leases, claiming that under the Queens cbunty statutes they were presumptive evidence that the tax was legally imposed and that the proceedings and sale were regular.</p> <p>The trial judge was of the opinion that the presumption must be limited to the proceedings had for the imposition of the taxes and those connected with the sale; deciding, “ Perhaps the presumption does not include former proceedings, certainly it does not extend to the proceedings intermediate the imposition of the taxes and those had for the purpose of effecting the sales.” He therefore held that there was a fatal defect in the defendant’s proof and gave judgment accordingly.</p> <p>The question presented was as to the proper construction to be put upon the Queens county statutes. They are as follows:</p> <p>Act of May 3, 1869 (chap. 497, Laws of 1869): “An act to'establish a receiver of taxes and to authorize the sale of lands for nonpayment of taxes, and for the collection of unpaid taxes in the town of Flushing, Queens county.”</p> <p>Act of March 26, 1873 (chap. 135, Laws, of 1873): “An act to establish a receiver of taxes and to authorize the sale of lands for non-payment of taxes, and for the collection of unpaid taxes in the town of Jamaica, Queens county.”</p> <p>On May 10, 1877, a general act was passed (Laws of 1877, chap. 268), entitled “An act in relation to the collection of taxes and the sales of land therefor in certain towns of Queens county.” This act was amended on May 8, 1878. (Laws of 1878, chap. 226.) And on June 1, 1877 (Laws of 1877, chap. 361), and on May 13, 1876 (Laws of 1876, chap. 261), acts were passed amending the special'Flushing and Jamaica acts in respect to the mode in which” notices -are to be given. Both the leases and the sales were subsequent to the passage of the amended act of .1878.</p> <p>Section 18 of the'act of 1877, as amended by the act of 1878, provides that “ the county treasurer shall execute and deliver to the person or persons legally entitled thereto a lease .of such premises subscribed by the county treasurer making the sale, or by his successor in office, which lease shall be for the term for which such premises were sold, computing the same from the expiration of fifteen months from the day of sale, which lease shall be presum ptive evidence that'such tax was legally imposed and that the proceedings and sale were regular.</p>

<p>Appeal from a judgment dismissing the complaint, entered upon tbe trial of tbis action at a Special Term.</p>

<p>Certiorari to review the action of the trustees of Sing Sing in altering and widening a street in that village.</p>

<p>Assault — what constitutes one — when an employer is liable for am, assault committed by one of his employes.</p> <p>The plaintiff went to the defendants’ store in New York city, to purchase an ulster for herself. After she had examined one and put it on preparatory to its purchase, a floor walker in the employ of fhe defendants approached and told her that she did not wish to purchase the ulster, but was a spy from a rival establishment, and told the saleswoman to take the cloak from the plaintiff, which was done. .</p> <p>Held, that this constituted an actual assault, and that the defendants were liable for it.</p>

<p>PoMcy of Ufe insurance — condition avoiding it in case the assured dies in consequence of a violation of law — construction of such a provision — submission of specific questions to the jury — when a generral verdict is good although the jury a/t'e unable to a/nswerr the specific questions so submitted.</p> <p>In an action upon a policy of life insurance it appeared that the assured and his brother made a violent and unlawful attack' upon one Berdell in a railroad-depot. The brother held Berdell from behind while the assured beat him on the head and face with a raw-hide, inflicting deep and painful wounds from which the blood flowed freely. In the struggle Berdell drew a pistol from his pocket. At about the same instant the assured ceased to sti ike him, jumped over a lunch counter and attempted to pass through a doorway which lead out of the depot. As he did so he turned his face towards Berdell and at the same instant the pistol was discharged, the ball striking the assured in the forehead and inflicting a wound from which he died in a few days. The fight from its commencement to the shooting lasted about thirty seconds. Upon the trial of this action Berdell testified that he did not intentionally shoot the assured; that in the struggle his hand was drawn towards his pistol pocket; that he drew the weapon without the intention of shooting anyone, and that it was discharged accidentally.</p> <p>The defense was that the policy was avoided by a breach of a condition contained therein providing that if the assured “ should die in or in consequence of the violation of the laws of any nation, State or province, then, and in any such case,” the policy should be null and void.</p> <p>Held, that a jury might, from the circumstances of the case, find that the shoot,ing was a natural consequence of the assured’s unlawful assault, and that a verdict finding that to be the fact would not be disturbed by an appellate court. ,</p> <p>That it was immaterial whether the death was caused accidentally or was the result of an intention to kill on the part of the one inflicting the wound. So long as there was a violation of the law on the part of the assured, and death as its result, it was immaterial in what manner the death was produced, excepting that there must be a direct connection between the criminal act and the death.</p> <p>The judge, in the course of his charge, said that it was not necessary for the jury to-find that the assured lost his life “ under such circumstances as would protect the party taking it'under the law, that is, in self-defense,” and “that if they found that Berdell discharged the pistol in the heat of passion,, naturally excited by the combined attack made upon him by the Murrays, the plaintifi cannot recover.”</p> <p>Held, no error.</p> <p>In submitting the case to the jury the judge requested them to find specifically whether Berdell fired the fatal shot intentionally; whether he was justified in firing for his self-defense, and whether Murray had abandoned the combat when he was shot. The jury found a general verdict for the defendant and stated they were unable to answer the questions.</p> <p>Held, that it was not essential that the jury should agree on any of these questions in order to arrive at a verdict for the defendant, and that the general verdict was regular.</p>

The action was brought to recover damages for injuries sustained by the plaintiff while leaving one of the defendant’s cars.

The board of.police commissioners of the town of New Lots was created by chapter 305 of the Laws of 1878, sections one and two of which are as follows: “1. The town of New Lots, in the county of Kings, shall constitute a police district, which shall be known as and called 1 the police district of the town of New Lots.’ “ 2.

The testator William Golder, died, leaving him surviving a widow, four children and a granddaughter. The will provided as follows: “First.

<p>Committee of a lunatic — by whom, upon the lunatic’s decease, the committee ma/y be compelled to account.</p> <p>The executors or administrators of a deceased lunatic are alone entitled to bring an action for an accounting against his committee, and unless they refuse to perform their duty in this respect, an action therefore cannot be brought by the next of kin of the lunatic.</p>

Appeal by the defendant Anne C. Flynn from an order.made at Special Term, which “ ordered that the said Austin Abbott, as administrator with the will annexed, and as trustee as aforesaid, be and he is hereby substituted as plaintiff in this action, in place of James E. Wood and Joseph K. Merritt, two of the trustees appointed in and by the will of the said James Eowe, who are now deceased, and that this action be continued in the name of the said Austin Abbott, as…

<p>Mortgage given to a film to secure advances — a successor to the firm is not entitled to the benefit of it— a verbal agreement that it shall have.the benefit of it is void — when payments to the new firm wiU not diseha/rge debts due to the old one — when a reconveyances to a husband of property which has been theretofore conveyed by a husband and wife by'way of mortgage, will restore the wife’s right of dower as against a mortgage given back by the husband to the grantor.</p> <p>The firm of Collingwood, Mellard & Co., had business relations with one Post, and sold goods to him on credit. Post and his wife executed and delivered a ■ deed of certain real estate to Collingwood, to be held hy him as a mortgage for the benefit of his firm, to secure any amount that might he or become due to it from Post. Subsequently Collingwood reeonveyed the premises to Post, who gave hack to him a bond and mortgage for $4,000, to secure his existing anu future indebtedness to the said firm. His wife did not join in this mortgage. Subsequently Collingwood died. Thereafter the surviving partner Mellard, and one Taylor as trustee of Collingwood, continued the business of the old firm under the old name, subsequently taking in new partners, viz.: Taylor individually, one Aekerly and one Brooks. The new firm used the hooks of the old one and continued the accounts therein, without settling or in any way altering the same. It did not appear that the assets of the old firm were formally transferred to the new, or that the latter was appointed to act as the agent of the former.</p> <p>Post continued to deal with the new firm under the verbal agreement that the mortgage should stand as a security for Ms ijew obligations. At the time of Collingwood’s death he owed the old firm $5,539.30. He bought $8,518.14 worth of goods from the new firm and paid to it the sum of $7,846.30. It did not' appear that any account had been rendered to Mm, showing the application made by the new firm of these payments.</p> <p>An action having been brought by Taylor as administrator of Collingwood, to foreclose the mortgage;</p> <p>Held, that the new firm was not a continuation of, or the successo to the old firm in such a sense as to entitle it to the benefit of the mortgage given to the-old firnj.</p> <p>That the verbal agreement to extend the obligation of the mortgage, so as to include the debts incurred to the new firm, was invalid and of no effect.</p> <p>That the payments Made to the new firm did not operate to discharge the debts due to the old firm and should not be applied thereon.</p> <p>That the mortgage was a valid security for the debts due to the old firm at the time of Oollingwood’s death, to an amount not exceeding the face of the mortgage, $4,000, with interest thereon.</p> <p>That the reconveyance of the land from Collingwood tó Post, and the acceptance of the mortgage released and restored to Post’s wife, her inchoate right of dower in the land, and that her right thereto was not affected by or subject to the said mortgage given to Collingwood at the time of his conveyance to Post;</p> <p>The mortgage given by Post to Collingwood recited that it was a purchase-money mortgage.</p> <p>Held, that as it appeared that it was not in fact a purchase-money mortgage, the-wife's right to dower was not affected by such reeital.</p>

The action was brought by the plaintiff to recover, her interest in her father’s estate, which she claimed to have intrusted to the defendant, her husband, for safe keeping.

<p>Navigable waters within the State — power of the State to grant an exclume right to raise oysters therein — it may exercise this right through town officers —1808, chap. 784.</p> <p>Chapter 784 of 1868 authorized any inhabitant of'the towns of Gravesend and Flatlands, upon complying with the terms of the act, to plant oysters under the public waters within, their respective towns, and to have the exclusive right, in the oysters so planted and the exclusive use of the beds. Such privilege was not to be exercised, however, without the written permit of the justice of the peace and the supervisor of the respective towns, which permits were to be issued in the^manner and form prescribed by the act. Any person other than the one named in the permit, who should take any oysters from such beds or disturb the same, was made liable to a penalty of fifty dollars, to be recovered by the holder of the permit, and to be adjudged guilty of a misdemeanor and punished by fine or imprisonment, or both. The beds were within the territories of the respective towns, but the said towns had no exclusive right to the fisheries within the waters over them, which formed a part of the navigable tide waters within the State of New York.</p> <p>Upon an appeal by the defendant from a judgment convicting him of a violation of the act:</p> <p>Beld, that the State had the power to grant to the inhabitants of the towns the exclusive right to use the said lands and the waters over the same; for -the purpose of planting oysters therein and removing them therefrom.</p> <p>That its right so to do might, if necessary, be sustained as the lawful exercise of its police power.</p> <p>That it might properly exercise this power through the town officials, as was done in this case.</p> <p>That the act was valid and the conviction should be sustained.</p>

The action was brought to determine the title to the office of mayor of the city of Albany.

<p>Action — must be brought by the real party in interest — an agent holding commercial papei'for collection cannot sue thereon.</p> <p>One to whom commercial paper has been indorsed and who holds it as an agent for the purpose of collection only, canno.t maintain an action thereon in his own , name.</p>

The action was brought to recover damages for wrongfully and maliciously over-driving and beating a horse and breaking and injuring a carriage, which plaintiff claimed resulted in damage to him in the amount of $125. Judgment was rendered against defendant for $102 damages and seven dollars costs.

The relator was appointed under a resolution of the board of supervisors, purporting to have been passed by them under the authority conferred upon them by chapter 482 of 1875.

<p>Rescission of contract of- sale, for fra/ud or mistake — power of a referee to allow amendments to a complaint — Code of Civil Procedure, sec. 1018 — when a trans-</p> <p>> action constitutes a sale and not an exchange of property — presumption that evei'y person knows the law.</p> <p>This action was brought by the plaintiff’s intestate to rescind a conveyance of real estate made by him to the defendant. The real estate was sold January-18, 1881, at the price of $3,000, the vendor taking in payment thereof a bond and mortgage for that amount, given to the defendant by one Brown, the whole principal sum secured thereby being then unpaid, together with some interest, which latter amount was paid by the intestate to the defendant. The complaint alleged that the intestate was induced to take the said bond and mortgage by certain false representations fraudulently made by the defendant, respecting the pecuniary responsibility of the mortgagor and the property owned by him and the value of the mortgaged property. The referee found the misrepresentations to have been substantially as alleged, but found that they were not fraudulently made, but that the defendant as well as the intestate believed them to be true when made, and that there was a mutual mistake of facts which entitled the intestate to a rescission. Instead of ordering a judgment to that effect, he made a report allowing the intestate to amend, subject to the approval of the court, ánd ordered a conditional judgment in his favor.</p> <p>This report was set aside by the General Term, and the case sent back to the referee for an unconditional determination. The parties having appeared before the referee, he allowed the plaintiff to amend the complaint so as to base his action on mistake instead oí on fraud, received such evidence as was offered, and ordered a judgment in the plaintiff’s favor. ></p> <p>Meld, that the referee had power to allow tile plaintiff to amend the complaint, and that he did not err in allowing the amendment to be made under the circumstances of this case.</p> <p>That the legal effect of the transaction upon which the action was brought, so far as the rights of the parties in respect to a rescission of the contract were concerned, was.precisely the same, whéther the defendant’s misrepresentations were made honestly or dishonestly.</p> <p>That the failure of the plaintiff to explain why he alleged fraud, and omitted to claim relief on the ground of mistake until after his defeat -on the issue tendered by him, did not render the allowance of the amendment improper. The old chancery rules requiring such an explanation to be given, have been done away with.</p> <p>It was claimed that the intestate was guilty of negligence in failing to examine the records in the county clerk’s office, which would have shown that an execution issued upon a judgment recovered against Brown, the mortgagor, had been returned unsatisfied a few months before the sale.</p> <p>Meld, that as it appeared that the defendant had asserted in positive terms that Brown was good, and that the mortgage was “good as gold,” it did not lie in his mouth to say that'the intestate was required, in the exercise of due diligence, to make such an examination of the records.</p> <p>That the agreement was for a sale and not for an exchange of specific articles of personal property, and that as the bond and mortgage were taken in payment of the purchase-price of the land, a misrepresentation or mistake as to their valúe, authorized a rescission of the contract.</p> <p>The defendant claimed that he, being satisfied that the plaintiff could not succeed on the ground of fraud, suffered the property covered by the Brown mortgage to be sold upon the foreclosure of a prior mortgage, before the plaintiff moved to amend his complaint, and that the application should have been denied for that reason.</p> <p>Meld, that the claim was untenable, because :</p> <p>Mrst. It appeared that prior to the said sale the defendant’s attorney and his son had been told by the referee that he had concluded to decide for the plaintiff upon the ground of mistake.</p> <p>Second. That as the defendant knew that a mutual mistake existed in his case, and as- every person is presumed to know the law, he was chargeable with knowledge of the fact that a judgment could properly be rendered against him upon that ground.</p>

<p>Appeal by Homer Weston, the defendants’ attorney, from an order of tbe Onondaga Special Term denying his motion to set aside the settlement made by the parties, and the order of discontinuance ;herein, and for leave to continue the action to .judgment for the purpose of perfecting his own rights herein.</p>

<p>Motion by tbe defendant for a new trial on exceptions taken at tbe Monroe Circuit, and ordered to be beard at tbe General Term in tbe first instance, after a verdict bad been directed in favor of tbe plaintiff.</p>

Appeal by tbe administrator from a decree of tbe surrogate of Jefferson county, confirming tbe report of a referee appointed by said court to examine tbe accounts of tbe said administrator and report thereon, and ordering tbe said administrator to pay a certain sum therein specified to Mary E. Westcott, tbe respondent herein.

<p>Appeal from a judgment, entered upon tbe trial of this action by ■tbe court without a jury.</p> <p>The action, was brought to obtain a construction of certain portions of the will of the plaintiff’s testator and father.</p> <p>The will contained the following, among other'pro visions:</p> <p>First. After all my lawful debts are paid and discharged, I give, devise and bequeath to my wife, Lany McMahon, the use, income and occupation of all my real estate whatsoever, for her to have in lieu of dower, for her support and maintenance, and comfort for and during her natural life.</p> <p>* * * *</p> <p>Third. After my wife’s decease, I give, devise and bequeath to my daughter, Sophronia A. Getman, the use, income' and occupation of all my real estate whatsoever 'and for her to have, hold and occupy for and during her natural life.</p> <p>Fourth. After my daughter Sophronia A. Getman’s decease, I give and devise all of my real estate of every name and nature whatsoever to the children and lineal heirs of my daughter, Sophronia A. Getman, and for said children to share and share alike and for them to have and to hold the same absolute and forever.</p> <p>Fifth. I also further give and bequeath to my wife, Lany McMahon, the use and control of all my personal property whatsoever on the farm and in the house at the time of my decease, and for her to have to use and enjoy the same for her comfort and support, for and during the time of her natural life.</p> <p>Sixth. After my wife Lany McMahon’s decease, whatever of my personal property may then be left I give and bequeath said personal property to my daughter Sophronia A. Getman, and for her to have and hold the sapne forever.</p>

<p>Appeal from a judgment in favor of the plaintiffs, entered on a verdict rendered at the Erie Circuit.</p>

, of Chauncey Lovelace, deceased, to pay to the respondent the balance of a legacy alleged to be due her under the will of said testator, together with the costs of the proceeding prosecuted for the purpose of compelling such payment.

The petitioner alleged that she was assessed for $6,800 for personal property, by the assessors of the town of Clarendon, in said county, in the year 1880, and that she paid the tax thereon of some forty-two dollars.

On the 11th day of September, 1882, the plaintiff obtained a judgment,' by the fourth paragraph of which the defendant was required, within thirty days after service upon it of a copy of the judgment, to deliver to the clerk of the' county of Wyoming certain bonds and coupons purporting to be issued by the town of Attica to be canceled, and directing that the same shall be canceled in the manner specified.

<p>Appeals from two oi’ders made by the county judge of Genesee county, in proceedings to incorporate a village.</p> <p>Certain residents of tbe town of Elba,, in Genesee county, N. Y., for the purpose of incorporating “The'Village of Elba,” under' the village act of 1870, having complied with the requirements of the said act preliminary to the lawful holding of such election, an election was held on the 2d daj- of December, 1882, to determine the question of the incorporation of such territory.</p> <p>At such election 106 votes were cast, sixty being in favor and forty-six against such incorporation. The certificate of election was filed in the Genesee county clerk’s office. Afterwards, Alva U. Willis appealed to the county judge of Genesee county to have such election annulled and set aside, and another election ordered to determine the question of tlm incorporation of such territory.</p> <p>At the hearing on the appeal ii was proven that the number of inhabitants within the territory to be ihcorporated was 427, and ■ .that there were about one and a-quarter square miles of land embraced in it.</p> <p>On the 28th day of December, 1882, the county judge made three several orders in the matter.</p> <p>Number 1. Declaring the election appealed from illegal, by reason that there is not th'e requisite population resident within the territory embraced in the proposed village to authorize such election to be'held.</p> <p>Number 2. Orders another election to be held to determine the said question of incorporation as authoriked and required by law.</p> <p>Number 3. Directs repayment to the appellant of the $100 deposited by him on the appeal.</p> <p>From orders numbers one and three this appeal is brought.</p>

Appeal by tbe administrator from a decree judicially settling the accounts of said administrator, entered October, 1882, by the surrogate of Niagara county, and from each and every part thereof, and from an intermediate order of September 25, 1882, confirming the report of John E. Pound, Esq., referee. James A. Poole, administrator, filed his account with the surrogate and asked for citations and for a settlement.

<p>Order of arrest under Code of Ovoil Procedure, sec. 549, subd. 3 — cannot be granted in an action-to recovei1 prop&rty, forfeited because used for lottery purposes — Penal Code, sec. 332.</p> <p>Subdivision 3 of section 549 of the Code of Civil Procedure, authorizing the granting of an order of arrest in an action brought to recover money, funds, credits or property, held or owned by the State, or for or on behalf of a public or governmental interest, * * * which the defendant has without right obtained, received, converted or disposed of, does not authorize such an order to be granted in an action brought by the people to recover property which is alleged'to have been forfeited to the State by reason of the defendant’s having offered the same for sale or distribution, in violation of the provisions-of the Penal Code against lotteries.</p>

The testatrix’s estate, consisted of both real and personal property, all of which she devised to Charles O. Steele, the present respondent. The deceased was unmarried; her heirs at law were her surviving brothers and sisters, Asa B. Ward one of the appellants being one.

Action brought to restrain tbe defendant, Tbe Genesee Valley Canal Railroad Company, from building a railroad on one specified route,' and to require it to build upon another route. Tbe complaint was dismissed, with costs. Tbe order was refused upon tbe grounds “that the value of the subject-matter involved in this action cannot be computed, .and that this is not a proper case for such allowance.”

Powers and others to be made parties plaintiff in this action, and from the whole of said order. The application seems, to have been made in order that the stockholders, seeking to be made parties plaintiff, might be enabled to prevent the receiver from accepting an offer of judgment made by the defendants, although no fraud or collusion on his part was alleged. ' A motion was made to dismiss the appeal.

<p>Death of judgment debtor — application for leave to issue an execution upon the judgment— Code of Civil Procedure, sec. 1881— Contents of the moving papers.</p> <p>Upon an application for leave to issue an execution upon a judgment recovered against a person, since deceased, made under section 1381 of the Code of Civil Procedure, an affidavit was presented, made by one of the two plaintiffs in the judgment, in which, after stating that the judgment was recovered by him and bis co-plaintiff, be said “ that said judgment is wholly unsatisfied and unpaid and is valid-and subsisting.” ' '</p> <p>Held, that the affidavit was sufficient to justify the court in granting the application.</p> <p>It is not necessary that the moving papers should contain a description of all the judgment debtor’s lands; and where certain of his real estate is described therein, it is no defense to show that the debtor had other lands not included therein. .</p>

The action was begun September 15, 1882, by the service of a summons, but the complaint was not served until November 24, 1882. The plaintiff sought to have inserted in a supplemental complaint, matters occurring in September 26, 1882; matters occurring in December, 1882, and matters occurring in January, 1883. They were denied and explained in opposing affidavits. February, 1883, an order was made directing a settlement of the issues.

<p>Draft discounted upon the faith of goods shipped by the drawer — when the pa/rty discounting it acquires an equitable lien upon the proceeds of the qoods.</p> <p>On May 23, 1881, one Harwood, the sole surviving member of a firm, shipped on hoard of a canal boat, of which he was a part owner, a cargo of wheat belonging to the firm to be transported from Holly, Hew-York, to Ege & Otis, commission merchants in the city of New York. On the twenty-fourth Han-wood drew a draft in the firm name upon the assignees for $5,000 and procured the same to be discounted by the plaintiff, the plaintiff being then informed that the wheat had been so shipped, and understanding that the draft was drawn against the credit thereof, and relying upon the agreement that the draft was to be accepted and paid by the consignees, from the proceeds of its sale. On the same day Harwood wrote to the consignees, inclosing the bill of lading and a policy of insurance upon the wheat, both of which were taken out in the name of the firm, informing them that he had drawn the draft on the wheat and requested them to accept it.</p> <p>On May twenty-fifth, Harwood being insolvent, made a general assignment for the benefit of his creditors. The assignee seized the.wheat before it reached the consignees and sold it. The consignees having failed to accept the draft the plaintiff brought this action to have a lien upon the proceeds of the wheat established in its favor as against the assignee.</p> <p>EM, that it was entitled to the relief sought for.</p>

The complaint alleges that the defendants combined and confederated together to deter and prevent the plaintiff from carrying on its business in the city of Buffalo; to cripple and bankrupt the plaintiff; to prevent the sale of the articles which it manufactured and to destroy the reputation of the same among its customers.

<p>JBMdenee — plea of a former judgment — how the grounds of the former decision may be proved— the justice cannot testify as to the reasons for his decision.</p> <p>This action was brought to recover the rent which had fallen due, under a lease of certain rooms, for the period of one year from May 1, 1879. The defendants set up as one of their defenses, that an action to recover rent upon the same lease had been brought against them by the plaintiff in a Justice’s Court, in March, 1880, and that a judgment had been entered therein, in their favor. The plaintiff claimed that the said judgment was not a bar to this action, because it was rendered upon the ground that the rent did not fall due until the end of the year, and that none was at the time of such judgment due.</p> <p>Upon the trial of this action the pleadings used and the evidence taken in the former action were read, together with-the record contained in the justice’s docket. The justice, who was called as a witness, was asked and allowed to state that he decided the former case in the defendants’ favor upon the ground that the rent was not due at the time of the commencement of the action.</p> <p>Meld, that the court erred in allowing him so to do.</p>

The action was founded upon the alleged negligence of the defendant.

Appeal by tbe corporation defendants, from a judgment entered apon the report of a referee. William B. Hotchkiss, an insolvent debtor, made an assignment of all his property for the benefit of his creditors on the 7th of June, 1879, naming the plaintiffs as his assignees, who accepted the trust and entered upon its execution. The creditors • are classified, the appellants being placed with the general creditors who are mentioned in the assignment as the fourth class.

In proceedings supplemental to execution, pending before the county judge of Niagara county, an order was made, denying the plaintiff’s application, to punish the defendant as for a contempt, in not delivering assets in her hands, to the receiver, in pursuance of the requirements of a previous order. The defendant is the widow of James Keyhoe, who died leaving her and twó children him surviving.

Proceedings were instituted in the Surrogate’s Court for the county of Oswego, to compel the appellant, as' executor, to render an account, which resulted in a decree requiring him to distribute a specific sum of money among tlie legatees, of the testator. On such accounting his account was surcharged with an item which, together with the interest thereon, amounted to the sum of $2,800. The executor complains of so much of the decree as charges him with this sum.

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

Appeal by the present administrators from a decree of the surrogate of Erie county, on the accounting of a former administrator of the same estate.

<p>Appeal from an order made at Special Term vacating and setting aside an order allowing a writ of mandamus.</p>