Volume 42 — New York Reports

Eseoe to the General Term of the Supreme Court in the third judicial district, to review the judgment of that court reversing the conviction of defendant in error, at the Ulster sessions, for manslaughter in the third degree. , Abraham Schryver, the defendant in error, was indicted for manslaughter, in the third degree, for killing John Kavanagh at Kingston, Ulster county, on the Pith day of November, 1868.

<p>Where a bill of sale, signed by the deceased, who was a machinist, was found among his papers, after his death, which purported to convey to his mother, all his tools and the stock in his shop,—Held, in an action brought by the mother against the administrators of his estate to recover the value of the properly included in such bill of sale, that no delivery of the instrument, sufficient to make it operative, would be presumed, although the plaintiff kept house for the deceased at the date of the paper and at the time of his death; and although it appeared that'the deceased had promised to pay her for her services in keeping his house, and had in his lifetime, about the date of the paper, told his brother, “ that he had given his mother a writing that was just the same to her as cash or money, and that she could sell him out at any time.”</p> <p>Evidence having been given by the plaintiff of a valid delivery of the bill of sale to her, by the deceased in his lifetime, and such evidence having been subsequently stricken out on the motion of tie defendants, as evidence of the party’s transaction with a deceased person, the defendant’s motion for a nonsuit should have been granted irrespective of such evidence of delivery.</p>

This is an appeal from the judgment of the General Term of the Court of Common Pleas of New York, affirming a judgment in favor of the plaintiff’s testator, entered on the report of a referee. Frederick Bronson, the respondent’s testator, by lease dated January 26th, 1854, executed by himself and wife, and also by the lessees, demised a lot of land, in the city of New York, for the term of ten years, commencing on the first day of February, then next ensuing.

<p>A having executed and delivered to plaintiff his promissory note, which specified no time of payment, at the same time agreed with plaintiff that he would procure B to sign said note as his surety, if at anytime plaintiff should deem himself insecure, or should desire further security. Plaintiff, some months afterward, returned said note to A, with the request that he should procure B to sign it. A did thereupon procure B to sign the same as his surety, and afterward redelivered the note to plaintiff, no new consideration having then passed between the parties.</p> <p>Held (Lott and Sutherland, JJ., confra), that B was liable to plaintiff upon the note.</p>

Joseph G. Hasten, sole referee. The facts, material on the points made on this appeal, are as follows: The plaintiff recovered a judgment on the 9th Hovenibor, 1861, against Aaron D. Patchin, in an action commenced September 7th, 1861, to foreclose a mortgage given to him by Patchin. The mortgaged premises were sold, by virtue of this judgment, December 5th, 1861, and a judgment for deficiency, being the sum of $10,887.02, was docketed December 12th, 1861.

The action was brought to recover the value of a store of goods in Brooklyn, which the plaintiff claimed to own, and to which she derived title by transfer from one Andrew Gill. After the transfer to her, the defendant, McMamee, as sheriff, levied attachments in favor of the other defendants, and at their direction, issued against Andrew Gill, upon the goods, and they were subsequently sold by the sheriff.

<p>A superintendent of canal repairs, in making repairs and removing obstructions, acts ministerially, and is liable to an individual injured by the improper discharge of that duty. (Lott and Hunt, JJ., contra.)</p> <p>He has the right to destroy private property, if necessary to restore navigation ; but, in so doing, takes upon himself the burden of showing great public or overruling necessity. This right does not exist where such destruction is merely the cheapest, speediest or most convenient method of restoration. (Earl, Ch. ,T.)</p>

26. ' ' This is an action upon a policy of life insurance, issued by the defendant upon the life of Cunningham Wardrop Macmurdo, during his lifetime a resident of Richmond, Virginia. The plaintiff brings the action as assignee of John R. Macmurdo, .the administrator of C. W. Macmurdo.

<p>A warrant of commitment, issued by a justice of the peace, under the star , tute entitled “ Of proceedings to prevent the commission of crimes ” (part 4, ch. 2, title 1, of the Revised Statutes), is valid without any seal affixed.</p> <p>The plaintiff was brought before a justice, charged with threatening an assault; and his examination having extended late into the night, the justice decided that he should give bonds to keep the peace, and the plaintiff having refused, the justice stating himself to be too ill to make out a warrant for his commitment then, told the plaintiff he might go where he had a mind to that night. The plaintiff went home, and the justice having the next morning issued a warrant of commitment against him, under which he was arrested and imprisoned—Held, in an action against the justice for false imprisonment, that the permission given to the plaintiff to go at large was not a discharge, and the subsequent warrant not illegal.</p>

This action was commenced against George ¡R. Downing, George ¡R. Downing,' Jr., Theodore ¡B. Downing and James Bailey.

This was an appeal from a judgment entered upon decision of the General Term of the Superior Court of the city of ISTew York, affirming a judgment for defendants on trial before Chief Justice Robertson. The facts sufficiently appear in the opinion of the court.

This is an appeal by the defendants from a judgment of the General Term of the Supreme Court, fourth district, reversing a judgment entered upon the report of a' referee. The action was brought against the defendants as factors, to recover of them the proceeds of merchandise consigned to them for sale by the plaintiff.

<p>A mortgagee is not justified in selling the whole mortgaged property in one parcel (on a statutory foreclosure), when one standing in the position of junior mortgagee, or as owner of the property, requests a sale in parcels, and offers, in good faith, to bid the amount of the mortgage debt, costs and expenses upon a specified parcel, so situated that it can be conveniently sold and conveyed separately, although the premises are described in the mortgage as one tract. Such a sale will be set aside in a court of equity. (Earl, Oh. J., Lott and Ingalls, JJ., contra.)</p> <p>On a purchase of real estate, B. (the purchaser), gave to the defendant L. (the vendor), a mortgage for a portion of the purchase money, and the plaintiff under an arrangement with B., gave his note, indorsed by 11. in payment of the balance. At the same time B. delivered to M. a conveyance of the premises, absolute in terms, and II. gave the plaintiff a writing to the effect that he held the title as security for such indorsement; and, if the plaintiff paid the note, he would transfer the title to him. The plaintiff subsequently paid the note, and also obtained from B. a conveyance of the equity of redemption. The defendant, L., commenced a statutory foreclosure of his purchase money mortgage, whereupon the plaintiff showed him the defeasance signed by 31. and. the deed to himself from B. offered to pay the amount due and costs, and demanded an assignment of the mortgage.</p> <p>Held (Lott, Hunt and Smith, JJ., contra), that the plaintiff was not in the position of surety for the mortgage debt, and was not entitled to an assignment. He could only pay the mortgage and have it discharged.</p> <p>Even if he could be regarded as assignee of the equitable mortgage of II., he would be subrogated by law to the rights of the mortgage^ upon paying the mortgage, without an assignment. (Sutherland, J.)</p>

This was a creditor’s action, brought originally against Alfred Hubbell, the-judgment debtor, and Joseph Medbery and E. Darwin Smith, his assignees, to set aside an assignment made by Hubbell to Smith and Medbery as fraudulent, and to have the property of the debtor applied to the payment of the creditors’ judgment.

This was an action for the recovery of the price paid by the plaintiffs to the defendants for a quantity of corn, which, after the agreement of purchase, was destroyed by fire and was never actually received into the possession of the plaintiffs. The claim was based upon the assumption that the title liad never passed, and that the defendants had refused to fulfill their contract. The issues were tried by J ustiee Mullin, at the Otsego County Circuit, without a jury.

This was au action, brought in the Superior Court of the city of New York, to recover damages for a refusal to deliver alcohol under a contract between the parties, made through a broker, which is as follows: Sold H. J. Baker & Co., of Johnson & Lazarus, Two hundred and fifty barrels of alcohol, usual ninety-fivo per cent; eighty-eight per cent new standard. Four iron hoops, prime western barrels.

This is an action for the recovery of personal property and damages for its detention. The property originally belonged to affirm by the name of Smith, Seckle & Co., composed of Smith, Seckle, Hyneman and Hartman, and formed Hovember, 1854: Seckle soldbut to the plaintiff, Altemus, in July, 1855, and the firm then became Smith, Altemus & Co., Hartman having previously, in May, 1855,- withdrawn.

<p>To justify a conversion of the plaintiff’s property, under a city ordinance directing that “ all dead animals,” * * * “ be forthwith removed and disposed of by removal beyond the limits of the city, or otherwise, so as most effectually to secure the public health,” it must be shown that the dead animals removed were, or would become, in some way dangerous or deleterious to public health.</p> <p>Evidence that such animals died by suffocation, and animals so dying were sometimes taken to market and sold for food, and that such removal was by direction of the city inspector, will not afford a sufficient justification.</p>

This is an appeal from an order of the General Term of the seventh district, affirming an order made at Special Term, denying the defendant’s motion for a new trial. The plaintiffs are the executors named in the last will and testament of Isaac Shumway, deceased. The will contained an express power to the executors to sell the testator’s real estate.

This action was brought to recover the value of a crop of winter rye, upon an alleged conversion thereof by the defendant’s testator, Cornelius Willett, and was tried before Mr. Justice Bookes, and a jury, at the Washington County Circuit, January, 1866, resulting in a verdict for the plaintiff. Since the entry of judgment, Cornelius Willett has died, and the present defendant has been brought in as his executrix.

<p>Upon filing a report of referees, appointed to settle controversies between the receiver of a corporation and the debtors or creditors of such corporation, under the provisions of the statute entitled “ Of proceedings by and against corporations ” (3 E. S., 469, § 78), formal entry of judgment ia authorized and proper.</p>

This is an appeal by the defendant from a judgment of the Supreme Court in the fourth district, in favor of the plaintiff, rendered on the verdict of a jury. The action was for libel and slander, and was tried before Hr. Justice Pottee and a jury, at the Montgomery circuit, in May, 1861. Both parties resided in Amsterdam, Montgomery county, and practiced as physicians, the plaintiff being of the homosopathic, and the defendant of the allopathic school of practice.

The action was brought to recover damages for an alleged breach of a covenant for quiet enjoyment. The defendant leased to the plaintiff, for the term of six years, a certain warehouse in the city of Buffalo. When the lease ivas executed, the defendant was owner of the demised premises in fee, but subject to certain mortgages then a lien upon them.

Harry H: Marsden, an alien resident of this State, purchased and received a conveyance (in 1863) of certain real estate in the city of Brooklyn. The following year, ho mortgaged a portion of the property so purchased. Some months after the execution of this mortgage) he died, intestate.

On the 4th day of May, 1869, the legislature of the State of New York passed an act, entitled “An act in relation to the fees of the sheriff of the city and county of New York, and to the fees of referees in sales in partition cases.’-’ (Laws of 1869, chap. 569.) By the first section of this act it is provided that all judicial sales in the city of New York, made after the passage thereof, except in partition cases and where the sheriff is a.party, should be made by the…

Judgments were recovered against Joel B. and Talcott B. Morehouse, upon the indebtedness of their father, existing at the time of his death. By his will, all his real and personal estate was devised and bequeathed to Joel and Talcott, they to pay from the personal estate, if sufficient, all his jnst debts; but, if not sufficient, the residue of the debts to be a charge upon the real estate.

This is an appeal from a judgment of the General Term of th¿ Supreme Court, in the first district, afíirmíng a judgment of the Special Term, sustaining a demurrer to the complaint. The plaintiff seeks to recover of the sheriff the amount of three judgments recovered by Edward Bingel against Victor Heubach & Co. He claims under an appointment as receiver, made March 26,1861.

Weit of error to the General Term of the Supreme Court in the fourth judicial district. The defendant in error was indicted in the Court of Oyer and Terminer, held in the county of Saratoga, for the crime of grand larceny, in stealing a horse, the property of Dudley Welch. The indictment was sent to the Court of Sessions of that county, and on the 17th day of February, 1869, the defendant was tried, convicted and sentenced to State prison for the term of one year.

Michael' Greiner gave a chattel mortgage to the plaintiff, who was his father-in-law, to secure, as therein expressed, an indebtedness of §1,825.57, which mortgage was upon all the-goods in a store, consisting of “ a general grocery stock.” It contained • a provision that, in case the mortgagee should at any time deem himself unsafe, it should be lawful for him to take possession of and sell the property “.for the payment of the said debt,” and was duly filed in the proper…

This is an appeal by the defendants from a judgment of the General Term of the Supreme Court of the first district, affirming a judgment in favor of the plaintiffs, entered upon the report of a referee.

This cause being at issue and upon the Circuit Court calendar, the plaintiff entered an order for its discontinuance, upon payment to the defendant of the costs and disbursements incurred therein, to be adjusted, and served copies on the defendant’s attorney, together with notice to have his costs taxed. These papers were returned by the defendant’s attorney, with notice that the discontinuance without payment of costs, was a nullity.

On the 29tli of May, 1867, upon presenting to a justice of the Supreme Court the complaint duly verified, leave was granted to the Attorney-General, pursuant to section 430 of the Code, to bring this action. Afterward, the defendants above named, who are appellants, appeared; but whether the summons was served on any other of the defendants named in the complaint, the record does not show.

This is an appeal by the defendant from a judgment of the General Term of the Common Pleas, of the city and county of New York, affirming a judgment of the eighth district court of said city, rendered in favor of the plaintiff for forty-four dollars damages and costs. John Roller sold bread to Louis Wunsch, the brother of the defendant, to the value of ninety dollars.

This is an appeal by the defendant from a judgment entered upon the decision of the General Term of the Supreme Court, in the second judicial district, affirming a judgment entered upon a verdict, in favor of the plaintiff, for the sum of $2,000.

Louis Pfeiffer, the intestate, made and delivered to the plaintiff, his two promissory notes dated the same day, payable on demand to the order of the plaintiff, for the sum of $2,401,74, and $1,063.46, respectively. A few days afterward.

<p>An order of the General Term of the Supreme Court, reversing an order granted in an action at Special Term, giving directions to a receiver as tc the leasing of real property, which is the subject-matter of such action, is not appealable to this court.</p>

<p>An innkeeper, who provides a safe for the reception of money, jewels or ornaments, and posts up in the room of his guest a notice that they may be deposited in the safe, pursuant to a statute declaring that he shall not be liable for any loss thereof, in case the guest neglects to so deposit them, is not liable for the loss of any money, jewels or ornaments not deposited in the safe.</p> <p>The protection to innkeepers, given by the statute, is not limited to money or valuables in excess of what the guest may reasonably require for his traveling expenses or personal convenience, but embraces all “money jewels or ornaments ” which the guest brings with him, without reference to the amount or value.</p>

The prisoner was tried at the December term of the General Sessions of the city of New York, in 1869, upon an indictment for larceny. Evidence was given tending to prove the commission of the offence, and the people rested. The defendant was then herself placed upon the stand as a witness, by her own counsel, under the act of May 7, 1869, which made the person charged with the commission of crime, a competent witness, on the trial of the indictment against him.

Ebbob to the G-eneral Term of the Supreme Court, in the first judicial district, to review the judgment of that court affirming the conviction of the plaintiff in error, in the court of Oyer and Terminer, in the city and county of ¡New York, for the murder of John Smedick. John Real, the plaintiff in error, was indicted at the ¡New York Sessions, August, 1868, for the murder of John Smedick, by shooting him in the head with a pistol.

Justice Sutherland. This is an action commenced by the attorney-general in behalf of this State, to abate as nuisances, and cause the removal of certain wharves, bulkhead, piers, and railroad tracks, and other erections, placed by the defendants in the harbor of New York, and extending into said harbor and the Hudson river, about a mile from the New Jersey shore.

Prior to December, 1861, the plaintiff, Anthony Fay, David Harrower and the defendant’s testator, Samuel W. Bradley, were copartners under the firm name of “ The Luna Lumber Companyand in the month of December, the firm failed, and all its property went into the possession of Benj. Chamberlain, who was a large creditor of the firm.

<p>A. mortgagee of chattels cannot recover in an action for an alleged conversion thereof, against a purchaser from the mortgagor in possession, when such purchaser has sold and delivered the property to a third person, before default in payment of the mortgage, and before demand of possession by the mortgagee; although such mortgagee is empowered by the terms of the mortgage, which is duly filed, to take possession of the property at any time, in case he deems himself unsafe.</p>

10, rendered at the Cortland Circuit, in favor of the plaintiff’s intestate. This action was brought to recover the value of a trunk and its contents lost upon the defendant’s railroad. The plaintiff’s intestate (her husband) was a passenger from ¡New York by way of the Erie and the defendant’s railroad, to Cortland, where he resided.

This action was brought to foreclose a mortgage given by Joseph S. Mitchell to Minott Mitchell and assigned by him to the plaintiff’s intestate. The issues joined therein were referred for trial and decision to Addison Gardiner, from whose findings the following facts appear.

This action is brought' under the act of 1847, chap. 450, entitled “ An act requiring compensation for causing death by wrongful act, neglect or default,” and was tried at the St. Lawrence circuit, before Mr. Justice Booices and a jury, in June, 1868. The complaint alleged that in 1861 the defendants were partners in manufacturing iron castings and machinery, and made a cast-iron balance wheel to be used with a circular saw.

■ The trial was had before a referee, appointed in pursuance of the stipulation of the parties, with the approval of tlio surrogate of the county of Suffolk.

Perzel and Herman A. Schleicher formed a limited partnership, Perzel being the general partner, and Schleicher the special partner. A certificate of such partnership was filed in the clerk’s office of the county of New York, on the said 6th day of October, 1865, and notice of such partnership was published in the World and Atlas.

This is an appeal from a judgment awarding a peremptory mandamus, rendered by the Supreme Court, at General Term, in the third judicial district. The decision was made and case agreed upon under section 372 of the Code of Procedure.

The action is in the nature of an action on the case for damages for the exclusion of the plaintiff from the use of the defendants’ bulkhead and premises, and is .founded on a claim of the plaintiff (as one of the public) of a right to the use of the bulkhead and premises as a place for lading and unlading, and access from the water to the streets in the neighborhood, m the ground that the locus m quo was once land under navigable waters.

The action was upon a policy of insurance. The defendant is a corporation, created by the laws of this State, and engaged in the insurance business in the city of New York. The plaintiffs are merchants, resident in the city of San Francisco, and had brokers or agents in the city of New York - by the name and style of H. Cohen & Co., by whom the policy of insurance was procured in the city of New York, which purports to have been made July 15, 1862.

<p>Appeal'by the defendant from, an order of the Supreme Court, at General Term, in the fourth district, affirming an order of the Special Term, awarding a peremptory mandamus against the defendant, which commanded him, forthwith, to loan to the relators the sum of $60,000, out of the capital of the common school fund of the State, upon the delivery of the mortgage executed by the relators, referred to in the moving papers.</p> <p>The legislature, by an act passed April, 1868, entitled “An act to incorporate the Schenectady Astronomical Observatory,” constituted fourteen persons, named in the act, a corporation, by the name and style of “ The Schenectady Astronomical Observatory,” “for the purpose of establishing and maintaining an Astronomical Observatory in the city of Schenectady, and authorized them, and their successors, to take by purchase or otherwise, and to hold and convey, or otherwise dispose of, any real or personal estate for the purpose of the incorporation, the annual income of which should not, at any time, exceed the sum of $10,000.”</p> <p>The second section appointed the fourteen persons named the trustees of the corporation, with power to fill any vacancies which might occur in their number; with further power to make such by-laws as might be necessary, and not contrary to law, relative to the management and disposition of the estate and concerns of the corporation, and provided that eight of the trustees should constitute a quorum.</p> <p>The third section declared that, “ the board of trustees of Union College, in the city of Schenectady, are hereby authorized to allow the said corporation, hereby created, to establish, upon the premises belonging to said college, the astronomical observatory contemplated by this act; and to that end, the said board of trustees of the said college, for a nominal eonsideration, may grant and convey suitable and proper grounds, in the position, and of the dimensions, to be determined by the board of trustees of said college, for the erection and accommodation of the said observatory; and in consideration of the grant of the site aforesaid, and such other gifts of library and apparatus as may hereafter be made by the said college, the faculty of the said college shall be entitled to the use and enjoyment of the said observatory, free of charge; and the students at a reasonable charge, to be fixed by the trustees of said observatory, except that the said board of trustees of Union College, subject to the approval of the trustees of the said observatory, shall, at their own proper expense, provide a suitable person to have the charge and care of the said observatory and grounds.”</p> <p>The fourth section provided, that “ whenever the said board of trustees of Union College shall execute a good and sufficient conveyance, to the trastees of the observatory aforesaid, of suitable grounds for the erection of the proposed observatory building, and said conveyance shall have been recorded in the Schenectady county clerk’s office, and such record certified to the comptroller of the State of New York, under the seal of the county clerk of Schenectady county then the comptroller is hereby authorized and required to loan, to the aforesaid trustees of the Schenectady Astronomical Observatory, the sum of $60,000, out of any moneys in the treasury belonging to the capítol of the common school fund; to be paid in ten equal annual installments, with annual interest on all moneys unpaid; at the rate of seven per cent per annum, provided the said loan shall be secured by a mortgage upon the said observatory and site, to be executed by the trustees of the said observatory to the said comptroller ; and the said mortgage shall be the first incumbrance or lien upon said property.”</p> <p>There were no other provisions contained in the act, except that it should take effect immediately.</p> <p>After the corporation was organized, it received from the trustees of Union. College a conveyance of about four acres of ground, being part of its college grounds, for the' purpose of erecting the observatory thereon, at a nominal price, specified in the deed, of $5,000; and which deed was made pursuant to the provision of the act. The deed was recorded, and a certificate thereof, together with the mortgage of the trustees of the observatory executed to the comptroller upon the premises so conveyed by the trustees of the college, to secure the payment of the $60,000, and a certificate that there was no prior lien or incumbrance thereon, were presented by the trustees of the observatory to the defendant, as such comptroller, and a demand was made of him to loan and advance to the said trustees, upon that security, the said sum of $60,000. There was no bond offered to the comptroller or any other security for the proposed loan, except the said mortgage. The papers before the Special Term in opposition to the motion showed that the land conveyed by the mortgage would not, including the fee simple of it, exceed in value the sum of from $4,000 to $6,000. That an observatory adequate and ample for all the purposes of teaching astronomy to the students. of the college could be built and equipped for $25,000. That the observatory, if erected, would add but little to the value of the property, as a security for a pecuniary obligation, and that, upon a foreclosure sale of a mortgage thereon, the premises with the observatory thereon would not bring one-third or one-half the cost of the building. That there would be no competition at such a sale, as the building would be unsuitable for any other purpose; and that the State would be compelled to buy the premises, unless it should be thought best to suffer the same to be purchased by the trustees of the college at their own price, and that, if the State should become the owner, it could not resell the same without sustaining great loss. That the relators had no endowment fund, or capital of any kind, except the land, or means of manning, maintaining and supporting the observatory when built, or any means to pay either the principal or interest of the proposed loan; and that the observatory could never be made pecuniarily remunerative, or to pay any part of the expenses of maintaining it, or of the interest or principal oí the loan. The facts set up in opposition to the motion were not, nor were any of them, denied on the part of the relators, hut they claimed, inasmuch as the legislature had declared that the loan should be made upon the security of the mortgage, that the comptroller had no right to inquire or determine whether the mortgage would, or would not be adequate security for the loan; but that he was, at all events, bound to obey the directions of the act, and make the loan upon that security.</p> <p>The Special Term, ordered the peremptory mandamus to issue, from which order the defendant appealed to the General Term, where the order was affirmed, arid the defendant appealed therefrom to this court.</p> <p>as to the constitutionality of the act cited People v. Board of Ed. of Brooklyn (13 Barb., 400); People v. Hills (35 N. Y., 449); Town of Fishkill v. F. & B. P. R. Co. (22 Barb., 634); 38 N. Y., 193; 53 Barb., 70.</p> <p>to the same question, cited Sun Mut. Ins. Co. v. Mayor of New York (4 Seld., 241); Conner v. Mayor of New York (1 id., 285); Mosier v. Hilton (15 Barb., 657); De Camp v. Eveland (19 id., 81); Brewster v. City of Syracuse (19 N. Y., 116); People v. McCann (16 id., 58).</p>

Justice Leonard without a jury. The appellants, having recovered judgment against the respondent Bridge, July 13, 1861, for $3,501.39, upon which execution was returned unsatisfied, brought this action to set aside a sale made by Bridge to Burdick, and certain judgments recovered against Bridge by Burdick, as fraudulent.

affirming a judgment entered upon the report of George W. Rutland, Es.p, referee. On the 30th day of January, 1851, the defendant and Henry Marshall entered into partnership to buy produce in Saratoga county and ship the same to New York for sale. . They continued the partnership business until March 8th, 1853, when they dissolved and had a final settlement.

Tins is an appeal by the defendants, Wixson and W. A. Underhill, from a judgment of the General Term of the Supreme Court, in the third district, affirming a judgment in favor of the plaintiff, rendered on a trial before Hr. Justice Gould, without a jury. The action was brought to recover the amount due upon a note, of which the following is a copy: “ $4,000. . Sing Sing, November Is#, 1860.

This action was commenced in Justice’s Court, upon a due bill, dated February 17th, 1853. The defence was the statute of limitations. The action was not commeneed until more than six years after the cause of action accrued. There had been no payment, nor promise in writing, whereby the same was taken out of the operation of the statute.

The action was brought, under the statute,- by the father, as administrator of his child, Mary Bulger, not two years old at the time she ivas killed, for the pecuniary loss to her next of kin (stated in the complaint at $5,000) from her death. The child was run over and instantly killed by one of the cars on the defendant’s horse railroad, on the 13th of July, 1866, at the corner of Arch and south Pearl streets, in the city of Albany.

Prior to December 24th, 1860, Hathan C. Platt was chamberlain of the city of New York, and had selected the Park Bank as the depository of the city and county moneys under his official bond. On the day named the bank held $4,000,000 of these moneys. On that day Platt was removed from office and Daniel Devlin was appointed chamberlain.

This action was commenced to recover damages for negligently causing the death of plaintiff’s husband. The following are the material facts: The defendant is a New Jersey corporation. There was a law in that State providing that, whenever the death of a person shall be caused by the wrongful act, neglect or default of any person or corporation, the personal representatives of the' deceased shall have an action for damages.

The action was to recover damages for the breach of a contract to marry. The answer alleged, by way of defence, the unchastity of the plaintiff.

<p>One whose property is borne upon the lands of another by inevitable accident (a flood), without his fault or negligence, may elect, either to abandon the property, in which case he is not liable to the owner of such lands for any injury occasioned by it; or to reclaim it, in which latter case he must makegood to such owner the damages so occasioned.</p> <p>The defendants’ logs were carried away by a flood, and deposited upon the plaintiff’s land, where they remained over six months. One P., agreed with the defendants, that he would settle with the plaintiff for the injury, remove the logs, saw them into lumber, and deliver the lumber to the defendants, for which they agreed to pay him a certain sum per piece. P. did this, hut represented to the plaintiff, that he was the agent of the defendants in settling for the injury. The defendants received the lumber from P. pursuant to them arrangement with him.—Reid, that the plaintiff could recover of the defendants his damages occasioned by the logs upon his land. The defendants, by their contract with P. and receipt of the lumber, had elected to reclaim the logs, and the law implies a promise in favor of the plaintiff.</p> <p>Reid, further, that the plaintiff’s ommission to file with the town clerk a written description of the property, pursuant to the statute (1 B. S., 698, §4), did not impair his right of recovery.</p>

Two actions. Appeal from a judgment of the General Term of the Supreme Court in the first district, affirming a judgment for the plaintiff entered on a verdict directed by the court. These actions were brought to recover the amount of three promissory notes made by the defendant, payable to the order of Wilson, Midgley and Jennings, and by them indorsed and delivered to the plaintiff before they matured.

The facts material to the decision sufficiently appear in the opinion of the court. on the question of the validity of the contract under the statute of frauds, cited Classon v. Bailey (14 Johns., 490); Roget v. Merritt (2 Cai., 117); Bullard v. Walker (3 Johns, cas., 60); McCrea v. Purmort (16 Wend., 460); 2 Stor. Eq. Jur., § 736a; in re Hunter, (1 Edw. Ch., 1); White v. Schuyler (1 Abb.

<p>A deed without covenants (quitclaim), given by one of four tenants in common of a farm of 100 acres, after in terms conveying all of the grantor’s interest in the 100 acres, describing them, contained this clause: “The party of the first part reserves out of the above described lands one-fourth part of thirty acres of said land, that was set off to mother as her right of dower, or power of thirds.”—Held, that the clause must be construed, not as an exemption of a dower interest from the operation of the conveyance, but as an exception of the grantor’s interest in a specified portion of the farm, which is identified and located by reference to the location of dower.</p>

The action was brought to compel the defendant to complete his purchase, under a contract between the parties for the sale and purchase of a house and lot in the city of New York, at the price of $31,000.

On the 24th day of March, 1866, at Erie, Pa., the defendant drew a draft for $1,166.89, in favor of Johnson & Brevillier, who resided at Erie, on Culver, Penn & Co., of New York; Johnson & Brevillier indorsed and at once forwarded the draft to plaintiffs, who received and credited the' same on their indebtedness to the plaintiffs.

reversing the judgment for the.plaintiff in the Monroe County Court, on a néw trial had there on appeal from a judgment for the plaintiff in justice’s court in that county. The action was replevin, originally commenced before K. J Holmes, justice of the peace in the city of Rochester. Louis Baron died pending the litigation, and the respondent was substituted as his representative.

The complaint alleges, that the plaintiff is the owner of the Hnion Hotel, in the village of Saratoga, and, as such owner, was assessed and paid $1,040.35 for the laying out of Spring street, in that village; that the defendant occupies premises opposite to the property of the plaintiff, and has prepared a bridge, which he threatens to erect and maintain over Spring street; that such bridge will be an obstruction of the public use and enjoyment of that street, and a public…

The complaint alleged that the defendant, Joaquin Baralt, in behalf of himself and others, who are defendants, in the year 1860, proposed to the plaintiff to organize a steamship company to carry freight and passengers between New York and Cuba; and that for that purpose, it was agreed that the plaintiff should, in his own name, contract with the firm of Boardman, Holbrook & Co., for the building of a steamship for them ; that the company should thereupon be organized, and…

■ This action was brought upon three promissory notes, having thereon the special indorsement of Annina Babcock, a married woman, upon each of them, in the following form: “ For value received I hereby charge my individual property with the payment of this note. “ AEMINA BABCOCK.” The action was in the ordinary form, against makers and indorsers of a promissory note, except that the above indorsement was literally copied; and the complaint, alleged the ownership by Armina…