Volume 4 — Lansing's New York Reports

This was an appeal by the plaintiff from a judgment,, dismissing her complaint, entered, upon a decision of the court, at the Erie county Special Term, in July, 1870. The plaintiff brought her suit to redeem certain premises from a sale under judgment of foreclosure and sale.

Motion, upon a case and exceptions, for a new trial, heard in the first instance at General Term. The action was upon a note given to the plaintiff, by the defendant, as part payment of the amount agreed to be paid for the manufacture and delivery of a steam-boiler, under a contract therefor, at a stipulated price. The case was tried before the court and a jury, and a verdict duly rendered for the plaintiff.

This was an appeal by the defendants from a judgment in favor of the plaintiff, entered on the report of a referee. The plaintiff sued to recover the amount of an order drawn by one R. W. Underhill in their favor upon the defendants. The case was referred.

<p>The testator devised an undivided third of his lands, to he held upon certain specified trusts, to an unincorporated society, which, having been incorporated after his decease, and authorized to take by devise made voluntary partition with the heirs-at-law, entered upon its third, and continued to occupy, claiming the sole and exclusive ownership, and without conforming with any of the provisions of the trust for twenty years. — Held, that the corporation held and was entitled to dispose of the property as owner of the fee, and not subject to the trusts specified in the will, notwithstanding" it entered claiming under the will..</p>

This was a motion by the plaintiff for a new trial, upon a case and exceptions, heard at General Term in the first instance.

Justice Dwight, granted at the Monroe county Special Term in December, 1870. The defendant moved in the action at Special Term, upon affidavits, to set aside an execution issued upon a judgment recovered therein by the plaintiff, for moneys received by the defendant Bowen, as county treasurer of Orleans county, and deposited by him with the Bank of Medina.

This was a motion by the defendant, Elisha D. Whitney, for a new trial upon a case, and the exceptions ordered to be heard in the first instance at General Term. The complaint was upon a promissory note for $1,024.65, made by the firm of “ T. B. Whitney & Cohalen,” to the order of Livonia A. Gulick, and bearing date at New York on the 26th February, 1868.

The plaintiff brought this action to obtain a decree directing the reformation or rescission of a contract, and for other and further relief. Held: that the plaintiff should have judgment declaring the contract void, and directing that it should be canceled and rescinded. From the judgment entered on his decision, the defendant appealed.

<p>This was an appeal by the defendants upon a case made, and exceptions, from a judgment entered upon the decision of the court at Special Term.</p> <p>The plaintiffs brought the suit in equity, jointly, as owners of adjoining premises, against the defendants, as partners, and prayed in their complaint that the defendants might be directed to construct a sluiceway across a certain highway, for the purpose of changing the direction of the flow of surface water from its then present course, and also to fill up a certain ditch to its former level; and that the defendants might be restrained from afterward obstructing or interfering with the sluiceway when built, and from opening or interfering with the ditch when filled.</p> <p>The defendants averred, with other matters, by the way of defence, that, though they were once partners, their partnership ceased, prior to the reduction of the level of the ditch, by the Avitlidrawal of the defendant Bronson, and the disposal of his interest in the partnership to other parties, and that the neAV firm had succeeded to the interests and title of the former firm in the real estate from Avhieli the drainage in question proceeded. Before the trial the new partners Avcre made defendants by consent, and the suit proceeded against them and the other defendants, members of the old and new firm.</p> <p>It was claimed, also, on behalf of the defendants, that, by reason of their OAvnership of separate parcels of land only, the plaintiffs could not join in an action for the relief prayed.</p> <p>It appeared upon the trial that the defendants (the old firm first, and aftenvard the new firm as successor thereof), carried on the business of nurserymen, and oivned and occupied, for their purposes in that respect, certain lands sloping southward, and situate on the north and south sides of a highway leading from the village of Geneva, and from the east westivardly until it intersected Avith a higlnvay of the toAvn of Seneca. That the land so oAimed and occupied by the defendants included a tract of Avaste land, or sivale, on either side of the highway, and lying between íavo slight declivities of land facing respectively castwardly and ivestivardly, and that on the north side of the highway the surface waters collected from the adjoining declivities in the sivale, and floAved thence upon the line of greatest depression thereof in a southerly direction to the higlrway, and thence its natural course was over the lauds, or part of the sivale on Avhich the highway had been built, to the swale on the south side of the higlnvay, whence it was drained off in a southerly direction toward Seneca lake. The highway, Avliich, in building, had been raised some tivo or three feet above the natural surface of the soil, had obstructed the course of the water and confined it in a ditch made Avith the higlnvay and running along its north side, by means of which ditch the water was carried in an easterly direction, and at-times flowed somewhat over the ridge of the declivity facing westward, and thence along the road into the ditch hereinafter mentioned, upon the lands of the plaintiff Van Giesen. .</p> <p>The land of the plaintiff Van Giesen adjoined the highway on the south, and lay"to the eastward of the defendants’ land, from which it was divided by the premises of an intervening owner. The laud of the plaintiff Foote lay directly south of. and contiguous to, that of Van Giesen, and the slope of the plaintiffs’ lands was to the south. Van Giesen had constructed a ditch to drain the surface waters from his lauds across the same in a southerly direction from the highway, and the plaintiff Foot had constructed a sewer upon his land, connected with Van Giesen’s ditch, but of less capacity, by means of which the drainage of Van Giesen’s land was continued southerly over Foot’s land.</p> <p>The defendants deepened the ditch on the north side of the highway, and thus increased the quantity of surface water from time to time flowing, over the edge of the declivity which faced westward, and along the highway, into the ditch upon Van Giesen's land.</p> <p>It appeared that the defendant Bronson had, of his own accord, aided and assisted in deepening the ditch. Ho specific amount of damage was proven; but it was in evidence that the plaintiffs had been injured, and might suffer further injury thereafter, on account of the increased depth of the ditch.</p> <p>The court found, with the other facts, as they appeared, “ that, by means of lowering the ditch, the defendants have caused the surface water which collects in the swale north of the. highway to run in increased quantity, and more rapidly than before, in an unnatural direction, through said ridge, on to the lands of the plaintiffs, and thereby have already done each of the plaintiffs an injury, and there is reason to believe that, if said ditch remains open to the depth above stated, each of them will hereafter sustain much injury, and suffer considerable damage in the diminished value of their lands and the loss of herbage and crops thereon and, as matter of law, “ that the plaintiffs are entitled to a judgment directing the defendants, within thirty days after notice of such judgment, to fill up the ditch mentioned and described in said complaint to the extent they lowered and dug out the same, as above found, or, in case the defendants refuse or neglect, that the plaintiffs be allowed to do the same at the defendants’ expense; that the defendants, their agents and servants, be enjoined from lowering said ditch after it shall be so filled up; that the plaintiffs recover their costs of this action; and that, as to the remainder of the relief asked for in the complaint, the plaintiffs are not entitled to the same.”</p>

<p>This was an appeal by the defendant from a judgment entered in the plaintiff’s favor upon the report of a referee.</p>

This was an appeal from a judgment entered upon the decision of Mr. Justice Foster, at Special Term in Onondaga county, directing a dismissal of the plaintiff’s complaint. The action was for rent due upon a lease. Hpon the trial the plaintiff proved that on the 1st of March, 1865, a lease was executed and delivered by Horace IC. White to Alonzo FT.

This was an action in the nature of trespass, for alleged obstructions, by bars, to the plaintiff’s right of way over the defendant’s lands, situated in the town of Starkey, in Tates county.

<p>This was an appeal by the defendants from an order at Special Term. The facts are stated in the opinion.</p>

This was an appeal by the plaintiff from a judgment dismissing his complaint upon a trial by the court.

This was an appeal by the plaintiff from a judgment in Ms favor for forty-seven dollars, entered upon the verdict of a jury. The action was to recover a deficiency of eighty-three dollars, alleged to be the balance of a debt of $200 due upon a mortgage of chattels executed by the defendant to the plaintiff. The facts are sufficiently stated in the opinion of the court.

<p>This was an appeal by the defendants from an order at Special Term, denying their motion to set aside a verdict and for a new trial, and from the judgment for the plaintiff entered in the action.</p> <p>The suit was brought to recover damages, arising from the loss of a portion of a cargo of lumber, and injuries to the plaintiff’s canal boat Caloric, its detention, and the expenses incurred by reason of the loss and injuries, while in the charge of the defendants for towing from Albany to Hew York.</p> <p>It appeared that at the time the plaintiff entered into the contract for towing, he paid the price asked and took a receipt from defendants, which is set forth with the other material facts in the opinion of the court.</p>

<p>When an officer, or party, is in the attitude of asserting rights, founded on official acts, the due performance of which is essential to the right, such performance will not be presumd.</p> <p>But one who asserts a right, based on the illegality, or irregularity, of the proceedings of a court or officer, assumes the onus of showing the alleged defects.</p> <p>Where lands mortgaged to the commissioners for loaning the United States deposit fund are sold by them on default of the mortgagor, it will be presumed in favor of a purchaser at the sale, against one claiming to assert" a right of redemption under the mortgagor, that the steps required by the statute (Laws of 1837, chap. 150) have been taken in due form by the commissioners; e. g. :</p> <p>That the notice required by section 31, when necessary, has been given at the proper time.</p> <p>That both commissioners were present at the sale.</p> <p>That possession was taken of the land, as provided in section 31. But it seems that one claiming under' the mortgagor cannot object that the commissioners neglected to deprive him of possession under the statute. It is sufficient if the notice of sale required by section 33 be published once in each week for six successive weeks prior to the sale, although the first publication is less than forty-two days prior to that time.</p> <p>The statute, sections 45,46, requiring entry of minutes of the proceedings in a book by the commissioners, is simply directory; and an omission to make the entries does not affect the regularity of the sales.</p>

The proceedings in this case were brought before the court by certiorari to the county judge of Erie county. It appeared that they were commenced by the defendant against the relators, Sliker and Hill, claiming to remove them from premises in Buffalo, under article two, chapter eight, part three, of the Revised Statutes, entitled “ summary proceedings to recover possession of land.” The facts are stated in the opinion of the court.

<p>A special administrator has no authority to make investments.</p> <p>It is his duty to deposit the funds of the estate with a solvent bank, 01 other institution which receives deposits, subject to demand, and he may receive interest thereon from the depositary.</p> <p>A deposit payable after a certain time is a loan, for which on failure of an authorized depositary, the special administrator is liable. This last rule applies to executors and administrators.</p> <p>Executors and administrators and special administrators are alike liable for loss of moneys of the estate, deposited by them in their individual capacities.</p> <p>Executors, who receive as assets from a special administrator, certificates of deposit of moneys of the estate with an authorized depositary, made payable to such administrator, individually, upon time, assume the risks of the latter to the estate in respect thereof, and are liable, as he would be, for loss happening from the failure of the depositary.</p> <p>Evidence is not admissible on behalf of the executors in such case, to show the character in which the special administrator turned over the certificates ; nor to show the amount of moneys of the estate previously deposited with the same depositary. Nor where they have deposited moneys in their individual capacities, upon time, may they show their good faith to excuse themselves from loss on account thereof.</p>

<p>These were appeals by the defendant from judgments in favor of the plaintiffs, rendered upon a new trial in'the County Court of Lewis county, on appeals from a justice of the peace. The facts are sufficiently stated in the opinion of the court.</p>

This was an appeal brought before the court upon petition, which prayed a reversal in certain particulars of the decree of the surrogate of Orleans county.

This was a motion by the defendants for a new trial on a case made, and exceptions, ordered to be heard in the first instance at General Term. The action was brought to recover the value of merchandise alleged to have been received by the defendants, as common carriers, at Buffalo, addressed to the plaintiffs at Chicago.

This was an appeal by the defendant from a judgment entered in favor of the plaintiff upon the report of a referee. The facts are stated in the opinion of the court.

<p>This was a writ of error to the Orleans county Oyer and Terminer.</p> <p>The plaintiff in error was indicted and tried at the January term in 1871, upon a plea of not guilty to an indictment which charged that one John TJtley did, at, &c., feloniously shoot and kill one William Thomas Hudson, and that the plaintiff in error, feloniously, &e., was present, aiding and abetting and assisting the said John Utley in the commission of such felony; and it proceeded further to charge “ that the said John Utley and John Temple, the said William Hudson, in manner and form aforesaid, then and there feloniously, willfully, and of malice aforethought, did kill and murder, against the peace of the people of the State of Hew York and their dignity, and contrary to the form of the statute in such case made and provided.” The indictment contained also a count charging the plaintiff in error as accessory before the fact.</p> <p>The plaintiff in error demanded a separate trial. It was the theory of the defence that the killing was justifiable; and upon the trial the following facts appeared in evidence:</p> <p>On the 9th November, 1810, between one and three o’clock a. h., Hudson, the deceased, in company with ten others, went to the house of Utley, situated several miles from the town of Albion, on the Eagle Harbor and Waterport highway, and standing back from the road some thirty-six feet. Hudson and Temple, the prisoner, were employed as blacksmiths in the same shop, and the former, who was, with his companions that night, at Albion, proposed to the party that they should go to Utley’s for the purpose of finding Temple there, and having a laugh afterward at his expense. They went in buggies, and, upon approaching the house, Hudson and two others with him in the same buggy were in advance, and came first upon the premises. Hudson and one Hindiey got down from the wagon in which they were, with one Smith also, and went first to the rear door of the house and rapped upon it, but received no answer. Hudson then went toward the front door, followed at a distance by Hinchey, and rapped upon it, when it opened, and a shot was immediately fired from within by Utley, which entered Hudson’s breast, and caused his death in a few days after. The evidence was contradictory as to whether Hudson had put his hand upon the latch and opened the door, or whether it had been opened from within. There was also a discrepancy in the testimony upon the question whether the deceased had not leaned into the house at the door before the shot was fired.</p> <p>The party had been drinking somewhat before reaching the house; but the tendency of the testimony was to show that none of them were intoxicated, and that they were not excessively boisterous or noisy. Utley, his wife and two children, the prisoner Temple, a daughter of Utley’s wife, and a young man named Edgar, were within the house, and were up and dressed when the party came. They were heard from within approaching upon the road near a neighboring house and exclaiming, “ The next house, boys!” Directly before knocking at the front door, and on his way there from the rear of the house, Hudson had thrown a stone at a dog which came o;i: upon him, and thereupon said that he would make no more noise, and the “ yelping of the dog was also heard within,” as also the rapping at the doors, but there was no other disturbance shown, and Hudson and Hinchey were the only ones of the party who got out of their wagons and within the in closure before the shooting. Utley and the prisoner went to the front door on the approach of the party to the house, Utley having the gun in his hands; and when the knocking at that door took place, the prisoner was heard to tell Utley to shoot, and immediately after Utley fired the shot. The prisoner also directed Utley to reload immediately after the discharge, and at the same time took the gun into his own hands and reloaded it.</p> <p>The prisoner testified that he had heard at a tavern, on the evening preceding the night of the killing, that there were persons going that night to Utley’s for the purpose of “ going through the house” and “ raising the devil in it.” It had also appeared that the prisoner had told Utley the same evening that a gang was coming to go through the house, and that Utley had told the prisoner that a gang had been there, through the house, and he once had his head most broken by them, and did not want to get hurt again; and the prisoner’s counsel offered to prove by the prisoner “ that he had heard that persons had been at the house shortly previous, and had made disturbance and taken the old man Utley out in the night-time and beaten him severely, for the purpose of showing that the prisoner had ground for apprehensions.” To this testimony the counsel for the people objected, and the court refused to allow it to be given, and the prisoner excepted.</p> <p>The jury found the prisoner guilty of murder in the first degree, and he thereupon sued out this writ of error.</p>

Tms was an appeal by the plaintiff from a judgment for the defendant, dismissing his complaint, after a trial by the court.

This was an appeal by the plaintiff, upon a case and exceptions, from a judgment entered on an order of nonsuit, upon a trial by the court and a jury.

This action was brought to recover a portion of the expense of building a bridge across Cattaraugus creek, between the towns of Ashford and Yorkshire, which towns extended to the center of a highway running over the bridge, on tlie one side of the creek, and the town of Sardinia on the othei side.

Exceptions ordered to be heard in the first instance at General Term on a trial at the Otsego circuit. On the trial the evidence showed that Otego and Unadilla are stations about seven miles apart on the road of defendants; Wells Bridge is a station between them.

The cause was tried before Hon. Amaziah B. James, without a jury, at a Special Term, held in the city of Ogdensburg, in June, 1870. The action was brought to recover damages against the defendants,, as assessors of the city of Ogdensburg, for illegally assessing the plaintiff for personal property in that city, he claiming to be at the time a resident of Fishkill, in Dutchess county.

This was an appeal from a judgment of the County Court of Montgomery county. The action originated in a justice’s court, and was brought, by the above named plaintiff to recover of the above named defendants the sum of $34.74 for work, labor and services, done and performed by her for the defendants and at their request. The defendant Adams did not appear.

Exceptions ordered to be first heard at General Term. The canse was tried at the Broome county circuit in September, 1868, before the Hon. William Murray, one of the justices of this court, and a jury. The action was for trespass in cutting wood upon a piece of land, of about four acres in extent, situated in lot Ho. 21 in Clinton and Melcher’s Patent, in Broome county.

Appeal by the plaintiff and defendant from decision of judge at Special Term. Action to recover one-half of the profits'of certain cotton speculations in middle Tennessee in the spring of 1862. The cause was tried before Hon. Ransom Balcom at the Otsego Special Term in April, 1868.

<p>Appeal from order of Special Term, overruling demurrer to plaintiff’s complaint.</p>

This is an appeal from a judgment in favor of defendants entered on the report of a referee, in an action to foreclose a mortgage given by defendants to plaintiffs’ intestate. The following facts appeared on the trial: That on the 18th of November, 1852, John II.

<p>Appeal from a judgment of the County Court of Cortland county, affirming a judgment rendered by a justice of the peace in favor of the plaintiff.</p>

<p>The surety upon a promissory note is not discharged from liability by neglect of the payee to proceed, upon request after maturity, for its collection against the principal debtor, where the latter is insolvent at the time of the request, and so remains, and the debt is uncollectible from him. Graig v. Parkis (40 N. Y., 181) distinguished.</p>

This is an appeal from an order denying a new trial, and from a judgment entered on the verdict of a jury at a Circuit of the Supreme Court in Sullivan county, May 23, 1870, before Justice Peokham and a jury. The action was commenced in May, 1868, to recover damages for personal injuries.

This case came before the court upon exceptions ordered to be heard in the first instance at General Term. The cause was tried at the Schuyler Circuit in December, 1869, before Justice Boaedmax and a jury. The action was brought to recover the amount of a life policy issued by defendant to one Lyman H. Fowler, of date January 19, 1867, for $1,000. The defence to the action by the answer was based upon the grounds: 1st. That Lyman EL.

This action was tried at the circuit and the plaintiff had a verdict. An order was made that the case and exceptions he heard in the first instance at the General Term and proceedings meantime to be stayed. The case now comes on to be heard on motion for a new trial upon a case and exceptions.

<p>An infant cannot, by himself or by bis guardian, submit a controversy, under section 372 of the Code.</p>

Appeal by the defendants from, a judgment, in favor of the plaintiff for $32,879.14, entered upon the report of a referee. The facts, so far as they are material, are stated in the opinion of the court.

Appeal by plaintiff from judgment at special term, dismissing the complaint, with costs, in an action brought to set aside three several instruments, in writing, executed by plaintiff to defendant, dated respectively, the 3d, 10th, and 15th days of October, 1868. The facts are sufficiently stated in the opinion.

This is an appeal from, a judgment entered upon the verdict of a jury on a trial at circuit in Montgomery county.

<p>Motion for mandamus. The facts are stated in the opinion.</p>

<p>Appeal from judgment for the plaintiffs on the report of a referee. The facts are stated in the opinion of the court.</p>

This is a bill of exceptions taken by the plaintiff at the Seneca Circuit ordered to be heard at the General Term in the first instance. The facts appear in the opinion of the com».

<p>Appeal from judgment rendered at the Monroe Special Term, dismissing the complaint of the plaintiff. The facts are stated in the opinion of the court.</p>

<p>The delivery of a negotiable security, with intent to give the same mortis causa, vests the title in the donee, subject to the rights of the donor’s personal representatives to call it in question, for the benefit of creditors, to the extent of their claims.</p> <p>Claims against the donor, presented to his administrator, but not otherwise established, do not, as against the donee, show the existence of debts.</p> <p>In an action by a donee, causa mortis, of a promissory note, payable to bearer, against the maker, who has paid the same to the donor’s administrator, without production of the note, the defendant cannot interpose the claims of creditors to defeat the plaintiff’s right to recover. Pei Johnson, J.</p>

Motion by the plaintiff for a new trial on a bill of exceptions taken at the Monroe Circuit, and ordered to be heard at the General Term in the first instance. The facts appear in the opinion of the court.

<p>Appeal by the plaintiff from, a judgment rendered for the defendant at the Steuben Circuit. The action was ejectment. The facts are stated in the opinion of Mullís, J.</p>

Appeal by the plaintiff from a judgment rendered at the Yates County Circuit, on a trial by the court without a jury, bringing up a bill of exceptions taken by the plaintiff.

<p>This case came before the. court upon a case made and submitted, under section 372 of the Code.</p> <p>The defendant, the Reformed Dutch Church, of hfew Prospect, located at Shawangunk, in Ulster county, was organized as a religious corporation under the laws of this State, and was attached to the Reformed Dutch Church (now Reformed Church) in America.</p> <p>Each church of the denomination is, by the constitution of the denomination, under the control and management of a board of officers, consisting ordinarily of eight persons, being elders and deacons, and of the minister of the church, if any, and together constituting the consistory, or trustees, of the church.</p> <p>The elders and deacons have each an equal voice in all that relates to the temporalities of the church, to the calling of a minister, and the choice of their own successors; and a majority of the consistory constitutes a quorum for the transaction of business. The consistories have the right of calling ministers for their own congregation; but the call must, in all eases, before presentation to the minister, be approved by the classis, a higher body of officers.</p> <p>The constitution also provides that the ecclesiastical assem - blies which shall be maintained in the Reformed Church are three in number: 1st, Consistorial; 2d, Classical; 3d, Synodical ; that in these assemblies ecclesiastical matters only shall be transacted. The classis has the same jurisdiction over a consistory that a particular synod has over the classis, and a general over a particular synod. The classes have cognizance of whatever respects the welfare of their particular churches, for the management of which the consistory may be incompetent. It has, however, to approve or disapprove of calls to ministers, also of the ordaining, suspending and deposing of them, or of dismissing them when called elsewhere. An individual, conceiving himself aggrieved by the decision of a lower judicatory, may appeal therefrom to the judgment of a higher judicatory. A classis consists of all the ministers and an elder designated from each consistory within the bounds prescribed by the particular synod.</p> <p>The plaintiff Connitt was regularly called and settled as minister over the church of New Prospect, at an annual salary, together with use of the parsonage belonging to the church; the call was in the usual form used by the churches of the denomination, and set forth, substantially, that whereas the church was destitute of the preaching of the word and regular administration of the ordinances, and was well satisfied of the qualifications of George W. Connitt, therefore, the consistory of the Reformed Protestant Dutch Church of New Prospect had resolved to call, and hereby called the said G. W. C., to be pastor and teacher, &c., “to fulfill the whole work of the gospel ministry, agreeably to the word of God and the excellent rules and constitution of our Reformed Protestant Dutch Church, established in the last national synod held at Dordrecht, and ratified and explained by the ecclesiastical judicatory under which all stand, and to which you, in accepting this call, must, with us, remain subordinate.” (For full form of the call in tins case, see Dutch Church of Albany v. Bradford, 8 Cow., 459.)</p> <p>In October, 1868, six of the eight members of consistory, with four other members of the church, presented a communication to the classis of Orange, to which the church of New Prospect was attached, praying that the pastoral relation between the plaintiff Connitt and the church might be dissolved ; upon this petition, which presented, as grounds for the request, the embarrassed and divided condition of the church, a prevailing dissatisfaction therein, and suffering state of its temporal and spiritual welfare, and that the church could not longer be sustained under the pastoral care of the plaintiff Connitt. The classis took proceedings resulting ultimately in a resolution dissolving the pastoral relation, as prayed by the petition, which resolution bore date May 3, 1869. From this resolution or decree Mr. Connitt appealed, and refused to withdraw from the church or suspend the exercise of his pastoral duties. New charges were prefered, involving his insubordination to the decrees of classis, and other acts alleged regarding his persistence in. exercising the duties of the office of pastor in the church of New Prospect. Upon these charges he was tried by classis, and was suspended by resolution of September 29, 1869, from the exercise of the office of the ministry. From this resolution an appeal was also taken by Mr. Connitt, as well as from a resolution of classis requiring him to surrender the keys of the church, minutes of consistory, &e. The appeal from the resolution of May 3, 1869, was heard by the particular synod, and the action of the classis sustained thereby; and, upon a further appeal to the general synod, it was also sustained. The other appeals were withdrawn. The questions presented by the case are stated in the opinion of the court.</p> <p>A stipulation was contained in the case, that judgment should be rendered against either or any of the parties, in conformity with the findings upon the questions presented, for the surrender of possession of the corporate property to the parties adjudged to be the consistory, and for a reference to settle amounts awarded, &c., &e.</p>

This was an appeal by the defendants from a judgment for the plaintiff after trial by the court. The facts are stated in the opinion of the court.

This was an appeal by the plaintiff from a judgment against him, rendered after trial by the court. The facts are stated in the opinion.

<p>Appeal from a Special Term order. The facts are stated in the opinion of the court.</p>

This was an appeal by the defendant from a judgment entered upon the verdict of a jury in favor of the plaintiff. The facts are stated in the opinion of the court.

This was an appeal by the plaintiff from- an order overruling his demurrer to the.plea of the defendant. Facts material to the decision appear in the opinion.

This action was brought to recover dower in the surplus moneys growing out of the foreclosure of three mortga* ges, executed by the plaintiff’s husband, Bichólas Elmendorf, in his lifetime. On the trial at the Ulster Circuit, before Mr. Justice Ingalls, the complaint was dismissed. The plaintiff appealed to the General Term. The facts are stated in the finding’s of the court at Special Term.

This action was commenced for the recovery of the surplus moneys arising upon the foreclosure of three mortgages, foreclosed by the defendant Duflon by advertisement and sale under the statute. The foreclosure sale under each mortgage took place April 26, 1855. One of the mortgages was given to Duflon to secure $8,000; was executed by Nicholas Elmendorf alone, and was on his individual property.

This was an appeal by the defendants from a judgment in favor of the plaintiff. The facts appear in the opinion of the court.

<p>This was an appeal by the defendant from a judgment for the plaintiff, entered on the report of a referee. The facts appear in the opinion of the court.</p>

The complaint in this action alleged that the plaintiff was, on the 19th day of April, 1870, the owner of certain cattle and horses, then at Brockville, in Canada; that he there contracted with one Cavenaugh, the owner of a scow, to transport such property to Morristown, .in the United States; that the animals were placed on board of the scow for transportation ; that Cavenaugh employed the tug “ Sarah Daly ” to tow the scow, on which the cattle were then loaded, across the…

<p>When one following the business of an insurance agent has authority from an insurance company to solicit and act on proposals for insurance, and to receive the premiums therefor on its behalf, the public may assume that he is authorized to make insurances for it in the ordinary way; and this is so notwithstanding the company have placed special restrictions upon his powers; e. g., where he is restricted to making insurance by policies countersigned hy himself, he has, presumptively, authority to make insurances -verbally.</p> <p>A power of attorney from an insurance company giving one authority as agent, to receive proposals for, and make insurances by policies countersigned by himself, also to renew the insurances, assent to assignments and transfers and do all lawful acts and business, pertaining to his agency, which may, from time to time, he given him in charge by the company, does not constitute him a general agent for the company.</p>

This action is instituted by the plaintiff, to recover possession of a farm situated in Argyle, Washington county, of which Thomas Mooney died seized. Thomas Mooney was a native of Ireland, from whence he emigrated to this country prior to 1825.

This was an appeal by the defendant, Drew, from a judgment entered against him on the report of a referee. The action was brought upon a judgment recovered against the Hew Jersey Steamboat Havigation Company after execution returned nulla tona against the company.

: “ That in or about 1860, the defendants, .being a municipal corporation, caused certain premises, belonging to the plaintiffs, numbered forty-seven on the damage map in proceedings for the widening of Worth street, on the southerly side, between Hudson and Baxter streets in the city of New York, to be taken for the purpose mentioned in the said proceedings, by virtue of the statute in such case made and provided. (Valentine’s Digest, page 1193, § 178).

<p>An order opening a default taken, and allowing a trial, is discretionary; it does not affect a substantial right, and is not, in general, reviewable on appeal.</p> <p>Per Cardozo, J.: When made in the palpable abuse of discretion, such an order may be reviewed on appeal.</p>

<p>The statute (Laws, 1838, chap. 297, § 5) which declares that plats of ground in Greenwood cemetery, when conveyed to individuals, shall not be liable to sale on execution, or to he applied to payment of debts by assignment under insolvent laws, is intended to prevent sale for payment of the owner’s debts, against his will, by process of law, &c. A foreclosure sale, under a mortgage executed by the owner of a plat of ground, is not within the meaning of the act.</p> <p>Accordingly, where the defendant conveyed a plat of ground in the cemetery to the plaintiff, with a privilege of interment therein, and the plain tiff executed to the defendant an instrument reciting the conveyance, an< 1. agreeing to reconvey on repayment of the consideration, with interest, í i one year, and on default the plaintiff brought an action for sale of th i property,—Reid, that a sale under judgment of foreclosure was not pro hibited by the act; and, if otherwise, the plaintiff was at least entitled to a strict foreclosure, and his complaint was not demurrable for not stating a cause of action.</p>

The plaintiff had a verdict at the Cortland Circuit in January, 1869, for the recovery of the possession of over 300 acres of land, situated in Cortland county, with $400 damages. Judgment was rendered against the defendants on the verdict, with costs. The defendants made a case, containing exceptions, which constituted a part of the judgment roll in the action. The defendants appealed from the judgment to the General Term of this court.

The plaintiff recovered a judgment against the defendants upon the report of a referee for $1,266.77 damages, besides costs; which judgment was entered-and docketed in the office of the clerk of Cortland county the twenty-second day of February, 1869. The defendants filed exceptions to the report of the referee, which were annexed to the judgment roll. No case was made containing any of the evidence or proceeding on the trial.

This was an action to recover the possession of one hundred and sixteen acres and sixty-nine one hundredths of an acre of land, being part of the Kittle farm in the town of Middletown, in the county of Delaware. The action was tried at the Delaware Circuit in August, 1864. The jury rendered a verdict in favor of the defendant. The plaintiffs made a motion for a new trial on a case and exceptions at a Special Term of this court, which motion was denied.

<p>This was an appeal from a judgment entered upon the report of a referee dismissing the plaintiffs’ complaint.</p> <p>The complaint averred that the plaintiffs Tracy, as heirs-at-law of Cyrus Tracy, deceased, were seized and possessed of the fee simple, as tenants in common, of certain described premises of which said Tracy died seized while they, the said plaintiffs, were respectively under the age of twenty-one years. That the youngest of the said plaintiffs attained his majority in December, 1868, at which time they entered into possession, being entitled as aforesaid subject to the dower rights of their, mother, the widow of Cyrus Tracy, and it contained three counts.</p> <p>In the first it was alleged that about the month of January, 1858, the defendants, their agents, and servants, with force and arms wrongfully and unlawfully broke and entered the described premises, and continued and remained in wrongful possession from and after the time of entry until about the month of September, 1868, during which period (of about ten years) the title and fee simple remained in the plaintiffs, and each and every of them. That at the time the defendants, their agents and servants made such, wrongful and unlawful entry, and at divers and sundry times thereafter during the said period of ten years the defendants, with the intent to injure, damage, and waste the estate and inheritance of the plaintiffs, and without any leave or license unjustly and unlawfully felled, cut down, prostrated, and procured to be felled, cut down, and prostrated, a large quantity of standing timber and trees, the same covering and extending over about twenty acres of the lands of said premises, and that the trees and standing timber were of the value of $3,000, all of which the defendants took and carried away and converted to their own use. That the defendants, their said agents and servants, while in such wrongful and unlawful possession of said premises, did willfully and with the intent to injure and damage such estate and inheritance, pull down and destroy divers walls, fences, and inclosures which had been built and erected upon said premises by the said ancestor of these plaintiffs in his lifetime for the general purposes of farming and husbandry; and although said defendants pretended to have entered and remained in the use, possession and enjoyment of said premises at the time and for the period aforesaid, still they suffered and permitted the dwelling-house and buildings thereon to decay and become worthless; and also suffered and permitted a large portion of said premises, to wit, about thirty acres, comprising the western portion thereof, which was, at the time of the death of Cyrus Tracy, improved farming lands and under a good state of cultivation, to be uncultivated and fallow, and until the same became grown up with weeds, bushes, and brambles, so as to render the same entirely unfit for farming and agricultural purposes, &c., &c.</p> <p>In the second count it was alleged that the use and possession of the premises Was wrongfully withheld from the plaintiffs by the defendants, and that the plaintiffs were deprived of the rents and profits of the farm for a period of ten years.</p> <p>In the third count it was alleged that the defendants after such wrongful entry, cut down a large quantity of standing •timber and converted the same into logs, posts, cord wood, stave bolts, &c., and took and removed the same from the premises, and from the possession of the plaintiffs, and converted the same to their own use; the said logs, posts, cord wood, stave bolts, &c., at the time of such conversion, being the property and chattels of the plaintiffs.</p> <p>It appeared that on the 29th day of August, 1849, Cyrus Tracy, the plaintiffs’ ancestor, died seized in fee of the premises described in the complaint, leaving a will; which will had been duly proved and recorded as a will of real estate, by and before the surrogate of the county of Oswego, and contained the following clause, viz.:</p> <p>“ I hereby give and bequeath to my wife, Esther Tracy, all my real estate, and all my personal property of whatever kind or description belonging to me, of every name and nature; she to have the full use of the same to her own benefit, until my youngest child, David Cyrus Tracy, shall have attained the age of twenty-one years; or, in case he should not live to that age, until the age of the next youngest child shall reach twenty-one years, at which time I desire my property shall be equally divided among all my children; my wife, Esther Tracy, retaining one-third the same, to have and to hold to her the said Esther Tracy, and to my children, their heirs, executors and administrators forever. And I do hereby appoint my wife to be salé executor of this my last will and testament.”</p> <p>That from the death of Cyrus Tracy until November, 1858, the land and premises described were used and occupied by said Esther Tracy, his widow, hy herself and her tenants, at which time she let and rented the same to the defendant, Otis Dalrymple, who continued in the use and occupation thereof, claiming title thereto until October 28th, 1867, when his grantees reconveyed the same to said Esther Tracy.</p> <p>That on the third day of December, 1857, Esther Tracy made, executed, acknowledged and delivered under her hand and seal, her certain mortgage, to Henry M. Ames, upon the land and premises, to secure the payment of certain moneys therein described, in default of payment of which the mortgage was duly foreclosed, and the land sold and conveyed to the defendants, Chandler and Ames, on the 28th day of December, 1858, whereby Chandler and Ames acquired all the estate of Esther Tracy, in and to the lands; and that on the Erst day of April, 1861, they contracted to sell and convey the same premises to the defendant, Dalrymple, who agreed to keep them in as good condition as the same were in at that» time, and who occupied by virtue of his contract until October ¡28th, 1867.</p> <p>That during the period which Otis Dalrymple remained in possession of the premises, all the timber standing and being upon fifteen acres, with the exception of about fifty small trees, was cut down and carried away by him, his agents and servants, without the knowledge or consent of the plaintiffs, who were during such period minors under the age of twenty-one years; that Chandler & Ames were from time to time notified of the acts of Dalrymple.</p> <p>That Dalrymple, while in such possession of the premises, partially destroyed or pulled down a small frame building situate upon the lands, of which the defendants, Chandler & Ames had due notice.</p> <p>And the referee found and reported that the will of Cyrus Tracy did not suspend the power of alienation for more than two lives in being; and that should the two younger children both have died before arriving at the age of twenty-one years, the remainder would have taken effect. That whenever the division was due by the terms of the will, the widow took one-third in fee.</p> <p>That the plaintiffs could not maintain trespass, as the injury complained of was committed during the rightful possession of Esther Tracy, and her assigns under the provisions of the will. That an action in the nature of waste would lie against the tenants holding under Esther Tracy for injury to the plaintiffs’ remaining estate, of an undivided two-thirds, which remained to them after the youngest child attained full age, and that Esther Tracy was not a necessary party to the action, although seized of an undivided third. That to maintain the action of waste, as remainder-men, the plaintiffs must allege and prove the fact that the defendants held the prior estate; that otherwise, the defendants would be strangers and not tenants in common, and against strangers the action of waste would not lie; that this material fact not being alleged, the plaintiffs should not be allowed to prove it upon' a complaint against the defendants as strangers, that the plaintiffs could not recover against the defendants as tenants of a prior estate, and that their complaint should be dismissed.</p> <p>Exceptions to the referee’s findings were duly taken by the plaintiffs.</p>

This was an appeal by the defendant from a judgment in favor of the plaintiffs, entered on the report of a referee. The action was brought upon a bond and mortgage given by the defendant’s testator, during his lifetime, for foreclosure and sale of the mortgaged premises, and the recovery of any deficiency which might remain upon the bond. The defendant alleged that the bond and mortgage were, by reason of certain facts set forth in the answer, void for usury.

The parties to this controversy submitted to the court .the following case, under section 372 of the Code, viz.: “ On the 29th day of February, 1868, ‘ The Stevenson Manufacturing Company’ was organized at Auburn, FT. Y., and became a corporation, under the act of the State of FTew York entitled, ‘An act to authorize the formation of corporations for manufacturing, mining, mechanical and chemical purposes,’ passed February 17, 1848.

This action was brought to recover damages for acts of trespass alleged to have been committed upon lands of the plaintiff, in the village of Niagara Falls. It was originally commenced in a court of a justice of the peace, and discontinued there on plea of title, and an undertaking given as prescribed by statute, and was thereupon brought in this court for the same cause, by deposit of a summons and complaint with the justice, of which the defendant duly admitted service.

<p>Writ of certiorari to the county Judge of Columbia county.</p>