Volume 39 — New York Reports

<p>That the defendant held the fee by a tenure immediately of the State, as all our lands are held, was not inconsistent with his holding of Van Rensselaer under the conveyance in question.</p> <p>Where, before the commencement of the action, the plaintiff had made an executory contract of sale of the rents and cause of action for a price to be thereafter paid, reserving to himself the power to revoke the contract upon failure of the purchaser to pay as provided, but authorizing the purchaser in the mean time, and until such revocation, to collect and have the rents, held, that the plaintiff was the real party in interest within the meaning of section 111 of the Code; and that an absolute consummation of the sale made hy deed after the commencement of the action, did not relate hack to, and take effect from the time of the contract, so as to affect the plaintiff’s right to recover.</p>

These seven cases were submitted on the argument of the first, as being alike in their material facts and depending upon the same questions of law. The first mentioned action comes to this court on appeal from a judgment rendered for the plaintiff on the report of a referee, and affirmed by the Supreme Court in General Term in the third district.

On the 10th day of December, 1866, Freeman B. Bird and Freeman B. Bird, Jr., the attaching creditors in the above-entitled proceeding, filed specifications of lien against the steamboat Josephine, her tackle, &c., pursuant to the provisions of the Act of the Legislature of the State of New York, entitled “ An Act to provide for the Collection of Demands against Ships and Yessels,” passed April 24th, 1862 (Laws 1862, chap. 482), for supplies furnished by them at the city of…

This was an action to foreclose a mortgage given by tlie Defendant Adams to one Lampson, June 1st, 1857, for $4,000, payable in six months. The mortgage was in fact given only to secure future advances to be made, and liabilities to be incurred by Lampson, which never exceeded $3,000. They amounted to that sum on the 29th day of June, 1858, at which time Lampson declined to make any further advances, and was about to enforce his mortgage for those alréady made.

<p>Common Carrier. —Delivery. —Estoppel.</p> <p>In order to maintain an action against a common carrier for injuries to goods entrusted to him for transportation, it must be established that the property was actually delivered to him, by being placed in such a position that it might be taken care of by the carrrier or his agent having charge of the business, and under his immediate control. To show that such agent was notified, does not make out a valid acceptance and delivery. The place of delivery is important, and due care must be'used to leave the property where it is not exposed to danger.*</p> <p>It seems, that if a principal sanctions the performance of a duty by persons in his employment other than the one who is actually the agent having charge of that particular department, having thus held out- to the world that they are authorized agents, he cannot relieve himself from responsibility by repudiating their acts.</p>

<p>Indictment — dlptmts—Election—Evidence—Conversation with Deceaseds</p> <p>Where the indictment charging the prisoner with murder alleges, in several counts, different modes of committing the murder, the people are not put to an election upon which count they will proceed to try the prisoner, where the . several counts are inserted in good faith, for the purpose of meeting a single charge.</p> <p>• Conversation between witness and prisoner’s wife, held in a room adjoining the one where the prisoner was, although the door between the rooms be open, is inadmissible.</p>

This was an action to recover npon a policy of insurance. The most of the questions involved have been decided by this Court in the suits against the Excelsior and the Corn Exchange Companies. The only distinguishing point arises upon the tenth section of the conditions of the policy.

This was an action on a policy of insurance upon a stock of watches and jewelry in a retail store, issued to John Engleheart. The Plaintiff secured a verdict. The General Term affirmed .the judgment thereon, and the Defendants now appeal to this Court. The policy was dated April 18, 1860, and was issued by .Owen Gaffney & Co., as the agents of the Defendants.

<p>Measure of Damages— Warrantee — Breach—Natural Consequences.</p> <p>In an action for a breach of'warrantee that the article sold (as brick dust) is of a particular quality (free from soft-dust) and fit for the use for which it was purchased (the making of brick), the rule of damage includes all damage which is the natural consequence of such breach. Thus, if, by containing softest, the brick were injured or destroyed, their value would be included in the damage.</p>

The Plaintiffs were owners- of a paper manufactory, situate in Dutchess County, which they desired to have insured in the Defendants' Company. Jordan Phillips was the local agent of the Defendants, and issued the policy on which this suit is brought. The policy hears date of October 2, 1860, and was to continue for the period of one year.

<p>Contributory Negligence — Nonsuit—Question'for Jury.</p> <p>A traveler approaching a railroad track crossing the highway is bound to use his eyes and his ears so far as there is opportunity.</p> <p>Negligence in the railroad company in omitting to give proper signals of the approach of a train, will not excuse the traveler’s omission to use such means of avoiding collision. And where by such use of his senses the traveler might avoid collision, his omission to do so is concurring negligence, and should be so declared by the Court; where proof of this is clear the Plaintiff (alleging injury by collision with the train) should be nonsuited.</p> <p>But where it is doubtful, under all the proofs, whether the traveler did or did not look up. and down the track, and in other respects use ordinary care and prudence, so that honest and intelligent men may reasonably differ in their conclusions, the question whether the Plaintiff was negligent should be left to the jury.</p> <p>It cannot be said that it is the duty of a railroad company to place a flagman or display a flag at a street-crossing to notify travelers or foot passengers of the approach of trains. Doing so may enable the trains to be properly run at greater speed, and with less caution on the part of those who conduct the train, but it is not a duty.</p> <p>But the voluntary and uniform practice of the company to display such flag at a particular crossing, generally known to persons using the street, may render its omission a culpable neglect, unless increased vigilance and care in the management of the train, or other precautions, furnished equivalent assurance of safety.</p>

This action was brought to declare and enforce a resulting trust, in favor of the Plaintiff, as the judgment-creditor of the Defendant, Joseph A. Bliss, against certain real estate in the hands of the Defendant Pinner. On the seventeenth of November. 1859, the Plaintiff recovered a judgment, in the Supreme Court, against Joseph A. Bliss, Defendant, and his copartners (comprising the firm of Bliss, Owen & Go.), on a note of the firm dated February 1st, 1858, for $909.49.

<p>Corporations — Taxation— Statute— Capital — Real Estate— Certiorari.</p> <p>.As against corporations, the rule of taxation is just when based upon the amount of capital paid in, or secured to be paid in, after deducting therefrom the amount of such capital actually paid for real estate, assessing the remaining capital at its actual value, and leaving the real estate to be assessed upon individuals in the town or ward where situated.</p> <p>The mains, or under-ground pipes of a gas company, under the streets of a city, cannot be regarded as real estate, under the statute, for the purpose of taxation.</p> <p>The office of the writ of certiorari, sued out of the Supreme Court to review the proceedings and determinations of inferior tribunals, extends to the review of all questions of jurisdiction, power, and authority of the inferior tribunals to do the act complained of; and to all questions of regularity in the proceedings.</p> <p>The judgment of the Supreme Court upon these questions of regularity, jurisdiction, etc., is reviewable in this Court.</p>

The action was brought to recover on a policy of insurance issued by the defendant to the plaintiffs, for two thousand dollars. The defendant alleges in the answer, that certain representations were made by the plaintiffs, to induce the defendant to enter into the contract, which were false, whereby the risk was increased, and the policy thereby avoided.

On the 16th of January, 1861, the Defendant and Theodore Hinneman made a -written contract, by which the latter agreed to build a house for the Defendant, which said contract was in the words and figures following: “ This' agreement, made and entered into this 21st day of January, 1861, by and between Samuel Rosenback, of the city of Syracuse, county of Onondaga, and State of New Torlc, of the first part, and Theodore Hinneman, of the above-named city, county,, and State, of…

The Defendant Hamilton instituted summary proceedings under the statute, before Thomas Stewart, Esq., a Justice of the District Court for the First Judicial District in the city of Hew York, on the 12th day of May, 1862, to remove the Eelators, as tenants, holding over after their lease had expired, of certain premises in the city of Hew York. The Eelators appeared, and an issue of fact was joined by the affidavits interposed and filed by the Eelators.

<p>Donatio Mortis Cama — Sufficiency of Execution — Mental Capacity — Evidence.</p> <p>The Defendant held in her possession certain moneys of her sister — the Plaintiff’s intestate — for which she had delivered the following receipt:—</p> <p>“Beceived, Brooklyn', May 21st, 1863, from J. Hegeman, twenty-eight hundred and three dollars and fifty cents. Also, June 1st, five hundred dollars from A. S. Poster, both of which sums are on account of, and belonging to, Mrs. Mary Champney, and are to be disposed of in any manner she may direct, or paid to her individually, together with whatsoever interest I may obtain for their use.</p> <p>“ P. Blanchaed.”</p> <p>The intestate in the morniiig of the day of her decease, in contemplation of death, delivered the receipt to the Defendant, declaring that she gave it to her, mentioning the amount, and saying that she gave that money to her. The Defendant received and retained the receipt.</p> <p>In an action by the administrator of the intestate, Held, that this was a valid gift mortis causa.</p> <p>A general objection made, when a deposition is offered in evidence, “ to all such parts thereof as involve the opinion of the witness on the mental capacity of the deceased” raises no question for review on appeal. The objection should have been to specific answers. The Court cannot be called upon to scrutinize the various answers, to discover whether there ai-e any to which such an objection would apply, and the Appellant’s exception in such case is unavailing.</p>

Stoddard to the plaintiff. The respondent, Northrup, is a subsequent grantee of the mortgaged premises, and the defense interposed by him is payment.

Appeal by the plaintiff from judgment of the Supreme Court in General Term for the sixth district, affirming judgment on verdict. f The action is brought for the breach of an agreement under seal, made, January 20, 1855, by the defendant, to let to the plaintiff a certain farm, called the Gray farm, in Guilford, Chenango county, containing 186 acres, for three years, commencing the 1st of April then next, on the following terms; Each party to furnish one-half of all…

The action is brought to recover the possession of certain land in the town of .Halcott, in the county of Greene, being lot No. 16, in lot… Held: in which there was reserved to Stephenson and his wife, during their joint lives, and then to the said Jane and her heirs- and assigns, on the first day of May, annually, thereafter, the yearly rent of $13.50, “provided, always, and these presents are on these conditions, that if the said yearly rent, or any part of it, shall be…

S. Jackson, and establishing it as a will of real and personal estate. The testator for some twelve years prior to his decease, and at the time of his death, resided in New Jersey, where he died. On the morning of the day on which he died, he sent for Mr. Miller, a justice of the peace, residing in the neighbor liood, and instructed him to prepare his will; and the instrument established as his will was then prepared and executed.

. The action was brought, on the 4th of October, 1860, by the plaintiff, a creditor of the defendant Elbridge G. Phelps, by judgment recovered on the 14th of June, 1860, for moneys paid as his surety upon notes dated in March and April, 1855, and given by Phelps for money then borrowed.

This is an appeal from an order of the Supreme Court for the appointment of commissioners to appraise the Appellants’ damages to lands flooded by the erection of a dam to form a reservoir in Greenwood Lake, in Orange county, to feed the Respondents’ canal; and -from an order confirming the appraisement made by the said commissioners.

<p>Promissory Note — Endorser—Specified Residence — Protest—Notice.</p> <p>When tlie endorser of a promissory note, made and payable in the city of New York, at the time of such endorsement, adds to his name a designation of his residence (e. g., 214 E. 18th st.) where he continues to reside, notice of protest of the note, if deposited in the post-office, must, in order to charge him, be addressed to him at that place ; otherwise, if he do not receive the notice, he will not be liable as endorser.</p> <p>An endorser has the right to designate the place to which notice of protest shall be sent, and such direction must be observed, or he will not, if he do not receive notice, be charged.</p> <p>The statute of 1857, which in certain cases authorizes the service of notice of "protest on the endorser, by depositing it in the post-office of the city,or town in which he resides, “directed to him at such city or town,” was not intended to abridge the right of the endorser to make such designation of a place within such city or town to which notice might be addressed, and his designation must be observed.</p>

<p>Assignment for benefit of Creditors — Acimoivledgment—Construction of Statute of 1860.</p> <p>An assignment of real or personal property for the benefit of creditors must be in writing, and be acknowledged before delivery, in the presence of some officer authorized to take the acknowledgment of deeds, or it will be inoperative to vest the title in the assignee.</p> <p>A statute prescribing the mode of making and executing conveyances of property to make them operative, may be altogether affirmative in its requirements, and yet by implication be strongly negative.</p>

<p>When an active trust for the care and management, conveyance and appropriation of personal property has been created, and the instrument creating the trust makes no provision for the compensation of the trustees, they, prima facie, are entitled to the same commissions as are, by statute, allowed to administrators and executors.</p> <p>The above rule should, in general, be regarded as just, and, therefore, be adopted, unless there are other controlling reasons which forbid such an allowance.</p> <p>But when the trustees thus appointed were of the directors of the company whose property was made the subject of the trust, and, as directors, were themselves trustees before such appointment, they come within the rule which forbids a trustee to administer the trust for his own private benefit.</p> <p>It is not competent for the directors of the Accessory Transit company to create a trust in the property of the company committed to their management, and constitute a part of their number trustees of the new trust, to consider and determine its management and sale, and thereby to create a claim to compensation in their own favor for the performance of such duties.</p>

This action was bronglit by the Plaintiff to recover damages for the alleged breach by the Defendant of a contract in writing, dated April 20th, 1854, by which, as modified by another written agreement, dated February 10th, 1855, the Plaintiff agreed to sell and deliver to the Defendant one thousand tons of ground bark per year, well packed in sacks furnished by the Defendant, to be delivered in Newark, New Jersey, at the price of twelve dollars and fifty cents per ton,…

<p>Draft — Promise to accept — Authority.</p> <p>An agreement by telegram to accept a draft to be drawn upon the party sending the despatch, by the party named therein, is equivalent to an acceptance of such draft.</p> <p>Authority to draw at twenty days’ sight is not an authority to draw at ¡twenty days from date.</p> <p>But a failure to make the right form of the draft does not preclude the party from making a second draft, so as to comply literally with the authority to draw.</p>

This is an appeal to tbis Court from an order of tbe Supreme Court, at General Term, reversing tbe judgment for tbe Defend-. ant, and ordering a new trial; tbe Defendant giving tbe usual stipulation on such appeal. The action was upon a promissory note made by Clark, tbe Defendant, for $2,673.31, dated October 16, 1855, payable one year after date, to the order of E. B. Litchfield.

This was an action brought to recover damages alleged to Lave been sustained from an injury received by the Plaintiff while riding as a passenger on the Defendant’s cars. , The case shows that the Plaintiff purchased of Defendant a passenger ticket from New York to Albany. That he rode upon a passenger train as far as Hillsdale, where he got off and remained from Saturday until Monday morning.

<p>Pleading — Demurrer—Alien Enemy — Rebellion.</p> <p>The same reasons making it improper for an alien enemy to be capable of maintaining actions in our Courts, apply to any other kind of enemy adhering to an organized force which is prosecuting a war against the Government.</p> <p>A citizen of the United States adhering to the forces of the rebels in their war upon the United States, is under the disabilities of an alien enemy.</p>

On the 21st of October, 1856, A. E. De Luze, a produce broker, sold for the Plaintiffs to Theodore Perry, through his broker, J. W. Spencer, 3,921 bushels Western Red Wheat, then on canal-boat D. Hibbard, and also 3,500 bushels of similar wheat, then on canal-boat Ural, at $1.54 per 60 pounds, to be delivered to vessel in good shipping condition, quality as per sample, cash.

At a Court of Oyer and Terminer for the county of St. Lawrence, tbe Plaintiff in Error was indicted, tried, found guilty, and sentenced to… Held: him, the said Thomas Hand, alias Thomas Jackson, in and upon the head of him, the said Thomas Hand, alias Thomas Jackson, then and there wilfully, deliberately, premeditately, feloniously, and of his malice aforethought, did beat, strike, stab, cut, and wound, giving unto the said Thomas Hand, alias Thomas Jackson, then and there,…

This was an appeal from the judgment of the General Term, affirming the judgment entered in favor of the Plaintiff upon trial at the Erie Circuit.

■The action is brought to recover the - price of fifteen head of cattle, alleged to have been sold and delivered by the Plaintiff to the Defendant, on the 29th of August, 186 It The answer put in issue every material allegation in the complaint, and alleged that at the time of the alleged sale the Plaintiff was to feed, pasture, and take good care of the cattle, and deliver them to the Defendant on or before the first of December, 1861, and that he did not take such care,…

The Plaintiffs are judgment creditors of James Arnold, hy judgment docketed February 21, 1856, and, after the return of execution nulla bona, filed their complaint herein against the said James Arnold, and the Appellant, with others, alleging (so far as is material to this appeal) that, on or about the 20th February, 1855, the said James Arnold conveyed a certain farm, therein described, to the Appellant, Hankerson, for the nominal consideration of $9,000, but that in fact…

<p>Bill of Exchange—Liability of Bank—Failure to Protest—Title to Bill— Collateral Securities.</p> <p>When a bank, having a draft for collection, neglects to protest the same, it not being paid at maturit}1", whereby the drawer is released from liability thereon, such bank is liable to all damage sustained by reason of such neglect.</p> <p>And such bank being so liable, paying said draft or a judgment recovered thereon, is vested with the legal title to the same, and may maintain an actio n thereon against the acceptor of the draft.</p>

This is an action of ejectment brought in the Superior Court, New York, to recover possession of a lot of land on Forty-sixth street, New York. Action commenced 22d June, 1861. Answer, a general denial. On the trial before the. Court and a jury, 26th February, 1863, a verdict was ordered for the Defendant, subject to the opinion of the Court at General Term. The General Term ordered judgment for the Defendant, and made a statement of facts.

<p> New Trial—Power of Judge at trial to entertain motion for—Insufficient evidence. </p> <p>Where, on the trial of an action upon a promissory note, to which the defence is infancy, the Defendant by clear and uncontradicted evidence establishes the defence, but the jury disregard the evidence and find for the Plaintiff, the Judge may entertain and grant a motion upon his minutes to set aside the verdict and order a new trial.</p> <p>The fact that, but for such proof, the Plaintiff who produced the note and read it in evidence would have been entitled to the verdict, did not deprive the Judge of jurisdiction and power to make such order.</p> <p>Whether such power exists independently of the Code of Procedure, or is to be derived from that section of the Code (264), which authorizes a Judge “to set aside a verdict and grant a new trial for insufficient evidence,” it exists and was, in the case stated, properly exercised.</p>

This was an action for specific performance of a paroi contract to convey land, alleged to have been made by one Job Card, deceased, in his lifetime, with the Plaintiff. The Defendants are the heirs-at-law, personal representatives, and judgment creditors of the deceased. The cause was tried before the Hon. D. Pratt, as Referee. On the trial, on the 25th day of April, 1860, the Plaintiff was offered as a witness generally in his own behalf, and was excluded.

The complaint herein avers the making of six promissory notes by the Defendants, for $2,000 each, of various dates, payable three months after date, to the order of two of the Defendants, and by them endorsed to the Plaintiff.

<p> Naturalization—Retroactive Operation—Construction of Statutes. </p> <p>Naturalization, by virtue of the laws of the United States, has no retroactive operation to vest or confirm in the subject the title to lands which, by reason of his alienage, he could not inherit at the time of the death of the ancestor.</p> <p>O. H. died May 2, 1848, seized of lands in this State. The Plaintiffs, who proved such relationship to the deceased as would entitle them to inherit, if not disqualified, were then in this country. One had declared his intention to become a citizen. After the death of 0. H. both were naturalized. In an action of ejectment to recover possession of such lands, Held, that upon the foregoing facts they were not entitled to recover, and were properly nonsuited.</p> <p>The statute passed April 10, 1843, section 1, authorizing a naturalized citizen, to whom lands would have descended if he had been a citizen at the time of the death of the person last seized, to continue to hold the same in like manner as if he had been a citizen at the time of such descent cast, applied only to those who were then naturalized citizens.</p>

This is an appeal from a judgment of the Superior Court of the city of New York. The trial was had on the 5th day of March, 1861, in the city of New York. The plaintiffs proved, that, on the 12th day of May, 1855, they recovered a judgment in the' Supreme Court of the State of New York, against the defendants for $224.19. They proved permission of the court, to bring an action upon the judgment, also the interest due and rated.

<p> Findings of fact—Jurisdiction. </p>

<p> Husband and wife—Liability for necessaries—Prohibition. </p> <p>A husband is bound to provide for his wife and children whatever is necessary for their suitable clothing and maintenance, according to his and their situation and condition in life. Ordinarily, he will be presumed to assent to her making upon his credit such purchases as, in the conduct of the domestic concerns, are proper for her management and supervision.</p> <p>But if he sees fit to destroy such presumption by an express prohibition, no one having notice thereof may trust the wife in reliance upon his credit, unless the husband so neglects his duty that supplies become necessary.</p> <p>In such case, the party seeking to recover, in the face of such prohibition, takes the burden of proving the neglect of the husband to supply such necessaries. And to that end, it is not enough to show that the goods sold were in their nature suitable and necessary, and that they came to the use of the family, or even that in part they came to the use of the husband himself, unless there be also evidence that the husband knew that they were purchased upon credit. A fortiori, it is error to reject evidence tending to show that the husband, after such prohibition, furnished his wife with money and means for her support, and that of the family.</p>

' Court Street is one of the principal thoroughfares leading into the village of Watertown, from the country to the public square and business centre of the town. The Defendant’s road crosses the street at right angles, near the bridge across the Black River. There are two depots in the village; one in the neighborhood of half a mile above the crossing in the rear of the Woodruff House, and the other about the same distance below. They are known as the upper and lower depots.

Action to recover damages for the taking and conversion of personal property consisting of a quantity of dry goods. The goods in question were, in May, 1860, the property of Eichols, who, on the twenty-first of that month, jnade an assignment thereof to the brother of the Plaintiff, in trust for his creditors, giving preferences. The assignment was acknowledged and the certificate thereof endorsed before delivery, as required by the act of 1860.

<p>Agreement to submit to arbitration■—Bar— Complaint— Common counts.</p> <p>An agreement in a written contract for building, that, in case any question arose under the contract between the parties in relation to the value of the work performed, it should be referred to and determined by the architect, is not such an one as will change the rights of the parties to apply to Courts of Justice for redress.</p> <p>Such stipulations are regarded as against the policy of the Common Law, as having a tendency to exclude the jurisdiction of the Courts established, etc., and provided with the means to entertain and decide legal controversies.</p> <p>When the contract has been fully performed, and nothing remains to be done but to pay over the money, an action on the common counts can be maintained.</p>

Action to recover damages for an alleged illegal arrest and imprisonment of the Plaintiff by the Defendants, and compelling her to submit to be searched for the discovery of a dress, claimed to have been stolen by the Plaintiff from the Defendants, and concealed upon her person. The answer in substance denied the complaint.

<p> Tax Sale—Certificate—Cloud on title—Equitable relief, </p> <p>A certificate stating that a majority of those interested in all the different and several kinds of work to be done have petitioned, is not a compliance with the requirement that a majority of those interested in paving and grading should petition.</p> <p>When a certificate of a tax sale is presumptive evidence of the facts therein contained, and is evidence in the Defendant’s possession of a legal assessment and valid sale, such certificate is a cloud upon the title of one holding adversely thereto, and equity will interpose to give relief.</p>

This is an action brought by the supervisor of the town of Lansingburgh, in the county of Rensselaer, against Henry S. Tracy, collector of said town, and Jonathan E. Whipple and Isaac T. Grant, the sureties of said collector on his official bond. The action was originally brought by James I. Adams, as supervisor of said town, and the Appellant, as successor of Adams in that office, is substituted as Plaintiff.

This was an action for injury to the Plaintiff by the horse of the Defendant. The Plaintiff, a child of ten years, was passing the stable of the Defendant, upon the sidewalk of a populous street in the city of Troy, when the Defendant’s horse came out of the stable, going loose and unattended, and, in passing, kicked the Plaintiff in the face.

Tjtts is an appeal from a judgment of the General Term of the Supreme Court of the Seventh District, perpetually enjoining the Defendant from laying its track (a horse-railroad track) in East Avenue, a public street of the city of Rochester, opposite the premises of the Plaintiff) or doing anything in relation thereto. The facts of the case are as follows: The Defendant was organized under and by virtue of the general railroad act, on the 20th day of May, 1862.

The complaint alleged that, pursuant to the Constitution of the State of Hew York, and an act of the Legislature passed in March, 1867, a lawful election was held throughout the State on the 23d day of April, 1867, for the purpose of choosing delegates to meet in convention at the Capitol on the first Tuesday of June, 1867, to revise the Constitution of the State, and to amend the same.

This is an appeal from a judgment of the General Term of the Third Judicial District, affirming a judgment in favor of the Plaintiff against the Defendant for the sum of $4,728.79, entered upon the 31st day of March, 1863. The Defendant demurred to the complaint, on the ground of insufficiency. This demurrer was overruled at Special Term, and leave given to answer within twenty days, on serving affidavit of merits. The Defendant appealed from this order to the General Term.

The action was brought to recover damages alleged to have been sustained by the Plaintiff by reason of a sale by the Defendant of a set of diamond earrings and a diamond pin, which had been mortgaged to the Plaintiff by Charles Ashby and Eugenia his wife, on the 25th of August, 1859, to secure the payment of six hundred dollars, due to him from the said Challes Ashby.

Joseph Osgood, plaintiff in error, was indicted in the iCourt of Sessions of Niagara county, for unlawfully selling strong and spirituous liquors and wines, etc., oil his premises, situate in the town of Lockport, in said county, without license, on the 26th day of March, 1864. The indictment contained five counts. Two counts charged the sale, omitting the allegation, that the liquor was sold to be drank upon the premises.

The plaintiff was convicted at a Court of Sessions in Niagara county of permitting his office to be used for gambling. Various exceptions to the ruling of the court were taken upon, trial; judgment was suspended, and the proceedings were removed into the Supreme Court by certiorari. The conviction was by that court affirmed, and the Court of Sessions directed to proceed to judgment.

<p>The plaintiff in error was tried at the April Term of the Court of General Sessions, 1868, upon an indictment for larceny from the person, or for what is more familiarly known as picking pockets. The evidence, as developed on the trial, showed that Andrew Hafner, residing at No. 341 Seventh avenue, in the city of New York, upon the afternoon of the 20th February, 1868, while walking in the Bowery about two o’clock, met John Wilson, a person whom he had known for a year or two. At the time of meeting Wilson, Hafner had on his person a gold watch, worth eighty dollars, and twenty-five dollars in money. Wilson told Hafner that he had no money, whereupon Hafner loaned him a couple of dollars, and gave him something to eat, after which they spent the aiternoon together, drinking at various places. Toward evening, Hafner, the complainant, got very drunk; about seven o’clock in the evening, Wilson, in company with Hafner, came to the cigar store of lowenthal & Bro., No. 37J Bleecker street; there were in the store at the time the two Lowenthals and two other persons, all of whom were strangers to Hafner and Wilson. Hafner fell down in front of the store door, whereupon Wilson came into the store and inquired who the boss was; upon being informed by Mr. Lowenthal that he was, Wilson asked permission to bring Hafner into the store, and let him sit on a chair for half an hour; the favor was granted; Wilson then brought Hafner into the store. Hafner was drunk, while Wilson appeared to be sober; after being in the store about ten or fifteen minutes, Wilson stated that he was a friend of Hafner’s, that Hafner lived in Seventh avenue, and kept a boarding-house, and that a couple of fellows had followed him from Houston street, and wanted to pick his pockets, and that he was going to take his (Hafner’s) money. Wilson then took Hafner’s watch and money out of his (Hafner’s) vest pocket, and showed it to all of us, and said, “ Gentlemen, 'I want you to be witnesses that I did not take more than twenty-two dollars and this gold watch. This man might get sober and he might blame me that I took more.” At the time Wilson took the watch and money and said this, there were two persons beside Mr. Lowenthal and his' brother present in the store. After taking Hafner’s property, Wilson said he would like to go home; Lowenthal, thinking it best they should take a carraiage, went and got one; Hafner and Wilson then got into it and rode off; about ten minutes afterward the carriage returned to the store with Hafner alone, Wilson having left him. The Lowenthals, in consequence of the intoxicated condition of Hafner, took and left him at the ninth police station. Upon Hafner’s coming to his senses, he discovered the loss of his property; when he'was told by the Lowenthals, that Wilson took it from him while he was in their cigar store. About a week afterward, Hafner saw Wilson, and charged him with taking his property, when he (Wilson) denied it. Hafner then caused the arrest of Wilson, who was identified by the Lowenthals as the man who took the watch and money. Hafner never recovered his property. In charging the jury, the court said:</p> <p>“ As matter of law, I charge you, it is not necessary, in order to find a verdict of guilty, that the felonious intent existed at the time of taking the watch and money, but it will be sufficient, if such intent existed at the time, that the prisoner actually converted the same to his own use.”</p>

<p>A. will destroyed in the life-time of the testator hy the testator himself, acting under the undue influence of his son, may be admitted to probate, on establishing facts showing the existence and due execution of the will, and its destruction by reason of such undue influence.</p> <p>A deed of the same premises by the testator to his son, which was devised by his will to the wife, may likewise be set aside, on proving that it was executed under the undue influence of the son, who also procured the destruction of the will.</p> <p>The testator himself, while under undue influence, may be made the instrument of improperly destroying his own will.</p>

This is an action to recover damages, arising from a personal injury, which resulted in the death of one of the defendant’s employees. Held: that there was only one question in the case to be submitted to the jury, and that was, whether the board of directors themselves, as representing the defendant, and as distinguished from the employees, were guilty of negligence in not discovering the fact that the bridge was in an unsafe condition.

Action to foreclose a mortgage executed by the defendants to one Fisk, and by him assigned to the plaintiff’s testator. In April, 1857, the defendants purchased of Fisk certain real t state in Booneville, Oneida county, consisting in part of a wagon shop and premises, and executed to him a bond and mortgage for the whole of the purchase money, amounting to §7,750. The mortgage covered the whole of the premises purchased.

The relator was a member of the police force of the metropolitan police district, and patrolman of the ninth precinct, and it appeared by the return, that, on the 19th of January, 1863, a charge of neglect of duty was preferred against him, file specification of which was, absence from duty, and from the station-house of the ninth precinct, from October 26, 1861, to the 8th day of January, 1863, — a period of 439 days.