Volume 38 — Barbour's New York Supreme Court Reports

THE complaint in this action averred that the plaintiff was seised of a parcel of land in Brooklyn, and lawfully entitled to its possession; • that the defendant unlawfully, and without his consent, entered it and dug up and removed the soil upon it in 1852, and at various times, since then, to his damage in the sum- of $1000; that it was then worth $1200; that the defendant is unlawfully in possession of it, and unlawfully withholds the possession of it from the plaintiff.

ACTION brought to recover damages for an injury caused by the fright of the plaintiff’s horse at the sight of an elephant of the defendants, about November 22, 1857, at or near Tarrytown, in the county of Westchester. The elephant was in charge of a person alleged to be the servant of the defendants.

THIS was an action against the defendant, as late sheriff of Steuben county, for neglecting to arrest one Henry B. Tuffts on an execution issued by a justice of the peace against his person, in an action brought against him by Alonzo Curtis, for wrongfully injuring personal property. The judgment had been assigned to the plaintiff in this suit by Curtis, with his light of action against the sheriff.

ACTION to recover the possession of real estate. On the 30th of March, 1852, the defendants executed and delivered to the plaintiff a mortgage on the premises in question, to secure the payment of $442.02. This mortgage was foreclosed, without serving any notice on the wife, and the premises were sold to the plaintiff in May, 1858, when he became the owner.

THIS was an action to recover for the taking and conversion of certain property. The defendants justified their acts as trustees of school district Ho. 17, in the town of Dekalb, St. Lawrence county. Held: at which time the defendants Beardsley and Bigelow were elected trustees, the former in place of Colton, and the latter in place of Stammer; and that Colton was present at such meeting. That meeting also voted to raise a tax of $10 to repair 'school house.

THIS was an appeal from the decision of a referee in an action of ejectment, brought by the appellant to recover from the respondent the possession of a lot of ground, situated on the northerly side of 29th street, 125 feet easterly from Lexington avenue, in the city of New York. It was admitted on the trial that the lot in question was, on the 31st day of March, 1842, in the possession of Asa Bigelow, jun. as owner in fee.

rpHIS is an appeal from a decree of the surrogate of the X county of New York, admitting to prohate the last will and testament of Robert S. Peck, deceased, as a will of real and personal estate.

<p>APPEAL -from a judgment entered on a decision of the court at special term, adjudging that certain legacies given by the will of Amos Dawley were not chargeable upon the real estate of which he died seised.</p> <p>The will, so far as it relates to the disposition of property, is in the following form :</p> <p>. “ First. I give and bequeath to my daughter Almira the sum of two hundred dollars. ■</p> <p>Second. I give and bequeath to my daughter Sally Eliza the sum of two hundred dollars.</p> <p>Third. I give and bequeath to my son-George the sum of four hundred dollars.</p> <p>Fourth. I give and bequeath to my son Duty M. the sum of fifty dollars.</p> <p>Lastly. I give and devise all the rest, residue and remainder of my real and personal estate, goods, and chattels of what nature and kind soever, to my two sons J. J. W. Dawley and Daniel M. Dawley, to be divided equally between them, share and share alike: and I do hereby appoint Stephen B. Tidd my sole administrator of this my last will and testament.”</p> <p>The testator died seised of lands of the value of several thousand dollars, but (as is found by the court) did not leave sufficient personal property to pay the legacies “in whole or in part.”</p> <p>The plaintiffs, Sally Shulters and Almira Parks, are the daughters of the testator, to each of whom $200 is bequeathed by the will, and they seek to have the same declared a charge on the lands devised to J. J. W. Dawley and Daniel M. Dawley, and now held by other parties, defendants herein. Nothing is said in the will as to hów, when, or by whom the legacies are to be paid.</p>

THIS was a motion for a new trial, upon exceptions, ordered to be heard in the first instance at the general term. Also an appeal from an order of a special term, denying a motion to set aside the verdict for irregularity. The facts are sufficiently stated in the opinion of the court.

<p>A guaranty of collection implies that a note or evidence of debt is good, or good and collectible against the principal debtors; and this means collectible by due course of law.</p> <p>Ordinarily, to test that question, it is necessary that the customary legal proceedings should be resorted to, viz. a judgment and execution against the parties primarily liable to pay; and the return of an execution unsatisfied is prima facie sufficient and satisfactory evidence that it is not collectible.</p> <p>Yet it is not absolutely indispensable that legal proceedings should be resorted to, to test the collectibility of the paper, if it otherwise satisfactorily appears that a resort to such proceedings would be entirely ineffectual. Proof that the principal debtors, frotii the period of the maturity bf the debt, have been uniformly insolvent and unable to pay any part of the debt, is satis•factory and sufficient evidence that legal proceedings would be unavailable to collect the note.</p> <p>legal proceedings are not absolutely a condition precedent to the liability of the guarantor; but equivalent evidence of the inability to collect any part of the debt will suffice.</p> <p>In an action upon an instrument guarantying the collection of a bond, the referee having found, upon evidence warranting such a conclusion, that the principal debtors were severally insolvent and unable to pay any part of the bond; Held that after such a finding the court might well conclude that a suit against them would he utterly nugatory, and therefore unnecessary to be brought as a condition precedent to the liability of the guarantors.</p> <p>When a mortgage is given, as collateral to the bond guarantied, it is not indispensable that the holders of the bond should seek satisfaction out of the mortgaged premises, by a foreclosure, if it appears that a resort to that remedy would have proved fruitless, in consequence of the sale of the mortgaged premises under a statute foreclosure, to satisfy a prior mortgage, at a price leaving no surplus.</p> <p>Where a mortgagee assigns the mortgage, and the bond accompanying the same, to another, covenanting in the assignment that they shall be paid when due, a subsequent holder of the bond, to whom the same has been assigned, with a guaranty of payment, must first attempt the collection of the debt, from the obligee and mortgagee, before he can resort to the guarantors, upon their guaranty.</p> <p>Such a covenant is an absolute guaranty of payment, entitling the assignee to prosecute the assignor thereon immediately after default in payment of the amount due upon the bond and mortgage; and the benefit thereof will pass to a subsequent assignee, under an assignment of the securities, executed by the covenantee.</p>

<p>MOTION" for a new trial upon exceptions. The action was brought to recover damages for an alleged breach of a contract to marry. The defense was a general denial. The cause was tried before Justice Gould, at the Sullivan circuit, on the 19th day of September, 1861. Evidence was introduced on the part of the plaintiff, tending to show considerable intimacy between the parties', and particular attentions, at intervals of two or three weeks, for a considerable period of time. The plaintiff also testified (without objection) that the defendant said, “I (plaintiff) should not be any the worse for him; that I should not come to any disgrace by him, and if I did he would marry me; he said I need not borrow any trouble; I should be none the worse for him; he would protect me. He never said a great deal about loving or being attached to me; he gave no reason for not marrying me. He said he did not want a wife then—he had no place to put her.” The counsel for the plaintiff then put the following question to her, as a witness: “What was your condition at the time he abandoned you, resulting from your intimacy with the plaintiff?” (defendant.) The der fendant objected to the question, on the following grounds: 1st. It is immaterial and irrelevant. 2d. It is illegal and improper to show that the plaintiff was_ pregnant with child by the defendant; that being no legitimate ground for enhancing the damages in this case. The court overruled the objection and permitted the witness to answer, on the ground that it was part of the res gestee, and a circumstance tending to show the defendant’s meaning, and also as giving binding effect to his conditional promise. The defendant excepted to this decision. The witness answered, “ I was pregnant with the defendant.” Further evidence was given on the part of the plaintiff, tending to show an implied and an express promise by the defendant to marry the plaintiff, and a breach thereof. The plaintiff having rested, the defendant moved for a nonsuit upon the following grounds: 1. The evidence fails to show a valid contract to marry, between the parties; 2. The evidence shows that no valid contract to marry was made between the parties to this action. The court denied the motion, and the defendant excepted. The defendant- having given evidence tending to rebut the evidence given by the plaintiff, the court charged the jury as follows: 1. That an agreement to marry may he partly in words expressed, and partly supplied by circumstances. To which the defendant excepted. 2. That the promise to marry might be good and valid, and depend partly on words and partly on acts from which it might be inferred. To which the defendant excepted. 3. That if the jury found that the defendant, after the fault committed, and in view of the danger already incurred from his visits, promised her, if such exposure did occur, and she was brought to shame by their previous acts, that he would marry her, such contract was one the law would enforce. To which the defendant excepted. 4. The defendant asked the court to charge that a promise by the defendant to marry, in the event the plaintiff should be disgraced by the defendant, is void. The court refused, on the ground that the previous charge covered all that the evidence called for, on that point. The defendant excepted to such refusal. 5. The defendant asked the court to charge that to constitute a valid contract to marry, in the future, the contract must be express. The court refused, and the defendant excepted to the refusal. 6. The' defendant asked the court to charge that to constitute a valid contract of marriage, each of the parties should expressly obligate themselves to the other to marry. The court refused, and the defendant excepted to the refusal.</p> <p>■ The jury rendered a verdict for the plaintiff, of $400.</p>

<p>THE defendant was the proprietor of a rail road from Buffalo to Corning, connecting at the latter place with the New York and Erie road, and at Avon with the Bochester and Genesee Valley road. The plaintiff was a conductor, in the employ of the defendant; his instructions being not to honor such passenger tickets, issued by the New York and Erie Bail Boad Company, as on their face were marked “ good for six days only, from date,” if presented after the limited time, but to demand fare, and if the passenger refused to pay, to stop the train and remove him from the cars. On the 21st of January, 1858, one Hotchkin, a passenger on the plaintiff’s train, offered such a ticket, more than six days old, and refused to pay fare, and the plaintiff stopped the train and put him off. For this Hotchkin sued the plaintiff, recovered a judgment against him and put him on the jail limits of Steuben county, on an execution issued against the person. While the plaintiff was so in custody, Hotchkin assigned the judgment against the plaintiff to David Bumsey, who took the plaintiff’s note on time for the amount of the judgment, and receipted the judgment in full; whereupon the plaintiff was discharged from custody. This action was then commenced, the plaintiff claiming to recover of the defendant the amount of the Hotchkin judgment, upon what was claimed to he an implied contract of indemnity. It was proved, upon the trial, that the plaintiff had not paid the note which he gave to Eumsey, and that the Hotchkin judgment remained undischarged of record. There was no claim in the complaint, and none was made upon the trial, to recover any damages for the imprisonment; and there was no proof that the plaintiff had ever suffered any pecuniary damage, unless the giving of his note was such. The action brought by Hotchkin was for assault and battery, and the referee in that action found as a fact that in putting Hotchkin off the train, the present plaintiff committed an assault and battery upon Hotchkin. The present action was tried by the court, at the Steuben circuit, and resulted in a verdict for the plaintiff for the amount of the Hotchkin judgment, and interest as damages, and from the judgment thereon the defendant appealed.</p>

PPEAL from a judgment entered upon the report of a referee. The action was brought upon an alleged contract for the sale and delivery of a force pump, to the defendants, for the price or sum of $60. The answer of the defendants contained a general denial of any purchase or sale. The referee reported that there was no sale of the pump to the defendants, absolute or conditional; and that they were not liable for the price, but were entitled to judgment for costs.

<p>APPEAL from a judgment entered upon the order of the court on a trial at the Steuben circuit, in February, 1861, without a jury.</p>

THIS was an appeal from a judgment entered upon the report of a referee. The action- was brought by the plaintiff, a judgment creditor of the defendant Leonard Hall, whose execution had been returned unsatisfied, to reach certain property alleged to have been conveyed to the wife of the judgment debtor, for the purpose of defrauding his creditors.

THIS was an appeal from a decree of the surrogate of the county of Livingston, made on the final settlement of the accounts of the appellant as administrator of &c. of Allen Smead, deceased. On the accounting the administrator presented, as a claim, an account of §1186.52, for money paid by him on a judgment recovered against himself and Lyman H. Smead, which was obtained on a note executed by the deceased, in his lifetime, and by the appellant and Lyman H. Smead.

<p>PPEALS from orders made at a special term setting aside the judgments entered by confession in the first two of the above cases, and denying a motion to set aside the judgments in the last two cases.</p>

THIS is an appeal from a decision of the surrogate of the county of Cayuga, rejecting the paper propounded as the last will and testament of Peter Douglass, deceased, and - deciding that the same was void, on the sole ground that it was not duly published by the testator. The deceased was a very aged man, about 85, and quite hard of hearing, and quite feeble; but had at all times superintended all his business.

The plaintiffs, in their complaint, alleged that on or about the 7th day of Septem-? her, 1859, one Myron H. Mills entered into a contract under seal with the people of the state of New York, which contract was duly executed on the part of said people, under the hands and seals of the then canal commissioners, state engineer and surveyor, and auditor of the state of New York, and said contract was duly made in pursuance and by virtue of the laws of the state of New York…

THIS was an appeal from a judgment of the county court of-Ontario county, reversing the judgment of a justice of the peace. The action was brought to recover for the wrongful conversion of a wagon and a yearling heifer, which property the plaintiff claimed by virtue of a chattel mortgage executed to him by John Farrell, the owner of the property. The mortgage was executed January 23d, 1860, and was filed in the town clerk’s office on the 24th day of the same month.

The action was brought, among other things, to set aside the action of the defendants, as directors of the Bochestel: and Webster Plank Boad Company, in voting to to the défendant Daniel Wood compensation for services as secretary of - the company. The plaintiff sued in behalf of himself and all other stockholders in the company who should come in and make themselves parties to the action.

The action was upon a lease, to recover a quarter’s rent. Defense, a breach of a provision in the lease for repairs, &c. whereby the defendant has sustained damages, which he claims should be allowed him, by way of recoupment. The following facts were found by the referee: In the spring of 1858 Daniel Chapman purchased the warehouse and premises in the complaint mentioned, of Wells & Dewey.

THIS was an action upon a judgment recovered by the plaintiff against the defendant, in the court of common pleas of Tioga county, in the state of Pennsylvania. The answer contained a general denial of the allegations of the complaint, alleged that there was no such record, and claimed a set-off. A reply was served, putting the cause at issue, on the 5th of October, 1859. The action was tried at the circuit, before the judge, without a jury.

THIS was an appeal from a judgment entered at the circuit, upon a verdict. The complaint alleged that in December, 1853, the firm of King, Stancliffe & Co., of which firm the defendant was a member, were indebted to the plaintiffs in the sum of $8207.75 for work performed by the plaintiffs in graveling a portion of the Canandaigua and Niagara Falls rail road.

The complaint alleged that on or about the 10th day of January, 1854, letters patent were granted and issued out of the patent office of the United States of America, to Junius Judson, the defendant, bearing date on that day, whereby, after reciting that whereas Junius Judson and Alfred Judson, of Rochester, New York, have alleged that they have invented new and useful improved valves for governors, for which letters patent were issued to Junius Judson, dated November 5,…

The action was brought to recover damages for the non-performance of a contract for the sale and delivery of a quantity of corn, and to recover hack $100 paid by the plaintiff to the defendant, on account of said contract.

THIS was a motion by the plaintiff for a new trial, on a case and exceptions, which were ordered to be heard at general term, in the first instance.

THIS action was brought to recover damages for an assault and battery and false imprisonment. The evidence showed that the defendant came from the state of Pennsylvania into Hew York and arrested the plaintiff, took him into Pennsylvania, and confined him in the county jail at Wellsboro for several days.

THIS was an appeal from a judgment upon a verdict, entered at the circuit. The action was brought to recover the purchase price of 236 bushels of wheat, sold by the plaintiff to the defendant, in November, 1858, at one dollar and fifty cents per bushel.

PPEAL from a judgment of the city court of Brooklyn. The action was brought to recover damages claimed to have been sustained by the plaintiff, under the following state of facts : The plaintiff is the owner of a house and lot on the north side of Bergen street, near its intersection with Flat-bush avenue, in the city of Brooklyn. The house was built about the year 1857, and on the grade of the street as then established.

This action was brought by Charles Kelsey against Anthony F. Campbell, sheriff of Kings county, to recover the sum of $687.69, with interest, the amount of an execution issued upon a judgment rendered by the Supreme Court, at a general term, ih the second judicial district, in favor of plaintiff against Ward, Gove & Morris, on July 29, 1861.

<p>Conversion.—Demand and Refusal.—Evidence.—Value.</p> <p>A demand and refusal are evidence of a conversion, and nothing more. If the defendant refuses to deliver plaintiff’s goods on demand, and afterwards, before the commencement of an action therefor, signifies to the plaintiff his willingness that he may take them away, this does not constitute a conversion.</p> <p>It is not competent, on the question of the value of a chattel bought in mass with a number of others, to prove the value of the others in order to determine the cost of the first by deducting the value of the others from such purchase-price;</p>

<p>Appeal from an order at special term, overruling a demurrer to the complaint, on the ground that it did not contain facts sufficient to constitute a cause of action.</p> <p>The action was upon a policy of insurance against loss by fire, issued by the defendants, April 26,1861, upon the steamer “ Cataline.”</p> <p>The complaint stated: “ That at the time of the issuing of the policy,, Charles A. Stetson, Jr., was the owner of the ‘ Cat-aline.’ That in consideration of the payment by the plaintiffs, who thereto were employed by and therein acted as agents of the said Stetson, to the defendants, of the premium of six dollars and eighty-eight cents, the defendants made and issued their policy......and delivered it to the plaintiffs, for the account of whom it might concern ; by which the defendants insured the plaintiff’s, or whom it might concern, against loss or damage by fire to the amount of $2,500, on the steamer Cataline,’ &c., while running, &e., from the 26th day of April, 1861, until the 26th day of July, 1861, with privilege of effecting other insurance to the amount of $17,500, without notice until required ; and in and by said policy agreed to pay the loss, if any, to the plaintiffs, under their firm-name of M. M. Freeman & Co.and that said Charles A. Stetson, Jr., was, at the time of the issue of said policy, and up to the time of the fire continued to be, the person or party for whom said insurance was effected and whom it concerned.”</p> <p>The complaint further stated, “ That at the time of the insurance, and from thence until the fire, Stetson had an interest in said insured property, to an amount exceeding the whole amount of insurances ($20,000), and was the owner of the property, the cash value whereof was $24,000. That on the 2d day of July, 1861, the vessel was burned, &c. That Stetson and the plaintiffs had fulfilled all the conditions and requisitions of the policy on their part to be performed ; that the plaintiffs had demanded payment of the defendants of said $2,500, which the defendants refused to pay.”</p> <p>I. All actions are now to be brought in the name of the real party in interest (Code, § 111), with an exception in favor of trustees of an express trust, &c. (Ib., § 113.) The plaintiffs do not claim as trustees for Stetson, but in their own right. The rules of equity in relation to parties are adopted by the Code (Corning a. Greene, 23 Barb., 44; Brownson a. Gifford, 8 How. Pr., 395 ; Hollenbeck a. Van Valkenburgh, 5 Ib., 284; Secor a. Keller, 4 Duer, 419), and in equity a mere nominal party was not allowed to sue. (Rogers a. Traders’ Ins. Co., 6 Paige, 598 ; Field a. Maghee, 5 Ib., 539.)</p> <p>II. It is absolutely essential, in order to recover upon a policy, that the person insured should have an interest in the property at the time of the loss. The contract is one of indemnity; and if the insured is not damnified, he cannot recover. (Murdock a. Chenango County Mutual Ins. Co., 2 N. Y., 216 ; Howard a. Albany Ins. Co., 3 Den., 301; Shotwell a. Jefferson Ins. Co., 5 Bosw., 261; Grosvenor a. Atlantic Ins. Co., 17 N. Y., 392 ; Kernochan a. Bowery Ins. Co., Ib., 442.)</p> <p>III. It was necessary, even at common law, and entirely irrespective of any statute, that the person insured should have an interest in the property, in all cases of fire insurance. (Lynch a. Dalzell, 3 Bro. P. C., 497; Sadler’s Co. a. Badcock, 2 Atk., 554. See Ruse a. Mutual Benefit Ins. Co., 23 N. Y., 523.) A distinction was taken between fire and marine policies, which accounts for some cases which are loosely cited as holding an averment of interest unnecessary. All these cases, without a solitary exception, will, on examination, be found to arise upon marine or life policies. And they have all been overruled by the Court of Appeals, which has just decided that wager policies of every description are void at common law, on grounds of public policy. (Ruse a. Mutual Benefit Ins. Co., 23 N. Y., 516.)</p> <p>IV. The importance of the fact that an insurance without interest was void at common law becomes manifest in this case. 1. It is an undoubted rule that the plaintiff must allege every thing in his complaint, which at common law or in equity it is necessary for him to prove at the trial. (Prindle a. Caruthers, 15 N. Y., 427; Bank of U. S. a. Smith, 11 Wheat., 174; Safford a. Drew, 3 Duer, 632 ; McMillan a. Saratoga R. R. Co., 20 Barb., 455; McKyring a. Bull, 16 N. Y., 297.) The cases which hold it unnecessary to allege that a contract was made in writing, &c., proceed upon the ground that acts valid at common law, but regulated by statute, may be pleaded in like manner as before the enactment of the statute. (Stephen on Pleading, 373 ; Hilliard a. Austin, 17 Barb., 141; Dewey a. Hoag, 15 Ib., 368 ; Stern a. Drinker, 2 E. D. Smith, 406.) 2. The Court of Appeals has explicitly declared, that in all actions upon insurance policies, the plaintiff must “ aver and prove the interest of the plaintiff. It is an indispensable part of the plaintiff’s case, to be made out affirmatively at the trial.” (23 N. Y., 527.) 3. The plaintiff is therefore bound to allege in his complaint that he had an interest in the thing insured. (Ruse a. Mutual Benefit Ins. Co., 23 N. Y., 527; Williams a. Ins. Co. of North America, 9 How.Pr., 365; Peabody a. Washington County Mutual Ins. Co., 20 Barb., 339; Cousins a. Nantes, 3 Taunt, 513.)</p> <p>V. The reason of the rule that a wager policy is void, as stated in several places, is, that it is deemed unsafe to permit any one to have a direct pecuniary advantage to gain by the commission of arson. If this reason is sufficient to prevent A. from recovering on an insurance made for his benefit without interest, why does it not apply with equal force to prevent him from recovering on a policy made by him for account of B., the real owner, with loss payable, not to B., nor to A. for the benefit of B., but to A. in his own right, and for his own benefit ? The authorities are uniform and explicit that an assignment of the policy, in order to be of any benefit to the assignee, must be accompanied with a transfer of some kind of interest in the .subject of insurance. (Ellis on Ins., 69; Marshall on Ins., 800 ; Phillips on Ins., § 77 ; 3 Kent's Com., 395 ; Hooper a. Hudson River Fire Ins. Co., 17 N. Y., 424 : Peabody a. Washington County Mutual Ins. Co., 20 Barb., 339, 341.) In like manner, Roosevelt, J., in Kernochan a. N. Y., Bowery Fire Ins. Co. (17 N. Y., 442), declares it to be a “ principle of public. policy, that no man should be allowed to bargain for an advantage to arise from the destruction of life or property.”</p> <p>VI. The assignee or appointee must, under the principles stated in the preceding points, have, and aver in his complaint, an interest in himself in the thing insured. There are cases decided under the old practice which tend to show that at common law, the person named in the contract might sue, without having any interest, for the benefit of the real party in interest. These cases have no doubt misled the plaintiffs. A different rule is established by the Code, and an action not only may, but must, be brought by, and in the name of, the real party in interest. (§ 111.) And even before the Code, it was held in the Court of Errors that “ it must appear” in an action upon a policy made “ for whom it may concern,” that “ the policy was made in behalf of the persons who claim to recover.” (Pacific Ins. Co. a. Catlett, 4 Wend., 79.) All the cases of fire insurance policies since the Code, in which an appointee in like manner with the plaintiffs has been allowed to recover, have been cases in which the appointee was expressly described as mortgagee, thus showing a power coupled with an interest.</p> <p>VII. It will be argued that the defendants, by issuing the policy to the plaintiff, admitted their interest in the subject of insurance. The answer is twofold: 1. The doctrine has no-foundation in reason, and it has been expressly overruled by the Court of Appeals. (Ruse a. Mutual Benefit Life Ins. Co. 23 N. Y., 527.) 2. If there were any thing in the point, the plaintiffs have expressly negatived all presumption of interest in them by their complaint, in which they set up Stetson’s exclusive interest.</p> <p>VIII. The case of Fowler a. N. Y. Indemnity Ins. Co. (23 Barb., 143), upon which the plaintiffs rely, does not aid them. 1. All it really decides is, that the word “ his,” prefixed to the description of the thing insured, is a sufficient averment of ownership in the plaintiff. 2. The remarks of Judge Strong, to the efféct that an averment of interest is unnecessary, are not authority, nor can they be sustained on principle. He Cites no authority for his suggestion, nor could he. The doctrine is expressly repudiated by the Court of Appeals. (23 N. Y., 527.) He goes on to say, that “ hence” it has been held that an averment of interest is unnecessary. For this proposition he cites three cases, one of them having been reversed on error (3 Taunt., 513), though he did not know it, none of them based upon the argument to which he refers by the word “ hence,” and all of them being cases of marine insurance, which we have shown were governed by a distinct class of rules, and in which wager policies were assumed to be valid at common law.</p> <p>IX. If the plaintiffs sue as agents for Stetson, the owner of the property insured, they ought to state the fact in their complaint. An agent sues as a trustee (Code, § 113 ; Considerant a. Brisbane, 22 N. Y., 389), and stands on the same footing with executors, receivers, &c. He sues in the right of another. And, therefore, in order to conclude that other on the record, he must allege his agency, and seek relief in his representative capacity. Otherwise the suit must be taken to be his own. (See Gould a. Glass, 19 Barb., 185 ; Sheldon a. Hoy, 11 How. Pr., 14; Ogdensburgh Bank a. Van Rensselaer, 6 Hill, 241; Henshall a. Roberts, 5 East, 151.)</p> <p>X. The complaint nowhere shows that the plaintiffs were agents for Stetson, except for the single purpose of procuring the insurance and paying the premium. They were, as they say, employed by Stetson, and acted as his agents, to pay the premium—nothing more; which, by any freedom of construction, cannot be held to imply an agency to do more than procure the insurance, which, by Story’s definition (Agency, § 28), constituted them simply brokers. They had no power to effect an insurance in their own name, much less to make the loss payable to themselves.</p> <p>XI. It is not alleged that the loss was payable to them as agents of Stetson, or that they act as Ms agents in demanding the money, or in bringing this action. It is in this view that this case differs from Considerant a. Brisbane (22 N. Y., 389). There the contract was expressly with the agent as such.</p> <p>XII. To sustain this action, it is clearly necessary that the plaintiffs should allege that they are the agents of Stetson, and authorized to effect and recover this insurance in their own name, and that they, as such agents, are the parties whom it concerned, and that this action is for account of Stetson. (See Myers a. Machado, 6 Abbotts' Pr., 198.)</p> <p>I. By the terms of the policy, the defendants expressly undertake, in case of loss, to pay the same to the plaintiffs. At the common law this would be held to be a contract with the plaintiffs, upon which they would be entitled to bring an action in their own name, although the beneficial interest in the subject-matter of the contract might be in another. (Harp a. Osgood, 2 Hill, 216 ; Sargent a. Morris, 3 Barn. & Ald,., 277; Ennis a. Harmony Fire Ins. Co., 3 Bosw., 516; Grosvenor a. Atlantic Fire Ins. Co., 17 N. Y., 391; Considerant a. Brisbane, 22 Ib., 389.)</p> <p>H. It is wholly immaterial to the plaintiffs’ right of recovery, whether they have an interest or not in the property insured; it is sufficient if the parties forwdiose benefit, as owners, the policy was taken out, had such interest at the time of loss. This would be held to be so in the case of an assignment of a policy by the party insured to a third person; a fortiori must this be so where in the contract itself the defendants expressly undertake, in case of loss, to pay the same to another. Policies of insurance, taken out in the names of brokers, factors, or trustees, have always been held valid, and capable of being enforced by them, if the parties beneficially interested have sustained a loss. (Angell on Fire Ins., 114, § 73 ; Burke a. Chesapeake Ins. Co., 1 Pet., 163; De Forest a. Fulton Fire Ins. Co., 1 Hall, 84; Fowler a. N. Y. Indemnity Ins. Co., 23 Barb., 143; and cases before cited.)</p> <p>III. In stating a cause of action upon a policy of insurance, no averment of an interest in the insured is necessary. But for the statute against wagers, a policy of insurance, without interest, would he a valid contract. It will not be presumed that a contract valid at common law is within the provisions of a prohibitory statute. (Fowler a. N. Y. Indemnity Ins. Co., 23 Barb., 143; Dykers a. Townsend, Ct. of Appeals, Dec., 1861.)</p> <p>IY. Independently of the question of interest, the plaintiffs, within the terms of sections 111 and 113 of the Code, are clearly trustees of an express trust, being persons with whom and in whose name the contract was made for the benefit of those who are interested in the loss as owners of the vessel, and, as such, are entitled to bring the action. (Considerant a. Brisbane, 22 N. Y., 389 ; Grinnell a. Schmidt, 2 Sandf., 705.)</p>

The plaintiff was a night watchman, and watched the defendants’ store for several years (from 1856 to 1861) at $2 per night, for which he received his pay periodically. During two years of this time (from 1858 to 1860) he also watched the building of the Importers and Traders’ Bank, adjoining that of the defendants. This he testified he did on the separate employment of the bank, for Which the bank was to pay him, though the compensation was never fixed.

The writ was issued on the petition of Robert M. Ward, Walter S. Gove, and Edward P. Morris, for the purpose of reviewing certain summary proceedings to recover the possession of a wharf, which were instituted by Charles Kelsey, as landlord, against Ward, Gove & Morris, as tenants. Kelsey had rented to Ward & Gove certain storehouses and a pier at the foot of Sedgwick-street, Brooklyn, together with his right, title, and interest in the water in front thereof.

THIS was an action brought by the plaintiff to recover the value of a mare, which the complaint alleged that the plaintiff placed with the defendants to pasture, and which was mired and lost, through their carelessness and-neglect. 'The action was tried at the Suffolk circuit, before a jury, in June, 1861.

The action was brought to restrain the defendant from erecting a pier in the waters of the harbor of Hew York, south of pier Ho. 1, Horth river, opposite the battery and Battery place. The title of the people of the state to the bay and harbor of Hew York, and their sovereign right to the use and enjoyment thereof, for the purposes of commerce and navigation, free from all interruption and encroachment, were alleged in the complaint, and not denied in the answer.

THIS action was brought by the plaintiff, as administratrix with the will annexed of Catharine C. Young, deceased, against the defendants as executors &c. of David Brush, deceased, for an account by the defendants touching the property and assets of Catharine C. Young, which came to the hands of the said David Brush in his lifetime, or with which he was justly chargeable as executor of the said Catharine C. Young.

Proceedings under the statute of elections in moneyed corporations. I. August, 1862.—Application, to set aside an election of directors by an insurance company. This proceeding was instituted on the. petition of Christian S. Delavan, a stockholder and former director of the Excelsior Eire Insurance Company. The company was organized in 1853.

APPEALS from a judgment entered upon the report of a referee, on the 23d day of January, 1861, and from an order made at a special term, on the 16th of March, 1861, denying a motion to set aside the judgment.

THIS action was commenced, by the plaintiffs, as second indorsees of a promissory note, against the defendant as first indorser. The note was as follows : “ $302 fVli Neto York, June 28th, 1858. Bight months after date, we promise to pay to the order of Charles Douglass, assignee, three hundred and two iih dollars, value received, payable 68 Beekman street. [Signed] Dunn & Mansur, Moline, Ills. [Indorsed] Charles Douglass, Assignee.

PPEALS, by the plaintiff, from an order made at a special term dissolving an injunction, and from an order denying a motion to stay proceedings in an action pending in the district court of the city of Hew York.

The action was for the claim and delivery of one cask containing thirty-nine dozen of saws. It was brought by the plaintiff, as assignee of Jacob Y. D. Wyckoff, in an assignment for the benefit of creditors.

THIS action was brought for the purpose of vacating the charter of the Rensselaer Insurance Company, and to prohibit the company from… Held: notice thereof being duly published. That no objection was ever made by any member of said corporation at any or either of said annual meetings, or any other time or place, to the extension of said charter, or the proceedings had therefor; that such extension was generally known, but it did not appear that the makers of such notes…

The complaint alleged that on the 5th day of February, 1862, the defendants, at the city óf Brooklyn, wrongfully and maliciously contriving and conspiring together to injure the-plaintiff, caused and procured a warrant to be issued against and for the apprehension of the plaintiff, by William M. Boerum, Esq., a justice of the peace of said city, and for the purpose of procuring said warrant, and to subject the plaintiff to arrest and imprisonment thereunder, in pursuance of…

<p>THE plaintiff brings this action to compel the surrender of three certain promissory notes described in the complaint, and also demands that the notes may be declared usurious by the court. The plaintiff seeks to compel the defendant to deliver the notes either under the statute as void, or if the court shall consider them valid, then that the defendant shall he ordered to surrender the same on payment of the principal, inasmuch as the defendant wrongfully withdrew them from their place of payment, for the purpose of defeating the payment thereof. The defendant, in October, 1856. loaned the plaintiff' $5000 in St. Paul, Minnesota; $1500 of which was in specie,, and $3500 in orders on Hew York. The plaintiff gave the defendant his promissory note for $5000, payable at thé Bank of Addison in this state, where the defendant has always resided, and still resides. The note by its terms provides that the plaintiff shall pay interest at the rate of 26|- per cent per annum, with a further stipulation that in case the note is not paid at its maturity, then the principal and interest then accrued thereon shall draw interest' at the rate of 60 per cent per annum. . The other two notes were given in part payment of the interest as it accrued, with $484 and a note of one Sprague for $500, secured by a mortgage. Also, the two lesser notes have the same place for payment, draw interest at 36 per cent per annum, and also provide that in case they are not paid at maturity, then principal and interest draw five per cent per month during the time they remain unpaid. It was also in evidence that there were mortgages on lands in Minnesota given as collateral security for the payment of these notes. The interest was paid semi-annually, as above, at Addison, N. Y. When the notes fell due, the plaintiff tendered payment to the defendant by offering to the Bank of Addison, in New York, where the defendant resided, the full amount thereof, principal and interest, in gold. The defendant had withdrawn them from the bank, so that payment could not be made. The defendant, by his own act, defeated the payment of the notes, and thereby caused the contingent condition to attach, whereby the notes, by their own terms, were to draw interest- at the rate of sixty per cent per annum on principal and interest, which it was insisted was a new and distinct contract, created by the act of the defendant in New York, and to be executed here.</p> <p>The action was referred to a referee. On the trial it was admitted by the respective jwties as evidence, that by the laws of Minnesota, as they were at the time of the loan in question, and still are, it was lawful to receive, or to agree to receive, any rate of interest agreed upon by the parties, and an agreement for any particular rate of interest could be enforced under the laws of said state of Minnesota.</p> <p>The referee reported the following conclusions of law: First. That under the facts of this case, the law of the place where the contract was made must govern, and the notes are not, therefore, void. Second. That the fact of the offer to pay the notes when and where they became due, does not create any new contract, which makes the notes void for usury. Third. That the defendant was entitled to a judgment for his costs.</p> <p>The plaintiff appealed from the judgment entered upon the report.</p>

A PPEALS by Winthrop W. Gilman and Anna K. Gilman from a decree of the surrogate of the city and county of Hew York, admitting to probate the will of Hathaniel Gilman, deceased, and the codicil thereto. Hathaniel Gilman, the decedent, died December 19th, 1859. The paper admitted to probate as his will bears date April 10th, 1858, and was alleged to have been executed at the city of Hew York, in the presence of William Miles, Samuel Plurley and Alexander 0.

The plaintiffs alleged in their complaint that they are an ancient corporation, and, under their charters, are possessed of divers property, liberties, privileges, royalties and franchises of great value; that among these are the streets, avenues and thoroughfares of the city, the right to the free, open and unobstructed use thereof, and the right and franchise of laying out arid regulating the same; the office of licensing and of limiting (at discretion of these plaintiffs)…

THIS action was brought by the plaintiff, a resident of Cuba, against the defendants, to recover the value of a cargo, of 49,222 gallons of molasses, shipped from thence early in July, 1859, and without the plaintiff’s authority, consigned by the firm of Ulrici, Playle & Co., of that island, to Moses Taylor & Co., of the city of Hew York.

<p>A consulting engineer, who renders services as such, is not within the language, or the policy or reason, of the 10th section of the act of April 11, 1849, incorporating the New York and Liverpool United States Mail Steamship Company, which provides that the stockholders shall be individually liable for debts due and owing to their “ laborers and operatives ” for services performed for the corporation,</p>

THIS was an appeal from a judgment entered at a special term. The action was brought to set aside and cancel a bond and mortgage, executed by the plaintiff to David Barney, the defendants’ testator, on the ground of usury.

THIS was an action brought upon a policy of insurance. The cause was tried at the Monroe circuit, before Justice Johnson and a jury. The plaintiff proved the incorporation of the defendant, and that it had power to insure against loss by fire, in this state. That on the 6th of November, 1858, it issued a pohcy of insurance to Burns & Hughes, by which it insured their stock of goods against loss by fire, for one year, in the sum of $1000.

THIS was a case submitted to tbe court, without action, under section 372 of the code of procedure, by the plaintiff as administrator of the estate of Sarah Freeman, deceased, and the defendants as executors of the last will and testament of William Pepper, deceased. William Pepper, a construction of whose will Was sought, died at Vernon, Oneida county, May 1, 1849. His will was admitted to probate by the surrogate of Oneida county, on or about the 21st of May, 1849.

THIS was an action brought by the plaintiff to recover damages for a breach of promise of marriage. The answer was merely a general denial of the allegations of the complaint. The cause was tried at the Monroe circuit, in October, 1861. The plaintiff was examined as a witness in her own behalf.

The action was brought for board, care and attendance of the defendant’s father, alleged to have been furnished on the express promise of the defendant to pay therefor. On the trial the plaintiff called his wife as a witness on his behalf, to prove such board &c. and the alleged promise. The defendant objected to her as a witness, on the ground that she was the plaintiff’s wife. The court overruled the objection and admitted her; to which the defendant duly excepted.

The action was to foreclose two mortgages executed hy the defendants Woodruff and wife. One, to Oliver Fairchild, dated January 28, 1848, and assigned to the plaintiff, March 15, 1859, upon which, at the date of the report, there was due $1592.61; the other, to Jesse Angel, the plaintiff, dated March 27, 1854; amount due, at the date of the report, $973.14.

THIS was an appeal by the plaintiff from a judgment of a ' county court, reversing a justice's judgment in favor of .the plaintiff.

This action was brought by Henry Thompson against Dudley G-. G. Culver upon a check for $616.50. An attachment was issued on the ground that the defendant had absconded or kept himself concealed to avoid the service of civil process. The ■attachment issued on February 12th, 1862. In March a motion was made to vacate the attachment. On March 25th the facts involved on the hearing of the motion were referred to A. B. Tappen, to hear and report with his opinion.

This action, by Patrick Sarsfield against George W. Van Vaughner and Elizabeth Greer, was in the nature of a creditor’s bill. The judgment against Van Vaughner, on which this action was founded, was paid with the exception of a balance of $31.02. Mr. Justice Gierke dismissed the complaint on motion of defendants, on the ground that the matter in dispute did not exceed fifty dollars. The plaintiff appealed.

<p>It is well settled that an exception to the refusal of the court to dismiss the complaint cannot be sustained on account of the deficiency of any proof that might have been supplied upon the trial, had the attention of the court and of the opposite party been called thereto.</p> <p>The officers of a corporation, authorized to issue certificates to the stockholders, as evidence of title to stock, are liable not only to the immediate purchasers from them of spurious stock, falsely and fraudulently certified by them, but to any subsequent purchaser buying upon the faith of the false certificate, and sustaining damage thereby.</p> <p>Although the purchaser of spurious stock has a remedy against his vendor, for a breach of the implied warranty of title, that right of action does not constitute a bar to an action against one who has induced the purchase, by a fraudulent representation that the vendor had title to the stock, where damage has resulted from the fraud.</p> <p>The purchaser’s right of action against the officers of a corporation concerned in issuing certificates of spurious stock is complete upon the purchase. And that right will not be affected by any subsequent action of the directors of the corporation, in turning out other property to him, to an amount exceeding the sum paid by him for the false certificates.</p> <p>Any one furnishing another with a false and fraudulent document purporting to show title in the latter to any property, is liable to any person sustaining damage in consequence of reposing confidence therein. Per Grover, J.</p> <p>The case of Oazeaux v. Mali, (25 Barb. 578,) approved.</p>

On the 7th of December, 1827, the premises in question, with other lands situated in Rochester, were conveyed to Ira West and his heirs, by deed of bargain and sale, in trust to pay Judith Wood during her natural life the income, rents and profits to arise from the land conveyed, and after her death to grant, release and convey the same land to her children surviving her and to the children of such of her children as might die before her; the grandchildren to take such…

THIS action was brought to recover possession of a block of ground at Hew Brighton, Bichmond county, and certain articles of furniture which the plaintiff, on the 3d day of March, 1858, contracted to sell and convey to the defendant Peteler, for the sum of $57,500.

THIS was an appeal from a judgment entered upon the report of a referee. The material facts are fully stated in the opinion of the court.

THIS was an appeal from a judgment entered on the report of a referee, dismissing the plaintiff’s complaint, and from an order of the special term charging the plaintiff’s separate estate with the costs of the suit. The facts are fully stated in the opinion of the court.

The action was brought by the plaintiff as receiver of the Farmers’ Insurance Company, of Oneida county, to recover the amount of a note given by the defendant to said company, a corporation duly created under the general laws relating to the incorporation of insurance companies, and which note was claimed by the receiver to he a stock note, and on which he claimed to recover without proving any assessment to have been made.

THIS action was brought by the plaintiff for the purpose of ascertaining whether the stock held by the defendants in the New York and New Haven Bail Boad Company was spurious, either in whole or in part, and if so, to have the same declared void, and ordered to be canceled; and to enjoin the defendants from prosecuting any actions then pending against the company, or bringing actions to enforce any claims founded upon such stock.

THIS action was brought by the plaintiff, as receiver of the Cattaraugus Mutual Insurance Company, upon a premium note given for a policy of insurance issued by that company. The note, application and policy bore date December 6, 1854. The action came on to be tried at the Cattaraugus circuit in January, 1860, before Mr. Justice Grover and a jury. The plaintiff proved the facts entitling him jprima facie to recover.

The action was brought to recover for damages sustained by the negligence of the defendants’ servants and agents in towing the canal boat Camden from New York to Albany, by means whereof said boat… Held: as matter of law: 1st. That Yandewater Brothers had a right of action against the defendants for the injury done to the Camden and her cargo. 2d. That such right of action was assignable. 3d. That the plaintiffs as their assignees could sue and recover. 4th.

The complaint contained three counts. The facts alleged in the complaint are stated in the opinion of the court. The administratrix of Fimbria Tooley, and George Thomson, administrator of Bichard Tooley, two of the defendants, demurred to the whole complaint, and assigned seven grounds of demurrer: 1.

THIS was an appeal from a judgment entered on the report of a referee. The action was on a covenant of warranty and for quiet enjoyment, contained in a deed given by the defendants to the plaintiff, bearing date December 1,1849. The eviction complained of was under a comptroller’s deed, given pursuant to the statute, on a sale of a portion of the premises conveyed to the plaintiff as aforesaid, for unpaid taxes, to one Olcott, bearing date the 22d February, 1851.

The cause was tried before the court without a jury. The action was brought against the defendant to recover for work and labor done by the plaintiff and his servants for the American Printing Press Company, a corporation duly organized under the general law of .1848, regulating the incorporation of manufacturing companies, and located at Oneida depot in Madison county. The defendants were stockholders in said company.

THIS action was brought in a justice’s court, against the defendant, sheriff of Onondaga county, for not collecting an execution delivered to one of his deputies, issued on a judgment recovered by the plaintiff against one, Losee, as he might and ought to have done.

This action was brought by Norman S. Bentley and Charles W. Burton against William Goodwin, to recover $732.02, for merchandise sold and delivered. The defendant had confessed a judgment in this court to John Bellamy for $2,000, which was docketed in the office of the clerk of the city and county of New York, on the 15th of September, 1862.

This action was brought by Charles Butler, trustee, against Theodore E. Tomlinson, Peter A. Youngblood, and others, to foreclose a mortgage. It appeared on the motion below, from the decision upon which this appeal was taken, that the complaint and the notice of Us pendens were filed on the 23d of January, 1862, Peter A. Youngblood, who then owned the legal title of record, being mentioned in both as a defendant.

The plaintiff, as assignee of the limited partnership of Berkbecks & Hodges, sued the defendants to re-recover an amount due for steam'engine work. The plaintiff’s demand was twofold: 1st. For a balance due on a contract job, and some extras connected therewith, amounting to $2064.62. 2d. For an amount of a bill for alterations and' additions, made on changing the form or construction of a plan of two engines from being disconnected, into being connected. Amount $1283.35.

THIS is an action brought to recover possession of personal property, commenced July 8, 1858. The plaintiff, a resident of Kentucky, was the owner of ten barrels of whisky# which he consigned for sale, on his account, to the firm of Purdue & Ward, consisting of John Purdue and John S, Ward, commission merchants, Hew York.

The action was to recover damages for an injury done to the plaintiff’s horse and wagon, by means of a collision with one of the cars of the defendant in a street in the city of New York, alleged to have been caused by the negligence of the defendant’s agents. The answer was a general denial. The injury complained of resulted exclusively from the inattention of the car driver. His was the only negligence proved or suggested.

The opinion of the court details all the material facts. The referee reported in favor of the plaintiff for $150, besides costs.

THIS was an appeal, by Everett Clapp, individually, and as administrator de bonis non with the will annexed, of Simon Richardson, deceased, from a decree made by the surrogate of the county of Kings, on a final settlement of his accounts. The opinion of the court contains a statement of the material facts.