Volume 41 — New York Supreme Court Reports

<p>■City of Buffalo — claims for injuries sustained by reason of defects in its streets, must be presented, for audit before an action can be brought thereon — 1870, chop. 519, tit. 3, sea. 7 — a demurrer will not lie beeamse of the failure to allege such presenta-, tion in the complaint.</p> <p>■Section 7 of title 8 of the charter of the city of Buffalo (chap. 519 of 1870) provides that the common council shall audit “ all claims against the city, hut no unliquidated claim shall be received for audit unless made out in detail, specifying, if for labor or services, the time when, the place where, by whom and under whose direction and by what authority performed; if for merchandise, materials or other articles furnished, the items thereof, by whom ordered, and when and to whom delivered, and if for damages for wrong or injury, when, where and how occasioned; nor unless accompanied by an affidavit that the claim and the items, and specifications thereof, are in all respects just and correct, and that no payments have been made and that no set-oil exists except those stated. No action or proceeding to recover or enforce any such claim against the city shall be brought until the expiration of forty days after the claim shall have been presented to the common council in the manner and form aforesaid.”</p> <p>Held, that the statute included claims against the city for injuries sustained by reason of its neglect to keep the streets and sidewalks in proper repair, and that an action to recover damages for such an injury could not be brought until a claim therefor, verified as required by the act, had been made out and presented for audit.</p> <p>That the failure of the plaintifE to allege in his complaint that he had so presented his claim for audit did not furnish a ground of demurrer to the defendant, but that the failure to present the claim should be set up as a matter of defense in the answer.</p>

<p>Execution issued upon a judgment void as to the debtor''s creditor's — how fair it protects am officer in making a levy under it.</p> <p>The defendant, a constable, levied upon certain goods of one Kennedy under a judgment entered against him by confession in a Justice’s Court. The judgment was irregular, because the affidavit, which section 311 of the Code required the plaintiff to make, was made by his agent. On the same day the same goods were Seized by the sheriff under an attachment issued against . Kennedy. They were retaken on the same day by the constable. The evidence made it a'question for the jury whether the constable was or was not in possession of the goods under the execution when the levy was made by the sheriff. Upon the trial of this action, brought by the sheriff for a conversion of the goods, the court charged that the execution in the hands of the constable, though regular in form, was no protection and that he must prove that it was issued upon a valid judgment.</p> <p>Held, that this was error.</p> <p>That ií at the time of the removal of the goods the sheriff was in full and complete possession of the same, as against the constable, that then the latter was liable for retaking them, but that if the constable was in the actual possession of the goods under the execution when the levy was made by the sheriff, then the retaking of the goods by the constable was lawful and this action could not be maintained.</p>

This is-an action to recover damages for injuries to the person of the intestate, alleged to have been caused by the defendant’s negligence. The action was commenced November 21, 1875, by the intestate as plaintiff, and issue was joined December 11,1877. The cause was tried in November, 1879, and a verdict was rendered for $5,500 in favor of the plaintiff. The defendant made a motion for a new trial at Special Term, which was denied in September, 1880.

The action was brought to recover the value of - professional services alleged to have been rendered for the defendant by one J. W. Byam, who had assigned his claim to the plaintiff.

The action was brought to recover penalties for alleged violations of the excise laws. In the course of his charge the judge said : “ The law provides in such case as this that upon proof being made of the fact that liquor was seen to be drunk on the premises, that is prima facie evidence that it was sold with intent that it was to be drank on the premises.” To this portion of the charge the defendant’s counsel excepted.

<p>Appeal from a judgment in the plaintiffs favor, entered upon a verdict rendered at the Ontario Circuit, for the sum of $417.29 and from an order of the Special Term denying a new trial.</p>

23. The plaintiff is a domestic corporation organized under the laws of the State of New York, located and doing business near the city of Rochester. The plaintiff held an acceptance of J. W. Dunning, its debtor, for the sum of $6,500, payable on the 19th of December, 1882, at the National Exchange Bank of Auburn. The plaintiff was the drawer of the draft on which the acceptance was written.

<p>Obstructions in a street — suspension of a banner across a street —liability of a village, to one who is injwrecl by his horse taking fright at it and running awaq — evidence— when it may be shown that sm/ila/r banners Time frightened othen' horses.</p> <p>An advertising banner, twenty-four feet wide and twelve feet deep, was suspended across one of the streets in the defendant village. The top was attached to a wire and ropes which were fastened to the tops of the buildings fronting on the street opposite to the banner. A rope led from one corner of the bottom to an awning post on the sidewalk, and one running from the other corner of the bottom was fastened to the sill of the window of a house. The jury found that the banner was an object likely to frighten horses ordinarily gentle and well trained.</p> <p>In an action by the paintiffi to recover damages sustained by being thrown from his buggy while his hprse, which had been frightened by the banner while passing under it, was running away:</p> <p>Held, that the banner was wrongfully erected across the street, and that it was the duty of the board of trustees of the village to remove it.</p> <p>That by allowing it to remain there for a considerable length of time they were guilty of negligence which rendered the village liable for the injuries which the plaintiff had sustained.</p> <p>Upon the trial the plaintiff was allowed to prove that on another occasion prior to his accident, a flag similar to the one in question had been suspended over • the same street in a similar manner, and that it had frightened other horses which were being driven along the street under it.</p> <p>Held, that the evidence was admissible to show the jury that horses are at times frightened and shy at objects, such as the banner in question.</p>

This is an action on the case in the nature of a suit in trover, for the conversion of one portable steam boiler and engine, one planer, one header, a quantity of shafting and pulleys and other machinery used in a firkin and tub factory. „ John Parsons was the proprietor of the property.

<p>Appeal from a judgment, entered upon a decision of the Monroe-Special Term dismissing the plaintiff’s complaint, with costs.</p>

<p>MotioN for new trial upon exceptions taken by the defendant, and ordered to be heard in the first instance at the General Term judgment upon a verdict in favor of the plaintiff being in the meantime suspended.</p>

<p>Appeal from an order of the County Court of Allegany county, denying appellant a new trial in the County Court, on an appeal from a final order of a justice of the peace in summary proceedings.</p>

<p>Appeal from a judgment, entered in Steuben county upon the report of a referee, in favor of the plaintiff, for $130.97, besides costs.</p>

<p>Contrast for the sale of property — when all the property contracted for must be delivered —- when a refusal to receive a portion relieves the other party from the necessity of making a further tender.</p> <p>The plaintiff agreed with the defendant to sell to him‘all the barley that he should raise during the season of 1880 on two farms, one of which was worked by the plaintiff himself, and the other by a tenant under a contract that the latter should have one-half of the crops raised thereon. He delivered the barley raised on .the first farm and his half of that raised on the' second, his tenant having sold his half to other persons. The defendant claiming to be entitled to all the barley raised on the second farm it was agreed that the plaintiff should be allowed to purchase and deliver an amount of merchantable barley equal to the tenant’s half, 306 bushels, in fulfillment of his contract. The plaintiff accordingly purchased barley and tendered three loads to the defendant, one of which consisted of barley x-aised on his own farm and retained for seed. The defendant refused to accept either of the three loads upon the ground that the barley was not merchantable or of the quality agreed upon. The evidence as to the quality of the barley was conflicting and the jury found in favor of the plaintiff.</p> <p>In an action to recover a balance due on the barley delivered, in which the failure of the plaintiff to deliver the said 306 bushels was set up as a defense:</p> <p>Held, that it was not intended that the whole 306 bushels should be delivered in one body and at the same time, but that the plaintiff might deliver the same in wagon loads from time to time.</p> <p>That a wrongful refusal of the defendant to receive the three loads of the barley so tendered to him, was a breach of the contract on his part and relieved the plaintiff from the necessity of making any further tender.</p> <p>'That the agreement did not impose upon the plaintiff the duty of having had the whole amount of the barley ready for delivery, but that he might purchase and deliver it from day to day.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.</p> <p>This action was in the nature of a creditor’s bill, and was tried before a referee who reported in favor of the plaintiff, upon which report a judgment was entered, from which the defendant Elijah Mathewson appealed to this court.-</p>

<p>Appeal from a judgment, entered upon the report of a referee.</p>

The action was. brought by the .brother of the intestate, as her administrator, to recover damages for her negligent killing by the •defendant. The mother of the intestate was dead and the father had abandoned his family some years before the accident and had not supported his daughter, nor did his family know whether he was dead or alive. On the trial the judge charged as follows: “ The next of kin in this case is the father.

<p>Lease — agreement ifiat the lessor shall lurne a lien on the growing crops — when it nvast he filed to preserve his lien as against that of a mortgagee — what possession must he talcen to render a filing unnecessary.</p> <p>The plaintiff leased to the defendant a farm, for three years, to be worked on shares; all crops and other products to be equally divided between them on the farm. The defendant also agreed that the plaintiff should have-a lien on all crops sown on the premises, as security for any money owing to her and for the performance of the obligations of the lease, and that she would execute a chattel mortgage on the crops when requested so to do by the plaintiff. The plaintiff and the defendant resided in separate portions of the house, on the farm, as stipulated in the lease. The lease was never filed in the clerk’s office.</p> <p>Held, that although the provision in the lease giving the plaintiff a lien on the crops was valid as between the parties to it, yet, as the lease was not filed in the clerk’s office, it was invalid as against one taking a chattel mortgage upon the interest of the defendant in such crops in good faith and without notice of - the terms of the lease.</p> <p>That the fact that the plaintiff resided upon the farm and was a tenant in common of the crops with the defendant, did not give her such a possession of his interest therein as would relieve her from the necessity of filing the lease.</p>

MotioN by the plaintiffs for a new trial, on exceptions taken at the Cayuga Circuit and ordered to be heard at the General Term in the first instance.

<p>Promissory note — validity of one given by a husband to his wife — when the testimony of a party is inadmissible under section 839 of the Cod$ of Civil Procedure.</p> <p>This action was brought upon a promissory note for $300, dated January 1,1879, made by the defendant, payable to H. B. Driggs or bearer one year after date, for value received. Upoii the trial it appeared that the payee of the note was the defendant’s wife, and that she had diecl intestate in 1880. The plaintiff, the sister of the deceased, testified that she had had possession of the note from the October preceding the death of the payee; that her sister had let her have it for money loaned to her at different times.</p> <p>Held, that as the note purported to be given by the husband for a valuable consideration received from his wife, it was valid and enforceable by her, and equally so by the plaintiff, without regard to what consideration the latter had paid therefor.</p> <p>Upon the trial the defendant was asked for what consideration, if any, the note was given, and his counsel offered to prove that it was given without consideration aud that the plaintiff knew this when she took it.</p> <p>Held,, that the evidence was properly rejected as inadmissible under section 839 of the Code of Civil Procedure.</p>

<p>Evidence — when a verbal agreement is not merged in a written contract subsequently executed —power of an agent of a railroad to make a special contract as to shipping freight.</p> <p>The plaintiff entered into a verbal agreement with the defendant’s agent, at Lockport, by which the latter agreed to furnish a car and transfer a load of peaches from that place to Olean, without a change of cars. Thereafter the plaintiff fitted up, at his own expense, a car furnished by the agent, and loaded it with peaches. The car was sent to Buffalo, where the peaches were placed in a car belonging to a connecting carrier and transported to Olean. At the time of shipping the peaches the plaintiff received from the agent a shipping bill providing for carrying the goods to Buffalo, where the defendant’s line ended. "</p> <p>In an action’to recover damages for a breach of the agreement:</p> <p>Eeld, that the verbal agreement to send the peaches to Olean without a change of cars, was not merged in the shipping bill, as no reference thereto was made therein.</p> <p>That the agreement was within the scope of the agent’s authority, and that the defendant was bound thereby. ,</p>

Motion by tbe defendant for a new trial, on exceptions taken at tbe Monroe Circuit, and ordered to be beard at tbe General Term in tbe first instance, after a verdict bad been directed in favor of tbe plaintiff.

Burrows, as executor of the last will and testament of Sophia Pierce, deceased.

<p>Damages — measure of, in an action for the unlawful sale of articles in violation of the plaintiff s’ exclusive right to make a/nd sell them.</p> <p>This aetion was brought to recover the damages sustained by the plaintiffs by reason of the unlawful manufacture and sale hy the defendant of a cosmetic, the right to manufacture and sell which belonged to the plaintiffs. The referee allowed the plaintiffs to recover as damages the amount received hy the defendant upon the sales made hy him, less the amount which it would have cost the plaintiffs to make and vend the quantity of the cosmetic so sold. It appeared that the plaintiffs were prepared and able to make and sell this quantity, in addition to what they did actually sell.</p> <p>' Held, that the defendant could not complain of the measure of damages adopted by the referee.</p> <p>The -question as to what proof of the defendant’s participation in the compounding and selling of the cosmetic was sufficient 'to sustain the action, considered.</p>

Appeal by the defendant from a judgment of the Wayne County Court, affirming a justice’s judgment for tbe recovery against the defendant of penalties under the excise law.

Motion by the defendant for a new trial, on exceptions taken at the Steuben Circuit, and ordered to be heard at the General Term in the first instance.

The judgment enjoined and restrained, the defendant from operating a steam railway for freight with “ T ” rails in Garden street, in the city of Auburn. The plaintiff is the owner of premises abutting on Garden street, a street the fee of which is in the plaintiff’s grantors, and which has been opened to the public for, fifty years. The East Genesee Street and Seward Avenue Eailway was incorporated by act of the legislature (chap. 527 of the Laws of 1871).

<p>Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.</p>

<p>Appeal from a judgment of nonsuit 'rendered by the Wayne County Court.</p>

Motion by tbe plaintiff for a new trial on a case and exceptions, ordered to be heard in the first instance at the General Term, after the court had ordered the complaint to be dismissed. The plaintiff offered to prove all the allegations of the complaint. The court refused to allow him to do so, to which ruling the plaintiff excepted.

Appeal by tbe plaintiffs from a judgment in Onondaga county dismissing the plaintiffs’ complaint, entered upon tbe trial of tbe action at a Special Term in that county. Tbe action was originally brought by Francis Alvord and Leman B. Pitcher, both of whom died pending this appeal. Tbe appellant above named was substituted in place of Francis Alvord, deceased.

Action was brought to recover freight and for an alleged surplus of fifty-five bushels of corn upon a cargo thereof carried by the plaintiff on a canal boat from Buffalo to the defendants at Utica, under a bill of lading dated November 17, 1880.

The action was brought to recover a gold watch chain alleged to have been converted by the defendant. The plaintiff was appointed a receiver of John Craven, a son of defendant, in supplementary proceedings instituted against him.

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury for <$7,000, rendered at the Onondaga County Circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.</p>

September 13, 1855, tbe -plaintiff recovered a judgment against tbe defendant separating tbe parties to tbe action “ from bed and board forever,” and adjudging tbat tbe defendant should pay to tbe plaintiff, for “ ber support and maintenance during ber life,” fifty dollars on each fifth day of January and July, and tbat tbe plaintiff have “ execution from time to time as often as said semiannual payments shall become due and remain unpaid, as well as tbe remedy by attachment…

. The action was brought by a religious corporation, and four persons claiming to be trustees of it, against five other persons who claimed to have been duly elected to that office.

All the parties in interest are residents of the State of Pennsylvania, and the debts which they seek to enforce were contracted in that State by George P. Pink, a resident of that State. The defendant is the sheriff of Herkimer county and has been indemnified by the attaching creditors.

Appear from an order, made by a county judge granting a motion made upon his minutes for a new trial. This action was brought in a Justice’s Court to recover $124.24 for goods delivered to George Davis, between December 4, 1880, and December 2% 1881. The plaintiff claims they were delivered on the order and credit of the defendant. The sole issue was, did the defendant authorize the sale and agree to pay for the goods ?

The action was brought to partition lands, and it was sought to have the order relieve the clerk from the necessity of furnishing security. The motion was made upon the usual affidavits and papers. The application had been refused when presented at Special Term, and was made at the General Term in order to get its opinion on the question involved.

This was an action of replevin to recover the possession of a canal boat known as the “¥m. Roberts.” The plaintiff claimed title’to1 said boat by virtue of a sale made -in September, 1878, pursuant to a decree in admiralty of the United States District Court for the eastern district of New York.

attachment. On the 18th of December, 1882, the plaintiff resided at Quebec, Canada, and had for a long time carried on business under the name of “ Ross & Oo.,” without having any partner. For six years prior to that date he had been engaged in the lumber business at Oswego, N. Y., under said firm name, having no partner therein.

<p>Appeal by the defendant from a judgment, entered against him upon a verdict rendered at the Oneida Circuit, in January, 1882, and from an order denying a motion for a new trial made upon the minutes of the judge before whom the action was tried.</p> <p>This action was brought under the statute to suppress intemperance, pauperism and crime, known as the “ Civil Damage Act.”</p> <p>On the 27th of September, 1880, the defendant owned certain premises in the town of 'WTiitestown, county of Oneida, known as the “ Yorkville House,” which he had leased to one Nellie M. Briggs, knowing that she intended to use them for the purpose of keeping a hotel in which intoxicating liquors would be sold. The plaintiff claims, and the evidence in her behalf tended to show, that on the day last named, her husband, Martin J. Rawlins, became intoxicated; that such intoxication was caused wholly or in part by liquors sold to him by Mrs. Briggs or her agent, and that he was thereby rendered -incapable of taking care of himself and fell from the loft of a barn situated on said premises, broke his arm and sustained other injuries.</p> <p>The defendant claimed, and the evidence in his behalf tended to show, that on the occasion in question no liquors had been furnished to said Rawlins by Mrs. Briggs or at said hotel, and that he became intoxicated on what he drank elsewhere.</p> <p>It was not disputed that the plaintiff was dependent on her husband’s labor for support, and that he was prevented by these injuries from working from the date of the accident until January 20,1881. He was a laboring man, without any property, and earned from one dollar and twenty cents to one dollar and 'thirty-five cents per day. His family consisted of the plaintiff, two children aged respectively four and ten years, and himself. He was not in the habit of drinking to excess, but did occasionally, or, as -stated by the witnesses, once or twice a year. He testified that he drank one glass of beer at another hotel early on the day in question, and before he drank at the Yorkville House, and would not swear that he did not drink two. The jury found a verdict for the plaintiff for $150.</p>

The complaint stated that the defendant Hannah Houghton was the wife of plaintiff, they having intermarried about 1844, and that the defendant John Houghton was their son; that on the 15th May, 1874, the plaintiff was the owner in fee of about seventy-two acres (describing it), in the town of Westmoreland, Oneida county, and on that day, “ being at the time very sick and not expecting to live, and in view of death; was induced and persuaded to execute, acknowledge and…

On the 18th day of February, 1881, the firm of Fonda & Clark,, of Little Falls, N. Y., made a geijeral assignment, containing preferences, to Kendrick E. Morgan for the benefit of creditors. The assignee accepted the trust and duly executed the necessary bond with George A. Hardin and William Clark as sureties. The assignee converted the assets of said firm into money, and on the 4th day of March, 1881, proceeded to distribute said trust funds among the creditors.

The complaint alleged that on or about December 18, 1880, at Ellisburgh, Jefferson county, the defendants wrongfully became possessed of and detained from the plain tiffs^certain goods, the property of the plaintiffs, and of which they were entitled to the immediate possession, of the value ol $409.11; that defendants after demand refused to deliver possession; that the defendant Hedden on or about November 26, 1880, being insolvent obtained the property from the plaintiffs…

At that date the horses were drowned in the Erie canal at Rome, by reason, as the plaintiff claimed and the referee found, of the negligence of the defendant or its agents in the management of one of its railroad trains.-

The action was for the foreclosure of a bond and mortgage, dated July 15, .1878, given by the defendants above-named to Charles A. Orippen, Olive Ann Powers and Alice M. Selden, to secure the payment of $1,000, and assigned by said mortgagees to plaintiff. A personal judgment against the defendants was asked for any deficiency..

<p>Judgment for alimony — if the defendant fails to pay it he ma/y he punished, for a contempt — Oode of Oivil Procedwre, secs. 1772, 1773, 2286.</p> <p>Where a wife has procured a judgment for a limited divorce and the husband thereafter fails to pay alimony as required by the terms of the said judgment, the court may, under the provisions of sections 1772-and 1773 of the Code of Civil Procedure, punish him as for a contempt for his failure to make such payments.</p> <p>The right to so punish him is not affected by the fact that the judgment was recovered before the said sections took effect,</p> <p>hi or can the application be answered by affidavits showing that the defendant is unable to make the payments. To procure relief upon this ground the defendant should move to be released from imprisonment under section 2286 of the Code of Civil Procedure.</p>

Appeal by Theodore Kruger from an order denying a motion made in his behalf for leave to prosecute this action of replevin on behalf of the plaintiffs, to protect himself against liability upon an undertaking executed by him for the return of the property.

<p>Appeal from an order substituting in place of the defendant, the sheriff of New York, the obligors in bonds of indemnity given to him, to indemnify him against loss by reason of his holding certain property seized by him, against the claim of the plaintiff in the above entitled action.</p>

<p>Oml damage act — 1873, chap. 646 — has no extra-territm'ial effect — a foreign law-must be proved to exist.</p> <p>One Connolly, a servant of the plaintiff, a resident of Vermont, took a team of horses belonging to his master, drove them into this State and there drank a glass of liquor upon the defendant’s premises and purchased whisky from him. He returned to Vermont in an intoxicated condition and placed one of the ’ horses in a stable, leaving the door open, as a Consequence of which the-wind blew in upon the horse, causing its sickness and death. .</p> <p>In an action to recover the damages thereby sustained, brought under the “ civil damage act” of this State:</p> <p>Held, that the said act only applied to cases in which the injurious act was done-in this State, and that as it had no extra-territorial effect, and as it was not shown that any similar law existed in the State of Vermont, the action could not he maintained.</p>

<p>Mutual relief societies — 1875, chap. 267 — right of, to make the amount of the assessment due upon a member’s death payable to one not a member of his family.</p> <p>The certificate of incorporation of a mutual relief, society, organized under chapter 267 of 1875, stated that its object was to render mutual relief to the members during their lifetime, and to their families from time to time, when necessary. The by-laws stated that one of its objects- was to furnish aid to the membeis’ families or assigns, in case of their death, and to issue certificates for sums to be paid to the heirs or beneficiaries of deceased members named therein. The defendant issued a certificate to one of its members by which it agreed to paj' upon death one-fourth of a full assessment to the member’s wife, and the other three-fourths to Samuel Massey, the plaintiff, who did not belong to the member’s family. In an action to recover the amount due upon the certificate the defendant claimed that it had no power, under its constitution and by-laws, to agree to pay the assessment to any person who did not belong to a member’s family, and that its promise to pay a portion of the assessment to Massey was void.</p> <p>Seld, that the defense could not be sustained; that the defendant had power to-mate the agreement and must comply with its terms.</p>

<p>Costs — when to le allowed, as of course, to a successful appellant, on appeal from a judgment of dispossession in summary proceedings — Code of Civil Procedure, secs. 2260, 3066, 3240.</p> <p>Where a judgment recovered by a plaintiff in summary proceedings to recover the possession of land, instituted before a justice of the peace, is reversed, upon an appeal to the County Court, the defendant is entitled to costs, as of ■ course, under the provisions of sections 2260 and 3066 of the Code of Civil Procedure.</p>

This action was brought to reform a policy of insurance issued by defendant and when reformed to recover damages for a loss sustained to the property insured. The plaintiff was the owner of the property.

<p>■Certiorafi — audits of a board of supervisors, eannot be reviewed after the roll has been signed and the tax warrants delivered.</p> <p>In December, 1883, tbe board of supervisors of Rensselaer county audited and allowed a bill presented to it and thereafter, after signing tbe tax-bools and warrants for tbe collection of the taxes, adjourned sine die. On April seventh, tbe relators, upon an affidavit charging that tbe board bad no jurisdiction to audit tbe claim, and that tbe county treasurer threatened to pay it, obtained a writ of eerUora/ri requiring tbe board to make a return of all their proceedings:</p> <p>Held, that the writ should be quashed, as tbe board bad no power over tbe matter after the roll bad been signed and tbe warrant delivered.</p> <p>People ex rel. Weekes v. Supervisors of Queens County (83 N. Y., 375) followed.</p>

<p>Appeal from decrees and orders of the surrogate of Sullivan county, entered upon the final accounting of Henry Miller, as guardian of the person and estate of Owen L. Eldridge, an infant.</p>

<p>Action for penalties in a Justices’ Court — a proper reference to the statute mustie indorsed upon the summons— Code of Civil Procedure, sec. 1897.</p> <p>In this action, brought in a Justice’s Court against a commissioner of highways-to recover a penalty, the indorsement upon the summons read as follows: “For a penalty imposed under and according to the provisions of section 19, chapter 16, title 1, part 1 of the several statutes relating to overseers of highways and highway labor: ”</p> <p>Held; that the indorsement was utterly indefinite and was insufficient to give the reasonable notice required by section 1897 of the Code of Civil Procedure.</p>

<p>Cvoil damage act — when an action by a wife survives against the estate of a deceased defendant — right to recover exempla/ry damages against the estate.</p> <p>Hie plaintiff’s husband, having purchased intoxicating liquors from the defendant, became intoxicated and was, while in that condition, drowned. After the commencement of this action, brought by the plaintiff, his widow, under the civil damage act, to recover the damages thereby occasioned to her, tho defendant died:</p> <p>Held, that a cause of action survived in favor of the widow against the estate of the deceased, and that his executrix should be substituted in his place.</p> <p>It seems, that the estate would not be liable for exemplary damages. (Per Learned, P. J.)*</p>

<p>Negligence — accidental stoppage of a wagon on a side Mil — duty of the owyier as to protecting other persons using the street from, injury.</p> <p>"While a wagon loaded with coal and weighing about 5,300 pounds was being driven by two of the defendants’ employees up a city street, having a grade of about 10 feet to the 100, one of the horses cast a shoe. The driver thereupon drew up to the right-hand side of the road and his co-employee blocked the wagon by placing, as he testified, a block of wood three or four inehes long under one hind wheel and a large lump of coal under each of the others. The driver then took the team to the nearest blacksmith’s shop, being absent some fifteen minutes. While the wagon was so standing in the street the plaintiff drove up the hill, but stopped behind and below the wagon in order to allow a heavy wagon which was coihing down the hill with one hind wheel chained to pass the coal wagon. As the wagon coming down the hill was passing the coal wagon it slipped, owing to the icy condition of the street, against the coal wagon, causing the latter to slide down the hill and collide with the plaintiff’s team and coach and thereby to cause the injuries, to recover damages for which this action was brought.</p> <p>Held, that as the defendants were compelled to stop the wagon upon the streel, by an accident and not by any neglect or default of their own, they were only required to block the wagon so that it should be reasonably secure, and that as the evidence showed that this had been done a verdict in favor of the plaintiff should be set aside.</p>

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

The action was brought upon an undertaking given March 16,1872, upon an appeal to the Court of Appeals, from a judgment in favor of the present plaintiff against Jacob Best. Jacob Best and Matthew Larkin, Jr., as well as the defendant William Gokey, signed the undertaking. They are also defendants in this action; but because the statute of limitations has run as to them the summons in this action was not served upon either of them.

Tbe action was brought to recover damages for injuries alleged to have been occasioned by tbe negligence of tbe defendants. Tbe plaintiff was employed in tbe defendants’ stone yard as a laborer. He was alleged to have been injured through tbe negligence of one Simpson, tbe defendants’ foreman, by tbe lowering of tbe boom of a derrick.

Appeal' from an order of tbe Surrogate’s Court of Rensselaer county, adjudging the appellant, an executor, to be in contempt for refusing and neglecting to pay over certain sums of money, as prescribed by a decree made upon the settlement of his accounts as executor, and imposing a fine upon him as a punishment for such contempt, and committing him to the county jail until the same should be paid.

~' Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. The plaintiff is the widow of one Adolph Ludwig. Her husband fell into a canal while intoxicated and was drowned. He left four infant children, for whom a guardian was appointed by the surrogate.

The action was brought to recover damages for the conversion of one evaporator and 400 sap buckets. The plaintiffs claimed title thereto under a bill of sale thereof from William T. Moncrief to their testator. The defendant sought to justify the taking and sale of the property under an attachment against said Moncrief.

The appellant, Alida J. Oole, is the widow of Hoilis W. Oole, deceased, and executrix of his will. On the 14th day of May, 1867, Mrs. Oole conveyed to Mrs. Saunders a house and lot for the consideration of $7,000, of which $5,000, was then paid, as the surrogate finds, to her husband Hollis W. Oole, in her presence and for her use and benefit. The house and lot were the separate property of Mrs. Oole. Mrs. Oole never demanded the money of her husband.

The board of assessors first made the assessment at $280,000. The relator applied to the board pursuant to chapter 86, Laws of 1850, entitled “An act to' provide for the assessment and collection of taxes in the city of Albany,” as amended by chapter 284, Laws of 1881, to review the assessment and to reduce it to $110,000. The board of assessors took the proofs offered by the relator and reduced tbe assessment to $225,000, and refused to make any further reduction.

■ Tbe plaintiff brought this action to recover damages for tbe loss of services of bis wife and for expenses incurred, resulting from an injury sbe sustained in consequence of tbe alleged negligence of tbe defendant while she was being conveyed as a passenger upon tbe defendant’s railroad.

The action was brought to recover damages for personal injuries sustained by the plaintiff while a passenger on one of the defendant’s trains.

Rusko, as administrator of Ezra Dean, deceased. Rusko was appointed administrator in August, 1871, and filed an inventory of the estate in August, 1871. On March 26, 1880, the respondent Harriet E. Wood filed a petition praying to have him compelled to account and pay over to her the distributive share of the estate, to which she claimed to be entitled as the widow of ¡the deceased.

<p>Appeal from ah order, made at a Special Term, denying a motion for a writ of peremptory mandamus.</p>

The action was brought by the plaintiff to procure an absolute divorce from her husband, the defendant, upon the ground of his adultery.

<p>Appeal from a judgment of the County Court of Suffolk county, affirming a judgment of a justice of the peace in summary proceedings.</p>

The action was brought by the plaintiff for the destruction and abatement of a dam which restrains the waters of the pond, known as Kirby pond, situated in Bedford and New Castle, Westchester county,… Held: however, that the covenants and agreements contained in the said deeds estopped the plaintiff from maintaining this action against the defendants.

This action was originally begun to obtain the cancellation of a satisfaction piece of the plaintiff’s mortgage and the establishment of the same as a first lien on the property described in it, and for its foreclosure. James Machin and William S. Yerplank, as trustees, were made parties defendant, as subsequent lienors by virtue of a mortgage given to Ramsdell & Co., and assigned by the members of that firm to those defendants.

<p>Undertaking given on the conviction of a husband for abandoning his wife in Kings county— 1871, chap. 395 — a surety thereto cannot deny that the complainant was the principal’s wife.</p> <p>This action was brought upon an undertaking given by tbe defendants, under chapter 395 of 1871, relating to proceedings against husbands who abandon their wives in Bangs county. The undertaking recited the conviction of the principal of abandoning his wife; that he had been required by the sentence to give security for the payment of four dollars a week for the support of his wife, and it was conditioned for the payment of that sum for the term of one year.</p> <p>An action, brought upon the undertaking after a failure of the husband to comply therewith, was defended by the surety upon the ground that the woman who made the complaint, and for whose benefit the money was directed to be paid, was not the wife of the principal.</p> <p>Held, that the surety was estopped, by having signed the undertaking, from inter* posing that defense.</p> <p>Duffy v. The People (6 Hill, 75) distinguished.</p>

<p>Appeal from a judgment in favor of tbe defendants, entered upon a nonsuit directed at tbe circuit.</p>

On or about March 25, 1878, tbe firm of Shea & Scbnerr made their promissory note to tbe order of Martin Shea for $3,000, payable in one year from date. Martin Shea indorsed tbe note to Shaw, Hinchliffe & Penrose. At tbis time Martin Shea was seized in fee of tbe premises described in tbe complaint, and as collateral security for tbe payment of above note be executed to Shaw, Hinchliffe & Penrose the. mortgage set forth in tbe complaint.

The action was brought to recover damages for an alleged malicious prosecution of the plaintiff by the ’ defendant. The plaintiff had been charged, before a justice of the peace, with having feloniously embezzled money belonging to the defendant.

This action was brought against the above named defendant and one Alfred J. Eisher to recover for injuries alleged to have been sustained by the plaintiff by the falling upon her of a bag of paper thrown through a hatchway of the premises No. 21 Yesey street, New York, by a servant of'the defendant Eisher, who then occupied the premises, which injury was alleged to have been caused by the negligence of Charles Donohue, a servant of Eisher and one Erederick Muller, who was…

Appeal by the receiver from an order of the Special Term in the above entitled matter. This was an application for leave to sell certain railroad bonds •deposited by the firm of Grant & Ward with the petitioners, as collateral to a loan. The firm of Grant & Ward had made a general assignment for the benefit of its creditors.

This action was brought to recover a balance alleged to be due under a charter of the plaintiff’s vessel to the defendants. The complaint sets out the charter party of the “Bessie” in full,, and alleges that of the $5,200 to be paid $2,447.60 are still due and unpaid. The answer admits the chartering of the vessel as alleged, and the completion of the voyage.

<p>Habeas corpus — what questions may be examined upon the return — questions settled by a court-martial cannot be re-examined.</p> <p>Where, upon the return to a writ of habeas cos-pus, it appears that the relator is held for the non-payment of a fine duly imposed by a court-martial, regularly convened and held, the court will not review the evidence taken before the court-martial and decide upon its sufficiency.</p>

<p>Case agreed upon on submission of a controversy without action.</p>

the building of surface railroads in cities, made it one of the conditions that a majority of the abutting owners should consent, or that on failure to obtain such consent, an application should be made to the General Term for the appointment of commissioners to determine and report whether the road should be constructed. Soon after the passage of the act two corporations were formed, one tbe Broadway Surface Railroad Company, the other the Broadway Railroad Company.

<p>Appeal from an order denying a motion for judgment on a demurrer as frivolous, and also from an order denying a motion to strike out an answer on the ground that it was improperly served, and also on the ground- that it was frivolous or sham.</p>

Controversy submitted upon an agreed statement of facts, as provided in section 1279 of tbe Code of Civil Procedure. Thomas J. Tobin purchased a bouse and lot known as No. 170 East 113th street, in tbe city of New York, at a foreclosure sale held in said city on tbe 29th day of September, 1881.

<p>Railroad corporation — it may learn its road to another company — it is not liable for the negligence of the lessee's servants —1839, cha/p. 218 —punitive damages — when they cannot be awarded against a corpomtion.</p> <p>Although, a railroad corporation cannot, without the consent of the legislature, lease its road to an individual, yet it may, under the authority conferred by chapter 218 of 1839, lease its road to another railroad corporation.</p> <p>Abbott v. Johnstown, etc., Raib'oad Company (80 N. Y., 27), distinguished; Woodruff v. Brie Railway Company (25 Hun, 246); Wood/ruff v. Erie Railway Company (93 N. Y„ 609), followed</p> <p>Where, under the authority conferred by this statute, a railroad corporation has executed and delivered a lease of its road to another company, and the lessee has taken possession of the road and is operating and managing it thereunder, the lessor is not liable to a passenger thereon for injuries sustained by him by reason of the negligent and wrongful acts of the lessee’s servants.</p> <p>Although a railroad company is liable to a passenger who has been injured by negligent or willful acts done or omitted by its servants in the course of their employment, to the extent of the actual injury sustained by him, yet it cannot he held liable for punitive damages unless shown to have been itself guilty of gross neglect or misconduct. t</p> <p>The verdict in this case reversed, because the charge of the judge, although , nominally withholding from the jury the right to award punitive damages, in fact allowed them to award damages of that character.</p>

<p>Motion for tlie appointment of commissioners to estimate tbe loss and damage to be occasioned by tbe taking of lands for tbe purposes of public parks and for park-ways, under chapter 522 of 1884.</p>

<p>Appeal from a judgment in favor of the defendants, entered on the trial of this action before the court.</p>

<p>Fees of sheriff on attaching property — when the judge cannot compel the party liable therefor to pay them — Code of Oiml Procedure, sec. 3307, sub. 2 — when the shes'iff ceases to hold the property for the attaching creditor— election of remedies.</p> <p>The amendment made to subdivision 2 of section 3307 of the Code of Civil Procedure, in i 884, which authorizes the judge, upon making an allowance to the sheriff for his trouble and expenses in taking possession of and preserving attached property, to make an order requiring the party liable therefor to pay the same to the sheriff, did not authorize such an order to be made in cases where the bills had been settled and the allowances made before the passage of the amendatory act ; it only applied to cases-in which such allowance should be subsequently made.</p> <p>After a sheriff has been notified by the plaintiffs in an action, of the release of the property seized and held by him under an attachment issued upon their application, except as it might be held for the purpose of satisfying any lien he might have thereon for his charges and expenses previously -accrued, he ceases to hold the property under their authority, and they cannot he compelled to pay him for the cost and expenses incurred by his subsequent retention thereof.</p> <p>If a sheriff brings an action to foreclose a lien, claimed.to exist in his favor, for costs and expenses incurred in taking and preserving property under an attachment, he cannot thereafter, and during the pendency thereof, apply for the order provided for in the said amendment to subdivision 2 of section 3307 of the Code of Civil Procedure, as the two remedies are inconsistent.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.</p>

Appeal by Carrie L. Young from an order denying an application made by her for the revaluation of a policy of life insurance, issued by the defendant, the Knickerbocker Life Insurance Company, upon the life of her husband.

<p>Appeal from a judgment in favor of the plaintiffs, entered upon the ver diet, of a jury, and from an order denying a motion for-a new trial made upon the minutes of the justice before whom the action was tried.</p>

<p>Undertaking on appeal — when invalidated try the refusal of the sureties to justify— Code of Civil Proeedu/re, see. 1335.</p> <p>An undertaking to stay proceedings upon a judgment during the pendency of an appeal to the General Term, having been served upon the plaintiffs, the sufficiency of the sureties was excepted to. The sureties having failed to appear and justify, the proceedings were twice adjourned. After the second adjournment the attorneys for the plaintiffs were notified that the sureties had understood that the undertaking was only for the costs, and that they did not intend to justify.</p> <p>The plaintiffs’ attorneys then served a notice withdrawing their notice of exception and waiving justification.</p> <p>Sold, that the failure of the sureties to justify rendered the undertaking inoperative, and that no action would lie thereon by the plaintiffs.</p>

<p>Deed to husband and wife — they become seized of the entirety — failure of considera?tion — a judgment binds only privies and parties — in actions of foreclosure only subsequent lienors should be made defendants.</p> <p>This action was brought to foreclose a mortgage given by one George A. Bram to Jacob and Babeta Bram to secure the purchase-price of real estate conveyed by them to him; they subsequently assigned the mortgage to the plaintiff. The land had theretofore been conveyed to Jacob and Babeta, who were husband and wife. Prior to the execution of the deed to George, Babeta had executed a deed conveying one-half of the property to one Zorntlein.</p> <p>Held, that the action could not be defended, upon the ground of a failure of consideration, for the reason that as the husband and wife were seized of the entirety, and as the husband by virtue of his marital rights was entitled to the possession of the property during his life, the prior deed of the wife was inoperative and conveyed no present interest to the grantee.</p> <p>That as the only interest Zorntlein could acquire in the property by his deed wotuld arise in the contingency of the wife’s surviving her husband, and as no evidence was given to show to what extent this would diminish the value of the property no basis was presented for making any deduction from the amount of the mortgage.</p> <p>After the execution of the mortgage Zorntlein brought an action and procured a judgment therein declaring him to be the owner of an undivided one-half inte rest in the land.</p> <p>Held, that as the plaintiff was not made a party to the action his rights under the mortgage were not affected thereby.</p> <p>That as the deed was given before the mortgage it was proper not to make the grantee a party to this action to foreclose the mortgage.</p>

<p>Appeal from a judgment dismissing the plaintiff’s complaint, entered upon a trial before the court without a jury.</p>

<p>Appeal from a judgment, entered on a verdict in favor of the plaintiff, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.</p>

<p>Sale of real estate to pay the debts of a decedent— fhe provisions of the ¡statute must be strictly complied with — what errors may not be disregarded or cured under section 2784 of the Code of Civil Procedure.</p> <p>After real estate of a decedent had been sold for the payment of his debts under a decree of the Surrogate’s Court, it appeared that a guardian ad litem for two infant heirs-at-law had not been properly appointed, and that the general notice to creditors, required to be given by publication by section 2754 of the Code of Civil Procedure, had not been given. An order was thereupon made requiring the infants to appear and show cause, at a day named, why a decree of sale should not be made, and why all the proceedings theretofore had should not be approved and confirmed, and why special guardians should not be appointed for them; and by the same order a supplemental citation was directed to be served upon the general creditors by publication. Upon the return day an order was made appointing a special guardian and declaring that the order should be entered and filed as of the return day of the original citation.</p> <p>Held, that the orders so made did not cure the-defects in the prior proceedings, and that a purchaser at the sale should not be compelled to accept the title.</p>

<p>Judgment-creditor’s action — it cannot be brought after a general assignee-has distributed the debtor’s estate under a decree of the Oouniy Oowrt — 1877, cha/p. 466.</p> <p>It is a complete defense to an action brought by a judgment-creditor to set aside as fraudulent a general assignment for the benefit of creditors, to show that, prior to the commencement of the action, the whole of the assigned estate had been distributed under a decree of the County Court, and that the assignee had been absolutely discharged upon the accounting, authorized by the statute, 1877, chapter 466.</p>

and assessments, imposing an assessment for personal property upon the relators. A statement of the facts will be found in the following opinion of Brady, J.

<p>Appeal from a judgment dismissing the complaint, entered upon a verdict directed by the court, and from an order denying a motion for a new trial made upon the minutes of the justice before ^whom the action was tried.</p>

<p>Appeal from ■ an order made at a Special Term, granting an injunction and appointing a receiver.</p>

On the 5th of November, 1813, Richard Delafield, then a resident of this State, died, leaving a last will and testament, dated the seventeenth of January of the same year. His family consisted of his wife and six adult children, none of whom were then married. The wife of the testator was sixty-two years of age at the time of his death, and the ages of the children ranged from twenty-four to-thirty-seven.

<p>Foreclosure • — receiver of the rents and profits of the premises — disposal of the fund in payment of a subsequent mortgage.</p> <p>In this action, brought by the plaintiff to foreclose a mortgage for $1,900, given by the defendant McManus and wife, a receiver of the rents, issues and profits of the premises was appointed. Upon the sale an amount was realized suffi_ cient to discharge the amount due to the plaintiff, together with the costs, and leave a surplus, which was applied upon a second mortgage given by the said McManus, and which when so applied left still due thereon the sum of $110.58. There was a balance of rents collected in the hands of the receiver amounting to -$351.10. The court directed that $110.58 of this should be paid to the holder of the second mortgage and the balance thereof to McManus.</p> <p>Held, that this was proper.</p> <p>Washington Life Insurance Company v. Fleischaur (10 Hun, 117) distinguished.</p>

Appeal by Robert C. Martin from an order denying a motion to be relieved from a purchase, made under a judgment in this action for the foreclosure of a mortgage.

<p>Factors and warehousemen act — 1830, chap. 179, sec. 3 — what a lender must show to entitle him to protection under it.</p> <p>To entitle a person advancing money, upon the security of goods under the control of the borrower, to the protection afforded by section 3 of chapter 179 of 1830, relating to factors, agents, warehousemen and other custodians, it must be shown that the borrower had been intrusted by the owner with the possession of a bill of lading or a warehouse receipt for the delivery of the merchandise, and that the loan was made upon the faith thereof, or if no documentary evidence of title was given to the borrower, that he -was intrusted with the possession of the merchandise for the purposes of sale, or as a security for . advances to be made or obtained thereon.</p> <p>It is not sufficient to show that he was intrusted with the possession of the goods, if he was so intrusted with them only for the purpose of enabling him to have the merchandise stored for and in the name of the true owner.</p>

Appeal by Albert Strasburger, as committee, from an order directing him to pay tbe sum of $8,125 and interest from tbe 1st of November, 1884..

Appeal by the defendant Palmer from an order denying a motion for the production and deposit by the defendant Williams of certain agreements and other documents.

<p>Appeal, from an order denying a motion to resettle á case.</p>

<p>Motion to continue an injunction — right of the plaintiff to furnish additional affidavits— Code of Civil Procedure, sec. 627.</p> <p>The right to sustain an injunction by new affidavits when the motion to vacate is supported by affidavits furnished by' the defendant, which is conferred by section 627 of the Code of Civil Procedure, is confined to motions to vacate, and does not include either by language or implication the case of a motion to continue an injunction order previously made.</p> <p>In the latter case the right to furnish additional affidavits to sustain the injunction rests in the discretion of the court.</p>

<p>Appeal from a judgment overruling a demurrer to the complaint.</p>

The plaintiffs’ testator was the 'owner of the river steamboat Charlotte Yanderbilt, and the defendant the owner of the oceangoing steam yacht Yosemite. Between nine and ten o’clock on the night of July 14, 1882, the Yanderbilt was going down the Hudson river and the Yosemite coming up.

<p>Application for leave to appeal to 'the Court of Appeals.</p>

This action was tried before a referee who made his report on the 24th day of June, 1884, and delivered it to the attorney for the plaintiffs, the successful parties, and the attorney for the plaintiffs served a copy of the report upon the attorney for the defendants. On. the 5th day of August, 1884, the plaintiffs applied at Special Term for an order sending back the report to the referee for further findings of fact, which motion was denied.

<p>Application for leave to appeal to the Court of Appeals from an order of the General Term modifying, and affirming as modified, an order of the Special Term awarding a peremptory writ of mandamus.</p>

Caleb S. Dickerman died, leaving a will by the second clause of which it was provided as follows : Second.

Certiorari issued to review tlie decision of the board of commissioners of the laud office rejecting an application made by the relators.

50 paid by him for rent, fuel and lights for the surrogate’s office at Amsterdam, Montgomery county, for the year 1884. Held: and holds, a regular Surrogate’s Court at his office in Amsterdam on every Saturday, and at the court-house in Fonda on every Monday, for the public convenience, and on any other days at his office in Amsterdam, whenever any business is presented.

A motion having been made at the close of the trial for a dismissal of the complaint, the court reserved its decision and a verdict was rendered in favor of the plaintiff. Subsequently the court directed that the judgment entered on this verdict be set aside and the complaint be dismissed, with costs.

The action was brought, under chapter 237 of 1878, to recover penalties incurred by the act of the defendant in skimming milk before sending it to a cheese factory. The plaintiffs had a verdict for forty dollars. The clerk thereupon taxed costs in favor of the defendant.

ages sustained by the plaintiff by reason of injury resulting from a fall upon the sidewalk on the south side of Lake avenue, Sara-toga Springs. The complaint charges that her injury is due to the negligence of defendant as a municipal corporation, in permitting a dangerous- bank of snow and ice to accumulate .and remain on the sidewalk.