Volume 4 — Thompson & Cook's New York Supreme Court Reports

Motion by William M. Tweed, for a writ of peremptory mandamus against Noah Davis, one of the justices of the Supreme Court, and who presided at the trial of the indictment of the People against Tweed, requiring him to settle the bill of exceptions taken on said trial, as proposed by the applicant.

T. Johnson, and requiring said Johnson to appear before said referee and make an affidavit pursuant to section 401, subdivision 7 of the Code, to be used by the plaintiff in procuring the arrest of the defendant in an action of slander.

The action was brought by John E. Risley against the Indianapolis, Bloomington & Western Railway Company to recover the sum of $50,000, and also the value of certain bonds. The defendant company was a consolidation, duly made according to law, in 1S69, of the Danville, Drbana, Bloomington & Pekin Railroad Company, and the Indianapolis, Orawfordville & Danville Railroad Company.

The action was brought by Carlos Chamberlain and others against David A. Lindsay and William Chittick to recover the amount of two acceptances drawn by the defendants at Manchester, England, and payable to plaintiffs in London, also to recover a balance due for goods sold defendants in England. The defendants set up as a defense a composition deed with creditors, made pursuant to the bankrupt law of England, and which they claimed discharged them from the said debts.

The action was brought by George Kuhn against Warren G. Brown, Charles W. Alcott, Charles C. Wehrum and Alfred Lockwood, to recover from said Lockwood the sum of $2,000, which had-been paid to him in discharge of a mortgage owned by the plaintiff.

Wbit oe cebtiobabi issued to review the conviction of the relator, George Ooyle, for assault and battery, in the court of special sessions of Yew York city. The respondents, Thomas D. Sherwood and others, were appointed police justices of the city of Yew York, under Laws of 1873, chapter 583. The prisoner’s counsel claimed that the act under which the justices were appointed was unconstitutional, and that, therefore, they had no jurisdiction of the offense.

The action was brought by the plaintiffs, Peter Perrine and Adolphus Perrine, as partners, and a judgment was rendered by the justice in favor of the plaintiffs. The defendant appealed to the county court, serving notice of appeal upon the plaintiff, Peter Perrine, only. The respondents moved to dismiss the appeal, on the ground that no notice of appeal had been served upon Adolphus Perrine.

The action ■ was brought by William E. Moore against Newton Eastman.

The action was brought by Isaac Waid against Lewis Gaylord, sheriff, and Thomas Waid, to recover the possession of personal property. The defendant was sheriff of Oneida county. On the 18th of December, 1871, an execution issued upon a judgment in favor of Clark Stewart against Thomas Waid, was placed in the hands of W. A. Matthewson, a deputy sheriff.

The action was brought in Niagara county by Joseph M. Eay against Salmon B. Eowley and others, and was in the nature of a creditor’s bill. From 1868 to November 17,1871, Annie E. Smith was the owner of a lot in the city of Lockport.

This action was brought in Seneca county by Mary A. Kittell and others against William B. Osborn and Anna B. Eobinson, executrix and sole legatee of Ebenezer M. Eobinson, deceased.

The action was brought in Monroe county by Mary A. Codding against Thomas Wamsley to compel the specific performance of an agreement by the defendant to sell to the plaintiff a house and lot in the city of Rochester. By a lease executed- by the parties on the 1st of April, 1871, the defendant leased the premises in question to the plaintiff for the term of one year at a rent specified therein.

The action was replevin for a gold watch and chain brought in Erie county by William 0. Hodge against Albert R. Sexton. The plaintiff, a young man about 22 years of age, while away from home, fell in with certain disreputable characters, named Smith and Badger, and was induced to gamble with them, each betting upon the throws of the dice. The plaintiff bet and lost the watch and chain in question, and the stakeholder gave the same up to Smith.

The action was brought by Sandford M. Hunt, Jr., against Jeremiah Mitchell and Charles Bailey to recover of the defendants, as acceptors, the amount of a draft or bill of exchange. The complaint alleged that on the 1st day of June, 1872, the plaintiff and one Cramer were partners in business at Chicago, under the firm name of Hunt & Cramer, and the defendants were partners in business at Little Falls,K.Y., under the firm name of Mitchell & Bailey.

The action was brought in Oneida county by Edward F. Downer and Leroy F. Shepard against Alexis 0. Carpenter and John Baird, to recover the amount of a bill of goods sold and delivered to the defendants.

Error, to the court of sessions of Monroe county, to reverse a conviction of Stephen Coleman for receiving stolen goods, knowing them to have been stolen. The facts, and the questions arising thereon, are stated in the opinion.

The action was brought in Oneida county by John M. Jones against Thomas Chantry, to recover damages for an injury sustained by the plaintiff being thrown from a wagon while driving-on a public highway, by reason of obstructions placed, and caused to be placed, in such highway, by the defendant.

The action was brought in Monroe county by Daniel W. Powers as indorsee of a note for $2,600, made by the defendant, Mary French, and indorsed by the other defendant, John M. French, Jr. John M. French, Jr., alone answered. He alleged in his answer that on the 26th of May, 1865, the plaintiff had in his hands the sum of $2,600 belonging to one John M. French, being the proceeds of a mortgage executed by one Wm. Padgett and owned in fact by said.

Galusha against The Flour City National Bank of Rochester, and Edwin M. Lewis, assignee in bankruptcy of Jay Cooke & Co. The injunction, was allowed by the county judge of Monroe county and forbade any disposition by the defendants of a certain $15,000 note, made by the plaintiff, or the bringing of any suit upon it, in any court.

The action was brought in Onondaga county by James Bellinger and Marcus Bellinger against Edward Bentley and Nelson Ó.

The action was brought by Henry M. Clark against Isaac Hampton, upon a guaranty of a note, of which the following is a copy, -with the guaranty: “For value received, I promise to pay Isaac Hampton, or bearer, twenty-five dollars one year from date, with interest.

<p> Bigamy—venue—conviction in wrong county. </p> <p>In a trial for bigamy the proof showed that the second marriage took place in Tates county, and that the prisoner was apprehended in that county. Held, that a conviction in Oswego county was erroneous (2 R. S. 688, § 10).</p>

The action was brought by Hosea Crandall against Albert W. Schroeppel upon a promissory note made by defendant to plaintiff as payee or bearer, and reading as follows: “ July 21, 1869. “ For value received I promise to pay Hosea Crandall, or bearer, at his house, one hundred and sixty-five dollars by the first day of March next, with interest. “ A. W. Sohboeppel.” At the trial the note was produced under protest by one of plaintiff’s witnesses, who claimed to own it as…

Appeal by defendants, Charles N. English, Libbie J. Hibben and Willie English by their guardian ad litem, from a judgment of the special term. The action was brought in Orleans county by Enos T. Simpson and Nathan English, executors of the last will and testament of Myron J. English, deceased, against Esther English, the widow of testator, the defendants first above named, his children and others, to obtain a construction of the will in question.

The action was brought in Onondaga county by Dennis Kennedy and two others against William M. Simmons, to recover the amount of a promissory note. The attorneys for the plaintiffs resided in Onondaga county. After the action was commenced upon an ex parte application by plaintiff’s attorney, the county judge of Cortland county granted an order of arrest directing the sheriff of Cortland county to arrest defendant and hold him to bail in a specified sum.

The action was brought in Jefferson county by Martin Petrie against Henry Howe, for criminal conversation of defendant with plaintiff’s wife. The only material facts appear in the opinion.

Certiorari upon the relation of Lester B. Faulkner directed to “ The trustees of the village of Dansville,” a municipal corporation created by an act of the legislature. Laws of 1853, chap. 304.

The action was brought by Isaac Butts against the city of Rochester to recover back money alleged to have been illegally collected from the plaintiff under a tax or assessment warrant.

Appeal by defendant Fagan from a judgment entered on report of a referee. The action was brought by Norman Malcolm against William T. Fagan, James A. Fagan and Charles Phelps, upon a promissory note. The opinion states the facts. The referee, before whom the cause was heard, found in favor of plaintiff, and after judgment defendant William T. Fagan appealed to this court.

The action was brought by Thomas E. Pattison against The Syracuse National Bank to recover the value of certain bonds deposited in defendant’s bank, and from which they were taken or stolen.

Appeal by plaintiff from- a judgment in favor of defendants on demurrer to the answer. The action was brought in Erie county by Joseph Firmenieh against Lorenzo J. Bovee and Lewis Kelsey to set off a judgment owned by plaintiff against defendant Bovee, against a judgment recovered by said Bovee against plaintiff. The defendant Kelsey claimed to own, as assignee, the judgment recovered by Bovee. The opinion states such other facts as are material.

Appeal by Caroline A. Cushman and Emilissa Kellogg from the decree of the surrogate of Cayuga county, in the matter of the final accounting of David M. Horton, excutor of the last will and testament of Hiram T. Frisbie, deceased. The case was this: On the 2d of February, 1865, Hiram Frisbie, of the town of Sennett, in Cayuga county, made his last will, and by it made the following bequests, viz.: “Fourth.

Appeal by plaintiff from a judgment dismissing the complaint. The action was brought in Lewis county by William B. Nickelson against George A. Wilson to compel the assignment of a judgment recovered by Wilson against plaintiff and one Scott. In 1868 the plaintiff owned a patent for a cheese box, which he sold to the defendant Wilson and one Scott for $12,000, each agreeing to pay one-half of said price.

Appeal by defendant Saxton, from, a judgment entered in favor of plaintiff on the report of a referee. Held: as a conclusion of law, that the verbal agreement above mentioned, including the acts of the parties under it, did not operate to extend the time of payment, as originally stipulated in the mortgage, and he ordered judgment of foreclosure and sale with costs.

Appeal by defendants from an order at special term sustaining the plaintiff’s demurrer to defendant’s answer. The action was brought in Ontario county by George Van Alstyne against Carso Crane and Samuel E. Norton. The opinion states the case.

The action was brought in Cattaraugus county by Orris Marsh against the town of Little Valley, in said county, upon three town bonds issued by defendant and held by plaintiff under these circumstances : A special town meeting was held in said town August 29, 1864, for the purpose of voting on this resolution: “ Resolved, That a tax be laid upon the taxable property of the town of Little Valley, for the purpose of paying a bounty, not exceeding $200, to each volunteer to the…

The action was brought in Onondaga county by Robert E. Hill against John W. Northrup, Flavilla Northrop, James M. Crow, Charles G-. Robinson and Russell A. Clark, upon a promissory note made by the Northrups and indorsed by the firm of Crow, Robinson & Clark, and transferred for value before maturity to plaintiff. The. makers defended, and in their answer admitted the making of the note, but set up that the note was given to compound a felony.

The action was brought in G enesee county by Sidney A. Day against Samuel Crossman, Calvin Dutton and William Walker, commissioners of highways of the town of Pavilion, in said county, to recover damages for the loss of a horse and other injury, from the alleged negligence of defendants in not keeping in repair a bridge across a stream in said town.

The action was brought by Belle E. Chinn against Ellen H. Keith, Gilbert Shader and others, for the partition of certain lands situated in Wyoming county, of which one Arabella Baldwin died seized.

The action was brought in Livingston county by Seward F. Gould against John R. Marsh, to recover possession of certain personal property alleged to be wrongfully detained by defendant. The property, which consisted of printing machinery and materials, on the 20th of May, 1870, belonged to one James Morton. He on that day sold and delivered the same to one Jane Cotter for the price of $3,000.

The action was brought by Erastus A. Carroll and Newell J. Parmelee against Martin Weiler, to recover of the defendant for damages sustained by plaintiff by reason of the killing and wounding of sheep belonging to them by defendant’s dog. It; appeared upon the trial that a dog owned by one McCarty with the dog alleged to be the dog of the defendant, were engaged in killing and wounding the sheep.

Certiorari upon the relation of Samuel Tompkins to review proceedings of William Landreth and others, commissioners of highways, of the town of Niagara, in the county of Niagara, in laying out a highway, and of the commissioners for assessing damages for laying out the same. Two applications were made to the commissioners of highways of said town to lay out a road.

The action was brought in Cayuga county by Franklin A. Sloan, to recover for the loss of the services of his wife, who was injured while riding on the defendant’s cars from the city of Syracuse to Auburn, in the county of Cayuga, through, as it is alleged, the carelessness of the defendant. A verdict was rendered in favor of the plaintiff for $10,500.

The action was brought in Oneida county by William Ketchum against Peter Vidvard, John H. Sheehan, John E. Beckwith and James K. Smith, to recover for the alleged conversion by defendants of certain goods and chattels claimed to be owned by plaintiff or in his possession. The conversion consisted in seizing such goods under an attachment issued by a justice of the peace in an action before him by the defendants, Vidvard and Sheehan, against one Thomas Glark.

Appeal by defendants in an action in which a judgment on a demurrer was affirmed at this term from the judgment on the merits. The action was ejectment, brought in Onondaga county, by William Candee against S. Angeline Burke and others.

<p>Mistake and fraud — assignment by wife to husband.</p> <p>A husband bought shares in a steamship and paid the purchase-price partly with his wife’s money and partly with his own money. The contract of purchase was taken in his own name, but the title was transferred in the name of the wife. The steamship contracted debts; but the wife was not liable for their payment. The husband, however, expressed his opinion to her that she and her property were liable for the payment' of the debts, and showed her a letter from his brother, who thought an attempt would be made to collect the debts from her. The wife thereupon, for the consideration of one dollar, assigned certain property of hers to -the husband, through a third person, she believing from her husband’s representations that it would be more secure in his hands. Before the assignment the wife had made a will devising the property to her husband. Subsequent to the assignment the husband and wife became estranged, and she brought an action against the husband to have the assignment annulled. Held, that she Was entitled to the relief demanded, on the ground of fraud and mistake.</p>

Appeal by defendants from a judgment in favor of plaintiffs. The action was brought by Charles W. Moores and others, against Benjamin P. Lunt and others, upon a bond given to discharge an attachment issued against the steamship “ The Metropolis.” The opinion states the casé.

Appeal by defendants from a judgment in favor of plaintiff, and also from an order denying a motion for a new trial. The action was brought by the Dutchess County Mutual Insurance Company against Albert Hachfield and others, constituting the firm of Hachfield & Co. The opinion states the case.

Appeal by the defendant from a judgment in favor of the plaintiff, entered on the report of a referee. The action was brought by Gibbons L. Kelty and others against Sarah A. Long to recover the value of furniture sold and delivered by plaintiffs to defendant.

Appeal by defendants from an order striking out certain portions of the answer. The action was brought by James L. Harway against the Mayor, Aldermen and Commonalty of the city of Hew York. A similar action was brought by James W. Mills against the same defendants on precisely the same state of facts.

<p> Bankruptcy—effect of proceedings in foreign court—title to bankrupt’s estate Pleading—what are not facts sufficient to constitute cause of action. </p> <p>Plaintiffs brought action as assignees in bankruptcy of S. & Co., a Belgian firm which had been declared bankrupt by a Belgian court, to recover from defendant, a resident of New York, the value of property alleged to have been fraudulently obtained from S. & Co. Held, that a complaint averring such ■facts did not show title in plaintiff, and it was properly dismissed, on motion, as not stating “ facts sufficient to constitute a cause of action.”</p> <p>It seems that the courts of this State will not' recognize or enforce a right or' title acquired under a foreign bankrupt law'or. foreign bankrupt proceedings, so far as affects property within the jurisdiction of the courts of this State, or demands against residents of this State.</p>

Appeal by defendant from an order granting a final injunction. The action was brought by Ann M. Rapp against William Williams for an injunction restraining defendant from taking summary proceedings to dispossess plaintiff of certain premises. The facts appear in the opinion.

■ Appeal by defendants from a judgment in favor of plaintiff entered on report of a referee. The action was brought by William McDonald against the Mayor, Aldermen and Commonalty of the city of ¡New York to recover the value of'certain quantities of gravel, etc., which plaintiff alleged he had furnished the city in the years 1868 and 1870. The delivery was under an agreement with the superintendent of roads, and the materials were used on the public roads.

<p>Usury — construction of charter of corporation—commissions—Injunction.</p> <p>A corporation was empowered by its charter to loan moneys and to receive and take the management and custody of securities “ upon such terms and for such commissions, in addition to interest, as shall be stipulated and agreed upon by and between the said company and the parties receiving the loan or advance.” Plaintiff borrowed money of the company and deposited securities upon the following terms: In addition to interest and the expenses and disbursements attending the care and custody of the securities and eight per cent on the gross proceeds of a sale thereof, in case it should be made, plaintiff was to pay a sum equal to twenty-four per cent per annum on the loan as “ commissions.” The risk of loss of the securities, except from the company’s gross negligence, was on plaintiff. In an action by plaintiff to compel the surrender of the securities, alleging the loan to be usurious, held, that the company’s.charter did not allow it to make any loans which were in fact usurious, and that the facts entitled the plaintiff to an injunction pending the trial of the cause, restraining such company from selling the securities-</p>

Appeal by defendants from a judgment in favor of plaintiff. The action was brought by the First National Bank of. New Yoik, as owner and holder of a draft, against Theodore W. Morris, Andrew H. Schanck and others, constituting the firm of D. S. Schanck & Sons, acceptors of the draft. The draft was drawn and indorsed by the Lenox Glass Company, a Massachusetts corporation, at Lenox, Mass., upon Schanck & Sons, who were residents of and engaged in business in New York city.

Appeal by defendants from a judgment in favor of plaintiff. The action was brought by the People of the State of New York against Thomas C. Chalmers and Caleb S. Merritt, sureties, and Albert L. De Camp, principal, in a bond given for the faithful discharge of'De Camp’s duties as assignee of Halsey & Northum, insolvent debtors.

Appeal by defendants from an order denying a motion to vacate an order of arrest. The action was brought by the Buchanan Farm Oil Company against George Woodman and Thomas Evans. The opinion states the case.

Appeal by defendant from an order denying a motion on the part of defendant for the removal of the cause to the United States circuit court for the southern district of New York. The action was brought by the Chatham National Bank of the city of New York against the Merchants’ National Bank of West Virginia to recover the proceeds, amounting to $3,243.83, of various checks alleged to have been received by defendant for collection for plaintiff.

Error brought by plaintiff to review the record and proceedings resulting in the conviction and sentence of plaintiff under an indictment for grand larceny. Steven Dillon, the plaintiff in error, was indicted jointly with John Walsh for the larceny of a quantity of pig-iron, valued at about $50.

Appeal by defendant from a judgment entered on demurrer to complaint as frivolous. The action was brought by Joseph 0. Woodruff and another against John Leonard. The opinion states the case.

Appeal by defendant from a judgment entered on the report of a referee. The action was brought by Patrick Riley against Franklin Steele. The plaintiff Riley having died the action was continued in the name of James L. English and Lucien Skinner, executors of Riley. The opinion states the case.

<p> Arrest and bail—person extradited not subject to arrest in cwil action—Waiver. </p> <p>Defendant was brought from France to the United States as a fugitive from justice, under the extradition treaty existing bet ween France and the United States. He was arrested in a private civil action before he could return to France, and while he was still in custody. After his arrest he gave bail.</p> <p>Held, that the order of arrest should be vacated. ' A person extradited is entitled to full liberty to return to his former habitation/after the purposes of justice are satisfied as to the particular offense, and an arrest in a private action is inconsistent with that right. By giving bail the party does not waive his right to have the order of arrest vacated.</p>

The actions were brought by John G. C. Taddiken against Mary A. Cantrell and by Mary McYey against the same defendant. The facts are substantially the same in each case. The opinion states the case.

<p>Appeal from an order of the special term appointing a receiver of the defendant, The South Side Railroad Company of Long Island, upon motion of the plaintiff, Edward S. Clinch. The material facts appear in the opinion.</p>

Submission of a controversy without action. The Home Insurance Company claimed to recover against William Watson and Henry L. Hoguet, the sum of $2,297.94, upon a bond given by defendants to indemnify the plaintiff for the payment, upon an execution against one James Campbell, of certain moneys due from plaintiff to said Campbell, and which bond contained this condition: “How, these presents witness, that the said Home Insurance Company, having paid to the said sheriff the…

<p> Corporations—Jurisdiction in action- against foreign—preferred stock—right to dividends—Construction of contract—Practice—form of action—Interest—Evidence—laws of other States. </p> <p>Under Code, § 437, an action may be maintained in the supreme court by a resident of this State against a foreign corporation for any cause of action. Sowell v. G.. & N. W. Eailway Co.. 51 Barb. 378, overruled.</p> <p>Defendant, a railroad corporation, in 1857, issued certain preferred stock. By the terms of the certificates issued, it was stated that the stock was “ entitled to dividends at the rate of ten per cent per annum, payable semi-annually, in New York, on the first days of June and December, in each year, out of the net earnings of said company, * * * and the payment of dividends as aforesaid is hereby guaranteed.”</p> <p>Seld, (1) that the issue of stock of this character was authorized by the laws of Ohio, Michigan, Indiana, and Illinois under which said corporation was created and the stock was issued; and (3) that the holders of the stock" were entitled to the guaranteed amount of dividends out of the net earnings whenever made, and were not restricted to the earnings of any year for the payment of dividends falling due that year.</p> <p>Art action to secure the application of future earnings of defendant to the payment of dividends due on preferred stock was brought by one of the holders of such stock on his own behalf, and on behalf of others having like grounds of complaint; held, (1) that it was brought in proper form and (2) that the stockholders of defendant were not necessary parties.</p> <p>The net .earnings of the defendant before the action was brought had'been, in part, appropriated to dividends upon common stock. Held, that the owners of preferred stock were entitled to interest on the dividends they were entitled to receive from the time of such appropriation.</p> <p>The laws of other States affecting a matter at issue cannot be read for the first time on appeal. Cutler v. Wright, 22 N. T. 472, 474, doubted.</p>

Appeal by defendant from a judgment in favor of plaintiff entered on report of a referee. The action was brought by Myndert E. Veeder against William Cooley, for cutting and carrying away timber from, a farm of land in Chenango county, which, prior to the 1st of April, 1869, was owned by one Perry Eogers, and on that day was conveyed to the plaintiff.

Appeal by defendant from a judgment in favor of plaintiff, entered on the report of a referee. The action was brought by Asa W. Wickes against the Adirondack Company, a corporation. The opinion states the case.

Appeal by plaintiff from a judgment dismissing the complaint. The action was brought by' James Williams against William Williams and. James Armstrong to recovér damages for false imprisonment, and tried at the Albany circuit in 1873.

Motion by defendant to correct order of general term so as to allow defendant full costs on appeal to this court. The action was brought by George Hoffman and another against Daniel Barry. The defendant demurred to the complaint. The demurrer was overruled at special term, with leave to defendant to answer on payment of costs of demurrer. The defendant appealed to this court from such order.

The action was-.brought by the city of Troy against John Winters to recover a penalty for an alleged violation of an ordinance of the city of Troy, restraining the erection of wooden buildings within certain limits. The opinion: states the case. The court directed a verdict for plaintiff. Defendant-excepted.

Appeal by plaintiffs from a judgment entered on the report of a referee. The action was brought by Milo Marsh and George M. Wiswall against Uri Gilbert, Walter R. Bush and others to recover the amount of a bill for timber alleged to have been sold and delivered by plaintiffs to defendants. The opinion states the facts.

Appeal by defendant from a judgment in fayor of plaintiff. The action was brought by Elijah Wiles against the New York Central and Hudson River Railroad Company, to recover damages for the detention in unloading plaintiff’s canal boat at defendant’s dock. The opinion states the facts. The judge before whom the case was tried ordered a verdict for plaintiff.

<p>Appeal Horn judgment rendered upon a trial at the Saratoga county circuit, in June, 1873, before Mr. Justice Bocees, without a jury.</p> <p>The action was ejectment, brought by Ellen R. Slocum against Richard English and Calvin English, and the question to be determined was the validity of certain proceedings had before the surrogate of Saratoga county for the sale of the real estate of an intestate for the payment of debts, by virtue of which the defendants claimed title.</p> <p>The plaintiff showed title as one of the heirs at law of Harvey Granger, deceased, who died August 1, 1846, seized in fee of the premises in question. It appeared that letters of administration were granted on the 2d of September, 1846 ; that the administrators were removed and other administrators were appointed de bonis non of said estate; that, on the 2d of April, 1852, a creditor of the estate, upon application to the surrogate, obtained an order to show cause why the administrators should not be required to mortgage, lease or sell the real estate for the payment of debts. This order was served and a further order obtained for all persons to appear, etc., on the 31st of May, 1852. Ho proof of service was made and no further proceedings had under this order. On the 2d of September, 1852, the surrogate revoked letters to John Granger, which left his associate, Dillingham, sole administrator. On the 3d of March, 1853, the administrator applied to sell the real estate, obtained the necessary order and conveyed to one under whom the defendants obtained title. The judge found in favor of the plaintiff. The defendants excepted, and judgment having been entered, appealed.</p>

The action was brought in Albany county by Richard Hilton against Christopher W. Bender and Maria Bender, his wife, and four others, to recover the undivided one-half of a piece of land situated in the city of Albany.

The action was brought in Greene county by Foster Morss against Roman H. Gleason to recover the amount of a note, reading as follows : “ $9,814.17. For value received we promise to pay the executors and executrix of Colba Reed, deceased, or bearer, nine thousand eight hundred and fourteen dollars and seventeen cents, with interest. Gilboa, January 2, 1865.

The action was brought in Onondaga county by De Forest Stockham against Eriel D. Allard and Jarvis Burton to recover the possession of a mare which had been taken from the possession of plaintiff by defendant Allard, and by him sold to the defendant Burton. The mare was taken and sold by Allard under a chattel mortgage executed by a former owner of such mare to one Ellis, who, for value, assigned the same to Allard.

<p>Rjjeetment—writ of possession in — Presumption as to levy — time of levy — Redemption after re-entry.</p> <p>Upon a judgment for re-entry in an action of ejectment for the non-payment of rent, an execution directing the delivery of possession, was issued January 17, 1867, under which, on May 10,1867, the sheriff entered Upon the premises in controversy, which were yielded up by the occupant peaceably, and placed plaintiff in possession. After this defendant took forcible possession of the premises, and another execution was issued directing the sheriff to put plaintiff in possession, etc., under which the sheriff acted.</p> <p>Held, (1) that, in the absence of evidence, the presumption was that a levy under the first execution was made within sixty days from its issue ; and, (2) that, as the judgment and not the execution constituted the lien on the property, the execution could be carried out after the sixty days.</p> <p>Held, also, that, as the judgment determined plaintiff’s right to re-enter the premises, he might enter without a writ, and having taken peaceable possession on the 10th of May, the time within which defendant was entitled to redeem, under 2 R. S. 506, § 84, then commenced to run.</p>

Appeal by defendant from a judgment in favor of plaintiff. The action was brought by John E. Cary against the Schoharie Valley Machine Company to recover for an error against plaintiff in settlement of accounts and for money loaned and advanced. The opinion states the facts.

Certiorari on relation of Chaimcey Kilmer and others against A. J. Cheritree, David T. Laurel and others, commissioners of appraisal on improvement of streets in Saratoga Springs, and Patrick McGrath, town clerk.

The prisoner, Henry Myers, was indicted in the court of sessions of Chemung county for burglary in the third degree, in December, 1873.

Appeal by defendant, Eckert, from a judgment entered on the report of a referee. The action was brought by Charles L. Howk against Talmadge Eckert, the maker of a promissory note for $55.00, and Cornelius Bishop, indorser. The opinion states the case.

The action was brought by William E. Kirkland against William B. Dinsmore, President of the Adams Express Company. On or about March 25, 1865, a package of $200 in money was delivered to the Adams Express Company as common carriers, at Wilmington, N. C., by the plaintiff, to be transported to Hudson, N. Y. The agent of the company at Wilmington, upon receiving the package, delivered to the plaintiff a receipt.

The action was brought in Chenango county by De Witt Hopkins and a large number of others against Daniel W. Lane and Victory L. Lane, upon a promissory note reading as follows : “$796.62 Lihcelaek, Oct. 26, 1867. “For value received I promise to pay Thomas Holl or hearer seven hundred and ninety-six dollars and sixty-two cents, 60 days from date, with interest after 30 days. “Dakiel W. Lake, “ Victory L. Lake.” The plaintiffs and the defendant, Victory L. Lane, were, at the…

The action was brought in Schoharie county, by James Vaughn, against John Westover, upon a promissory note. During the pendency of the action, James Vaughn died, and Hiram W. Vaughn, the executor, under his last will and testament, was substituted in his place. The only facts of material importance appear in the opinion.

<p>Estate—vesting of— distinction between real and personal.</p> <p>A testator, by his will, gave to his wife the use of his real estate for Ufe, and directed his executors, after her death to sell such estate and divide the amount among several persons named. M., one of the persons, married and died intermediate the death of testator and testator’s widow, leaving her husband but no issue surviving. Held, that the interest of M. in the estate vested at the death of testator; that during the life of testator’s widow, and before the sale, directed in the will, it continued an estate in remainder in the real estate which could not be converted into personalty by the doctrine of equitable conversion. 'But the gift to M. was nevertheless a money legacy, and the death of M. before the death of testator’s widow and. the sale did not change its character, and it was to be distributed in the same manner as personal estate and would go to M.’s husband as survivor.</p>

The claim was made, upon three promissory notes by John Ban-field against Jackson Rumsey, as executor of the last will and testament of Joshua L. Rumsey, deceased.' The necessary facts sufficiently appear in the opinion.

<p> Water privilege—grant of, construed. </p> <p>A grant was made to the owners of a mill, in 1853, of a right to draw water from a race sufficient to propel four 300-pound (paper) engines, with all the machinery necessary for making paper from the same. Meld, a grant of a quantity of water sufficient to perform the required work with the machinery in use at the mill at the time the grant was made; and the grantees were not restricted to such quantity as with improved machinery and facilities would perform the same work.</p>

The action was brought by Frederick 0. Norton against Jacob L. Snyder and others to restrain the quarrying of stone on defendant’s lot. The material facts are stated in the opinion delivered at special term, which was adopted by the general term and which is given herewith.

<p>Appeal from an order of the special term refusing a writ of mandamus. The application was made by William Youmans, Jr., for such writ against the board of supervisors of Delaware county to compel such board to correct and reduce the assessment of certain rents. The material facts appear in the opinion.</p>

Actioít to obtain partition of lands situated in the'towns of Bruns; wick and Grafton, Rensselaer county. The action was brought in said county by Jacob Oipperly and others against Jacob E. Oipperly and others. The lands in question were conveyed, one parcel by one McOhesney, the other by Jacob Oipperly, Sr., father of plaintiff, to John J. Oipperly, plaintiff’s brother.

Motioe to set aside a judgment entered against the plaintiff for the costs of the action, on the ground that defendant was not ■entitled to recover costs. The action was brought by David DeGraff against George B„ Hoyt, as executor of the last will of Eliza Hewson, deceased, to recover for damages for a breach of a covenant of quiet enjoyment. The opinion states the necessary facts. The motion was argued and decided at the Albany special term, July, 1874.

Longley against the city of Hudson, to restrain the sale of the lands of plaintiff for the non-payment of an assessment for a sewer. The material facts appear in the opinion. The motion was argued ahd decided at the Columbia special term February, 1874.

Application by Charles F. North claiming to be chamberlain of the city of Cohoes, to -compel Leonard Cary, his predecessor in said office, to deliver up the books and papers of said office to said North, which application was made under and by virtue of article 5, chapter 5, title 6, part 1, of the Revised Statutes, entitled “Proceedings to compel the delivery of books and papers by public officers to their successors.” (1 B. S. 124-126.) The necessary facts appear in the…

Action in equity to recover moneys paid by plaintiff’s testator for the support and maintenance of defendants who are infants. The action was brought by Eleana E. Brandon, executrix, under the last will of Nicholas Brandon, deceased, against Abram W. Brandon and others, infants, who appeared by a guardian acl litem, and their general guardian. The material facts appear in the opinion. The action was tried at the Greene Circuit, February, 1874.

• Appeals by William A.’Miller and Gilbert B. Weeks, from a judgment in an action to foreclose a mortgage. The action was brought in Kings county by George Mahon against John D. Hall, and numerous other defendants, of whom Miller was, and Weeks was not, one. Weeks appeared and answered, claiming to be the assignee of one of the defendants, a corporation. The only necessary further facts appear in the opinion.

By section 2 of chapter 370 of the Laws of 1873, which is entitled “ An act to revise and amend an act entitled £ An act to incorporate tlie village of Port Jervis,’ passed March 30, 1866, and all acts relating thereto,” it is provided, that££ The officers of the village shall consist of a president and six trustees, a treasurer, three assessors, a collector, a clerk, a police justice.” By section 3 it is provided, that ££ The president and trustees, the treasurer, assessors…

The claim was made by Julia Woodward against Henry Bugsbee, administrator of Isaac Bugsbee, deceased, for board, lodging and services, in taking care of the deceased during his last illness. The deceased, who was a brother of plaintiff, about the 1st of May, 1870, came to the house of plaintiff, and asked to stay there a few days, saying he was very sick. Deceased was a widower, and plaintiff a married woman, living with her husband and family.

The action was brought in Kings county by Simon Sternfels against Edward Clark to recover for a breach of a contract for the sale and delivery of dead animals. . The facts appear sufficiently in the opinion.

file, in the town clerk’s office, an order laying out a certain highway in their town, and to proceed with all diligence to cause the relator’s damages to be assessed, and the highway to be opened and worked. The proceeding was instituted in Putnam county, on behalf of Joshua Nelson against Wallace Jefferds and two others, commissioners of highways of the town of Phillipstown in said county. All the material facts appear sufficiently in the opinion.

The action was brought in Kings county by John J. Rider and Ezra W. Conklin against Cornelius S. Stryker to recover the value of certain timber cut down upon and carried away from lands belonging to defendant, which it was claimed had, at the time, been taken for a public avenue. The material facts sufficiently appear in the opinion.

The action was brought in Kings county by Rachel A. Pratt against The Forty-second Street and Grand Street Ferry Railroad Company, a corporation operating a street railroad in the city of New York, to recover for injuries caused by the negligence of defendant’s servants.

<p> Statute of limitations—does n$t run upon an admitted trust. </p> <p>In 1865 plaintiff deposited negotiable bonds with defendant under the agree- ■ ment that defendant should sell the bonds, reimburse himself for an advance made plaintiff, and account to plaintiff for the surplus. In 1868 plaintiff asked for an account, which defendant promised but neglected to give. In 1872 plaintiff again asked for an account, when defendant repudiated the claim. Held, that the pledge of the bonds, with power of sale, created a direct trust upon which the statute of limitations did not commence to run until the defendant repudiated the same in 1872</p>

The petition was made by Betsy Gr. Bradley, claiming as assignee of Henry P. Bradley, husband and administrator of Elvira R. Bradley, deceased, .the distributive share of said Elvira R., in certain moneys deposited with said treasurer, and arising from the sale in partition of certain lands in which one Margaret Hoff owned an undivided interest at the time of her death in 1832.

The action was brought in Kings county by Ann Marsh, executrix, and Charles L. Benedict, executor under the last will and testament of Leonard Marsh, deceased, against the City of Brooklyn, and was tried at the Kings county special term before Mr. Justice Pratt, who found, as matters of fact, that the plaintiffs were invested as executrix and executor respectively of the last will of Leonard Marsh, deceased, with the legal title to certain premises situate in the city of…

The action was brought by John R. Glover against Henry Thomas and George Thomas, to recover, 1st, for lumber sold defendants, and 2d, for damages sustained by reason of the alleged failure of defendants to transport and deliver lumber in good order upon a contract made by them with plaintiff for so doing.

The action was brought in Kings county by Rodolphus B. Johnson and another against Edward G. Kelly, to recover one-half of the loss accruing from a partnership transaction.

The action was brought in Orange county, by Marinda Wood . against Samuel Frazer and others, among whom were William McCIughan and Mary his wife, to foreclose a mortgage upon premises owned by said Wilham McCIughan.

defendants. Thy action was brought in Kings county by Spencer D. 0. Van Bokkelen against George E. Taylor and others to foreclose a mortgage executed in 1857 by defendant Taylor to the plaintiff to secure a note of $3,500 and a bond. The defense was that the mortgage debt had been released and discharged by an instrument executed by plaintiff.

The action was brought in Orange county, by John M. Quackenbos against William H. Sayer, and others, to foreclose a mortgage executed by said Sayer to plaintiff. The defense was usury. The circumstances under which the loan to secure which the mortgage was given were these: Stephen H. Sayer, a son of the defendant above named, in December, 1869, applied to the plaintiff for a loan of $5,000.

The action was brought in Kings county by John A. Engh against Henry Greenbaum and David S. Greenbaum, to recover the amount of two drafts drawn on a house in Norway by one Swanstrom, alleged to be defendants’ agent in Brooklyn.

Appeals from two orders of the special term, one overruling a demurrer to the complaint of one defendant, and the other sustaining that of the other defendant. The action was brought in Kings county by Robert Miller against Andrew Coates and Berkeley Mostyn, for an accounting and other ■relief. The defendants separately demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action.

The action was brought in Orange county by William H. Goodale against William H. Finn, upon a judgment recovered by plaintiff against defendant in the State of New Jersey. The material facts of the case appear in the opinion.

, The action was brought in Westchester county, by J. Warren Tompkins against Valentine Hodgson, president of the board of trustees of the village of White Plains, and Elisha P. Ferris, to compel the removal of a monument erected in one of the streets of said village in front of plaintiff’s lands.

The writ was issued upon the application of Henry Ludlum against Stephen Wallace, Henry C. Baker and Benjamin W. Craft, commissioners of highways of said town. The affidavit stated many grounds of irregularity but none sustained by the return. The opinion states fully the only material points raised upon such return.

The action was brought by Henry H. Richardson against William A. Virtue and Charles H. Yorston to recover damages for the alleged malicious arrest of plaintiff. The facts sufficiently appear in the opinion.

The action was brought by Eleanor J. Westervelt against John T. Ackley, to have a certain deed of real estate executed by one Cornelius Westervelt, the husband of plaintiff, to defendant in 1861, declared a mortgage as security for the consideration advanced at the time by said defendant to said Cornelius Westervelt, and that, upon the payment of the sum found to be due from the grantor to defendant, a reconveyance of the premises be directed to plaintiff, who claimed to…

The action was brought by Oscar Zollikoffer against William F. Havemeyer, mayor of said city, and others,' under the provisions of Laws 1872, chap. 161. The necessary facts fully appear in the opinion.

Appeal by the mayor, aldermen and commonalty of New York city from an order made at the special term directing that an assessment be vacated and discharged of record. The assessment in question was upon the property of Samuel Phillips, the petitioner, instituting these proceedings. Sufficient facts for a proper understanding of the case appear in the opinion.

The action was brought by Bernhard Mayer against the Mayor, Aldermen and Commonalty of the city of New York to recover the amount of an assessment paid by mistake. The complaint contained the following averments. “First. That at the times hereinafter mentioned the plaintiff was the owner of a certain lot or piece of land lying in the city of New York, and described in the assessment list hereinafter mentioned, as ward-number 28 in block 98. Second.

The action was brought by Rosalie Maximilian, administratrix of the estate of Max K. Maximilian, deceased, against The Mayor, Aldermen and Commonalty of the city of New York to recover damages for the death of plaintiff’s intestate, who was run over and injured, so that he died, by an ambulance driven by an employee of the commissioners of public charities and -corrections of the city and county of New York.

The action was. brought by Ruth E. Dean against the defendant, an insurance company located and doing business in Hartford, Conn., to recover the amount of two policies of insurance issued by the defendants upon the life of her husband, Henry Dean.

The action was brought by Joseph W. Duryea againt The Mayor, Aldermen and Commonalty of the city of Yew York, to recover for damages to the plaintiff's premises by reason of the improper construction of certain city sewers. The action was tried before Mr. Justice Lawrence and a jury. At the close of plaintiff’s testimony, the court granted a nonsuit. Other material facts appear in the opinion.

The action was brought by Soloomon S. Sonneborn and others against Nieolo Lavarello and others. The award in controversy was made by the arbitration committee of the New York Produce Exchange. The necessary facts appear ■sufficiently in the opinion.

The action was brought by Caroline M. Campbell as administratrix of Robert B. Campbell, deceased, against William Hoge and James Robb to recover moneys deposited by the intestate with defendants as bankers.

• The action was brought by Christian F. A. Dambman against Frederick Butterfield and others, to set aside as fraudulent an assignment for the benefit of creditors made to the .defendant Butterfiéld by the firm of De Forest, Armstrong & Co., the members of which firm were also made defendants. Plaintiff obtained an order to examine Butterfield before trial.

The action was brought in 1871 by Hill Gowdy against Antoine Poullain to recover the value of certain tobacco, the property of plaintiff, alleged to have been sold by defendant.

The action was brought by William B. Wheeler against Walter Brady on a promissory note for 82,000. An inquest was taken on the 12th day of June, ] 874. On the 19th day of June, 1874, the plaintiff procured an order of arrest on the ground that the defendant had disposed of his property with intent to defraud his creditors. The defendant was arrested, and on the 24th of June judgment was entered in favor of the plaintiff for $2,347.01.

<p> Attachment—lien of—foreign bankruptcy proceedings. </p> <p>Plaintiff and defendant were both residents of England. Plaintiff, commenced an action in this State and attached property of defendant here. Defendant obtained a return of the property by giving the proper undertaking, and afterward as a defense set up a composition deed in favor of his creditors executed under the English bankrupt law a month after the attachment was levied. The deed contained a provision that nothing therein contained should discharge or prejudice any mortgage, lien or other security held by any of the creditors.</p> <p>Held, that by the attachment proceedings plaintiff obtained a lien upon the property as a security for the judgment he might obtain, which was not affected by the deed; that the undertaking was a substitute for such,lien, but that to render such lien effective, a judgment must be obtained, and the bankruptcy proceedings and deed were not a defense to the action.</p>

The, action was brought in the superior court by E dward A. Darragh against Joseph McKim, to recover damages for an alleged slander spoken by said defendant, and was commenced in August, 1873. Issue was joined September 30, 1873, and the case was noticed for trial at the ¡November, 1873, term of the superior court.

The action was brought by David Risley against the Phenix Bank of the City of Hew York, to recover the amount of a check drawn by The Bank of Georgetown, South Carolina, in favor of the plaintiff upon the defendant on the 20th of May, 1861. At the time the check was drawn the Bank of Georgetown had on deposit with defendant an amount sufficient to meet the check. The complaint alleged these facts, that the check was duly presented, and payment demanded and refused.

The action was brought by Harriet Deitz against John G-. Deitz, for a divorce on account of the adultery of the defendant. The material facts relating to this motion appear in the opinion by Mr. Justice Donohue, delivered at the special term, and which is as follows : “ The present defendant brought an action in the superior court against the present plaintiff for divorce, and she regularly appeared and answered, denying the charge and setting up a countercharge.

<p>Appeal from a judgment rendered at special term restraining the defendants from maintaining a shed on pier ¡No. 30, East river, and from interfering with the free use of said pier by the public, as the same was used before said shed was placed thereon. Also from an order denying a motion made by the defendants, that this cause be referred back to the judge who tried the same, with directions to make a specific finding “that numerous steam transportation lines, running vessels between New York and other ports, both domestic and foreign, have for many years maintained upon piers occupied by them, some upon the East river and others on the North river, similar sheds without disturbance from the public authorities.”</p> <p>The action was brought by The People of the State of New York against Charles H. Mallory and others. The material facts in the case appear in a report of the same upon an appeal from an order dissolving an injunction therein in 2 N. Y. Sup. at page 76.</p>

. The action was brought by Edwin W. Barstow and others against Hans J. Hansen and others upon a promissory note. The necessary facts fully appear in the opinion.

The proceedings were instituted upon the relation of Charles Tull, the judgment creditor, against Peter • Kenny, the judgment debtor named therein.

The action was brought by Altagracia Cepeda de Llamosas against Antonio Llamosas for a divorce a mensa et thoro. Before the appearance of defendant, plaintiff petitioned the court for an allowance pendente lite.

The action was brought by George S. Trimm and another against William B. Marsh and others to redeem certain mortgaged premises. The action was tried, and judgment rendered in favor of the plaintiff. This was reversed by the general term, and, upon appeal to the court of appeals, the decision of the general term was affirmed, and judgment absolute directed for defendant, which was duly entered.

The action was brought in Livingston county by Anson M. Baker against The Home Life Insurance Company to recover $5,000 on a joint policy of life insurance given by defendant upon the lives of plaintiff and his wife, Martha 0. Baker. The application for the insurance was made in November, 1868, and Martha 0. Baker died in December, 1870, of pulmonary consumption.

The action was brought by Charles H. Wombough against Francis E. Cooper to recover the balance of $300 advanced by the firm of Lent, Wombough & Co., commission merchants of New York city, on a consignment of a quantity of hops by defendant to them for sale.

The action was brought in Wyoming county by Nelson Shallies and another against Eugene W. Wilcox to recover rent for one-half year’s occupation of a store. The store was leased to defendant by said Shallies, by a written lease, for the term of three years at a yearly rent of 8300, payable semi-annually.

Hudson Stephens, executor under the will of Apollos Stephens, deceased, on an account for wood sold defendant’s testator. The case was tried by a jury, who rendered a verdict for plaintiff for $24.20, upon which, with costs, the court rendered judgment. On the trial the plaintiff offered in evidence a copy of a verified account served on the executor, and also an offer to refer, which were received on the question of costs under objection and exception by defendant’s counsel.

The action was brought in Herkimer county by John D. Spinner against the defendant, to recover for injuries to plaintiff’s cattle while on defendant’s track. The cattle strayed from the public highway in upon the track, through an open, farm-gate. erected by defendant in a fence alongside its track for the use of one Farrington, who owned land adjoining the roadway. The case was tried at the Herkimer circuit before Mr. Justice Morgan and a jury.

The action was brought in Steuben county by Henry Faucett against Frederick S. Nichols to recover the value of a span of horses, buggy and other property destroyed by fire while in defendant’s hotel barn. The defense -was that the fire in question was the work of an incendiary, and occurred without the negligence of the innkeeper.

The action was brought in Onondaga county by Leonard P. Fields and another, committee of the person and estate of Abel Amidon, a lunatic, against Maxwell T. Fowler, to set aside the sale of a farm to Amidon, while a lunatic, by the defendant, to cancel the satisfaction by Amidon of a mortgage held by him upon the farm, and to cancel a check given by him to defendant at the sale.

The action was brought in Wyoming county by Joseph P. Sampson to enforce a mechanic’s lien. The facts appear sufficiently in the opinion.

will from probate, and the discontinuance of proceedings to prove the same. In May, 1873, the respondent Catherine T. Hill propounded for probate a paper purporting to be the last will of Joseph Fellows, deceased, she being one of a large number of beneficiaries named in the will. The appellant, John 'Heermans, appeared and contested the probate.

<p>Appeal from a judgment in favor of defendant, entered at a special term of the superior court of Buffalo upon a decision of the court and certified to the supreme court by reason of the disqualification of two judges of. the superior court from hearing the appeal. The action was one of claim and delivery, brought by the plaintiff, a corporation, against Dennis McNamara, a collector of taxes of the city of Buffalo, to obtain the possession of certain malt seized by him for the non-payment of taxes. The only necessary material facts appear in the opinion. '</p>

The action was brought in the county of Niagara by William W. Dewey against the board of supervisors of that county to recover money wrongfully collected by the defendant from plaintiff. The money thus collected was for an assessment imposed upon the lands of plaintiff under the provisions of chapter 774 of the Laws of 1867, for the purpose of paying the expense of a drainage improvement through the lands of plaintiff and others in the town of Royalton in said county.

<p>Appeal from a judgment rendered at special term in favor of plaintiff. The action was brought in Jefferson county by Andrew J. Hackley and Sarah Hungerford, administratrix of the estate of Marcus Hungerford, deceased, against Simeon Draper, John Steward and Robert Yelverton, to set aside the sale of a judgment, and for other relief. During the pendency of the action Simeon Draper died, and John H. Draper and Henry Draper, the executors under his last will, were substituted as defendants.</p> <p>Some time.previous to 1853 the city of Auburn subscribed for the stock of the Lake Ontario, Auburn and Hew York Railroad Company the amount of $100,000, and issued its bonds for that sum. These bonds were purchased by Simeon Draper for $106,000. Only part of this sum was paid, and after an abortive attempt to settle the balance due a suit was brought by the city against Simeon Draper therefor, and a judgment recovered for .$65,000. In 1855 plaintiffs brought action against the railroad company above named for an indebtedness due them, and upon their application a receiver of the property of the company was appointed. By some arrangement, not material to the case, the judgment against Draper was assigned to the receiver, and became a portion of the assets of the railroad company. The receivership was continued and successive receivers appointed down to the appointment of the defendant Yelverton. negotiations were entered into during the years subsequent to the appointment of the first receiver on behalf of Simeon Draper for the purchase or settlemént of the judgment, and sundry offers made to the several receivers to that end. The result of the negotiations was that in 1864, upon the application of the receiver, Yelverton, an order was granted by a justice of the supreme court directing the receiver to sell the judgment at public or private sale in his discretion, and shortly after this he sold and transferred the judgment to defendant Steward, who acted in behalf of Simeon Draper. Other material facts appear in the opinion of Mr. Justice Mullís adopted by the court at general term.</p> <p>The complaint asked that the sale of the judgment by the receiver be set aside as fraudulent, and that the receiver be removed.</p> <p>Upon the trial after the plaintiff’s evidence was concluded, defendant moved for a nonsuit upon the grounds stated in the opinion, upon that motion, hereafter given. Subsequent to the decision of that motion, upon application to the court, plaintiff was allowed to amend the complaint in certain particulars. To the amendments made, defendants demurred upon grounds set forth in the opinion hereafter given upon the argument of the demurrer.</p> <p>The judge, before whom the action was tried, found in favor of plaintiff and gave judgment as asked in the complaint. From this judgment defendants Draper appealed.</p>

The action was brought in Genesee county by Harriet C. Stevens against Homer Bostwick, administrator of the estate of Edward Stevens, deceased, for goods sold, money lent and board furnished intestate. The plaintiff was a married woman, but in the complaint was no averment of that fact, or that she carried on business in her own name or had separate property, the action being brought as if plaintiff was a feme sole.

The action was one of claim and delivery brought in Erie county by Seth P. Bliss against Peter Misner to recover the possession of certain personal property consisting of saws, belting and machinery previously attached to and used in the saw-mill. Such property was detached from the mill by the owner and removed to the defendant’s house, and there stored.

The action was brought by Oren S. George against Alfred Arthur for trespass upon certain premises formerly owned by plaintiff. The action was originally brought in a justices’ court, but upon an answer of title removed into the supreme court. The defendant claimed title under a sale of the premises made upon the foreclosure of a mortgage made in pursuance of the statute.

811, as amended by Laws 1869, chap. 241, and Laws 1871, chap. 127. The writ, which is a common-law certiorari, was issued upon the application of William V. Corwin and others against Peter D. Walter, county clerk of Niagara county. Ancillary writs were afterward issued to the commissioners for bonding said town and to the assessors of the same town.

The action was brought in Genesee county by Lucian R. Bailey against John H. Bergen, executor of the last will and testament of Maria F. Bergen, deceased, to recover the amount claimed to be due upon a promissory note indorsed by defendant’s testator. The note in suit was one of three, each for 11,000 and interest, made by one W. N. Cross and indorsed by said testator, and payable successively in eleven, twenty-three and thirty-five months from date.

The action was brought in Cattaraugus county by Mortimer A. Helms against Johnson Y. Goodwill, to obtain relief against certain conveyances alleged to be made to defendant in fraud of plaintiff’s right. In 1868, one Albert Helms was equitable owner of about thirty acres of land in Randolph, Cattaraugus county.

<p>Appeal from a judgment in favor of plaintiff entered upon the report of a referee. The action was brought by Henry H. Butter-worth, as collector of the estate of John F. Butterworth against Henry Volkening and another.</p>

The action was brought by Isaac Devoe against David R Nutter. Another action was brought by plaintiff against defendant, in the court of common pleas. The actions were to recover an interest in suits brought by defendant, as attorney, for several parties against the collector of the port of New York, for erroneous assessment of duties; plaintiff’s interest being part of defendant’s'fees for his services.

The action was brought by John Wood against Hannah E. Lockwood and others, to foreclose a mortgage given by said Lockwood to plaintiff as security for a contingent indebtedness of her husband.

Appeal by the mayor, aldermen and commonalty of the city of New York from an order made at special term vacating certain assessments made upon the property of the petitioner Henry James Anderson for paving First avenue in said city.

Appeal by defendant from judgment and from order denying motion for a new trial made upon the minutes of the court, and by plaintiffs from order setting aside verdict and directing a new trial on the ground of newly-discovered evidence, and from order denying stay of proceedings during the pending of the appeal.

The order was granted in an action brought by Henry Clews and another against 0. Rizzoni and George Raphael to recover the amount of two bills of exchange purporting to be drawn by the Bank of Egypt, which were subsequently discovered to be forgeries.

The action was brought by Emil Heinemann and another against John Heard and others to recover damages for a breach of contract in not purchasing goods. The plaintiffs were merchants in the city of New York, and their business chiefly consisted in the purchase and sale of the products of China and Japan.

Appeal by the Equitable Eire Insurance Company of London from an order, at special term, refusing leave to enter judgment for a deficiency in an action brought by John Jay, Beceiver of the Mechanics’ Eire Insurance Company, against William H. De Groot and others, to foreclose a mortgage. ■ The appellant was not a party to the action, but claimed an interest in the mortgage in question.

.The action was brought in Orange county, by Henry H. Clark anfd another against Benjamin Shuman and others, to recover for goods sold the firm of M. Newman & Oo.

The action was brought in Kings county, by Elnathan L. Sanderson against Henry 0. Bowen and others, to recover damages for an alleged libel published in the Brooklyn Daily Union, a newspaper issued by defendants. The jury rendered a verdict in favor of plaintiff for 13,300.

<p> Damages—under contract of indemnity—severing causes of damage—approximate compensation. </p> <p>Defendants engaged plaintiff’s canal boat to take a load of potatoes to New York. By reason of defendants’ delay the boat only reached Schenectady before winter set in. To protect the cargo from the cold defendants placed a quantity of manure over the boat. This plaintiff objecte.d to, but consented upon defendants’ agreement to indemnify him for any damage done to the boat. Held, that if the contract indemnified plaintiff from all damage at Schenectady, damage resulting from the use of the boat as a storehouse and from a strain by reason of lying on the uneven bottom of the canal might be recovered, but if only the damage resulting from the use of the manure was intended, the fact that it might be impossible to define the exact limits of each source of damage would not prevent the jury, under the rules laid down by the" court, from giving an approximate compensation upon such evidence as the nature of the injury and the subject involved permitted.</p>