Volume 4 — Keyes's New York Court of Appeals Reports

Appeals from judgment of the Supreme Court in General Term of the eighth district, adjudging the instrument propounded by the appellant as a will of Sarah L. Marvin, deceased, invalid and of no effect, and requiring the surrogate of Erie county to annul the record and probate thereof; also, from an order affirming the denial of the appellant’s motion for a new trial of the issue awarded to try the questions of fact touching the due and valid execution of the alleged will;…

This suit was brought to enforce the specific performance of -a contract to purchase real estate. On the 18th day of September, 1865, the plaintiffs entered into into an agreement in writing with the defendant, whereby they agreed to convey to him, for the sum of $11,000, a certain hotel premises, at Tivoli, in the town of Reclhook, Dutchess county.

I. The justice and legality of the order, directing the payment of the judgment, could not he inquired into before the county judge, and is not open for discussion here. 1. Held: that such contempt, and the processes thereon, being properly the civil remedy of individuals for a private injury, are not released or affected by a general act of pardon.” 6. The relator, being a female, is not liable to arrest and imprisonment in any action founded on a contract.

The appellants rented from the respondents certain premises in Eighth street, New York, being portion of well known premises.called the Neptune iron works, for a term of three months from the 1st September, 1866.

I. The chief and principal error committed by the referee, and affirmed by the court below, arose from this suit being regarded by them as a statutory proceeding at law in behalf of the creditors,… Held: unanimously, that the suit was properly brought in equity, and that the complaint' was not, therefore, within the objection urged; nor, for that reason, within the other objections of misjoinder of parties and causes of action. Osgood v. Laytin, 3 Transcript Appeals, 124. 2.

This was an action of replevin to recover the possession of a quantity of marble. The jury found for the defendants. The plaintiff appealed to the General Term of the Superior Court of the city of New York, where a new trial was ordered. From this order the defendants appeal, and stipulate that if the said order be affirmed by this court, judgment absolute shall be rendered against the said appellants.

The action was brought upon the official bond given by Stryker, as sheriff of the county of Kings, and the other defendants, as his sureties, in the manner and form required by statute, for the collection of the deficiency of a judgment recovered by the relators against Stryker, as bail of one Harriman; Stryker having become liable as such by reason of his (Stryker) and Harriman’s failure to justify bail, after notice of exception to the sureties upon the undertaking taken…

The action herein was brought to recover damages for an alleged breach of the defendants’ contract, to carry certain goods of the plaintiffs from Rochester to the… Held: that the receipts are the contract of the parties. That the words “ owner’s risk” formed part of the contract and operated to limit the defendant’s obligation or liability. But that this limitation did not extend to the negligence of the servants of the defendants which occasioned the injury to the goods.

1. The question is, whether in an equity action where all interested in the subject-matter of the action must be brought in, and defendants are thus made actors in the action, execution of a judgment which distributes a fund among several persons, cannot be stayed by the aggrieved party giving the undertaking on appeal required by law. 2.

<p>This action was brought by the plaintiff to recover damages of the defendant for killing one of the plaintiff’s cows and injuring others, by running over them with one bf their engines while upon the track of their road. The plaintiff proved that he owned a farm in the town of Preble, Cortland county, IT. Y., and occupied the same during the year I860, and that the defendants’ railroad passes through and over the said farm a distance of one to three-fourths of a mile north and south. That on the 5th day of July, 1860, while his cows were upon and along the railroad, where the said railroad crosses the plaintiff’s farm, the defendants’ engine and cars, by and with which the defendants were then operating their said railroad, ran against them, killing one and badly injuring three others; that the damage to the cows was from $90 to $100. The plaintiff also proved, that at the time of the injury there was no fence on the east side of the said railroad for a distance of forty rods, between the. plaintiff’s farm and the railroad; that in many other places along the sides of the defendants’ railroad, where the same crosses the plaintiff’s farm, the fence was defective, so that cattle could. easily pass through and go upon the said railroad. The plaintiff also gave evidence tending to show, that the cows must have come upon the railroad where there was no fence at all along the sides of the railroad, or through the defective fence adjoining the samé. The defendants moved to nonsuit the plaintiff, on the ground that he had not proved a cause of action against the defendants; that the plaintiff is not entitled to recover as the proof now stands; that there is no statute or law in this State regulating or fixing the height and strength of division fences, dnd, therefore, the plaintiff is not entitled to recover damages for .the injuries done to his cattle while straying upon the defendants’ railroad, there being no proof of negligence other than that there was no fence on the side of their road; that the defendants were not bound to erect and maintain the whole of the fence on the sides of their road through plaintiff’s farm; that there is no proof that the injury complained of was occasioned or caused by the carelessness of defendants; and that proof, that they did not erect and maintain fences on the sides of their railroad through the plaintiff’s farm, is not sufficient to entitle the plaintiff to recover for the injury done to his cattle while upon the defendants’ railroad. The court refused to nonsuit the plaintiff, to which refusal the defendants excepted. The defendants then gave evidence tending to prove that the cows came upon the railroad through the open gate at the plaintiff’s farm crossing, and that they so came upon the track, and the one cow was killed and the others injured, without any fault or negligence on the part of the defendants, and rested their case.</p> <p>The plaintiff then gave evidence tending to prove that the gate at the farm crossing was closed, before and at the time of the injury, and that, therefore, the cows could not have come upon the track at that place.</p> <p>The court charged the jury, “that, if they should find that the cows were injured in consequence of the gate at the plaintiff’s farm crossing being left open, whereby they came upon the track, it not appearing by whom it was left open, it could not be attributed to the negligence of the defendants, and their verdict should be for the defendants.”</p> <p>The court further charged the jury, that if they should find that the plaintiff’s cows came upon the railroad, and were injured in consequence of the defendants’ neglect to erect and maintain fences on the sides of their road, of the height and strength of a division fence required by law, the plaintiff would be entitled to their verdict for the amount of injuries sustained; to which charge the defendants excepted. The jury found a verdict for the plaintiff for $99.50, damages, and, a judgment being entered for the plaintiff, the defendants appealed to the General Term, where the same was affirmed, and the defendants appealed to this court.</p>

<p>JURISDICTION OF SURROGATE UPON FINAL ACCOUNTING. CONSTRUCTION OF STATUTES. Administrators, etc. Arbitration. What constitutes a disputed CLAD! AGAINST AN ESTATE. STATUTE OF LIMITATIONS. NOTICE. PRACTICE. Appeal.</p> <p>The surrogate of a county has no jurisdiction to hear and determine the validity and amount of a disputed demand against an estate, upon a final accounting of an executor or administrator.</p> <p>The provision of the Revised Statutes (3 R. S. 181, § 72, 5th ed.), giving to the final decree of a surrogate, upon the final settlement of an account, etc., the same force and effect as the decree or judgment of any other court of competent jurisdiction, applies only to a decree and judgment made according to law, and within the jurisdiction of the surrogate, and not to a decree or judgment where .that officer has plainly exceeded his authority.</p> <p>It would seem, from the facts in this case, and the determination of the court thereon, that, where a claim is presented to the administrator, and the same is not allowed, hut its validity is questioned by him, and, upon the final accounting before the surrogate, the claim is presented before that officer, with evidence in its support, and its allowance is opposed by the administrator, it cannot be held to be a liquidated and undisputed demand against the estate, but becomes a disputed claim within the meaning of the statute in reference thereto.</p> <p>A claim against an estate does not become a liquidated and undisputed claim, by virtue of the neglect of the administrator to refer the same as authorized by the statute (2 R. S. 88, § 36); nor can the administrator or executor of an estate be permitted to assume or to occupy the equivocal position of neither admitting nor rejecting a claim, so as to give the surrogate jurisdiction of it, under section seventy-one, of 2 Revised Statutes, page 96. In other words, it would seem, that a claim is rejected or disputed by not being allowed.</p> <p>Where a claim, not allowed by the administrator, is presented to the surrogate upon [the final accounting, before whom the administrator and all the parties in interest duly appear and consent to, and take part in, the proceedings submitting the matter to his adjudication, such proceedings cannot be upheld upon the [ground that it was an arbitration, binding upon the parties present and participating in it; for, being invalid as to the administrator, who has no power to arbitrate, it could not be obligatory upon the others; it is simply the proceeding of a court acting beyond . its jurisdiction, assuming unauthorized powers, and making a judicial determination void and nugatory upon its face.</p> <p>The limitation of actions upon disputed or rejected claims against the estate of a deceased party, prescribed by section thirty-eight (2 R. S. 89), is applicable only to cases where the presentation and rejection of the claim occurs after the publication of the notice requiring creditors to present their claims against the estate. (Whitmore v. Foose, 1 Denio, 159.)</p> <p>Where the application of a creditor, to have the real estate of an intestate sold for the payment of his debts, is opposed upon the ground, that certain proceeds of the personal estate have been improperly applied by the representatives to satisfy claims against the real property of such intestate, without objection from the creditor, or any appeal on his part from the decree allowing such improper payment, the fact of such improper application of the personal estate must be made clearly to appear from the proceedings; and the rejection of the creditor’s application by the surrogate, upon the ground stated, or upon the ground that there is a sufficiency of the personal estate, if properly applied, to pay the debts, should also be made affirmatively to appear, in order to bring the point properly before this court on appeal.</p>

<p>This is an action of trespass, first brought in justice’s court, and title pleaded, and thence brought in this court, duly-referred to Kobert Parker, Esq., who reported for defendant on the ground defendant had a right of way by necessity. The General Term affirmed the judgment.</p> <p>The facts proved, which are not disputed, are, that plaintiff owns and occupies two lots of land in Hamden, Delaware county, one containing fifty-five acres, and the other fifty acres, lying adjoining each other, both lying on the public highway. Plaintiff bought the fifty-five acre lot of H. D. Gould, now deceased, by contract, in 1844, and obtained' a deed thereof in pursuance of said contract, in 1858. Plaintiff bought the fifty acre lot of J. E. Allaben in 1861. There was no road over either of said lots in 1844, when plaintiff bought the fifty-five acre lot. There was no reservation of a road in the contract of 1844, or in the deed subsequently made: Defendant’s lot, which lies in the rear of plaintiff’s land, was then wild and unoccupied, H. D. Gould having, at the time he sold the fifty-five acre lot to plaintiff, a lot of wild unoccupied land in the rear of plaintiff’s land, and in 1846 sold to one Benton, which lot passed from hand to hand until it came to defendant’s possession.</p> <p>In 1847 there was an attempt made to lay out a public highway through these two lots, now belonging to the plaintiff and through defendant’s lot, but the proceedings not being regular, the whole are held void by the referee, and have no legal effect. In 1853 there was also an attempt made by H. D. Gould to get a private road laid through these two lots to defendant’s lot, and they got a release of the Yan Alstines, who then occupied the plaintiff’s fifty acre lot. It was also drawn up for plaintiff to sign, so as to cover his fifty-five acre lot. But he refused to sign it, and his name is not to it. The release expresses a consideration paid by defendant or some one before her; the proof shows that Gould paid $15 for it.</p> <p>Notwithstanding the proceedings to lay out a public highway through these three lots are void, and defendant’s predecessors failed to get a release from plaintiff through the fifty-five acre lot, yet defendant travels across plaintiff’s two lots to plaintiff’s damage, and for that this action is brought.</p> <p>The referee reports in favor of defendant.</p> <p>I. The referee erred in finding that defendant had a right of way across plaintiff’s lands from necessity, and deciding that plaintiff could not recover because defendant had a right of way from necessity across this land, for the reason there is no such defense set up in defendant’s answer.</p> <p>II. The evidence of the release signed by the Van Alstines, the evidence of the bargain and amount paid by Gould to the Van Alstines for such release, and the attempt to get a public and also a private road laid out through there, and the failure to set up any such defense in the answer when defendant is sued for it, repels the presumption that there was any such right by necessity.</p> <p>The parties never contemplated any such right reserved — never supposed or believed there was any such right reserved — never claimed it as a right, regarded it as a right, or treated it as a right, and it never was a right.</p> <p>It was never thought of by any one until the counsel prepared his brief for the argument when the case was in the’ General Term. At the time of the deed it was a wild lot and no road was necessary—no road was used and no road reserved in the deed.</p> <p>III. The defendant holds under H. D. Gould. She has his title and takes the rights and interests he had in her lot and no greater, other or different. Two years before Gould conveyed defendant’s lot, which was wild land, he conveyed to plaintiff his fifty-five acre lot, and at the same time he had and retained in his possession the defendant’s lot, but reserved right of way through plaintiff’s lot. There was then no right of way, or way in use. It was a wild lot. Under these circumstances Gould did not retain a right of way as an incident or from necessity, for the benefit of the defendant’s lot then in his hands unsold.''</p> <p>If he desired to retain such a right he was 'required to expressly reserve it in his deed. (1 East. 377; 21 Wend. 290; 18 U. Y. 109.)</p> <p>The opinion of Judge Baxcom, given when this cáse was first tried, treats simply of the general principle of right of way by necessity. It does not discuss or consider the particular features of the principle involved in this case. The. authorities, we think, will not any of them be found to hold that a right of way hy necessity or as an incident, is reserved by the grantor, where no such right of way has been or is being used across the lands granted. The most that can be claimed from the authorities is that the grantor retains a right of way as an incident over lands sold where a way has been previously used or is then being used. Even that doctrine we do not indorse. We think it is inconsistent with other well settled principles of law that must control, and it cannot be sustained upon principle.</p> <p>We insist that the courts of this State have not adopted any such principle. The case in 21 Wend. 290, holds the very opposite doctrine. Every adjudication in this State in any way touching this question, favors the view we have taken of it, and cannot be held otherwise without doing violence to well settled principles of law.</p> <p>' This question was evaded by the General Term. They evidently had no answer to it. It is clearly settled in 21 Wend. 290, that there being no right reserved by Gould in his deed to plaintiff he has voluntarily cut himself off and can claim no right of way over the plaintiff’s land. His grantees take no other or greater right than he had. They are cut off also. Gould’s deed gives plaintiff his land free from any such incumbrance, and this court will never give defendant what he or his grantor has voluntarily deeded to plaintiff. Judge Boardman’s opinion evades the question and places it on the ground that “ plaintiff for a year or two became the owner of the three lots and afterward sold defendant’s lot to her grantor, ever since retaining and now owning the other two lots.” There is no evidence in the case that plaintiff ever owned the three lots at the same time. It is false, and Judge Boaedman never found any such evidence. The only evidence to sustain his view is the pretense that plaintiff owned two of the lots at the same time, as follows: “ I bought the place defendant lives on of Galusha; gave him my note for the amount going to him and he handed me the contract; I had it about a year and then gave back the contract to Galusha and he gave me my note; the contract was not assigned to me, nor did I give any writing when I handed it back to Galusha; I had no other interest in the lot; I occupied it about a year, but cannot tell what year it was.”</p> <p>We submit that plaintiff never having had any writing or having given any writing whatever, he is not a grantor, he has not in any way conveyed so as to malee am/ title to the land or right of way. He never was the owner of defendant’s land in a legal sense. His claim had not a shadow of title; was merely verbal, and therefore no title was granted to or by him. Judge Boajbdman never would have held so, had he understood the evidence. We insist that there is no evidence of any title df' defendant’s lot in plaintiff at any time, and therefore no right of way of necessity could pass from plaintiff, and the court clearly erred.</p> <p>IV. The vendor in a contract and the grantor in a deed and all those holding under them or their title, are estopped from claiming any thing inconsistent with or contrary to the express terms of the contract or deed.</p> <p>In this case, Gould, for full value, gave his contract and deed to plaintiff of the fifty-five acre lot, reserving nothing for the benefit of the rear lot then owned by him. How it is claimed by defendant holding said rear lot under Gould, that a right of way was reserved, not expressly, but as an incident from necessity. That is inconsistent with and contrary to the express terms of the contract and deed, and is a claim prejudicial to the plaintiff, Gould’s grantee, for it greatly lessens the value of plaintiff’s lot. Ho such right or claim was contemplated by plaintiff or Gould when he purchased. It would compel plaintiff to pay for something he never purchased. As plaintiff and Gould supposed, and as the contract and deed shows, plaintiff purchased his fifty-five acre lot free from incumbrance. This claim, if allowed, places a heavy incumbrance upon it. The defendant is therefore estopped from making such a claim or having any such right. (9 Wend. 209; 7 Cow. 214; 8 Wend. 483; 4 Denio, 480; 18 Barb. 14; 8 Cow. 586; 4 Barb. 409; 4 Paige, 649; 3 Hill, 215; 7 Barb. 407.)</p> <p>It is conceded if a man conveys a rear lot and retains the lot between that and the public highway, and there is no other way to get a road to it, the purchaser of the rear lot' would have a right of way through the front lot as an incident to the grantor from necessity. (19 Wend. 507; 5 Denio, 213; 24 Barb. 44; 1 Barb. Ch. 353.)</p> <p>The following cited authorities and principles stated, tend to sustain the foregoing positions.</p> <p>Every uncertainty in a deed is taken in favor of the grantee therein. (8 Johns. 394; 16 id. 172; 6 Hill, 453; 3 Johns. 375; Willard on Real Estate, 403.)</p> <p>A grant must be taken most strongly against the grantor therein. (4 Kent Com. 420; Willard on Beal Estate, 401.)</p> <p>If a person conveys without words of limitation, his whole estate and right passes. (4 Cow. 325.)</p> <p>Every grant passes all the estate of the grantor unless a different intent is expressed. (3 B. S., 5th ed., 30, § 163; 1 Comst. 242; 5 Seld. 49.)</p> <p>A right of way by necessity is incidental to the deed in favor of the grantee, because • all the means to obtain and enjoy the thing granted and all the fruits and effects of it are to be deemed granted also. (3 Kent Com. 420; Touchst. 89; 18 K. Y. 48; 4 Kent, 467; 18 Barb. 80; 9 Hete. 536; 18 K Y. 109.)</p> <p>The principle inures to the benefit of the grantee, and never inures to the benefit of the grantor, because it is a thing granted, and not reserved. Also, under the principles of estoppel, it cannot be that such a right is reserved as an incident. Where a man has given his deed of his lands to another, and having negotiated a sale thereof on the best terms he could, and nothing said to indicate his intention of having or reserving a way over the lands sold, and nothing in the deed implying such a right reserved, is estopped by his deed from using the land sold contrary to the terms of said deedy to the prejudice of grantee. Because it is in violation of the terms of the solemn instrument he himself has executed and delivered to the purchaser. Because it would greatly lessen the value of the property sold, and enhance the value of the property unsold, so that by the want of the reservation in the deed, the grantee would be greatly injured and the grantor greatly benefited, and that is the very evil the principle of estoppel is intended to obviate.</p> <p>V. The referee erred in allowing the declarations of Yan Alstine to be given in evidence. Yan Alstine was living and his declarations could not be given in evidence for any other purpose except to characterise his possession while he was in possession. Defendant did prove a special contract by these declarations, which was error. (36 N. Y. 191.)</p> <p>The judgment should be reversed, and a new trial granted.</p> <p>The respondent in this case, in -addition to the question decided by the General Term, insists, that this road in question was properly laid out, opened and worked.</p> <p>The referee and also the General Term hold the order laying out the road void, for the reason that only two commissioners signed it. This doctrine, as applicable to this case, I dispute:</p> <p>1. The case is silent as to whether there were more than two commissioners in the town at the time the road was laid out.</p> <p>2. The case is also silent as to whether the third commissioner was present, or as to whether he was consulted and declined to act.</p> <p>3. There is no dispute in the case but the road had been opened and worked sixteen years before the action was brought; hence, it follows:</p> <p>I. The commissioners’ proceedings were regular and valid.</p> <p>The law presumes that public officers have done their duty, especially when their official acts have been acquiesced in and sanctioned for sixteen years, as in this case.</p> <p>In Calden v. Thurber (2 J. R. 423), the court say: Where it appears that the road has been used for twelve years, it is prima fade evidence that it was opened by authority and all proceedings regular.</p> <p>II. The fact that only two commissioners signed the order laying out, does not vitiate the proceedings. The law presum'es that the other was consulted and declined to act. (15 Barb. 471. See opinion by Strong, J., p. 480 of case, and cases cited.)</p> <p>In Marble v. Whitney, manuscript opinion, decided in Court of Appeals five years ago, the court uses the following language: “ The presumption is that the commissioners all appeared and acted, and that their proceedings are correct and legal until the Contrary appears.”</p> <p>Again: The case shows that Simmons got title of Gould in 1858, eleven years after the road was opened. The case also- shows that Gould sold the land in question, both lots, to Abram Van Alstyne, by contract, prior to 1847. Also, case shows, that Gould paid Van Alstine $15 for this road when it was opened.</p> <p>Again: The evidence shows, that plaintiff once owned defendant’s farm and sold it to Galusha, through and under whom defendant holds, with this road to it as it now runs.</p> <p>The plaintiff, in this case, is estopped from disputing the legality or existence of this road, he having conveyed defendant’s farm to her grantor, with this road leading to it through his own lands as the only way by which she could approach it. Judgment should be affirmed with costs.</p>

<p>Practice. Appealable order. Code of Procedure. Attachment. The case arises as follows: Action for the recovery of money, gay $9,000; attachments issued and property seized to the amount of, say $9,000. Judgment for plaintiff for, say $S00, from which plaintiff appeals to the General Term. While this appeal is still pending and undetermined, the defendant, with an offer to pay the judgment entered against her, moved, at Special Term, for a discharge of the attachment, which was . denied, but an order discharging such attachment was granted, on appeal of defendant, by the General Term. From this order of discharge, the plaintiff'appeals to this court. Held, —</p> <p>1. That the order of the General Term, discharging the attachment, while an appeal from the judgment therein was pending, was an appealable order, and subject to review in this court.</p> <p>2. Where property has been duly attached, it is held to meet the ultimate recovery in the action, and the attachment cannot be discharged upon an offer to pay the amount of the judgment first found, from which judgment the plaintiff has duly appealed.</p>

<p>Equity. Sale by referee under decree of foreclosure. Remedy. Rights of parties bidding at a sale.</p> <p>Where a referee, under a decree of foreclosure, effects a sale of premises upon terms not authorized by the decree, the remedy of parties aggrieved is to be sought by an order vacating the sale and directing a resale of the premises.</p> <p>Parties who, in good faith, have bid upon property upon the terms offered by the referee, and made payment accordingly, cannot be compeUed to pay any sum in excess of such bid, upon the ground that such sum is required to make tfie bid correspond with the terms upon which alone the referee was authorized to make the sale.</p> <p>The equitable interposition of the court in behalf of an aggrieved party must be sought through other means than a proceeding or order plainly inequitable as against another party.</p>

<p>Contract for sale and delivery; proof concerning. Parol. Statute of frauds. Acceptance. Charge to jury. Error.</p> <p>Where an agreement lies wholly in parol, some of the terms of which are contained in a written contract, used hy way of reference only, and not as containing any operative words of obligation, but as rendering the verbal agreement definite in details, proof of the execution of such instrument is not necessary,—it is sufficient to identify the paper.</p> <p>A contract for the sale and delivery of a quantity of wood, though the same he at the time in standing trees, is not a contract for work and labor, so as to take the transaction out of the statute of frauds.</p> <p>Where, in an action for the sale and delivery of merchandise, the essential question relates to the acceptance by the defendant of the property in question, and the testimony of the plaintiff, if undisputed, would not establish the fact of acceptance by the defendant, as a legal conclusion, it is error for the court to charge, that, if the jury credit the testimony of the plaintiff and his witnesses, their verdict must he in his favor. The jury should he directed to find, specifically, whether, from all the testimony in the case, there was an acceptance on part of the defendant.</p>

This is an appeal by the defendant from a judgment of the Superior Court of the city of New York in favor of the plaintiff. The action was brought to recover the sum of $500 and interest paid by one Brewster, to the defendant for the use of the plaintiff.

This is an appeal from a judgment of a General Term affirming a judgment on the report of a referee. Held: that the appellants had no rights, as sureties, in the fund assigned to Samuel I. Hunt in their exoneration. . I. The referee has found, as a fact, that the sums loaned were the moneys of Eunice Chapman, and were loaned to the firm of Hunt, Thomas & Co., of which the appellants were members.

<p>Undertaking on appeal. Liability op surbties. Modification of EXISTING LIABILITY ON AN UNDERTAKING BY ACT OP LEGISLATURE. Damages. Practice. Code of Procedure.</p> <p>The opinions in this case are inserted in the order as rendered, though the positions taken hy the judges, respectively, npon a main point in the controversy, are so far different as, in effect, to constitute the opinion of Miller, J., a dissenting opinion. The opinion of Grover, J., was for an absolute affirmance of the judgment below; that of Miller, J., for a conditional affirmance, or the affirmance of a reduced amount. The opinion of Grover, J., is to be taken as that of the court, and is to the following effect: that</p> <p>The sureties, in an undertaking upon an appeal, enter into the same, subject to the power of the legislature to change the law in respect to the damages that may be awarded, and are bound by the contract construed hy the law as it exists at the time when they are called upon to perform it. Hence,</p> <p>Where, after an undertaking in the usual form to stay execution npon an appeal, the law was amended (Laws of 1858, ch. 806, § 11, subd. 6), authorizing the Court of Appeals, in its discretion, to allow ten per cent damages for delay, and, upon the affirmance of the judgment in such case, the court did make an allowance of five per cent for the delay, held, that the sureties were not discharged from their liability hy reason of this statutory increase in the amount of damages that might he awarded on affirmance of the judgment.</p> <p>If it were true, that an amendment increasing the damages that might he allowed, could only operate prospectively, and to cases thereafter brought on appeal, the allowance of the statutory increase in a case pending at the time of the passage-of the amendment, though an error, would not discharge the sureties from their liability, but would he the ground for a motion to correct the erroneous judgment, and such motion could -he made only in the original 'cause, according to the practice in this State, and the question cannot he raised hy the sureties in an action against them upon their undertaking.</p> <p>This case presents no analogy to those in which parties hy their own acts . have changed their contract to the prejudice of the surety without his consent.</p>

This suit .was brought to recover damages, for a personal injury suffered by the plaintiff, through the caving in of a street, in the city of Troy, over a drain which had been constructed by an individual, by the permission of the city authorities, etc., defectively constructed; that while the plaintiff was driving his wagon along the street, the ground suddenly sunk, precipitating him from the wagon, and causing, as was claimed, serious and permanent injury and disability:…

<p>Construction op statutes. Negligence. Railroad companies. Submission OP CASE TO JURY ON INSUPPICIENT EVIDENCE.</p> <p>The language of the fifty-sixth section of the general railroad act, as amended in 1854 (2 R. S. 5th ed., § 56, p. 690), in the following words: “ So long as such fences shall not he made, and when not in good repair, such railroad corporation shall he liable for damages, which shall he done by the agents or engines of such corporation, to cattle, horses, etc., thereon,” is not to he construed literally, so as to render a railroad corporation liable for injuries occasioned upon its road, at a time when such fence is temporarily out of repair, without fault or negligence in any maimer imputable to the company.</p> <p>Where the legislative intent is manifest, the letter of the statute must, upon the most familiar rules of construction, yield to the spirit.</p> <p>For evidence of negligence in keeping railroad fences or gates in repair, insufficient to justify sending the case to the jury, see opinion of Mason, J.</p>

<p>Practice. Appeal review. Promissory notes. Discharge op indorser prom liability; evidence concerning, insufficient to SUBMIT TO JURY.</p> <p>When the court below set aside a verdict and grant a new -trial, on the ground that the verdict is against evidence or is unsatisfactory, or on the ground of surprise or of newly discovered evidence, or for other reasons resting in the facts only, or in the discretion of the court to grant a new trial, the order is not reviewable in this court in any form, and the order granting a new trial should state that it is granted upon questions of fact, or in some form it should so. clearly appear by the record.</p> <p>Where the verdict is set aside and a new trial is ordered for errors in law, this court has jurisdiction to review the order, the proper stipulation being given by the appellant consenting to final judgment if the order be affirmed.</p> <p>Where the record does not in some form show that, the order for a new trial was based upon questions of fact, it must be assumed here that the order was granted for errors in law committed at the trial, and if the court find no such errors the order must be reversed.</p> <p>Where the appeal is from an order refusing a new trial, questions of law only can arise on the hearing of the appeal.</p> <p>K., as indorser upon the note of B., was duly charged upon non-payment at maturity. Suit commenced by holder of the note against B., by request of K. Before trial, B. proposed to pay one-half the note and give a new note for balance, with stipulation, that if new note was not paid at maturity, judgment in suit pending might be taken for. the balance of old note. This done with knowledge and consent of K., except as to stipulation, of which he denied knowledge, though present, at the time. Old note surrendered to B., through inadvertence, upon completion of agreement. Nothing said in any of the negotiations about releasing K. from his liability as indorser upon the old note. New note of B. unpaid, judgment entered in the pending action as stipulated, and execution returned ■unsatisfied. ' Thereupon, action against K. as indorser, etc. Held, that there was in the case no evidence authorizing the judge to submit the inquiry to the jury, whether there was an agreement or intention to discharge the indorser.</p> <p>The testimony of the indorser, that he supposed he was released, is no evidence of the fact.</p>

This action was brought to recover damages for the taking and carrying away certain property of the plaintiff, claimed to be exempt by law from levy and sale under execution, and also to recover damages for the taking, detaining and carrying away the useful and necessary beds, bedding and wearing apparel of himself and family, and injury thereto. The defendant denies, 1. That he took or carried away the goods and chattels as set forth in the complaint. 2.

<p>Agreement ; breach of, to return a paid or released note ; damages upon. Negligence of dependant in action upon a paid or RELEASED NOTE. REMEDY BY APPEAL ; EFFECT OF NEGLECT OF.</p> <p>The damages for a breach of an agreement to return a paid or released note, already past due, cannot be the amount of the note, unless it be shown, that, in consequence of the breach, the plaintiff has been, by force of the prima facie import of the paper, and its apparent negotiability, compelled to pay it to some subsequent holder, in spite of a diligent endeavor to prove the facts, which, if proved, would constitute a complete defense; or unless he has called upon the party making such agreement, notified him of the suit, and permitted him to take such charge thereof as will protect both of the parties. Hence,</p> <p>Where H. held a note indorsed by B., which was past due, and H. executed a release thereof to B., and L., a party to the settlement of which this release was a part, agreed to return the note to B., which agreement was not performed, but, on the contrary, the note was transferred to M., who brought an action upon it against B., and recovered the amount of the note, the judgment against B. in the action was erroneous, and, on appeal, must have been reversed; and, such judgment being the result of the neglect of B. to produce evidence, which he might have done, to establish a perfect defense, or to give L. an opportunity of doing so, — or to bring an appeal from the erroneous judgment against him,—it follows, that a judgment for the amount of such recovery, in an action brought by B. against L. for damages for breach of the agreement to return the note, was also erroneous.</p> <p>Upon the question, whether the damages for the breach of an agreement to return a paid or released note, where the party injured by the breach has used all diligence and employed all proper means to protect himself, can, in any event, be any thing more than merely nominal, see opposing views in the opinions of Miller and Woodruff, JJ.</p>

<p>Evidence. Objection to evidence ; general, when sufficient.</p> <p>In an action for damages from a fire alleged to have resulted from the spontaneous combustion of certain fire-works known as “ signal lights,” kept by the defendant on the premises, evidence was admitted, under objection by defendant, as to the circumstances attending two fires that occurred several years before, and the opinion of the witness was given, likewise under objection, that those fires were occasioned by the spontaneous combustion of fire-works. Held, that the evidence was improperly admitted, being altogether foreign to the issues in the present action, and no effort to connect the events by showing that the fire-works of the defendant wbre similar to those that occasioned those fires.</p> <p>Evidence, that certain fire-works known as “ signal lights,” made by the same manufacturer two years before, were liable to spontaneous combustion, was likewise inadmissible, as not showing any similarity of construction or properties to those alleged to have caused the fire in question. The statements of an anonymous writer, concerning the dangerous character of the commodities kept by defendant, made two or three months before the occurrence of the fire, were inadmissible, as evidence to establish the cause of the fire.</p> <p>The only kinds of evidence competent upon the question in the case were, first, evidence of the composition and character of the particular article alleged to have ignited spontaneously in the store of the defendant; and, second, evidence of experts competent to speak generally of the composition and character of similar articles.</p> <p>Where an objection to evidence is made in general terms, the grounds of which are perfectly obvious without statement, and are of such a character that no particularity of statement would serve to remove or obviate them, the objection in such form is sufficient.</p>

<p>Action fob an accounting. Joint and several actions. Judgment. Code of Procedure. Counterclaim. Judgment as a contract. Error.</p> <p>An action for an accounting may be joint as to several plaintiffs, in the matter of requiring an account, while it is several as to the judgment that shall be awarded upon such accounting.</p> <p>Where, under an agreement between several parties in reference to business conducted by them, the profits were to be divided into five equal parts, two of which should belong jointly to certain of said parties, and one of the remaining three parts was to be paid to each of the other three'parties to such agreement,—in an action by these three parties against the others for an accounting, it was held, that the judgment must, under the agreement, award to each of the plaintiffs, severally, one-fifth of the ascertained profits; and as a payment to either plaintiffj if made, would defeat his claim, and still leave to the others a judgment for their respective shares, so, a set-off or counterclaim against the share of either should have its several operation in like manner. Hence,</p> <p>Where, in such action, a counter claim was established against one of the plaintiffs, the referee erred in refusing to set off the same against that plaintiff’s share of the profits in the judgment awarded, and in rendering his judgment for the entire three-fifths of the profits as an award to the plaintiffs jointly.</p> <p>A judgment is a contract of the highest nature known to the law, — and actions upon judgment are actions upon contract. The cause or consideration of the judgment is of no importance, it being merged in the judgment. Hence,</p> <p>In an action upon a contract, the defendant may, under section 150, subdivision 2, of the Code, set up, as counter claim, a judgment obtained by him against the plaintiff in an action for a tort. The original cause of action having disappeared, the judgment remains as a contract between the parties. If suit were brought upon the j ndgment, it would bean action upon a contract, and it is not the less so when set up as a counterclaim.</p>

Daniel Carmichael just previous to his decease lived and resided at Binghamton, H. Y. He had been twice married. By his first wife he then had one child (Otis) living. He was about 19 years of age. By his second wife he then had five children living.

<p>Husband and wipe. Separate property op wipe. Husband as agent op the wipe. Seizure op wipe’s property to satisfy husband’s creditors. Charge to jury ; exceptions to. Sheriff.</p> <p>Where the legal title to property is in the wife as against her husband, it cannot be seized by his creditors to satisfy his debts, without proof that her title is merely colorable and fraudulent as against the creditors of the husband. (Gage v. Dauchy & Beekman, 34 N. Y. 293.)</p> <p>Under existing statutes, a married woman may manage her separate property through the agency of her husband, without subjecting it to the claims of his creditors. (Buckley v. Wells, 33 N. Y. 518.)</p> <p>The application of an indefinite portion of her income, by a wife, to the support of her husband, does not impair the title of the wife to her property. (Id.)</p> <p>Concerning the question, generally, of the employment of the husband as agent for the wife in conducting her business, see opinion of Miller, J., and cases cited.</p> <p>Whether a wife may loan to her husband her individual money for the purpose of investing the same in trade,—provided the loan be so restricted as not to connect her with her husband’s business,—without the same being liable for his debts,' quere. See opinion of Miller, J.</p> <p>Where the defendant submits divers requests to the court to charge the jury, and then excepts to the charge generally wherein the same differs from any thing contained in his requests, such exception is unavailing. Generally, exceptions to the refusal of the judge to charge conclusions of law, founded upon conditions and circumstances not warranted by the evidence in the case, are bad and must be unavailing.</p>

The defendant Fremont owed the defendant Howard §12,500 and upward. The defendant Howard owed the plaintiff nearly that sum, upon two judgments against said Howard and others, of which the plaintiff had become the assignee. This action was brought to compel Fremont to-pay over to the plaintiff, of the' sum due from him to1 the defendant Howard, sufficient to satisfy those two judgments.

This was an action for the price of a quantity of lumber alleged to have been sold and delivered by the plaintiffs to the defendant, and used in altering and rebuilding a house belonging to the latter. One Matthews had contracted with the- defendant to do the work and furnish all the materials for a stipulated sum, but finding himself without means or credit to obtain the lumber necessary, he applied to the defendant to assist him.

This is an action for slander of plaintiff’s title to personal property. Held: that a parol license conveys no title, and is only a protection for acts done, and may at any time be revoked. (Houghtaling v. Houghtaling, 5 Barb. 379; Miller v. Auburn & S. R. R. Co., 6 Hill, 62; Mumford v. Whiting, 15 Wend. 381; Cook v. Stearnes, 11 Mass. 536; Fentiman v. Smith, 4 East. 108; Pierrepont v. Barnard, 2 Seld. 279.) 2.

The facts of the case are as follows: Henry Van Rensselaer was the proprietor of certain lands in St. Lawrence county, and in April, 1858, advertised said lands to be sold at public auction, on the 16th day of June following. The plaintiff and the defendant desired, each to. purchase a piece of said land. The defendant knew that plaintiff was intending to attend said auction for the purpose of purchasing said piece of land.

This action was brought in the City Court of Brooklyn, to recover a commission of one per cent upon $14,000, for the sale of a house and lot belonging to the defendant, by the plaintiffs. • The complaint sets up employment of the plaintiffs by the defendant; that they procured a sale to be made for $14,000, which defendant ratified; that their services were worth $140, etc. The answer is a general denial. The plaintiffs have once had a verdict.

Alexander Warfield, deceased, by his last will devised the premises described in the complaint, about 192 acres, to his two sons, Alexander and Arnold, as tenants in common, to Alexander in fee, and to Arnold for life, with remainder to his heirs, to be equally divided between them. He died in 1812.

<p>Insurance; yerbal representations in matter of. Evidence. Pleadings. Answer.</p> <p>It is a well settled rule, that a verbal representation, in order to vitiate a contract of insurance, must relate to some past or existing fact material to the risk, and that a representation, in the nature of a promise or stipulation, for future conduct on the part of the insured, must be inserted in the policy, or the underwriters cannot avail themselves of it. (Alston v. Mechanics’ Insurance Co., 4 Hill, 329, and cases there cited.) Hence,</p> <p>Where, in an action upon a policy of insurance, the defendant offered to show, that, at the time of the application for insurance, the plaintiffs represented that the premises insured were in their possession; were not to be used for public exhibitions; that there was no fire on the premises; and that a scientific and mechanical association that had possession of the premises formerly, for the exhibition of machinery operated by steam power, etc., were not to occupy the premises again (it having been proved, that, subsequent to effecting the insurance, the premises were leased to the said association, who erected therein steam and caloric engines and boilers, and were operating the same when the building was destroyed by fire); it was held, that the evidence was inadmissible, and properly excluded.</p> <p>The representations were not claimed to be fraudulent, and, in so far as they were claimed to be false, they related-to matters resting in intention or expectation. ■</p> <p>Besides, if the materiality of the evidence to the risk could be conceded, the facts constituting an affirmative defense should have been set up in the answer, that plaintiffs might have been prepared to meet them.</p>

This is an action to recover money advanced by the plaintiffs at the request of the defendants. The plaintiffs were the factors and agents of the defendants, at the city of Buffalo. The defendants resided at Attica, in the State of Indiana, and were engaged there in the business of packing and shipping to the eastern markets, for sale, pork and hams.

This is an action brought by the respondents on the 28th day of November, 1859, against the appellants, to set aside two mortgages on the… Held: that the foreclosure of the $3,000 mortgage by Blakeman was fraudulent, as against the plaintiffs; that a receiver should be appointed, and that Blakeman should pay over to the receiver the money received by him from Price and Brooks, and interest, and a portion of the amount received from Bright & Wylie, and that he assign to the…

The action was brought to compel defendant to pay over certain profits on a contract with the United States government, and the issue joined therein, was tried before Chief Justice Bosworth, January 22, 1863.

This action was brought to recover dower in surplus funds, arising from sales under decrees of foreclosure. Plaintiff is widow of Charles S. Matthews, deceased, who owned in fee simple, during the marriage, the real estate ^described in the pleadings. These lands were subject to three mortgages, in two of which the plaintiff joined, the third being for part of 'the purchase-money.

The plaintiffs are masons, and made a contract, in writing, with the defendant to do the mason work upon three buildings which the defendant was erecting upon lots Nos. 42 and 44 Grouverneur street,… Held: it was agreed that the plaintiff should pay all taxes. The plaintiff produced the lease, which was silent about the taxes, and the court excluded the testimony as varying the written contract.

Prior to the month of September, 1859, the firm of Roach & Mattison carried on the tin, copper and sheet iron business, at the city of Rochester.

The question between the parties is, as to which, if either, has the legal title to certain lands situate in the city of Brooklyn. Held: “The term estate is very comprehensive, and signifies the quantity of interest which a person has, from absolute ownership down to naked possession.