Volume 40 — Barbour's New York Supreme Court Reports

ACTION by a husband, against his wife, for a divorce on the ground of adultery. The defendant answered, denying the allegations in the complaint and alleging adultery by the plaintiff, as a defense, and also as a counter-claim, she demanding a judgment of divorce against him.

<p>In an action by a husband against his wife, for a divorce on the ground of adultery, the defendant cannot set up, by way of counter-claim, the adultery of the plaintiff, so as to entitle her to a judgment of divorce against him if the charge is proved. Johnson, J. dissented.</p>

<p>THIS action was brought on a promissory note executed by one Towner Eeed, and the defendant Mason Eeed as surety, and delivered to the plaintiff. The note was as follows, viz : “ $450. Three years from date we jointly and severally promise to pay F. W. Dewey, or bearer, four hundred and fifty dollars with interest from the first day of April next, for value received. Grorham, October 29th, 1856. (Signed) Towner Reed.</p> <p>Mason Reed, Surety.”</p> <p>The defense was, that after the note was executed and delivered, the said Towner Eeed and the plaintiff entered into an agreement, without the knowledge or consent of the defendant, whéreby the following words were added to the note, viz : "interest to be paid semi-annually,” intending thereby that the interest on said note should be payable semi-annually, and that in pursuance of said agreement, Towner Eeed paid the two installments of interest indorsed upon the note, semi-annually, but afterwards became insolvent. That by reason of said agreement and writing, the note was materially altered without the knowledge of the defendant, and he was thereby discharged from liability thereon.</p> <p>The cause was submitted to the court at the circuit, upon the pleadings, note and a written stipulation of facts, and a decision was made in favor of the defendant, from which decision the plaintiff appealed.</p>

<p>THE defendant, as sheriff of Monroe county, received an attachment issued against the property of Philip Garbutt, and by virtue of it levied upon a quantity of gypsum, or plaster. On the trial, at the circuit, the plaintiff gave evidence tending to show that the plaster was taken from ground conveyed by Philip Garbutt to him before the levy, viz,- in January, 1858. The rock was dug from, the soil by the plaintiff, in the winter of 1860—was made by the plaintiff into plastér at his own expense. The plaintiff was, and had been since the conveyance, in the exclusive possession of the land, and Philip Garbutt had no connection whatever with the plaster. The value of the plaster consisted almost wholly in the labor and expense of the manufacture of the same, the rock in the ground being of trifling or no value.</p> <p>The defendant offered to prove that such conveyance was made for the purpose of hindering, delaying and defrauding the creditors of Philip Garbutt in the collection of their debts; that the plaintiff was a party to the fraud, and received the conveyance with knowledge thereof, and to aid in effecting it. The evidence was excluded, and the defendant excepted.</p> <p>The jury found a verdict for the' plaintiff, assessing the Value of the property at $300. The court, upon motion by the defendant, ordered the plaintiff's proceedings to be stayed until the decision of the exceptions, which were ordered to be heard in the first instance at the general term.</p>

The complaint alleged that the defendants procured the note of the plaintiff for $65, by false and fraudulent pretenses, and .then sold it to a bona fide purchaser, whereby the plaintiff was compelled to pay it. The answer was a general denial. The proof shows the following facts: On the 1st of March, 1859, Luther Barnes executed a chattel mortgage to J. Sprague Morely, assignee of James Hickok, for $167.17, upon a pair of bay horses, and other property.

LINUS B. HOPSON presented a petition to Justice Bacon, for a writ of habeas corpus in behalf of Charles E. Hopson, in which he alleged that the said Charles E. Hopson was restrained of his liberty and detained by Joseph P. Bichardson, United States provost marshal for the 21st congressional district of New York, acting at Utica, N. Y. That the said Charles E. Hopson was not committed or detained by virtue of any process, judgment, or decree or execution issued by any court…

<p>A writ of habeas corpus was issued in the above matter, by Judge Betts, on the 10th day of September, 1863, returnable on the 12th, and on the 12th adjourned to the 15th, for the purpose of allowing General Canhy, the party on whom the writ was served, to make a return. And by order of the court the proceedings were further adjourned to the 19th of the same month, and the prisoner was ordered to be confined in the Park barracks, city of New York.</p>

THIS was an action to recover the possession of land in the city of Rochester. The land sought to be recovered is that designated “park” on the maps annexed to the printed case.

<p>THIS action was brought to recover the amount due upon a subscription made for the purpose of erecting an academy. It was brought upon the same subscription paper set forth in The Wayne and Ontario Collegiate Institute v. Smith, (36 Barb. 576,) or one in the same form. The defendant, by his answer, denied the allegations of the complaint, and averred that the subscription was without consideration, and therefore void; that the persons named in the complaint were not elected trustees by the baptist convention at Marion, or elsewhere; that they were not elected with the approbation of the defendant; that the payments made by the defendant, on the subscription, were induced by the false and fraudulent representations of persons acting in behalf of the plaintiff, by which he was deceived, &c. On the trial, the same facts, substantially, appearing in the case above mentioned were proved or admitted. When the plaintiff rested, the defendant moved for a nonsuit, upon various grounds. Whereupon the plaintiffs’ counsel offered to show that the. meeting of the Wayne ■County Baptist Association, called to meet at Marion on the 30th of May, 1855, named in the subscription, did not elect trustees, but met that day and adjourned from Marion to meet at Palmyra on the 16th of J une, 1855, at which day they met at Palmyra, and adjourned to meet at Macedón on the 30th of J une, 1855; that they met at the latter place on the day last mentioned, and chose the board of trustees of the plaintiff, who were incorporated as the first board of trustees, by the regents of the university, and acted as such trustees from that time, and were those named in the charter. The judge stated that for the purposes .of this trial he should assume the facts to be true, as stated in the plaintiff’s offer, but still the defendant would not be liable, under the terms of the subscription put in evidence. He accordingly directed a judgment of nonsuit to be entered, and the plaintiff excepted, and appealed to the general term.</p>

THIS was an action upon a promissory note for $300, made by the defendant on the 9th of February, 1856, ^payable to the plaintiff, two years after date, with interest. The plaintiff was a married woman, at the date of the notes the wife of Daniel Paine, with whom she then lived. The complaint alleged the execution and delivery of the note to, and an express promise therein to pay to, the plaintiff. It also alleged that she was the lawful owner and holder thereof.

The action was brought to set aside certain written instruments, on the ground of fraudulent representations, and to reinstate a bond and mortgage, and to foreclose the mortgage so reinstated.

THIS was an action to recover the possession of a lot of land in the village of Seneca Falls, and was tried before the court, without a jury. The judge found the following facts, viz: on the 30th day of November, 1849, Peter Miller, who was the owner of the premises in question, made his last will and testament in writing, and died May 17, 1852.

ACTION to recover damages for breach of an agreement contained in a lease.

MOTION by the defendant for a new trial, on a case and exceptions,' ordered at the circuit to he heard at the general term, in the first instance. The complaint was on an executed contract for the sale and delivery of cattle hy the plaintiff to the defendant, and the plaintiff sought to recover the price. The answer was a general denial; that the plaintiff did not deliver the cattle; and that they were lost by the plaintiff’s negligence.

THIS action was tried by the court, without a jury, at the circuit in Monroe county, in February, 1863, and judgment was entered in favor of the plaintiff, for $213.08 damages and costs. The action is on a promissory note made by the defendant, which by its terms matured on the 6th day of October, 1861. The 6th of October being Sunday, the note became due on the 5th.

<p>The defendants sent their agent, B., to the plaintiff, with a written order for a load of rye, nothing being said, in the order, as to the price, and B. having no authority to make a contract. The plaintiff informed B. that his price, for the rye, was seventy-five cents per bushel, and that he would let the defendants have it at that price; and he directed B. to inform the defendants what the price was. This B. omitted to do, but took away a load of rye, and on returning for another load falsely stated to the plaintiff that he had told the defendants the price, and they did not object to it; whereupon he obtained another load. The market price for rye, at that time, was only fifty cents per bushel. Meld that the plaintiff was entitled to recover the sum named by him to B. as his price, for the grain.</p> <p>Sdd, also, that there being an apparent bargain and sale at the vendor’s price, which was entered into, on his part, in good faith, and which he had a right to rely upon as a valid agreement on the part of the purchasers, if either party must suffer from the misunderstanding it should be the one who employed the agent by whom the fraud, which occasioned the injury, was practiced.</p>

APPEAL by the defendant from a judgment entered on the report of a referee. The complaint alleged that on the 4th of March, 1859, one Thomas W. Smith was. indebted to the plaintiff, as maker of certain promissory' notes, set forth and described, which had been discounted for him by, and were then held by, the plaintiff; also upon two drafts before that time drawn by said T. W. Smith and discounted and owned by the plaintiff.

THIS action was brought to recover damages sustained by the plaintiff, by the destruction of his farm buildings and their contents, consisting of hay, grain,'and other personal property, by fire, communicated from a steam dredge of the defendants, through the negligence of the defendants and their servants. The action was tried before a referee, who found the following facts.

THIS was á controversy submitted to the court upon a case for a determination and judgment thereon, pursuant to the provisions of section 372 of the Code of Procedure.

THIS was an action brought by Andrew J. Brackett, as receiver, against the defendants, to set aside as fraudulent and void, as to the plaintiff, certain conveyances of real estate; one from James W. Manchester and Margaret S., his wife, to Sarah P. Sanderson, dated January 13, 1858, and one from Sarah P. Sanderson to Mrs. Manchester, of same premises, dated January 22, 1858; and asking that the said Margaret S. and James W. unite in a conveyance of said land to the…

The action was brought to recover damages for the conversion of personal property. The plaintiff claimed to hold the property under an assignment made by Norman Pnlver and David 0. Pnlver, constituting the partnership firm of N. Pulver & Go. to him in trust for the benefit' of creditors. The defendants, in their answer, alleged the recovery of a judgment, in an attachment suit commenced by them against if. & D. 0.

<p>THIS is an action to recover money due for work done under a building contract. The defense was that the work and building were to be completed by the 1st day of December, 1860, and were not completed till March 1st, 1861. The language of the contract is : “ The party of the second part hereby covenants and agrees with the party of the first part, to do all the mason work and carpenter and joiner work required to erect, build and finish, on or before the first day of December next, a building according to plans and specifications furnished and to be furnished.” The work was completed, so far as the specifications called for, some time in the winter and before February. It took six weeks to complete the extra work. The extra work was not plastered with the rest. It was plastered last. The plastering to the other was finished in November. The extra work could not be done as soon as the rest was, because the plaintiff could not get the defendant to decide how he wanted it done, or consent to pay for it, and it was put off till the last. This work was done principally in December, and finished the next month. The upper story was rented to a tenant as soon as it was done. The extra work was done up stairs for his office. The referee found that the plaintiff had performed his contract, but that it was not completed by the 1st day of December, 1860, nor until the 15th day of April, 1861. That the completion of the work after the 1st day of December was with the defendant’s knowledge and without objection by him. That six weeks was a reasonable time to complete the building as altered. And that such alterations were completed within six weeks. That the balance due and unpaid from the defendant to the plaintiff for the contract price and alteration, was $628.31, and the interest thereof! from the 15th day of April, 1861, $29.28, in all $657.59. That the value of the use of the store in said building from the 11th January, 1861, to the 15th of April, 1861, was $191.50, and that the defendant was entitled to recoup the same against the plaintiff’s claim. And as a conclusion of law the referee found that after deducting the rent so recoup-, ed, from the amount of the plaintiff’s claim, he was entitled to judgment against the defendant for $466.09.</p> <p>The plaintiff appealed from the judgment entered upon the report of the referee.</p>

APPEALS from judgments entered upon the reports of a referee in the above actions. Action No. 1, was brought to recover against the defendant, as drawer of a draft upon, and accepted by, Hiram W. Bostwick, treasurer of the Tioga Coal, Iron, Mining and Manufacturing Company, to the or- . der of Bogers, Ketchum & Qrosvenor, for $9064.71, at 12 months, dated May 19,1841, and payable at Ho. 65 Liberty street in the city of Hew York.

<p>AN action for personal injuries, resulting in a verdict for the plaintiff, and an order that the exceptions be heard at the general term in the first instance. The cause was tried at the Albany circuit, before Justice Weight, in September, 1861. On the 2d of February, 1860, the plaintiff, who was a milk-man by occupation, was returning to his residence in Bethlehem, from the city of Albany, with a horse and a wagon loaded with slops from the distillery, when he met the defendant with a two horse wagon weighing about thir.teen hundred pounds, loaded with two 'tons of ice. The wagons met about one-fourth of a mile from the bounds of the city, upon the Albany and Bethlehem turnpike road. The plaintiff was on foot, walking by the side of .his wagon, holding the reins, and was traveling on a walk. He turned out to the right as far as he could get, out of the road, and as the wagons drew near together, discovering that they were coming close together, he stopped his horse and stepped between the wheels of his wagon, getting as close to the wagon as he could, touching it. A curb stone on the right prevented his turning off any farther in that direction, as he testified. The defendant’s whiffletree caught in the plaintiff’s overcoat, and he was drawn over the forward wheel, and the defendant’s horses starting up quick, having no one in.charge of the reins, he was thrown upon the ground, and dragged along until he was caught by the hind wheel of the defendant’s wagon, which passed over the plaintiff’s right elbow joint and left hand, breaking the bone of the first finger and smashing the joint of the hand, crushing also the bone of the left arm near the elbow joint. The defendant was informed that the plaintiff was injured, and requested to go for a doctor, to which he replied that he did not know where one lived. He was then requested to call at Bradt’s, the first grocery, which he would pass, and leave word to have a doctor sent for, to which his only response was, that he did not know where Bradt lived. The plaintiff also received very serious internal injuries. He turned his horse to the right prior to the collision, about twice the width of his wagon, but the defendant’s team kept directly on its course in the center of the road, not turning fo the right at all. On the west of the curb stone the surface is uneven, and descends into the ditch with a deep descent, no part of the road outside of it ever being traveled, and the bank being steep enough to upset a loaded wagon. There was a space of ten feet on the east of the ice wagon, smooth and good traveling, with space enough for two wagons to pass between the ice wagon and the east bank of the road. The defendant.testified that he threw his reins up on to the ice some time before the collision, and walked behind his wagon; the ice being so high above his head that he could not see ahead ; and that he neither saw the plaintiff nor any" part of the collision.</p> <p>His honor the judge charged the jury, that the first question presented was whether the defendant was guilty of negligence resulting in the injury complained of; “ it will be for you to determine whether or not, as is claimed on the part of the plaintiff, the act of the defendant in allowing his horses to proceed with a loaded wagon without a driver was an act of negligence. (To this portion of the charge the defendant’s counsel excepted.) It is provided by statute that whenever any persons traveling with any carriages, shall meet on any turnpike road or public highway in this state, the persons so meeting shall seasonably turn their carriages to the right of the centre of the road so as to permit such carriages to pass without interference or interruption, under a penalty for neglect ; and your attention should be directed to the evidence bearing upon the omission of the defendant to turn his horses tó the right of the centre of the road. (To this portion of the charge the defendant’s counsel excepted.) The next question for the jury to consider is whether the plaintiff was guilty of negligence, directly contributing to the injury; for unless the evidence proves that the injury resulted wholly from the negligence or wrongful acts of the defendant the plaintiff cannot recover. Whether the injury resulted from the negligence of the plaintiff exclusively, or from the concurring negligence of both is a fact for the jury. If the jury find that there was no negligence on the part of the plaintiff contributing to produce the injury he suffered, he is entitled to all the damages he has hitherto sustained, occasioned by the wrongful and negligent acts of the defendant. (To this portion of the charge the defendant’s counsel excepted.) He is entitled, in case you find that the defendant is liable, to compensation for the pain and suffering he has endured, the necessary medical expenses incurred in effecting a cure, the time lost, and any permanent personal injury he may have suffered by reason of the defendant's negligence.'' (To this portion of the charge the defendant's counsel excepted.)</p> <p>The defendant’s counsel requested the court to charge the jury, that upon the facts proved there was negligence on the part of the plaintiff which contributed to the injury. The court declined so to charge, but submitted the question to the jury as a question of fact for their determination, and the defendant’s counsel excepted. The defendant's counsel requested the court to charge the jury that the undisputed fact that at the time of the injury the plaintiff was standing on the open road, on the exposed side of his wagon, within reach of the whiffletree of the defendant’s wagon, as it was passing on a walk, and without a driver, established a negligence on his part. The court declined so to charge, and the defendant’s counsel excepted. The defendant’s counsel requested the court to charge the jury that the burden of proof was upon the plaintiff to satisfy the jury that he was free from any negligence contributing to the injury. The court declined so to charge, and the defendant's counsel excepted. The court added that if the plaintiff’s negligence in any degree contributed to produce the injury complained of, the verdict should be for the defendant, and in determining that question the jury should look at all the facts and circumstances in the case.</p> <p>The jury under the charge of the court found a verdict for the plaintiff for three thousand dollars damages.</p>

THIS was an appeal by the plaintiff from a judgment of nonsuit, entered by direction of the justice, at the Sullivan circuit held in April, 1861.

<p>Where money is deposited with a banker to the credit of another, the former becomes indebted to the latter, for the amount, payable on reasonable demand. But if the banker, by his words or conduct, denies the right of the depositor, as by placing the deposit to the credit of a third person, he thereby becomes presently liable to an action for the amount, without a formal demand.</p> <p>So held where the banker, voluntarily, and without authority from the depositor, counted out the amount of the deposit, in bank' notes and specie, and handed it to a sheriff holding an execution against the depositor, and the sheriff levied upon the money and sold it.</p> <p>Meld, also, that the money thus separated by the banker from the contents of his vault was his property, and not that of the depositor, and was not liable to levy under an execution against the latter.</p> <p>Money being in the hands of the defendant, as a banker, belonging to a corporation, the officers of the corporation, in pursuance of authority given them by a resolution of the board of directors, transferred and assigned to the plaintiffs all claims and demands which the company might have, for such money, and authorized them to collect the same for their own benefit and use. KM that this was a valid transfer of all the rights of the corporation in respect to the money in deposit.</p> <p>KM, also,’that it was no objection to the validity of such assignment that it was dated and executed by one of the officers signing it, in anticipation of the resolution authorizing it; it not being executed by the other officer, or delivered, until after the passage of the resolution.</p> <p>Where the board of directors of a rail road corporation, by resolution, ' directed that a claim held by the corporation should be transferred to certain persons specified, and that the “proper officers” should execute the requisite assignment; it was held that it was to be presumed, in the absence of proof to the contrary—at least in favor of third persons dealing with the company—that the president and secretary were the proper officers for that purpose.</p>

THIS is an action upon a contract for the sale of lands in the town of Ogden, in the county of Monroe, executed between Abner Adams, of the first part, and John L. Green, of the second part, dated November 5,1847. The complaint, „ after alleging the execution of the contract, sets forth the decease of Abner Adams in the year 1848, and that he left a will whereby he devised the lands in question to the respondents, and made Myron Adams his executor.

THIS case was tried at the Sullivan circuit, in September, 1861, before the justice holding the circuit and a jury. The complaint alleged that the plaintiff was possessed and the owner in fee simple of forty-two acres of land, situated in the town of He ver sink in the county of Sullivan, and that the defendant wrongfully entered said lands and cut and removed bark and timber therefrom, and converted the same to Ms own use, for which the plaintiff claimed to recover damages.

<p>Where, upon proceedings supplementary to execution, it appears that property of the judgment debtor is in the hands of a third person who claims title thereto by transfer from the debtor, the judge has no power to proceed to try the title to such property and summarily to determine to whom it belongs, and impose a fine upon the defendant. Peckham, J. dissented.</p> <p>The proper course is for the judge to appoint a receiver, by whom an action may be brought against the person claiming the property, to test the validity of his claim.</p>

THE plaintiffs, composing the firm of H. C. & M. Hulbert, doing business in the city of Hew York, on the 29th day of March, 1861, at the city of Chicago, in the state of Illinois, deposited with the defendants, who were doing business as bankers at Chicago, under the firm name of B. F. Carver & Co., bank hills issued by duly incorporated hanks of Illinois, known as Illinois currency, or the abbreviations “ 111. cy.,” amounting to $1871.42, and which, at the time of such…

This was an action by Stephen A. Barker, John Moore, Jr., and Joshua T. Drowne, against William L. Cook, upon two promissory note's, amounting to $1221.33. An order of arrest was granted by Mr. Justice Sutherland, on an affidavit tending to show that the defendant had disposed of his property with intent to defraud creditors.

The action was brought by J acob Sharp, to recover damagés for injuries sustained by Mm in consequence of certain misrepresentations made by the 'defendants. The cause was tried before Mr. Justice Hogeboom and a jury, at the New York circuit, in October, 1861.

<p>PPEAL by the plaintiffs from a judgment entered on a trial at the circuit, before Justice Alleít, without a jury. The action was upon a premium note, given by. the defendant, to the Atlas Mutual Insurance Company, on effecting an insurance upon a vessel. The defendant, in his answer, alleged by way of s.et-off and counter-claim,, a loss and damage sustained by the property insured, by the perils insured against, during the running of the policy. The following facts were found by the court: First. The note in controversy was' a premium note, given for risk on the schooner Gardner Pike on the day it bears date, by the defendant, the maker, to the Atlas Mutual Insurance Company, a corporation duly created by law, and"doing "business"in the city of Hew York, under charter and by-laws, copies of which were annexed. Second. Before the 4th of February, 1856, the note was transferred by the said company to the American Exchange Bank, with others, to the amount of more than $5000, as collateral to loans made by the bank to the said company. The note was made payable on the face thereof to the Atlas Mutual Insurance Company, and was indorsed as follows, by the secretary of the company:</p> <p>“Pay for account of the Atlas Mutual</p> <p>Insurance Company. George H. Tracy, Secty.”</p> <p>Third. On the 14th day of January, 1856, the trustees of the said company, at a regular meeting, passed the following resolution, to wit: “ Resolved, That the officers of the company be and are hereby authorized to arrange with any parties, in or out of the board of trustees, for the use of their names, either as makers or indorsers of such paper as it "will be necessary for the company from time to time to have, and they may give any security, and make such allowance as thej> shall think proper, for the use of such paper. Fourth. On the 15th day of January, 1856, the following instrument was executed and delivered, to wit:</p> <p>“New York, January 15th, 1856.</p> <p>We, the undersigned, agree to and with each other, and with the Atlas Mutual Insurance Company, that we will lend our notes to the amount of $5000 each, to said company, and will indorse each other’s paper so given to an equal amount, on the conditions as stated below, such paper to be given to T. 8. Nelson and J. S. Sturges, special trustees, to be used by them as they may think proper, for the benefit of the company, and to be made at such date as they require. It being clearly understood that our liability on this paper, either as makers or indorsers, shall be fully secured by a deposit of collaterals, to such an amount and of such character as said trustees shall think sufficient to cover all the paper used under this arrangement; such securities shall be placed in the hands of T. S. Nelson and J. 8. Sturges, as special trustees for all parties concerned, and we hereby give to said special trustees full power and authority to sell said collateral securities, or any part or portion thereof, at the board of brokers, in the city of New York, or at public sale, or at private sale, or at the option of said special trustees, and without advertising the same, or otherwise giving us any notice. It is also clearly and distinctly understood, that should any loss occur ultimately to any parties to, this arrangement, that such loss shall be borne pro rata, by all the parties giving such notes. It is also understood that the said notes shall be paid by the company, by the first of November, 1856; but the parties are, in the meantime, to give new paper for renewal for the same, or a less sum, until finally paid in full, as above.” Signed, on behalf of the company, by B. Bussell Hinckley, vice president. And signed also by several other persons and firms.</p> <p>Fifth. The signers of the foregoing instrument were trustees of the said company, or were firms, of each of which a trustee was a member. Sixth. Under, and by virtue of the said instrument, §40,000 in notes were advanced and used by the said company and for its benefit, and the plaintiffs have not been fully reimbursed, but there is a deficiency to an amount exceeding the amount of the note in controversy. Seventh. On the 4th day of February, 1856, the following instrument in writing was executed and delivered to the plaintiffs :</p> <p>“ New Torlc, February 4th, 1856.</p> <p>Whereas, the Atlas Mutual Insurance Company is indebted to the American Exchange Bank: and whereas, said bank holds divers securities belonging to said company, pledged to said bank as collateral to such indebtedness : Now, the said company, for value received, hereby consigns and transfers to T. S. Nelson and James S. Sturges, special trustees, all the said securities, subject only to the pledge thereof for indebtedness, to be held or used by the said T. S. Nelson and Jamés S. Sturges, special trustees, as collateral security for the payment of any sums of money which they may procure for said company by the discounting of any paper whatsoever. The Atlas Mutual Ins. Co., per E. Bussell Hinckley, [l. s.] Vice Prest. Attest, G-eo. H. Tracy, Sec’y.”</p> <p>That there was no resolution of the board of trustees authorizing said instrument, other than the one bearing date January 14th, contained in the third finding of fact. Fighth. In the month of May, 1856, the note in controversy was delivered by the American Exchange Bank to the plaintiffs, under the instrument in writing bearing date February 4th, 1856. Ninth. There was a loss on the policy on which this premium note was given, to the amount of §171.09, which loss was adjusted and liquidated by the said company on the fifth day of March, 1856, and was then due and payable.</p> <p>And the judge found and decided, as matter of law :</p> <p>I. That the • plaintiffs were not, as against the defendant having a claim and demand against the payees, bona fide holders for value of the note counted upon, but the note in the hands of the plaintiffs was subject to all defenses which would have been available as against the payees.</p> <p>II. The loss under the policy for which the note was given is allowable in this action, as an offset to the note in the hands of the plaintiffs, and being more than the amount of the note, the plaintiffs cannot recover.</p> <p>Judgment was accordingly given for the defendant, for costs.</p>

Boies, administrator, with the will annexed, of Maria A. Boies, deceased. The testatrix, Maria A. Boies, on the 25th day of October, 1854, made and executed her last will and testament, by which, after giving to her husband, William H. Boies, the sum of $2000 and certain articles of furniture, and to other persons small legacies, devised and bequeathed as follows : “ Fourth.

THIS was an action upon a policy of insurance. The cause was twice-tried: on the first trial the judge nonsuited the plaintiff; the nonsuit was set aside and a new trial granted by the general term.

OTIOTf for judgment on a verdict taken for the plaintiff, for $224, subject to the opinion óf the court at general term. The plaintiff and one Connor, on the 12th of June, 1849, were the owners of adjoining lots of land in the city of Rochester ; the plaintiff being the owner in fee of his lot, and Connor having a contract for his.

THIS action was brought to recover for board, washing and mending, furnished by the plaintiff to the defendant. The defendant in his answer denied each and every allegation of the complaint. And for another defense, the defendant answered that the several demands mentioned in the plaintiff’s complaint did not accrue to the plaintiff within six years.

THIS was an application for a peremptory writ of mandamus to compel the mayor of the city of Hew York to discharge a duty imposed upon him hy the 6th section of the act entitled “An act relating to the hoard of supervisors of the county of Hew York,” passed April 15, 1857, (Laws of 1857, vol. 2, p. 286,) which provides.as follows: “All moneys drawn from the treasury, hy authority of the hoard of supervisors, shall he upon vouchers for the expenditure thereof, examined and…

The plaintiff alleged, in his complaint, that on the 14th day of December, 1861, the defendant and his partner, one Schneider, being indebted to him in the sum of $731, and he having become their surety by indorsing their note for $4253.93, transferred by a written bill of sale or assignment which was set out at length, a quantity of cheese and other personal property, and also certain accounts and debts for cheese sold, to hold to him as security for his debt and as his…

<p>THE claim of the plaintiff as receiver of the Hew York Protection Insurance Company, against the defendants, was referred, upon the application of the receiver, to G-. H. Lynch, in pursuance of “ An act to facilitate the closing up of insolvent and dissolved mutual insurance companies,” passed April 21, 1862. The claim was on a premium note dated August 3d, 1850, for $ 165, payable “ in such portions and at such time or times as the directors of said company may agreeably to their charter and by-laws require.” The defendant’s policy, which was the consideration of the note, was for five years, expiring August 3, 1855. The company failed, and became insolvent in January, 1853. All the losses for which the company became liable occurred after August, 1850. In August, 1853, a receiver was appointed of the effects of the company, with the usual powers of receivers in such cases, who was superseded by the plaintiff, appointed in his place, September 18, 1855. In May, 1860, on the application of a creditor, the plaintiff was directed to assess all the notes in his hands to their full amount and to collect them. On the 12th of August, 1862, the assessment was made and notice given to the defendants. Upon these, facts judgment was given for the plaintiff, from which the defendants appealed.</p>

ACTION of debt upon three judgments entered upon confession of the defendants, before a justice of the peace, for $243.58, $190.47 and $190.47, respectively. The confessions were in writing, signed in the presence of the justice, in the town of his residence, 3 or 4 miles from his dwelling-house, and at the house of the defendants.

THIS was an action for an assault and battery, tried at the Monroe circuit, before Hon. E. Darwin Smith, and a jury. Sarah Elannagan was examined as a witness on the part of the plaintiff.

This action was brought by Charles B. Bostwick, receiver, &c., against Charles A. Abbott, Robert G. Pollock, John Cochran, John Stewart, and. Cornelius Fiske, to set aside a general assignment made by the firm of Abbott, Pollock & Cochran.

THE capital stock of the Bank of Commerce in the City of New York was $9,234,320.

ACTION to foreclose a mortgage given by S. D. Dillaye and wife to the plaintiff, June 4, 1853, to secure the payment of #7500. On the 20th day of July, 1859, a judgment was recovered against Dillaye upon the bond accompanying the mortgage, in the superior court of the city of New York, upon which executions had been returned unsatisfied.

PPEAL from a judgment entered upon the report of a referee. The action was brought to charge the defendants as copartners, as acceptors of a bill of exchange drawn by one Hussey, upon their promise in writing to accept the same, before it- was drawn.

This action was brought by Jonathan C. Fowler, John K. Hewlett, and Henry E. Jewell, commissioners of highways, of the town of Hyde Park, against Casper Westervelt. The action was first tried before a justice of the peace.

THIS action was brought to recover damages for the loss of the plaintiff’s horse, the injury to his cart, injury to himself personally, and the charges for' medical attendance, &c. occasioned by the neglect of the defendant to refill in a proper manner a trench which he had ordered to be dug, in Harrison street, in the city of Brooklyn.

ACTION to recover the value of a threshing machine and one set of two horse wagon wheels. It was tried before Allen, J. at the Onondaga circuit, in May, 1863.

THIS action was commenced in a justice’s court. The plaintiff obtained a judgment there for $>100 and costs. The case was appealed to the county court, where the judgment was affirmed, and from that court an appeal was taken to this. The plaintiffs are merchants, doing business at Fort Plain, Montgomery county, and their complaint is on a bill of goods sold to the wife and children of the defendant.

THIS was an action brought by the iffaintiff against the defendant, to recover the value of one set of diamond ear rings and one diamond pin, which the defendant sold to Randall & Bareman, of the city of NewYork, as the agent for Mrs. Eugenia Ashby, the wife of Charles Ashby, and which Charles Ashby placed in his hands for sale. Th§ action was referred to George F. Comstock, as sole referee, to hear and determine.

The cause was tried before the police justice of the village of Whitesborough, an officer created by an act passed February 12th, 1859, entitled “An act to revise, amend and consolidate the several acts relating to the village of Whitesborough.” (Laws of 1859, p. 13.) The only sections bearing upon the subject are as follows: Title 2d, § 2. “There shall be elected hereafter by ballot, within and for said village, by the electors residing therein, the following officers: A…

The action was brought for the recovery of an undivided sixteenth part of a certain lot in the first ward of the city of Syracuse. The entire premises were owned by Thaddeus M. Wood, deceased, at the time of his decease, who died intestate, leaving Theodore Wood, (the father of the plaintiff,) one of his heirs and inheriting the undivided one-eighth part of all his real estate.

APPEAL by the defendant from a judgment entered upon the report of a referee. The suit was brought by -the plaintiff, as administratrix of her husband, to compel the specific performance of a contract for the sale of real estate. The following facts were established by the report of the referee.

<p>The omission to give an undertaking or security, upon an appeal from a special to the general term, is not a sufficient ground for a motion to dismiss the appeal.</p> <p>An appeal without security is effectual, under section 348 of the code; hut it does not per se operate as a stay of proceedings on the judgment.</p> <p>The case of Kelsey v. Campbell, (38 Barb. 238,) explained as relating to the effect of. an appeal from the supreme court to the court of appeals.</p>

THIS action was commenced to foreclose a mortgage made by John G. Pitt, November 4th, 1857, to Albert G. Story, upon certain premises… Held: as a matter of law, that although the Herkimer County Bank is a moneyed corporation within the intent and meaning of the statute above cited, the defendants Hyde & Everitt could not avail themselves of the illegality in the mortgage from Pitt to Story, in trust for the security of Pitt’s indebtedness to that bank, for the reason that…

<p>An attorney, claiming a lien upon the judgment, for costs, and who brings an action against his client to recover the amount, cannot, (when collusion is not charged) make the judgment debtor a party with a view of having the amount declared a lien upon the judgment. Amen, J. dissented.</p> <p>The lien which an attorney is said to have on the judgment is merely a claim to the equitable interference of the court to have that judgment held for his debt. It is confined to the costs of the particular suit, and does not, it seems, constitute the attorney an assignee of the judgment, in such a sense as to entitle him to go into another court to enforce his lien by action in his own name. Per Morgan, J.</p> <p>The attorney, by virtue of his lien on the judgment, may take the money in transitu, if he can lay hold of it. If he applies to the court it will prevent the money being paid over till his demand is satisfied. If the judgment . debtor pays the judgment to the judgment .creditors, after notice of the lien, the court may require him to pay it again, to the attorney. This is a power which the court exercises towards its officers and suitors already within its jurisdiction. Per Morgan, J.</p>

The action was on an indemnity bond, dated December 27th, 1847, given by the defendants to Arnold and Mair, to secure them for becoming sureties for Smith and Smith, on the appeal from the Ganada court of appeal to the queen in privy council, of the suit of Smith and Smith against Simpson and others. The plaintiff is the assignee of this bond. Prior to 1847 the Smiths had brought an action in court of chancery of Canada, against Simpson and others, and succeeded.

APPEAL by the defendants from a judgment for the plaintiffs, entered on the report of a referee. The action was brought by the plaintiffs, Ackerman and Innes, as general assignees of Curry, McCandlish & Field, to recover for the conversion of nine cases of nutmegs, and sixty-one boxes and cases of tobacco.

A PPBAL from a judgment of the city court of Brooklyn, Jx The action was brought to recover the possession of a lot of land situate in the city of Brooklyn, and was tried by the city judge without a jury, by consent of parties. He directed a judgment to be entered in favor of the plaintiff, and the defendant appealed to this court.

THIS was an appeal from an order made at a special term, refusing to dissolve this company and distribute its effects. There had been an investigation on behalf of the state, into the affairs of the company, under section 24 of the act of June 25, 1853, to provide for the incorporation of fire insurance companies.

OS the 21st of December, 1833, the defendant, Consalus, executed to one Jenne, a bond and mortgage for $1200. On the 23d of April, 1841, A. L. Linn became assignee and owner of that mortgage. On the 5th of September, 1851, Consalus commenced an action against Linn, to cancel and satisfy that mortgage, on the alleged ground of its being paid. The defendant denied payment, and alleged a large amount to he due.

APPEAL front a judgment of the county court of Saratoga county, reversing the judgment of a justice of the peace. The action was brought to recover damages for the fraud and deceit of the defendant, whereby the plaintiff had been presented from interposing a defense to an action pending before a justice of the peace. The facts as disclosed on the trial, and found by the justice, were as follows: That, in the month of February, 1859, Samuel Gibbs, and.

1IHE plaintiff presented to the defendant, as executor of . Melvin Barnes deceased, a claim against the estate of the deceased, which claim, not being allowed, was, by an order of the surrogate of the county of Clinton, made on the 24th of June, 1861, referred to Samuel Ames, Bufus Heaton and Bussell C. North to hear and determine the same, and the order was filed and entered in the office of the clerk of Clinton county.

<p>APPEAL from a judgment entered in favor of the defendant, upon the report of a referee.</p>

<p>APPEAL from a judgment entered on the report of a referee. The material facts appear in the opinion of the court.</p>

<p>APPEAL by the defendant from a judgment entered at the circuit, after a trial before a jury. The action was brought to recover damages for an injury sustained by the plaintiff, from the alleged carelessness of the defendant or its servants and agents, at the passenger depot in Brooklyn.</p>

APPEAL by the defendant from a judgment entered at a special term,' after a trial at the circuit. The action was brought to recover the value of a building situated upon a lot in the city of Brooklyn, on which the plaintiff held a mortgage, to which building the defendant claimed title by virtue of an alleged sale and transfer from the commissioners of estimate and assessment in the matter of widening Fourth avenue, in that city.

<p>APPEAL from, a judgment entered upon a verdict at a circuit.</p>

MOTION to transfer the present action to the United States circuit court, under the act of congress of March 3, 1863, entitled “An act relating to habeas corpus, and regulating judicial proceedings in certain cases.

THIS was an action commenced to restrain the defendants from negotiating certain bonds, issued by the defendant Jenkins, as commissioner of the town of Duanesburgh.

APPEAL by the plaintiffs from parts of a judgment rendered at a special term, after a trial at the Hew York circuit, before Justice Allen. The action was brought by the acting executors and trustees of Uriah P. Levy, deceased, to obtain a judicial construction of such parts of his last will and testament as were set forth in the complaint.

Stephen L. Cook, the relator, in 1861 was charged by acting Captain Blakelock with neglect of duty, viz., absence without leave.

APPEAL by the defendant from a judgment entered upon the verdict of a jury, at the circuit. The facts sufficiently appear in the opinion of the court.

APPEALS by the plaintiffs in the above suits, respectively, from judgments entered therein, at a special term, after-trials at the circuit before the court, without a jury. The first-action was brought for the conversion of a promissory note for $1000, made by Thomas Hoyt & Co., dated July 6, 1857, payable to their own order nine months after date, and indorsed by them in blank and delivered to the plaintiff.

<p>APPEAL from a judgment entered at the circuit on the verdict of a jury in an action to recover the possession of real estate.</p>

<p>The plaintiff entered into an arrangement with the defendants, for the employment of the latter in their business of stock brokers; the defendants undertaking to purchase such stocks as the plaintiff should direct, and pay • for the same with their own moneys, and to hold such stocks for him, and resell the same from time to time, as he should direct. For these advances and services they were to receive a fixed rate of interest, and a commission; and as security against depreciation and loss, the plaintiff was to deposit and keep on deposit with them a margin of five per cent upon the par value of all purchases of stock made by them for him, which margin was constantly to be kept good.</p> <p>SeM that although prices sank so low that the collaterals deposited were no longer equal to the margin of five per cent stipulated in the contract, the defendants had no right to sell, at the board of brokers, the stocks pledged to them hy the plaintiff for their security, without notice to, or knowledge of, the plaintiff.</p> <p>SeM, also, that the notice which should have "been given by the defendants was not a notice to redeem, but a notice to make the security deposited equal to the five per cent stipulated in the contract, or that the defendants would proceed to sell and convert the stock into money, and apply the proceeds to reimburse themselves for the moneys advanced, with the interest and commissions.</p> <p>A sale of stocks at the board of brokers is not to be deemed a public sale, but is essentially a private sale; and a sale of collaterals held by the pledgees thus made, without notice, is a clear violation of the duty and obligation they owe the pledgor.</p> <p>Acquiescence hy a principal, in the wrongful acts of his agent, to amount to a ratification, must have been continued for some length of time, and the principal must have been cognizant of his rights.</p> <p>In order to make the ratification of an unauthorized act of an agent binding it must be made with a full knowledge of the facts affecting the rights of the principal.</p> <p>Rule of damages, in an action by a principal against bis brokers for unlawfully selling stocks deposited with them as collateral security for advances, &c.</p>

The material facts are set forth in the opinion of the court. The referee found and decided, as conclusions of law: 1. That the defendants were liable to pay, and the plaintiffs were entitled to demand and recover from them interest on the deposits in their hands after and since the 5th day of April, 1856, at and after the rate of five per cent per annum. 2.

THIS was a motion to set aside a default for want of an answer, and to be allowed to answer the complaint. The answer sought to be interposed, as appeared by the plaintiff’s affidavit, alleged that the note sued on was given for money won at play.