Volume 42 — Barbour's New York Supreme Court Reports

<p>APPEAL by the plaintiffs from a judgment entered upon the report of a referee. The action ivas brought upon the following agreement between the parties :</p> <p>“ This agreement, made the first day of August, 1859, by and between Frederick A. Stow, of the city of Troy, of the first part, and Charles F. Conkey and John M. Van Buskirk, of- the village of Lansingburgh (to compose the firm of John M. Van Buskirk & Co.) of the second part, witnesseth, that the said party of the first part does hereby agree to fit up and alter the building known as the India Rubber Factory, situated in the ninth ward of the city of Troy, for the purpose of being occupied as a malt-house by the parties of the second part, the same to be done according to plans and specifications furnished for the same by M. A. Upham, at an expense of twenty-two hundred and fifty dollars, and also to paint the roof of said building; all of which said fitting up and alterations are to be done and completed within sixty-days from the date hereof.</p> <p>And the said parties of the second part hereby covenant and agree to and with the said party of the first part, that as soon as the above repairs and alterations, according to the above mentioned plan and specifications, shall have been completed at the expense aforesaid, to take and receive from the said party of the first part and to execute to him a lease for five years from the date thereof of the above mentioned premises, the said party of the first part reserving the entire upper story thereof, with the privilege and use in common of the stairs at the north end of the building; the lease to bear date the 1st day of October next, at an annual rent of six hundred dollars, to be paid in equal quarterly payments; and it is mutually agreed that the lease of said premises, to be executed by the said parties of the second part, is also to be executed by Morris Yan Buskirk, of Lansingburgh, or some other person acceptable to the party of the first part, as surety for the performance of the agreement in said lease, and for the payment of the rent.</p> <p>The parties of the second part are to take the charge of the alteration of the premises, as per plan and specifications of said Upham; the money to be disbursed by the party of the first part. And the said parties of the second part do hereby, for value received, guarantee the performance of the contract by Upham & Ayers, to alter and repair the said premises for the said party of the first part. And the said parties of the second part also covenant and Gagree with the said party of the first part, for value received, to protect and save harmless the said party of the first part from all liens upon the said premises for altering and repairing the same, upon the part and in behalf of Upham & Ayres, or parties working under or for them — the said party of the first part having paid the said Upham & Ayres for such alterations and repairs as the same have become payable by their contract for doing the same.’'</p> <p>The plaintiffs alleged in their complaint that they had in all things fully performed and carried out the covenants and conditions contained in said agreement on their part to be performed and carried out, but that the defendant wholly failed and neglected to perform and carry out the covenants and conditions contained in said agreement on his part to be performed and carried out; that said defendant, in compliance with said agreement, commenced said repairs and alterations, but failed and neglected to complete and finish them according to said plans and specifications, within the time agreed upon in and by said agreement, and wholly failed and neglected to complete said repairs and alterations until long after the said time had expired, to the great damage of the plaintiffs; that the plaintiffs, in consequence of the failure and neglect of the defendant to complete and finish said., repairs as he had agreed, could not and did not obtain possession of said premises until long after the time agreed upon had expired, to the great damage and loss of said plaintiffs, &c.; and that the plaintiffs entered into possession of said premises as soon as they were able to obtain possession, for the purpose of carrying on their business of malting, but that in consequence of the defendant’s failure the plaintiffs were g'reatly hindered and delayed in the prosecution of their said business, to their great damage and loss. Demand of judgment for #1000. The answer was a general denial of the allegations of the complaint. The referee found the following facts: 1st. The execution of the agreement by the parties. " 2d. That the performance of the agreement was soon after entered upon, the defendant making contracts for the performance of the work required by the plan and specifications, and the contractors soon after commencing the work,, which was done under the superintendence of the plaintiff Donkey* 3d. That the plaintiffs found that extra work was required, over and above that called for by the plan and specifications, &c.; that they directed the performance of some of such extra work by the contractors employed to do the work required by said original agreement. 4th. That the building was not in condition to be occupied for malting purposes until about the 24th of ¡November, 1859. 5th. That a short time before the 19th day of September, 1859, the plaintiffs requested the defendant to put in some trimmers in one story of the building, for the purpose of strengthening the same, not called for by the original contract, and that the defendant on the 19th day of September, 1859, by written contract, employed Upham & Ayres, who were -the contractors employed to do the carpenter’s work provided for by the original contract and plan and specifications, to do this work, with the knowledge and assent of the plaintiffs. That one cause of the delay in completing the building and making it suitable for malting purposes was this contract for the trimmers, and some difficulty in procuring timber for the same, and the performance of other extra work byUpham & Ayres. 6th. That the work required by the original plan and specifications was not fully performed within the time required by said original contract, but that the same would in all probability have been performed in time but for the arrangements for such extra work made with Upham & Ayres. 7th. That on or about the 27th day of October, 1859, the plaintiffs, or one of them, stated that they would not take the building unless they could have the upper loft which was reserved in the original contract, and that thereupon the defendant, through fear that the plaintiffs would not take the building, consented to let them have the upper loft, provided they would properly brace the same so as to support grain, and that the plaintiffs have since occupied said upper loft. 8th. That the plaintiffs, before executing the lease called for by the agreement of August 1st, 1859, notified the defendant that they would not waive their claim for damages for his failure to complete the building according to contract by executing the lease. And the referee found as conclusions of law from the foregoing facts: 1st. That the performance of such extra work at the request of the plaintiffs operated to extend the time of performance of the original contract of August 1st, 1859, and with the subsequent lease by the defendant to the plaintiffs of the upper loft of the building was a waiver of any claim for damages for the non-performance of the same in time. 2d. That the plaintiffs were not entitled to recover any thing of the defendant in this action, but that the defendant was entitled to judgment against the plaintiffs for his costs and disbursements therein.</p>

<p>APPEAL from a judgment entered upon the report of a referee, by the defendant James S. Griswold.</p> <p>This action was brought by the plaintiff to recover the amount of a certain promissory note which was given for money borrowed .of the plaintiff by the defendant, Sherman Griswold, of Avhich noté the following is a copy:</p> <p>“500. On demand, for value received, we jointly and severally promise to pay Alexander Hawley, or bearer, five hundred dollars and interest. Chatham, March 31st, 1854. (Signed) Sherman Griswold.</p> <p>James S. Griswold.</p> <p>(As security.) H. W. Gott.”</p> <p>[Indorsed.] “Rec’d on the within note 260/¡A dollars, April 20th, 1859; Rec’d on the within note fifty dollars, Hov. 5th, 1859; April 2d, 1860, Rec’d on the within, one hundred dollars.”</p> <p>The note belonged to the plaintiffs. The defendant Sherman Griswold did not answer the' complaint. The defendants, James S. Griswold and Harvey W. Gott, each answered separately, setting up the statute of limitations, and denying the making of any payments by either of them upon the note.</p> <p>It appeared upon the trial that in March," 1853, and previous to the 22d of October, 1853, some cord wood had been delivered by Sherman Griswold to the plaintiff, and on the 22d day of October, 1853, the said Sherman Griswold and James S. Griswold, of the one part, and the plaintiff of the other part, executed two agreements bearing date on that day. By one of them the said Sherman and James Griswold agreed to deliver to the plaintiff 400 cords of wood by the first day of January, 1855, and.by the other 600 cords by the first day of April, 1856, at $3.75 a cord. Wood was furnished and. delivered under said agreements from time to time from November 12, 1853, to June- 15, 1857. On the 20th day of April, 1859, an account was rendered by Sherman Griswold to the plaintiff of the wood furnished and delivered under the said agreements; including the wood which had been delivered to the plaintiff before the making of the agreements of October 22d, 1853. This account was headed as follows: “Ezra Hawley to Sherman Griswold and J. S. Griswold deb. for wood,” and footed up at $3392.08, and on the same day and at the time of rendering said account, a settlement was made with the plaintiff by the defendant Sherman Griswold, and a receipt in full given, written at the bottom of the account and signed “Sherman and James S. Griswold,” such signature being made-by the defendant Sherman Griswold. On such settlement a balance of $260.46 was found due from the plaintiff, which the plaintiff on the same day indorsed upon the note in this action, and which is the first indorsement- on said note, under date of April 20th, 1859. Previous to this settlement the defendant had consented, to the plaintiff, that what was due on the wood should be indorsed on this note, and after the indorsement was made said it was all right.</p> <p>The defendant Gott made some payments upon the note. Several objections were taken to the rulings of the referee in refusing and receiving evidence, which are particularly stated in the opinion. The referee reported in favor of the plaintiff for the balance due upon the note after deducting the indorsements, being the sum of $331.75, and the defendant James S. Griswold duly excepted'to his decision. A judgment was entered upon the referee’s report, and the defendant James S. Griswold appealed to the general term,</p>

<p>THIS was an action brought by the plaintiff against the defendant to recover the sum of 0320.03, which money the plaintiff alleged he had been compelled to pay to the sheriff of Ulster county, upon an execution issued upon a judgment, which had been recovered on a note of which the plaintiff and defendant were the joint makers, but which the plaintiff alleged he had signed solely for the accommodation of the defendant. The plaintiff claimed to recover the said money with interest from the 17th day of May, 1862, with costs. The answer was a general denial. The cause was tried at the Ulster circuit in January, 1863, before Mr. Justice G-ould and a jury, and resulted in a verdict in favor of the plaintiff for the sum of 0334.60 damages. The following facts appeared in evidence. On the 30th day of January, 1862, one Dubois Hasbrouck recovered a judgment in the supreme court, against Powell and Jones, for the sum of 0305.58, damages and costs, upon which an execution was issued and placed in the hands of the sheriff of Ulster county for collection. On this execution Powell paid to the sheriff the sum of 0320.03 in satisfaction thereof. The judgment of Hasbrouck was recovered upon a note of which the following is a copy:</p> <p>“0200.00. Four months after date, we, or either of us, promise to pay to Dubois Hasbrouck, or bearer, the sum of two hundred dollars, with interest from date.</p> <p>Dated January 1st, 1855. Mark W. Powell,</p> <p>Humphrey S. Jones.”</p> <p>The note, though dated in 1855, was in fact made and executed on the first day of January, 1856. The plaintiff, to support his theory of the case that the note was the debt of the defendant to pay, produced in,evidence a paper of which the following is a copy :</p> <p>“Lloyd, May 8th, 1857.</p> <p>0200.00. This paper witnesseth, that a certain note given by Mark W. Powell and Humphrey S. Jones to Dubois Hasbrouck, and indorsed by David Wurts, was drawn for the use of said Humphrey S. Jones, and the proceeds used by said Jones, who hereby acknowledges that he, said Jones, used the money, and will pay the said note of two hundred dollars, with interest. Humphrey S. Jomes.”</p> <p>The defendant, on the other hand, maintained that the note, which Powell was compelled to pay, was made for the benefit of Powell, and that the paper introduced in evidence referred to another note which Powell had signed for his accommodation, and David Wurts had promised to indorse for him, and on which he expected to obtain the money of the same Dubois Hasbrouck, which note he did not use but destroyed. The note which the plaintiff paid was not indorsed by any one. It was left, however, with Wurts, who said he could get the money if he indorsed it.</p> <p>There was a conflict in the evidence in respect to the main facts of the case. The jury rendered a verdict in favor of thé plaintiff, for the amount of the note and interest. The exceptions taken on the trial will appear in the opinion. The defendant moved for a new trial at special term, upon a case and on affidavits of newly discovered evidence. The motion was denied, and the defendant appealed from the judgment, and from the order denying a motion for a new trial. The case was submitted upon written points.</p>

THIS action was brought to recover the amount of a check made by the defendant on the 12th of October, 1861, at New York, directed to the Bull's Head Bank, and which required the said bank to pay to H. M. Pierce or bearer, on demand, the sum of 560 dollars. The check was presented at the bank on the 12th day of October, 1861, and payment demanded and refused..

A PPEAL from a judgment of the county court, affirming a JT3L judgment entered before a justice of the peace in Albany county. The action was brought before a magistrate, for fraud in the sale, of a horse.

<p>CASE submitted under section 372 of the code. Louisa Schadelle, who died in Albany on the 17th of September, 1862, by her last will and testament bequeathed to the plaintiffs, to be received by them and to be appropriated to the forwarding of the gospel, the sum of $500, and to her brothers and sisters, share and share alike, the balance of her estate, to be divided equally between them, which several legacies or sums of money she ordered and directed to be paid to the several legatees within one year after her decease. After the will was admitted to probate the assets received being insufficient to pay the debts of the testatrix, the real estate was sold by the order of the surrogate, and, after payment of debts and expenses, the sum of $729.66 remained on hand to be disposed of under the will.</p> <p>The plaintiffs claim that the surrogate should pay them the sum of $500, with interest. The defendants, who are the brothers and sisters of the testatrix, claim that the bequest to the plaintiffs was not a charge on the real estate, and cannot be paid out of the avails thereof, and that the whole amount should be distributed amongst them.</p>

The promissory note upon which the action was brought was made by the defendant on the 9th of February, 1861, for $1500, payable to the order of H. D. Hawkins, and by him immediately, on the same day, indorsed and delivered to Jonathan E. Herrick.

/TIHIS was an appeal from an order made at a special term, 1. sustaining a demurrer to the complaint.

THIS was an action of ejectment, brought to recover a strip of land about six inches in width, and seventy-seven feet in length, fronting on Main street, in the village of Brockport, upon which the defendant had erected the wall of a brick building. The Bank of Monroe was the common source of title.

<p>An agreement made previous to I860, between a married woman, with the • knowledge and consent of her husband, and a third person, for personal services to be rendered by her to the latter, who agrees that she shall be paid what her services are reasonably worth, gives to the wife no title to her earnings, in her own right. In law they belong absolutely to the husband, and the promise to pay her is, in law, a promise to pay the husband.</p> <p>The common law still controls the relation and rights of husband and wife, except where those rights have been modified or changed by statute.</p> <p>There was no statute in this state, giving a married woman the right to perform labor or services on her sole and separate account, until that of March 20, 1860. And that statute does not operate to divest a husband of his right to the wife’s earnings for services previously rendered.</p> <p>A wife cannot maintain an action to recover pay for her services, as trustee of an express trust; there being in respect to such claim, no such relation between husband and wife as trustee and cestui que trust.</p>

The action originated in a justice’s court. In June, 1860, E. T. Munson was indebted to the plaintiff for services as attorney, disbursements, &c. in the sum of $200 or $300. About that time Munson turned out to Dixon a ■ quantity of marble owned by him; under the agreement that Dixon should sell it and apply the avails on his indebtedness. Munson delivered to Dixon a written schedule of the pieces, which were in three different places, in the custody of other persons.

Abner Remington died in 1840, leaving a last will by which he bequeathed to the respondent $1300, to be paid to him on his arriving at the age of twenty-one years, the interest on which was to be paid annually before that time; and appointed the appellant one of his executors, who duly qualified and took upon himself the execution of said will. The respondent arrived at the age of twenty-one years in November, 1844.

<p>A town has no right to money improperly collected by tax from its tax payers, and cannot maintain an action in the name of its supervisor to recover it back.</p> <p>Where money has been collected by a town collector, under a warrant of the board of supervisors, for the purpose of paying the land damages occasioned by the laying out of a highway which was never worked or opened for the reason that the proceedings to lay out the road were null and void, and such money has been paid to a commissioner of highways, who has paid the same over to the persons entitled thereto, for their damages, no action will lie against such commissioner after the expiration of his term of office, upon his official bond, by the supervisor of the town, to recover such moneys.</p> <p>Money raised by taxation does not go or belong to the towns. They have no treasury to receive it. But when collected it is to he paid over to the treasurer of the county, or to the officers and persons designated by law to receive it. Ter Bockbs, J.</p>

<p>THIS action was brought by the plaintiff as receiver, under proceedings supplementary, of the firm of DeAgreda, Jove & Co. of the city of New York, to set aside a general assignment made by the firm on the 8th of October, 1857, to the defendant Bowles. The assignment was executed here, under seal, hy two of the four partners, the other two partners being absent from the country. The firm consisted of S. DeAgreda, Lorenzo Jove, Antonio Jove Ponte and Esteban Ponte. DeAgreda and Esteban Ponte, the resident members, signed the instruments, for themselves and for the firm, S. DeAgreda, Jove1 & Co.; the signature of Lorenzo Jove,one of the absent members, being made “by 8. DeAgreda, attorney,” and that of Antonio J. Ponte, the other absent partner, purporting to be made “ hy Esteban Ponte, attorney.” The assignment preferred as creditors Mrs. DeAgreda, the wife of one of the partners; Mrs. Jove, the wife of another ; Bowles, the assignee; the firm of 0. Stetson & Co., of which he was a member; and the legal adviser of "the assignors. The firm of 0. Stetson & Co., the assignee and the assignors were made defendants. The allegation in the complaint, as to the plaintiff's authority to sue, was that “ tho plaintiff suing under the direction of this court," was, on the 19th day of July, 1858, by an order of this court, appointed receiver of all the property, credits and effects of or belonging to the assignors as copartners, wheresoever and whatever the same may be, withpower to sell personal property and bring suits, and with all the powers of receivers in similar cases; and that he had filed security according to the terms of the order appointing him such receiver. The complaint alleged that the assignment was void by reason of fraud, and especially by the preference of fictitious claims; and the plaintiff also insisted that it was ineffectual because it was executed by only two of four copartners. The business of the firm had been carried on by DeAgreda and Esteban Ponte, who resided in New York. Lorenzo Jove, one of the partners, resided in Venezuela, and A. J. Ponte, the remaining partner, resided in Paris; and they were in those jfiaces respectively when the assignment was executed. It was claimed that DeAgreda had special authority to act for Mr. Jove, and that Esteban Ponte had especial authority to act for A. J. Ponte, in the ordinary business of the firm. It was alleged in the answer, that neither of the absent non-executing partners ever dissented from the assignment; but that on the contrary, in executing his trust, the assignee received the co-operation of both.</p> <p>The trial was before I. T. Williams, Esq. referee, who found that the assignment was not affected by the alleged frauds. He however declared it to be void, because it was not executed by all the members of the firm; and found, as facts, that the testimony offered by the defendants tending to show a ratification of said assignment by the non-executing partners was too vague, indefinite and uncertain to establish the allegations of such ratification; and that the executing partners had no power from the non-executing partners to execute the assignment at the time they so executed the same, and that the non-executing partners have not since that time ratified the same. And he found, as matter of law, that the plaintiff might legally take this objection, and that as to him the assignment was absolutely void. The referee charged the assignee with the full sum which he had collected and paid out in pursuance of its trusts. He also charged 0. Stetson & Go. with sums received by them from the assignee as preferred creditors, amounting to $21,873.81, with interest. And, at the close of his report, the referee declared that a decree might be drawn by the plaintiff, and settled before him, the referee, on two days’ notice to the defendants’ attorney. At the end of that time he settled the decree, and directed it to be entered by the clerk. From the decree so entered the defendants appealed.</p>

CEETIOEAEI to review the proceedings instituted by a landlord against his tenant, to dispossess him for the non-payment of rent.

THIS case came up on appeal from a judgment entered in an action brought against the defendant as sheriff, for taking and detaining goods of the plaintiff of the value of $3000. The cause was tried before Mr. Justice Marvin and a jury, at the June circuit, in New York, 1862. The jury rendered a verdict in favor of the plaintiff, valuing the property at $2750, and awarding damages in addition, to the amount of $401, besides costs.

TFT 1856, J. C. Slaight, a ship chandler, bought out M. T. J, Runyon’s stock in trade and business, as a ship chandler, in South street, in the city of New York. To enable him to pay for the same, he procured Mrs. Jane F. Cawley to give a conveyance of certain lots she owned in Harlem, and also of some Flushing Rail Road bonds, to said Runyon.

PPEALS from orders made at special term, appointing commissioners under the act of April 17, 1860, authorizing the construction of a rail road in Seventh avenue and in certain other streets and avenues in the city of New York, (Laws of 1860, p. 1042.)

mms is an action to recover the amount of two promissory -1 notes, made at Boston, in December, 1855, by the firm of J. & G. P. Titcomb, (of which firm the defendant is the survivor,) to the order of the Commercial Mutual Marine Insurance Company of Massachusetts. The notes were indorsed in blank by the insurance company, “ by George H. Folger, President.” It was proved this was the way the company usually indorsed its notes.

<p>By a written agreement between the parties, made on the 28th of December, 1848, the plaintiffs sold and assigned to the defendants the right of manufacturing, at their factory in Norwalk, felt cloth of the usual width of broadcloth, by means of a single set of machinery, for the manufacture of which felt cloth the plaintiffs had a patent; they covenanting that the defendants might have and enjoy said right for and during the imcxpired term of the patent, and for and during the term for which the patent should he renewed, if a renewal should be obtained, for or by the plaintiffs. In consideration of which the defendants agreed to pay to the plaintiff the sum of one cent for each yard of cloth manufactured by them, under and by virtue of the agreement, on the first days of January and July in each and every year, "during the term or terms aforesaid.” The first term of the patent had only two years unexpired, at the date of the agreement. It expired in 1850, and the patent was, on the 21st of October of that year, renewed for the term of seven years; and in 1854 it was extended, by act of congress, for fourteen years longer from that date, both extensions being duly assigned to the plaintiffs and obtained for them. The defendants insisted that inasmuch as the act of congress, of July 4, 1836, provides that the benefit of such'renewal shall extend to assignees and grantees of the right to use the thing patented, to the extent of their respective interests therein, and as the act of 1854, extending the patent for fourteen years longer, had a similar provision, they had the right to use it, after the expiration of the first term, without paying any compensation to the plaintiffs, for its use; they being by those acts absolved from the stipulations of the agreement.</p> <p>Sold 1. That under and by virtue of the agreement the benefit of the extension of the patent for seven years from October 20, 1850, enured to the defendants.</p> <p>2. That the defendants having taken and enjoyed the benefit of such extension, and manufactured cloth, under the agreement, until September 24, 1857, the plaintiffs were entitled to one cent per yard on the cloth so manufactured.</p> <p>8. That the agreement was not annulled, rescinded or abandoned, but continued to be, in all respects, binding upon, and operative as to, the parties, until and after September 24, 1857.</p> <p>4. That the obligations of the defendants, or the rights of the plaintiffs, under the agreement, wore not destoyed or impaired by reason of the extension, or re-issue, of the patent.</p> <p>5. That the service of a notice upon the defendants, by the plaintiffs, forbidding them (on the ground of an alleged breach of the agreement,) to use or exercise the right granted by the agreement, did not, ipso 'facto, annul the contract.</p>

<p>THIS action was brought to recover the amount insured hy the defendant upon the freight of the ship Mastiff, under a policy of insurance thereon, “lost or not lost,” dated at Boston, the 26th October, 1859. The insurance was effected at Boston, on the day of the date of the policy, hy the plaintiff and Mr. Balch, the president of the company. The vessel was already lost at the time of the insurance. But the plaintiff’s last advices from the ship were up to the 10th September, 1859, to the effect that she was then at San Francisco, ready for sea, to sail that day or the next morning for Hong Kong, and “ that she had a small amount of freight and a considerable number of passengers.” These facts were communicated to Mr. Balch by the plaintiff before effecting the insurance. The insurance was “ six thousand dollars on the freight of the ship Mastiff, at and from San Francisco, for .one year from September 10th, 1859,” for a premium of seven and one half per cent, the freight valued at $30,000. Ho question was made as to the correctness of the statements made by the plaintiff. The vessel, in fact, sailed from San Francisco on the day named, (10th September,) having freight on board to the amount of $1876.75, and her between decks occupied by passengers. When five days out, she took fire, and was totally destroyed. Ho part of the cargo was saved, excepting the treasure, which was forwarded to Hong Kong in another vessel. The passage money, amounting to $3657, had been paid in advance, and a small portion of it had been refunded. There was a trifling salvage on the freight, which was conceded to the defendants in making up the amount of the plaintiff’s claim.</p> <p>At the close of the testimony, the counsel for the defendants asked the court to instruct the jury that the plaintiff was entitled to recover from the defendants only the proportion in the valuation in the policy, to wit, $6000, which that portion of the freighting capacity of the vessel actually devoted to the carriage of cargo bore to its full freighting capacity; but the court refused so to charge, and the defendants’ counsel excepted. The defendants’ counsel then asked the court to charge that the plaintiff was entitled to recover only the proportion of the valuation in the policy, to wit, $6000, which the portion of the freighting capacity of the vessel not occupied in the carriage of passengers bore to the whole freighting capacity of the vessel; but the court refused so to charge, and the counsel for the defendants excepted. The defendants’ counsel then asked the court to charge that if the plaintiff was entitled to recover for a total loss .of freight, under the circumstances of the actual employment of the vessel, the defendants were entitled to a reduction from the recovery, in the nature of salvage, of the amount of passage money received and retained by the plaintiff; but the court refused so to charge, and the counsel for the defendants excepted. And thereupon the court charged and instructed the jury that the plaintiff was entitled to recover for a total loss, and that the sum which be was so entitled to recover was $6672.25. To the whole of which charge and instruction the defendants’ counsel excepted, and the jury, under the direction of the court, found a verdict for the plaintiff for the sum last named. The defendants’ counsel, at the same term and before the same justice, upon the judge’s minutes, and upon their exceptions set forth, moved for a new trial; but the court denied the motion, and ordered judgment to be entered upon the verdict.</p> <p>The defendants appealed from the judgment, and from the order denying a new trial.</p>

AMES HAEEISON died April 14,1853, leaving a widow and six children, and a will dated in the month immediately previous to his death. The testator, by his will, gives his property, real and personal, to the executors and trustees, in trust, to pay one third of the income, to the widow for life, and the other two thirds of the income, during the life of the widow, and the whole of it after her death, to his children, during their lives.

<p>The defendants made an agreement with the plaintiff hy which they stipulated that on the payment hy him of $200,000 for a certain number of shares of the capital stock of a railway company, then belonging to them, new directors, to be nominated by the plaintiff and his co-purchaser, H., should be substituted in the place of all the other directors, except the plaintiff and II., who were directors at the time. Held that the contract was an attempt improperly to interfere with the rights of others, and was clearly contrary to public policy.</p> <p>And that if the subject matter of the contract was of that species which would authorize a court of equity to interpose and decree a specific performance, the object and nature of it would forbid any such interposition.</p> <p>The plaintiff induced H. the trustee who held the package containing the certificates of stock &c. to deposit it in a bank. H. at the same time directed the cashier to deliver the package to the plaintiff on Ms depositing the balance of the purchase money ($96,616.75) to the credit of H. The plaintiff accordingly paid that sum to the bank, and received the package, without requiring the performance of the stipulation relative to the change in the board of directors, or mentioning the subject. Sold that even if the contract were such as a court of equity would compel the parties specifically to perform, the circumstances of the casé would debar the plaintiff from any right to that relief; and that he could not now prevent H. from receiving the purchase money, and remitting it to the vendors of the stock.</p>

The action was brought by the plaintiffs, judgment creditors of Charles Bridge, to set aside an assignment of his property made by him to the defendant Burdick, and two judgments confessed by Bridge in favor of Burdick, on the ground that such assignment and judgments were fraudulent and void as against creditors.

THIS is an action brought by the plaintiff against the defendants as surviving trustees of the late Merchants’ Exchange Bank for an accounting; claiming a right to redeem certain shares of stock of the Firemens’ Insurance Company of the city of New York, left by Edwin Wilcox, one of the assignors of the plaintiff, with the late Merchants’ Exchange Bank to secure the payment of a note of Wilcox for nine hundred dollars.

<p>THIS is an appeal from a judgment entered on the decision of a single judge at the circuit, a trial by jury having been waived by the parties. The action was commenced in October, 1860, to recover $1000 damages for the wrongful conversion of personal property. The original complaint alleged a sale and delivery of a chestnut mare to the plaintiff, by the defendant, and a subsequent tortious conversion of the mare by him. The defendant answered, denying specifically the allegations in the complaint, and alleging title in himself. The cause proceeded under these pleadings to the end of the trial, 29th October, 1862. On the trial it was proved that some arrangement was entered into between the plaintiff and defendant, and was partially reduced to writing in a kind of receipt, as follows, viz:</p> <p>“Neiv York, Sept. 24, 1860.</p> <p>This is to certify that I have this day received from Y. Whitcomb $100, as part payment for a certain chestnut mare now in the hands of H. Woodruff. Said Whitcomb to pay $900 more in thirty days, or forfeit the amount paid, @and the said Whitcomb agrees to pay the expenses from this date. (Signed) W. M. Hungerford.”</p> <p>That this arrangement was made in the city of New York, at the stables, corner of Crosby and Prince streets. The mare was then at Hiram Woodruff's stable, on Long Island, where she'had been taken by Hungerford, and where she remained at his charge, down to the time this suit was brought, Whitcomb exercising no acts of ownership over her. Before the expiration of the thirty days specified in the receipt already quoted, the mare was trotted by the defendant, and won in two matches ; in a third, the owner of the opposing horse paid forfeit. After the testimony on both sides was closed, the counsel for the defendant moved to dismiss the complaint: (1.) On the ground that the testimony adduced on the part of the plaintiff did not prove, or tend to prove, the cause of action alleged in the complaint. (2.) That the cause of action, if any, which the testimony tended to establish, was totally at variance with that alleged in the pleadings. And a like motion, specifying the same grounds, was also made upon the whole of the testimony. The justice reserved his decision until he should determine whether he would order the complaint to be amended, and having subsequently decided to allow the amendment, he denied the said motions, and the defendant’s counsel duly excepted. The findings and decision of the court were made on the 31st October, 1862, two days after the trial, and an order allowing the complaint to be amended was incorporated therein. To such parts of the findings and decision as were deemed erroneous the defendant in due time excepted. The complaint as amended, appears in the judgment roll. Judgment was entered upon said decision and findings for the sum of $725.85, and the defendant brought this appeal.</p>

THE office of health warden has existed for many years, in the city of New York. By the act of 1844, (Laws of 1844, p. 469,) the watch department of the city, as then organized, was abolished, and with it the offices of health. warden, fire warden, &c. and a new police department was created. Captains of police were thereby made health wardens.

The plaintiffs, on the 1st day of November, 1862, brought an action on a promissory note against the defendants. On the same day, and after service of the complaint, the defendants sent their certified check to the plaintiffs for the amount of the note, interest and protest, which the plaintiffs unqualifiedly accepted.

IT\HE plaintiff sued to recover the value of a quantity of I. statuary, of which he claimed to he the owner, under a bill of sale executed to him, in the name of Ottaviano Gori, by Catharine Gori, his attorney, dated November 23, 1859, consideration expressed $1000. The defendant levied upon the property January 31, 1860, under an execution based upon a judgment of this court, in favor of Harrison against Gori, rendered January 16, 1860.

<p>IH August, 1859, William H. Sackett and others commenced an action in this court against Hardee & Good-bred, of Florida, for about $500, and issued an attachment, under which the sheriff took some goods on board the schooner Julia M. Hallock, then lying in the port of Hew York, bound for Florida. Thereupon Belcher & Sackett, defendants in this action, executed to this plaintiff Hallock, the owner of said schooner, a bond, in the penalty of $5000, conditioned for the payment of “all expenses, damages and charges which might be incurred by the owner or master of the schooner, or to which they might be subjected, for unloading said goods from said vessel and for all necessary detention of said vessel for that purpose.” The goods so attached were taken by the sheriff from the schooner, and she proceeded on her voyage. Sackett & Co. recovered judgment in their suit for $584.15, but collected nothing upon it. After the arrival of the vessel at Jacksonville, in Florida, a suit was commenced against said schooner in the United States Court, by Hawkins and Hardee, the consignees of the goods, for' the recovery of the same, and the vessel was attached by the marshal, and remained under such attachment until released</p> <p>by giving bonds according to law. The present plaintiff, the owner of the vessel, defended said action and employed counsel for that purpose. He claimed that he was put to-necessary expenses in the way of legal fees, amounting in all to $600, and which fees were according to the rate of such charges in Florida, proper and reasonable. In April, 1858, the plaintiff Hallock brought this action, on the bond, claiming to recover $1200 damages, with interest from the 25th September, 1857. The defendants denied the claim. The case was referred, and the referee, on the 17th May, 1861, reported due the plaintiff $1009.03. This amount was made up of the following items:</p> <p>Cost of ballast to replace the goods removed, $13 25 Cost of labor in re-stowing the cargo, . . 30 00</p> <p>The freight on the goods attached and removed, 45 61 Demurrage by reason of the unlading of the</p> <p>goods, 3 days, a $30 per day, .... 90 00 Legal expenses in Florida,....... 650 00</p> <p>$828 86</p> <p>Interest from 9th April, 1858,..... 180 17</p> <p>$1009 03</p> <p>For this amount and the costs of the action, judgment was entered in favor of the plaintiff. The defendants excepted to the findings of fact and conclusions of law reported by the referee, and appealed from the judgment.</p>

Geo. G. Barnard, under the provisions of the revised statutes, (1 B. S. 124,125,) to compel the delivery of books and papers by public officers to their successors.

J. Mullin and a jury. It appeared that in April, 1863, the defendant Hopkins was an overseer of the poor, and Baker a justice of the peace of the town of Manlius, and that, upon the application of Hopkins, Baker issued a warrant for the arrest of Millett, as the putative father of a bastard child, upon which he was arrested and brought before the justice, and an order of affiliation was made against him.

mHIS was an action for breach of contract in the sale of a X quantity of hops. The action was tried by a referee, who reported in favor of the defendant.

ACTION to recover the value of a horse, wagon, harness and goods destroyed by fire, while in the care and custody of the defendant’s testator, as an innkeeper.

npHE commissioners of highways of the town of Southport, JL in the county of Chemung, laid out a highway in said town, passing through the improved lands of the plaintiff. The damages sustained by the plaintiff by reason thereof were assessed by three commissioners appointed by the county judge of said county.' From such assessment the plaintiff appealed, claiming the right to have such damages reassessed by a jury, pursuant to the act of 1847.

APPEAL by the defendant from a judgment rendered at the circuit, on a trial before Bacon, J.; a jury having been waived. The plaintiff claimed to recover the one fifth part of the amount of a promissory note and interest thereon which was executed by the parties and three other persons, and which the plaintiff had paid.

PPEAL from a judgment entered on the report of a referee. The action was brought on a judgment recovered against the defendant in a court of record in the state of New Jersey, in an action which he in-ought against Thomas Richardson and Sigismund Hopf, and which judgment the plaintiffs claimed had been assigned to them by one Schedell, to whom Eichardson and Sigismund Hopf had previously transferred it.

THESE were appeals from a decree of the surrogate of the city and county of New York, admitting to probate the will, with the first codicil, of Henry Parish, deceased. The testator was an intelligent and educated merchant, and, having retired from business, he made his will in 1842, then being fifty-four years of age.

In this matter William Chamberlain, and others, applied to the court, at a special term, for leave to prosecute the bond of Anthony T. Campbell, sheriff of the county of Kings. The facts are fully stated in the opinion of the court. Leave having been granted, the sheriff moved to revoke it, and his motion being denied, he appealed to the court at general term.

THIS was an action against the late sheriff of Kings county, to -recover the value of a stock of goods in the store Ho. 166 Grand street, Brooklyn, B. D., which was levied upon and sold' by the defendant, under and by virtue of an execution against the property of William S. Irvine & Co., in favor of Ide, Felt & Hall. A general assignment, with preferences, was made and executed by Wm.

APPEAL by the plaintiff from a judgment of a special term, allowing a demurrer to the complaint. The action was brought in pursuance of the authority given by the act of the legislature of April 29th, 1863, (Lotos of 1863, p. 526,) by the plaintiff, as collector, appointed under the act of April 19, 1859, (Laws of 1859, p. 1109, § 7,) to recover the amount of an assessment levied by virtue of the latter act, upon the property of the defendant.

<p>APPEAL from a judgment entered upon the report of a referee, in an action to foreclose a mortgage.</p>

<p>Proceedings to compel the determination of claims to real property, are properly brought and prosecuted by notice under the statutes in regard thereto, notwithstanding section 449 of the code of procedure, which declares that they may be prosecuted by action, without regard to the forms of proceeding prescribed in the statutes.</p> <p>The action given by section 449 of the code is cumulative, and not in abjogation of the right to proceed by notice under the statute.</p> <p>If the defendant in such proceedings has a title, he is bound to produce and prove it. The plaintiff is not required to show any thing beyond the three years' possession, under a claim to one of the three estates named in the statute, if it be disputed and put in issue by the answer.</p> <p>The title of the defendant is now to be tried upon the answer and the replication thereto; but in respect to such title the defendant is still the actor, and is bound to prove it upon the trial.</p> <p>The court, under proceedings of that nature, can take cognizance of claims to three estates only estates in fee, for life, and for a term of years, not less than ten. It was not intended that all controversies and claims to land should be settled thereby.</p> <p>The plaintiff must allege and show that he claims one of these estates, to maiatain his status in court; and so the defendant must also show that</p> <p>his title is one of the three mentioned, or he cannot have judgment in his favor. The statute concludes him upon no other claim or title.</p> <p>The defendant cannot appear and disclaim and have judgment of discontinuance, with costs, in his favor. If his claim or interest be of that kind of which the court cannot take judicial cognizance, he loses nothing, and cannot be prejudiced by any default to be taken against him for his nonappearance upon the notice.</p> <p>If the title and interest claimed by him is not an estate in fee, for life, or for a term of years in possession, reversion or remainder, then he has no standing in court, and judgment should be rendered against him on the trial.</p>

<p>APPEAL by the plaintiff from a judgment entered at a special term, after a trial at the circuit,</p>

<p>The legislature of a foreign state has no power to dissolve the marriage contract when the wife alone is resident within the state and subject to its jurisdiction, so as to affect rights of property in another state, where the husband is actually resident.</p> <p>When the husband is a citizen of one state, and the wife resident within another, can a state legislature destroy or impair the obligation of the marriage contract, by an act which takes the form of a law 1 Is not such an act within the spirit, if not the very letter, of the constitutional prohibition which forbids a state to pass any law which impairs the obligation of contracts 1 Qucere.</p> <p>In such a case the wife is not estopped from denying the force and efficacy of the legislative divorce.</p> <p>One who is not bound by an estoppel cannot claim the advantages of it. And as the husband, under such circumstances, is not bound or affected by the law of the foreign state, and therefore could not claim that the act of the wife, in procuring the passage of that law, had the effect of an estoppel, neither can his heir at law so claim.</p>

<p>If a thing sold is of greater or less value, according to the effluxion of time, it is manifest that time is of the essence of the contract, and a stipulation as to time must he literally complied with, in equity as well as in law.</p> <p>Where a contract for the sale and purchase of land contemplates that the vendor shall vacate his residence upon the premises, on the day named for the payment of the purchase money, and seek a home elsewhere for himself and family, time must be regarded as of primary consequence to him, and as of the essence of the contract.</p> <p>So also, where the agreement provides for the sale and transfer of a farm with growing crops thereon, in the midst of the growing season, with horses, cattle, &c. requiring personal attention.</p> <p>The execution of such a contract cannot remain suspended in doubt or uncertainty, for any period of time, without the most serious anxiety and detriment to the contracting party, who intends in good faith, and is prepared to fulfil. And if the other party fails to perform on the day appointed, a specific performance cannot be enforced without injury and injustice to him who has been guilty of no loches or wrong. Bor Brown, J.</p> <p>Bills for the specific performance of contracts, are applications to the equitable jurisdiction of the court. The relief sought is not a matter of right.</p> <p>The court will exercise a sound and reasonable discretion, and will never grant the relief thus sought unless it is entirely equitable and right, and will work no injustice to the adverse party.</p>

<p>The statement of the day of the month, in an indictment for committing an offense on Sunday, though the doing of the act on that day is the gist' of the offense, is not more material than in other cases.</p> <p>Accordingly held that an averment, in an indictment for violating the 22d section of the excise law, which forbids the sale of intoxicating liquor by licensed innkeepers on Sunday, that the defendant, “ on the 13th day of October, in the year and at the place last aforesaid, which said day was the day of the week called and known as Sunday, did sell,” &c. was sufficient, although it appeared, on the trial, that the 13th- day of October was not Sunday, but Monday. Davis, P. J. dissented.</p>

<p>Where the complaint, in an action for slander, alleged that the plaintiff was the eldest of three sons of M.; that the defendant in a conversation with M., and in the presence of others', used the following false and slanderous ■ words concerning the plaintiff, viz : “Your boys stole my corn,” meaning thereby the plaintiff; it was held that the action was maintainable; that the words were actionable per se; and the plaintiff, as one of the persons .included in the charge, could bring his separate action for the slander. 'Seld, also, that a charge to the jury that the plaintiff was entitled to recover, unless the jury should find that the defendant, immediately after making the charge, added by ivay of explanation, “I mean your two youngest boys,” to the knowledge of the persons who heard the words complained of, was not erroneous.</p> <p>Held, further, that evidence to show that the two younger boys had stolen the corn of the defendant, shortly before the speaking of the slanderous words, was properly excluded.</p> <p>If one makes a charge in the presence and hearing of others, which is' of a slanderous character, and which in its naked form would by all the bystanders be naturally understood to impute a crime, he is responsible for the utterance, unless the language used is understood by all present to refer unmistakably to a transaction not criminal but innocent in its character ; or he adds an explanation, which conveys to the bystanders the fact that he does not make a criminal imputation upon the party pointed at in his words. •</p> <p>Hence it is true that a man is, in this sense, and to this extent, responsible for the hearing of the bystanders. If he chooses to use language that ex vi termini imputes crime, he must be careful that, by an explanation patent to all, he removes the sting and extracts the venom. Otherwise he is held justly responsible.. Per Bacox, J.</p> <p>It is not enough that the defendant swears he made the explanation. It must be shown that the explanation was heard and understood by the hearers; since only in that event would the words be rendered harmless in respect to the person referred to.</p> <p>The expression of an opinion, by a judge, as to the character or effect of evidence, leaving it to the jury, notwithstanding, to decide the question sub-mitted to thém, furnishes no valid ground of exception.</p>

<p>Where only a single cause of action, viz. assumpsit for the breach of a warranty, was set forth in the complaint in a former suit, before a justice of the peace; Held that the record of the judgment in that suit, imported a judgment upon that cause of action; and that in a subsequent suit between the same parties, in the supreme court, it was erroneous to receive paroi evidence to show the proofs and proceedings in the former suit, and that the judgment therein was in fact rendered upon proof of a different cause of action than that stated in the complaint, to wit, fraud in the sale of property.</p>

THIS action originated in a justice’s court, and was brought to recover $25, subscribed to a paper of which the following is a copy: “In consideration of one dollar, to us in hand paid, receipt* of which is hereby acknowledged, and for other good and sufficient reasons, we hereby agree, severally, to pay to Hosea Nichols, or his order, the sum set opposite our respective names, &c. on condition that said Nichols shall purchase the mill property and water power, in the…

The action was ejectment, brought by the plaintiff to recover her dower in certain lands of which her husband, Sheldon E. Smith, was seised during coverture.

<p>THIS was an action tried by the court without a jury. The findings of fact, so far as material, were as follows : 1st. In March, 1859, the defendants had a large number of saw logs secured by a boom in the Hudson river at Glens Falls. 2d. During that month an unusual freshet occurred, whereby said logs were carried away, floated down said river and lodged upon the meadow lands of the plaintiff; where they remained until the next fall and winter, when they were taken away by the defendants. 3d. That said logs passed the boom, floated down said river and lodged on the lands of the plaintiff without any negligence, omission, fault or wrongful act of the defendants. 4th. That the plaintiff sustained damages by reason of the logs remaining on the meadow for the period aforesaid, to $431.93.</p> <p>As a conclusion of law from these facts the court held that the defendants were liable for such damages, and directed judgment accordingly.</p> <p>To the conclusion of law the defendants excepted, and from the order for judgment they appealed to the general term.</p>

<p>A married woman claiming the benefit of our statutes, passed in 1848 and 1849, for the more effectual protection of the rights of married women, must show that she was a resident of this state, at a time and under circumstances to entitle her to such benefit.</p> <p>A person coming to this state, from a foreign country, six years ago, and who has since resided here, is entitled to the full benefit of all our local statutes governing the rights of citizens.</p> <p>The acts of 1848 and 1849 did not, and could not, take away the right of a husband, married in 1847, in his wife’s personal property and choses in action.</p> <p>The disability of coverture which existed at common law, precluding husband and wife from contracting with each other, was not taken away by those statutes, but still exists.</p> <p>In the absence of proof on the subject, the presumption is that the same laws, in relation to husband and wife, and their relative rights, existed throughout the civilized world, that prevailed here, at common law, before the passage of the acts of 1848 and 1849.</p> <p>It was impossiblej at common law, and still is, for husband and wife to make . any valid contract with each other. And the rule in respect to all grants, conveyances, gifts or transfers from husband to wife, remains as it was at common law. All subh transfers of real or personal property are absolutely void.</p> <p>Accordingly held, that a pretended sale by a husband to his wife, of a stock of goods in a store, being null and void, passed no title to the wife, but the-property remained his, and might lawfully be levied On by his creditors, upon execution.</p>

THIS action was brought to recover the amount of a joint and several promissory note, signed by Allen Smith, Leonard Smith, Sally Swift and Ransom D. Watkins, for $521.09. The answer states and sets forth, that the note was executed and delivered to Eleazer Carter, on the 20th of December, 1861.

<p>APPEAL from a-judgment ordered at the circuit, in an action of ejectment, on a trial before the court without a jury. The defendant in his answer set up an equitable defense, and prayed for affirmative relief. The following facts were found by the judge, viz: That on or about the 9th of January, 1860, the land in question was owned by John Hunting, who resided in the county of Schoharie, and was possessed and occupied by the defendant under a contract to purchase the same, which had then about one year to run. That the defendant being desirous to get further time to pay for said land, and also to have the owner thereof nearer to his place of residence, on or about the day aforesaid, applied to the plaintiff and proposed to him that he should advance and pay to Hunting the amount then due upon the defendant’s contract with said Hunting, and take a conveyance of the land to himself, and then give to the defendant a contract therefor, for the amount so due and paid by said plaintiff, payable at some future day. That the plaintiff assented ffo this proposition, and it was then and there agreed verbally between the defendant and the plaintiff, that the defendant should procure a deed to be made and executed from said Hunting to the plaintiff and delivered to him, and that the plaintiff should thereupon pay to said Hunting the amount due for the land upon the defendant’s contract, and that then the plaintiff should give the defendant a contract for the sale and conveyance of said land to him in five years thereafter, upon payment of said purchase price with interest thereon payable annually, to commence on the first of July then next. That the defendant, in pursuance of said verbal agreement, caused his written contract with Hunting to be sent and surrendered to him, and a deed conveying the said land to he made out and executed by Hunting to the plaintiff. That said deed was delivered by the agent of said Hunting to the defendant, who took the same and delivered it to the plaintiff, some time in March or April, 1860. That said plaintiff thereupon gave to the defendant a draft for the sum of $284, which was the amount then due upon the defendant’s contract, payable to the order of said Hunting, which the defendant caused to be sent and delivered to Hunting, in payment and satisfaction of the purchase price of said land. That it was then agreed verbally between the plaintiff and the defendant, that the defendant should cOme down to the plaintiff’s about the first of July thereafter, and enter into a written contract with the plaintiff for the land according to the terms previously agreed upon, which contract the plaintiff then promised to have prepared and ready for execution at that time. That the defendant did go to the plaintiff’s accordingly, at the time agreed upon, ready to sign the agreement on his part, and requested the plaintiff to enter into the said agreement with him. That the plaintiff excused himself from making out and signing said agreement, at that time, on the ground that the deed had been sent to the clerk’s office for record, and had not been returned, and he could not describe the premises ; and he requested the defendant to call another day, on or about the first of September then next, and he would have the contract prepared, and would then enter into it with the defendant, according to their verbal agreement. That the defendant called upon the plaintiff on the day last named, to enter into the contract, but the plaintiff had not prepared it, and requested the defendant to come at another time, when it should he prepared and signed by him. That the defendant again called, and was again put off in like manner, and from time to time, until finally the plaintiff, upon being urged by the defendant to enjer into the contract according to the verbal agreement, denied that he had ever made any such agreement with the defendant, and wholly refused to make or to enter into any such contract with the defendant. That such denial and refusal were before any payment of principal or interest had become due or was to become due by the terms of the verbal agreement. That the defendant, before the commencement of this action, had always been ready and willing, and had repeatedly offered, to execute the agreement on his part according to the verbal agreement, and requested the plaintiff to execute it on his part, which the latter declined and refused to do. That the defendant, before the said verbal agreement with, the plaintiff, had been in the possession of the premises under his contract with Hunting six or seven years, and had used and cultivated the same as a farm, and had made betterments and improvements thereon. That the premises, at the time of said verbal agreement, and at the commencement of this action, were fairly worth $700, and that the defendant was in possession of the premises at the time this action was commenced. " From the foregoing facts the judge found, as conclusions of law, and decided, that the plaintiff was seised of the premises described in the complaint in fee; that the verbal agreement between the plaintiff and the defendant for the sale and purchase thereof, was void by the statute of frauds, and that the plaintiff was entitled to a judgment against the defendant for the recovery of the possession of said premises with costs of the action. Judgment being entered accordingly, the defendant appealed.</p>

The complaint, consisting of two counts, was as follows: “First.

EBPLBYIN for thirty sticks of oak timber, about 1300 cubic feet. The plaintiff claimed title to the timber by a purchase thereof, at a sheriff’s sale, under an execution issued upon a judgment against the defendant and another. At the time of the levy the timber was in the defendant’s possession, on the bank of the canal, near Seneca Falls, having been, just before then, cut down, hewed and drawn there by the defendant.

11HIS action was brought to recover the possession of a . farm of land situated in lot Ho. 45 in the town of Hector, Schuyler county. It was tried at the December circuit in Schuyler county in 1863. Richard Jackson had title in fee to the farm on the 29 th day of September, 1842. It was then a part of Tompkins county. It was included within Schuyler county when that county was formed, in 1854.

THIS action was brought to recover the balance of a deposit in the Union Bank of Rochester. Prior to the month of September, 1859, the firm of Roach & Mattison carried on the tin, copper and sheet iron business at the city of Rochester.

THIS action was commenced April 14, 1862, by the plaintiff, who was, and is, a married woman, against the defendant, for the conversion» of personal property. It was brought to trial, and a judgment upon the merits was rendered in favor of the defendant, with costs against the plaintiff. The defendant issued an execution against the property of the plaintiff, to the sheriff of the proper county, which was returned unsatisfied.

MO TICS’ to dismiss an appeal from a judgment upon the report of a referee, dismissing the complaint with costs. The material facts appear in the opinion of the court.

PPEAL from a judgment entered upon the report of a referee. The action was brought for the purpose of making the writings between the parties conform to their prior oral contract.

THIS was an action upon a policy of insurance for $80, on a dwelling house in the village of Canandaigua, issued hy the defendant. The complaint alleged the issuing and delivery of the policy to the plaintiff on the 20th of August, 1860, and that he had an insurable interest in the property, at the time of the insurance, and at the time of the fire, as owner of the same.

<p>If the owner of a mortgage assigns the same, and- subsequently acquires the title to the mortgaged premises, he takes them subject to the charge created by the mortgage. In other words, he occupies the place of the mortgagor, and the account between him and the assignee should be stated as between mortgagor and mortgagee.</p> <p>Over payments, made by him under a mutual mistake, or from erroneous computations, though in a certain sense voluntary, are not so in the sense which precludes their being recovered back.</p>

ACTION of ejectment for'land situate in Green street, in the village of Lockport, upon which the defendant constructed its rail road. West Front, now Lock 'street, crosses Green street at right angles, and the plaintiff is the owner in fee of lot 207, situate in the corner formed by these streets.

MOTION by the plaintiff for a new trial, upon exceptions ordered to be heard at the general term in the first instance. The action was brought to recover damages for fraud in the sale of a canal boat by the defendant to the plaintiff’s - assignors. The defendant executed a bill of sale of the boat, dated April 28, 1863, containing covenants of warranty of title, and against incumbrances, and to pay and discharge all liens, &c. there might be upon the boat.

<p>APPLICATION, upon the return made by the provost marshal, to a writ of habeas corpus sued out in behalf of the above named Michael Barrett, an infant, for an order directing the provost marshal to produce the body. The opinion of the court sufficiently states the facts.</p>

A PPEAL by the defendant from a judgment entered at a special term. The action was brought by the plaintiff upon certain promissory notes given to him for a good and valuable consideration by the defendants, who were the general partners in a copartnership firm in which the plaintiff was a special partner. The notes were made in the firm name. The action was tried before a referee, wrho reported in favor of the plaintiff.

The action was brought to recover back the sum of $1460, unlawfully collected of the plaintiff; as was claimed, by assessing and taxing it for a portion of its capital, to wit, $100,000, invested in United States stocks.

<p>The amount of property to be seized by the sheriff, upon an attachment, is within the exercise of a sound discretion by him; and he is responsible to both parties for the exercise of a sound and reasonable discretion in performing his duty.</p> <p>The plaintiff lias no right to dictate the extent of the levy, any more than thq defendant has to limit it. The plaintiff can only point out the property to the sheriff, and require a levy upon so much as will be sufficient.</p> <p>In an attachment suit the plaintiff can not affect real estate belonging to the defendant by filing a notice of the pendency of the action and including therein premises not seized by the sheriff under the attachment.</p> <p>The notice affects only those lands which the sheriff has attached, and is inoperative as to all other lands included therein.</p>

rpHE defendant made a motion for alimony during the pen--L dency of an action of divorce against her by her husband and for counsel fees to conduct her defense, stating that she had employed Messrs. William C. Traphagan and James T. Brady as her counsel, and that the plaintiff was a man of wealth and leisure, living at the rate of $5000 per annum.

PPEAL from a judgment entered upon the report of a referee. The action was brought to recover the sum of $1500, which the plaintiffs claimed to have deposited with the defendant, a banking association doing business in the city of New York, on the 29th of September, 1860. The referee reported in favor of the plaintiffs for the amount claimed, with interest.

The action was in the nature of the former action of replevin, brought under the provisions of the code, to recover the possession of property. The affidavit of the plaintiff, made by him under section 207 of the code, stated “that the said property has not been taken for a tax, assessment or fine, pursuant to a statute,” &c. as required by the fourth subdivision of that section.

<p>Although the name of the principal debtor be inserted in a bond as one of the obligors, the instrument need not be subscribed by him, in order to make it binding on the sureties who do sign it.</p> <p>The consideration in every guaranty must be executory; that is, it must be for something to be done; otherwise it is insufficient. But where guarantors bound themselves to pay “ all claims for maps, books or other publications sold or delivered unto H. within three months from the date of each invoice or deliveryKM that the language employed did not import an executed consideration, but evidently referred to a future invoice or delivery.</p> <p>_ Whatever would be sufficient as a consideration in the case of any other kind of contract, is sufficient in the case of a guaranty; and any act in the nature of a benefit to the person who promises, or to any other person upon his request, is sufficient.</p>

CERTIORABI to review certain summary proceedings, had before a justice of a district court in the city of New York, under the statute, to remove the relator from certain premises in West 33d street, for non-payment of rent to McCaffrey, the landlord. The premises in question have been owned by the landlord ' for a number of years, aifd a portion thereof had been let to the relator as a monthly tenant, for some time before May, 1864.

The action was brought by a legatee, against the trustees under a will, to recover interest upon a legacy, from the time of the death of the testator.

The plaintiff alleged in his complaint, that during the year 1857, and a portion of 1858, he was a resident of Jersey city, in the state of New Jersey, and the defendant was, during said time, and still is, a resident of said city.

<p>Judgment on Failure to Answer.</p> <p>Where a motion for judgment on the answer as sham and frivolous had been denied, defendant’s attorney insisting on the argument that as the plaintiff’s attorney had returned the answer, there was no answer in the cause ;—Held, that plaintiff was strictly regular in thereafter entering judgment as upon a failure to answer.</p>

MOTION by the comptroller of the city of New York to vacate a judgment rendered in this action, in June, 1863, against the defendants for over $70,000 damages, for their failure to award to the plaintiffs the contract for building the new reservoir gate-houses, for which contract they claimed to be the lowest bidders.

This was an action brought by James White, Jr., and James Cushing to recover possession of goods alleged to be wrongfully detained by the defendant, James Dodds. The answer contained a general denial, and particularly denied the wrongfulness of the detention.

THIS is an appeal from a judgment entered upon the report of a referee, on the 5th day of January, 1863, in favor of the respondent, for $138.46, costs and disbursements. The referee found from the evidence the following facts, and conclusions of law therefrom: First. Edwin Smith and Charlotte A. Smith are, and ever since 1835 have been, husband and wife. Second.

THIS is an appeal from the judgment of the county court of the county of Sullivan reversing a judgment rendered in a justice’s court in favor of the above named plaintiff against the above named defendant, for taking and converting to his use a quantity of cord wood, to which the plaintiff claimed title.

THE plaintiff instituted the above action to recover the possession of certain premises situated in the town of Paltz, in the county of Ulster, of which Charles Catton, senior, died seised, and which are described in the complaint. Charles Catton, senior, made his last will and testament on the 18th day of September, 1815, which was duly proved as a will of real and personal estate.

<p>A lease of premises for a term of ten years contained a provision that the lessor should do all necessary repairs within a reasonable time after notice from the lessees to do so. Sdd that the parties evidently contemplated that certain repairs would become necessary during the long term for which the property was rented, and, as a necessary consequence, that there would be some interruption to, or interference with, the business carried on there.</p> <p>And that the lessees were entitled to recover from the lessor all moneys expended by them in making necessary repairs, upon the lessor’s neglecting to make the same, after due notice. But that they could not recover damages for the interruption to their business occurring while the repairs were being made; such interruption being no greater than if the repairs had been made by the lessor.</p>

THIS was an action of ejectment, brought by the plaintiffs against the defendant, to recover the possession of the school house in the district of which the plaintiffs were trustees.

mHIS cause came before this court upon exceptions ordered .1 to be heard in the first instance at general term. A verdict was rendered in favor of the plaintiffs, at the Sullivan circuit, in October, 1863, for $1200. The action was instituted by the plaintiffs to recover the value of a quantity of lumber, alleged by them to have been wrongfully converted by the defendants.

mHIS was an action of ejectment to recover the possession JL of lands to which the plaintiff claimed title hv virtue of a judgment in a partition suit, brought by John Stryker against Louisa Lynch and others, in 1850. The proceedings in the partition suit were under the code, by summons and complaint.

On the 4th of March, 1861, Lanes, Boyce & Co., a New York firm, being insolvent and largely indebted, among others, to August Belmont & Co., made a general assignment of all the property and effects of the firm to Leroy M. Wiley and Frederick N. Lawrence, for the benefit of their creditors. On the 17th of June, 1861, Belmont & Co. commenced an action in the supreme court, to recover their debt.

THIS was an action to recover the possession of certain real estate described in the complaint. The premises in question formerly belonged to Mary Wood, who died in January, 1854, leaving a will, by which she devised as follows: “First.

The action was brought to recover the possession of personal property, consisting of bed room furniture, books, &c. In his answer the defendant denied that he ever became possessed of or detained from the plaintiff any of the articles mentioned in the complaint, except certain articles specified-in the answer. And as to the other articles, he denied that the plaintiff ever demanded the same from him, or that he refused to permit her to take them, or any of them.

PPEAL from a judgment of the city court of Brooklyn, entered upon the report of & referee.

The action was ejectment, brought by the plaintiff as one of the heirs at law of Sylvanus B. Havens, deceased, to recover the undivided half of certain premises situate in the county of Suffolk. The defendant claimed title to the premises under proceedings had before the surrogate, upon the application of Caleb S. Loper, the administrator of the deceased, for an order to sell the real estate of the deceased to pay debts.

MOBOIST to set aside a nonsuit which was ordered at the Jefferson county circuit, in June, 1863, before his honor Justice Morgan. . The motion was ordered to be heard in the first instance at the general term.

THIS action was brought upon a promissory note, which was in the words and figures following, at the, time it toas given, viz: “|172.78. One year after date I promise to pay to- the order of Buckley, Sheldon & Co. one hundred and seventy-two dollars and seventy-eight cents, for value received. Dated Butternuts, Sept. 9, 1859. (Signed) William D. Babcock, (Indorsed on the back,) * William 0. Bentley.” Bentley alone defended the action.

APPEAL by the defendant from a'jndgment entered against him, in favor of the plaintiff, in the office of the clerk of Otsego county, upon the report of a referee. The facts, so far as they are necessary to a correct understanding of the decision of this court, are contained in the following opinion.

The case was first tried before Mr. Justice Hoyt at the Genesee circuit in June, 1863, and the plaintiff was nonsuited. A motion for a new trial was made, on exceptions, before the general term of the 8th district, and granted. At the second trial the plaintiff was again non-suited, and after judgment appealed.