Volume 42 — New York Supreme Court Reports

July 2, 1870, certain tax-payers of the town of Solon filed with the county judge of Cortland county a petition, under chapter 907, Laws 1869 (the General Bonding Act), the first paragraph of which reads as follows : “ To the honorable the county judge of Cortland cotmty: “ The undersigned, representing a majority of the tax-payers of the town of Solon, in said county of Cortland, whose names appear upon the last preceding tax list or assessment-roll of said town (being the…

The defendant is a Connecticut corporation, engaged in collecting information in respect to the financial standing of persons, firms and corporations engaged in business, and in furnishing to its customers the results of information collected. The plaintiff’ is a manufacturer of brick at Watertown, N. Y., but whether doing business upon credit, or for cash, is not alleged.

<p>Modification of a written agreement by the insertion of a new provision therein— when the instrument need not be re-signed by the parties.</p> <p>Reynolds Brothers owned two buildings, Nos. 27 and 29, in John street, Utica A hall and flights of stairs in No. 27 gave access to the upper floors of both buildings. October 25, 1879, Reynolds Brothers leased No. 27 to one Yidvard, for five years, by an unsealed instrument. After the execution of the lease it was agreed between Yidvard and his lessors, in consideration of thirty-five dollars paid to him by them, that the tenants of Nos. 27 and 29 should use the stairs in common, and a clause expressing the agreement was then written in the duplicate lease held by the lessors, in the presence and with the consent of Yidvard:</p> <p>jHeld, that the insertion of the said clause in the lease, modified the original contract so as to make the use of the stairs common to the tenants of both buildings, and that it was not necessary that the lease should be again signed or re-executed.</p>

<p>Appeal from a judgment in favor of the plaintiffs, entered upon the trial of tbis action by the court- without a jury.</p>

The defendant is a common carrier of passengers by a railroad extending from Oswego to Syracuse. Eleven miles from Oswego, on this railroad, is a station called Fulton. The village of Fulton is about one mile east of this station. November 21, 1882, one Hatch was, and for some time had been, engaged in running a line of omnibusses for passengers between the station and the village. The defendant charged thirty-two cents fare between Oswego and Fulton station.

September 13, 1880, Hugh McShane (a minor fourteen years of age), the father of the minor, and the plaintifE, executed under their hands and seals a contract, by which the minor was apprenticed to the plaintifE for four years “ to learn the trade, craft and business jof cigar making.” The mother of the minor on the same day consented to the contract of apprenticeship by a certificate indorsed thereon and executed under her hand and seal.

December 27, 1877, it was adjudged that S. Miller Benedict was indebted to the plaintiff in this action in the sum of $18,015.46 damages and costs, which was declared a specific lien on certain real estate which was directed to be sold, as in cases of foreclosure, and that S. Miller Benedict pay the deficiency, if any.

<p>Oiftofthein£omeofaresidua/ry estate to one for Ufe — right of the legatee to the income from the death of the testatm’ — when such right is not affected ly a decree of the swrogate settling the eceem,toi’’s account.</p> <p>May 3, 1878, the defendant’s testator died leaving a -widow and children. He then owned three pieces of real estate in the city of Utica. ' By his will, after all his lawful dehts had been paid and discharged, he devised to his wife the use of one piece of real estate as a residence during her life, and for her support and that of an infant son; he also gave to her the net annual income and interest of all the rest, residue and remainder of his estate, real, personal and mixed, after paying therefrom the annual taxes, insurance and necessary repairs, for and during the term of her natural life, or as long as she remained ■ his widow, in lieu of dower, and of all or any other claim or claims upon his estate.</p> <p>The defendant having qualified as executor sold one piece of the real estate, March 22,1881, for $1,904, and the other March 30,1882, for $3,705. Between the date of the testator’s death and December 10, 1882, he had received from the income of the estate, over and above all charges and expenses, $045.36, of which he had paid to ’the widow only thirty-nine dollars. July, 1881, the defendant’s accounts were presented to and settled by the surrogate, in which he credited the principal of the estate with the said net rents.</p> <p>In this action, brought by the widow against the defendant, as executor and trustee, to compel him to pay over the income of the estate, she was allowed to recover the said rents so received by him prior to the surrogate’s decroe, as well as those thereafter received.</p> <p>Meld, no error. (Follett, J., dissenting.).</p>

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

Appeal by the plaintiff from a judgment in his favor, entered upon a verdict as reduced by order of the court, aud from the order made by the court reducing the amount of the verdict. The testator, John IT. McMahon, hired the plaintiff, Thomas Lacy,' about February 25, 1882, to work for him as a hired servant on his farm for one year, beginning March 1, 1882, for the agreed price of $200.

Appeal by the plaintiff from an order, made at a Special Term, denying plaintiff’s motion for a retaxation and disallowance of costs to defendant, and granting defendant’s motion to set off his costs in the action against plaintiff’s recovery, and striking out part of plaintiff’s costs as taxed.

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

<p>Appeal from a judgment in favor of the plaintiff, enjoining the defendant from disconnecting or removing a pipe through which water was conveyed from a spring upon the defendant’s land to the-plaintiff’s' land.</p>

Appeal by Gilbert A. Woods, as executor, fi-om a decree of the-surrogate of Oswego county, settling the accounts of said Gilbert A. Woods, as executor of John-Woods, deceased. John Woods died December 2, 1852, leaving a last will and testament, which was admitted to .probate by the surrogate'of Oswego county February 23,1853. Gilbert A. Woods and Isaac N. Meacham were appointed executors of the will, and letters testamentary were issued to them when the will was proved.

Appeals from judgments-in favor of the plaintiffs, entered upon the trial of the above entitled actions by the court without a jury. Between September 13, 1882, and November 3, 1882, the plaintiffs in the first of the above entitled actions sold and delivered to the defendant, upon credit, goods of the value of $882.50.

Appeal by the plaintiff from a judgment in favor of the defendant, entered in Onondaga county, upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

This was an action to recover on a fire insurance policy of $1,500. On January 29, 1881, the defendant issued a policy of insurance to-the plaintiff, agreeing to indemnify bim against any loss by fire in the building therein described, happening within one year of the-date of the policy.

The action was brought by the plaintiff, one of the patrons of a cheese factory, to recover his share of the proceeds of a check of $472.30 drawn by Pichard Perrine to the order of the defendant who was the salesman for the patrons. It was alleged that the defendant had been negligent in collecting the check in question.

Appeal by each of the defendants, except West and Graham, from a judgment in favor of the plaintiff, entered on a verdict against the defendants so appealing, and also from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

The action was brought to recover damages sustained by the plaintiff in bis quarry by the flooding of the same by means of water settling back in consequence of a dam built and maintained by the defendants.

<p>Hen of a common carrier for freight, when it is lost — effect of parting with the possession of the property — granting a new trial for newly discovered evidence.</p> <p>In an action of replevin to enforce a lien for freight upon a horse consigned and delivered to the defendant, it appeared that the car containing the horse arrived at the depot at about eleven p. m ; that the defendant upon being informed of his arrival by telephone asked if the horse could remain in the car until morning, and was informed that it could. In the morning the defendant’s servant went to the station and took away the horse. Subsequently, a dispute having arisen as to the amount of freight, this action was brought.</p> <p>Held, that a verdict finding that the plaintiff had voluntarily abandoned its lien upon parting with the possession of the horse would not be reversed on appeal, and that the action could not be maintained.</p> <p>A new trial will not be granted on account of newly discovered evidence if it is cumulative, nor unless it is clear that, if produced, it would change the result.</p>

<p>Appeal from an order of the Oneida Special Term, confirming the report of a referee, and directing the receiver of the Merchants’ Bank to pay to Gilderoy Lord, as trustee, or to certain bondholders, secured by mortgage given to Lord and Moffett, as trustees, upon the homestead of Wooster Sherman, in the city of Watertown, the amount of the net benefit arising from the sale of the mortgaged property, bought in through the instrumentality of Moffett, one of the trustees, who was also cashier of the bank, for the bank. The amount of benefits arising to the bank or to the receivers, out of the transaction, was $7,076.07, less $425.89 allowed for the services in the suit of Gilderoy Lord and John F. .Moffett,‘trustees, against Wooster Sherman and others, and the costs of this proceeding.</p> <p>Gilderoy Lord and John F. Moffett were duly constituted trustees of á certain mortgage made by one Wooster Sherman to secure forty in number of his individual bonds of $500 each. At the sale on the foreclosure of the mortgage Moffett procured the premises to be purchased for the Merchants’ Bank, of which he was a stockholder, director and cashier. After applying the proceeds of the sale to the payment of bonds there remained still due on them a deficiency of over $12,000. Prior to the recovery of said judgment, Sherman, the obligor on said bonds, was adjudged a bankrupt. After the purchase by the bank it went ijito the hands of its present receiver, who sold the property in question at a profit to the bank of about $7,000. In due time Lord, as trustee, presented a claim to the receiver for such profits, which claim was rejected by the receiver. After such action by the receiver, one of the bondholders, on behalf of himself and others similarly situated, moved for leave to sue the receiver for such profits. On the hearing of that motion an order was made referring the controversy-to a referee to take proof of the facts and to report the same to the court with his opinion thereon. The referee reported in favor of the petitioners and the court subsequently confirmed his report. From the order of confirmation this appeal has been taken.</p>

<p>'Appeal from a judgment in favor of the plaintiff, entered upon a verdict at the Tompkins Circuit, and from an order denying a motion for a new trial made at Special Term upon a case and exception.</p> <p>The verdict was for sixty dollars and interest. The plaintiff claimed $950, viz., $800, delivered to the defendant by one Dean to hand to his brother, which the defendant says the brother refused to take, and which was by the defendant handed back to Dean, and $150, which Dean delivered to the defendant, as it alleged, for the defendant’s services to be rendered in defending Dean from the charge of horse stealing. The plaintiff claimed that the moneys were stolen from him at his house in Pennsylvania on the night of the 2d of June, 1879. The jury found, apparently, that the .$800 had been returned by the defendant to Dean, and that the services of the defendant rendered for Dean were worth ninety dollars, and gave plaintiff a verdict for the balance, say sixty dollars, and interest.</p>

<p>Deed — construction of it — parties and primes ewe estopped from disputing boundm'y lines established by it — prior oral agreements are merged in it — an agreement affecting the title to land must be in writing — when am equitable action to restrain ¡mterfm-ence with a highway will lie.</p> <p>In 1871 the owners of two parcels of land, separated by a highway, executed conveyances, by which there was conveyed to the plaintiff’s grantor all that portion of the premises “lying west of the highway leading through said premises from Merrill’s to Scutts,” and to the defendant Yan Schoyk’s grantor all that portion of the premises lying east of the said highway. At that time the highway was opened, used and worked, and its lines were plain and visible. After the parties to this action had acquired title to the said two parcels, the defendants, in 1882, closed up and fenced in a strip on Yan Schoyk’s side of the old highway, and moved back the fences on the plaintiff’s side and threw open a portion of her land as a highway. They sought to justify this action under a parol agreement made between the grantors of the two parcels prior to the execution of the deed of 1874:</p> <p>Held, that it was the intention of the parties executing the deed to adopt the lines of the existing highway as the boundaries of the lots, and that their grantees and those claiming under them were estopped from denying the existence of the highway or claiming to alter the boundaries thereof.</p> <p>That if the parol agreement sought to be proved, was made prior to the execution of the deed, it was merged in it and must be deemed to have been abandoned by the parties.</p> <p>That if it was made after the execution of the deed, it was void under the statute of frauds, as it related to an interest in land.</p> <p>That as it appeared that the plaintiff, in order to reach the premises from her residence, which was some two miles distant, was obliged to use said highway, and was accustomed to leave the same at a certain point and proceed in a certain track over her premises to the buildings thereon, and that the wrongful acts of the defendants prevented her from using the said track, and made it necessary for her, in order to reach her buildings, to make a new and longer track over her premises, that she was entitled to maintain an equitable action against the defendants to'recover the damages sustained, and to procure a judgment compelling them to open and restore the old highway to its former condition, and restrain them from entering upon and using the plaintiff’s premises for the purposes of a highway.</p>

<p>Trustee of school district — when a de facto trustee may employ a teacher — power of the trustee to purchase supplies.</p> <p>Where one acting as a de facto trustee of a school district employs a qualified person to act as teacher, and agrees to pay for her services a sum equal to the teacher’s board, and lodging and one dollar and seventy-five cents per week, and such person acts as such teacher and renders the services required by the contract, and the validity of the trustee’s action is recognized by the inhabitants of the district, the validity of his election cannot be challenged, and his authority to make the contract denied, in an action brought against his sueces- , sor to recover the price agreed to be paid for the services actually rendered.</p> <p>Where there is no school-house in the district and the trustee furnishes a room in a building owned by him, he may properly be allowed to recover the cost of slight alterations made to render the room suited to the purposes to which it is to be applied.</p>

The action was brought to recover damages for the wrongful taking of a sewing machine from the plaintiff, and for a wrongful assault committed upon his wife, who resisted the officer when he removed the machine.

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

<p>Fraudulent convey anee— a grantee uiho participates in the fraudulent intent will not be protected even to the extent of the amount actually due to him from the grantor— any liens he had upon the property transferred, prior to its transfer, will be restored on its vacation — after a general assignment has been made the assignee may bring suit to vacate conveyances as fraudulent —1858, chap. 314. —when creditors may.</p> <p>In this action, brought by judgment creditors of one Schad to set aside as fraudulent an assignment of certain judgments made by Schad to his attorney, the defendant Hart, it appeared that the assignment was made on January 5,1883. It recited that Schad was indebted to Hart to the amount of $300 for legal services, and that he was desirous of retaining him in proceedings and litigations that might arise in relation to a general assignment of Schad for the benefit of creditors, and provided that the judgments should be taken as a payment in full of all services, and any surplus that might be collected beyond the value of such services was to be held by Hart as collateral to notes of Schad which he had indorsed. The judgments were of the nominal value of $1,800, and of the actual value of $800. On January eighth Schad made a general assignment containing preferences.</p> <p>Held^ that in so far as the transfer to Hart was intended to operate as a payment for services to be subsequently rendered, it was fraudulent as to the other creditors of Schad and void.</p> <p>That, although if Hart had acted in good faith the assignment would have been ' sustained for an amount equal to the sum then due for services previously rendered, yet as it was found that he took the transfer with an actual intent to defraud the creditors of the assignor, it was wholly void.</p> <p>The judgments transferred had been recovered by Hart, as attorney for Schad, and he had, at the time of the transfer, liens thereon for his compensation and disbursements therein.</p> <p>Beld, that Upon setting aside the transfer as fraudulent he should be allowed to retain from the moneys collected upon the judgments the amount of the liens he had previously held thereon. (Rumsey,. J., dissenting.)</p> <p>Since the passage of chapter 814 of 1858, extending the powers of assignees for the benefit of creditors, the right of action to set aside a fraudulent conveyance of the debtor’s property, made before the execution of the assignment, is vested in the assignee alone. (Rumsey, J.,'dissenting.)</p> <p>Leonard v. Clinton (86 1 lun, 288) overruled.</p> <p>If the assignee refuses to bring such an action a judgment creditor may bring it and make the assignee a party defendant; in which case the fund recovered will be directed to be paid to the assignee, to be distributed as prescribed in the assignment, oven though the latter contain preferences. (Rumsey, J., dissenting.)</p>

<p>Estoppel — release of a grantc»' from liability on a covenant of wcvrranty does not affect the title of the grantee to the land.</p> <p>The plaintiff and the defendant Emily N. Rugg each, claimed title to a piece of land by virtue of deeds received from one Rugg, since deceased. The plaintiff claimed that she had been induced to surrender her deed to the grantor, her father, who had destroyed it without her consent and subsequently deeded the land to the said defendant, who had knowledge of the plaintiff’s prior title. In an action of ejectment a judgment was recovered by the plaintiff, under which she went into possession. Thereafter the said defendant brought an action against the executors of the deceased grantor, alleging the plaintiff’s recovery and entry, and seeking to recover damages for a breach of the covenant of warranty contained in her deed. This action was settled and a release given by the defendant, in consideration of a sum of money paid by the executors, by which she released to them, and to all the heirs of the deceased, all her cause of action on all the covenants in the deed, and all claims or rights of action thereon. Thereafter the defendant paid the costs in this action, took a new trial under the statute and recovered a verdict, upon which a judgment in her favor was entered.</p> <p>Eeld, that she was not estopped, by the release given to the executors and heirs-at-law of Rugg, from so doing.</p>

<p>Agreement for the devise of property by a will— it is void, if not expressed in writing.</p> <p>On or about July 16, 1881, the plaintiff and one Wells Gooding, who were1 brothers, and who then owned certain real and personal property as teuants in common, made an oral agreement by which it was agreed that each should by his will devise and bequeath to the other all his property, except that Wells should bequeath to their sister $10,000 of his property. Wills, disposing of the property as provided in the agreement, were at that time executed and deposited with the attorney who drew them. The sister died in 1880. Thereafter Wells took his will away from the attorney, and upon his death, in 1881, no will made by him could be found. Upon the trial of this action, brought by the plaintiff against his brother’s heirs-at-law and next of kin to have the will established, or to compel the defendants to release and convey to him such rights and interests as he would have acquired under the agreement if it had been fulfilled, the court found that the will had been destroyed and revoked by Wells and that he died intestate.</p> <p>Held, that the action could not be maintained; that the agreement sought to be enforced was in effect an agreement to sell and convey land in a specified manner, e. g., by will, and was void under the statute of frauds because not reduced to writing.</p>

<p>Appeal from an order of the Ontario Special Term, giving to the defendants an additional allowance of $500 costs.</p>

<p>Appeal from an order of the Erie Special Term, denying a motion of the appellant to dismiss the petition and proceedings of the railroad company, and to vacate the order staying his proceedings in an action brought by him. against the company, and appoint-. ing commissioners to appraise damages.</p>

Lnther G. Brown, being the owner of a farm situate in the town of Garitón, county of Orleans, containing 121-J acres, made a mortgage on the premises of date June 1, 1878, to Fanny M. Goon, to secure the payment of $1,200. The mortgage was afterwards assigned to Rachel Brown, the. wife of the mortgagor, and she assigned it to Benjamin O. Brown, her son. He in May, 1880, commenced an action against Luther and.

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

an order of the Cattaraugus Special Term appoint-a receiver pendente lite of the leasehold interest of the defendants . in certain lands. • '

Appeal by-the defendant from an order of the Monroe Special Term, denying a motion to set aside a taxation of costs in favor of the plaintiff, and for a direction to tax, and allow tbem in favor of the defendant.

Appeal by the defendant from a judgment of the County Court of Erie county, and from an order denying a motion for a new trial made upon a case and exceptions. Upon the trial the jury rendered a verdict in favor of the plaintiff for $485.

<p>Sale at option of vendee — when'the title remains in the vendor until the vendee has exercised his option.</p> <p>On March, tenth the plaintiff and defendant entered into an agreement whereby the latter was to take and use a mare belonging to the plaintiff, and if she drove to suit him he was to keep her and pay therefor the sum of $130. In pursuance of this agreement the plaintiff delivered the mare to the defendant, who on that day drove her a distance of some twenty-one miles and then placed her in his own ham. The next morning he discovered that she was sick and went to the plaintiff’s house, told him of her sickness, and asked the plaintiff to come and see her. The plaintiff being himself sick asked the defendant to bring the mare to his house, saying he would do what he could for her. The defendant brought the. mare to the plaintiff’s house and left her there. She died that afternoon.</p> <p>•Held, that the title had not passed' to the defendant, and that he was not bound to pay the purchase-price to the plaintiff.</p>

Appear from a judgment in favor of the plaintiff, entered upon a verdict at the Livingston Circuit, and from an order of the Special Term, denying a motion for a new trial. The parties are owners of adjoining farms in Livingston county.

, for the sum of $366.16 damages, besides costs. The action is for services rendered by respondent, as a housekeeper for George C. Bogardus, deceased,, for two different terms,, the first commencing January 27, 1879, and ending February 7, 1882, and again commencing July 17, 1882, and continuing to and including October 24, 1883, at the agreed price of three dollars a week. The defendant’s answer denies the indebtedness, pleads a counter-claim and also payment.

<p>Appeal from a judgment of the Monroe County Court, reversing a judgment of the Municipal Court of the city of Rochester, an favor of the plaintiff, for forty-eight dollars and five cents.</p>

<p>Appeal from a judgment of the Erie County Court, entered upon a verdict of a jury in favor of the plaintiff, and also from an order denying a motion for a new trial made upon the minutes of the County Judge.</p> <p>The action was brought to recover twenty-five cents additional pay for each day the plaintiff worked as a car driver for defendant under a sealed contract dated February 7, 1882. By that contract defendant agreed to pay plaintiff one dollar and thirty-five cents for every day’s service rendered the defendant, payable semi-monthly, on the tenth and twenty-fifth days of each month. After the expiration of one year, should plaintiff1 continue and remain in defendant’s employ, and not otherwise, the defendant promised to pay pjaintiff the further sum of twenty-five cents for every day’s service rendered to defendant by plaintiff during said year; and every year thereafter the plaintiff should remain and continue in the employ of defendant the above terms should apply. The- contract then provided that the defendant might discharge the plaintiff at any time. The plaintiff agreed faithfully to discharge the duties of driver, and to faithfully observe and keep all rules and regulations of defendant.</p> <p>Under this contract plaintiff worked for defendant until about the middle of .November following when defendant discharged him, paying him for his service one dollar and thirty-five cents for each day. The complaint alleges that plaintiff was discharged without any just cause or provocation, and without any fault on his part, he having at all times faithfully performed his duty. The complaint also alleges that defendant discharged plaintiff for the reason that his year would be up in about six weeks, and that their only reason for discharging him was to wrong, cheat and defraud him out of the said twenty-five cents per day.</p> <p>The answer denies the above allegations in the -complaint and alleges that plaintiff violated and disregarged the conditions of the contract, and that he did not observe and keep the rules and regulations of defendant, but conducted himself so negligently and carelessly about his employment that he caused injury to the passengers on defendant’s cars to the damage of defendant, and that for the reasons aforesaid defendant discharged-plaintiff. Among the by-laws of the defendant was one providing that a driver should abstain from intoxicating drinks.</p> <p>Upon the trial evidence was given by defendant tending to show that plaintiff did not abstain from intoxicating drinks, that he was intoxicated while on duty on election day, 1882, and that he had been guilty of negligence and unfaithfulness.</p> <p>At the close of the evidence defendant’s counsel moved for a non-suit on the contract that had been read in evidence, and upon the ground that there had been sufficient shown to warrant plaintiff’s discharge under the contract.</p> <p>The charge of the judge submitted but one question to the jury, viz., whether the plaintiff’s conduct was such that the defendant was justified in discharging him ? - The defendant’s counsel asked the court to charge the jury, that the defendant had the right to discharge this driver without any cause under the contract, which request was denied, and an exception was taken to such denial.</p>

The defendant was arrested on the 19th day of February, 1883, upon a warrant issued by the police justice of the city of Rochester, charging him with having, on the 17th day of February, 1883, violated section 1 of chapter 5o of the penal ordinances of said city, relating to the sale of jewelers’ goods at auction.

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

Appeal by the plaintiff from a .judgment, entered in Monroe county upon a decision at' a Special Term sustaining a demurrer to the complaint interposed by the defendant.

Motion by the defendant Allison Oviatt for a new trial, founded on a case in an action for the partition of lands, after an interlocutory judgment had been entered on the report of a referee, and before final judgment had been awarded. No appeal was taken from the interlocutory judgment, and the motion is made in this court in the first instance.

The petitioner is a railroad corporation organized under the general laws of the State to construct and operate a railroad from Binghamton to the city of Buffalo. The line of the road'was constructed and ready for operation in October, 1882.

Tiie petitioner’s road, as located, proposed a crossing of the appellants’- road at grade. The commissioners in their report established the crossing at the place proposed by the petitioner and at grade.

<p>Appeal from an order of the Monroe County Court, denying the defendant’s motion to set aside proceedings supplementary to execution, in an action in which judgment had been recovered in the Municipal Court of the city of Rochester in favor of the plaintiff and against the defendant, for twenty dollars damages and seven dollars and eighty-five cents costs, in all, twenty-seven dollars and eighty-five cents.</p>

This action was brought to recover the sum of $800 claimed to be a balance due the plaintiff from the defendant on the 19th day of December, 1882. The defendant interposes a counter-claim, founded on the plaintiff’s certification of an acceptance, made the same day, which had come to the defendant’s hand.

<p>Deed — what words create an estate in fee tail — construction of the word “ heirs ” — IB. S., 732, sea. 3.</p> <p>The owner of certain real estate conveyed the same by a quit-claim deed, in which Millison Fisher, his mother, and Louisa F. Harvey, his sister, were named as parties of the second part. By the deed the premises were bargained, granted, etc , “unto said party of the second part, to the said Millison during the term of her natural life, and to the said Louisa F., and to her heirs by George S.' Harvey, her present husband, forever.” By the habendum clause the premises were to be held “to bhe said party of the second part, and the heirs of the said Louisa F. by the said George S. Harvey, her present husband, to the sole and only proper benefit and behoof of the parties of the second part, and the heirs of the said Louisa F. by George S. Harvey, her present husband, forever.’1</p> <p>Held, that under the deed the mother took4an estate for life, and that the daughter took an estate in fee tail, which was by virtue of section 3 of 1 Revised Statutes, 722, converted into a fee simple absolute.</p>

' Appeal from an order of the Monroe Special Term, denying the defendant’s application for a new trial upon the ground of newly discovered evidence.

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

<p>Appraisals of damages f 'or land taken for a railroad — reversed because of the reception of evidence of benefit to adjoining land — when the error is not owed by statements in the report showing that it was not affected by it.</p> <p>Upon a hearing before commissioners appointed to appraise the damages to he sustained by a landowner by the taking of a portion of his land for railroad purposes, and after evidence had been given tending to show that the company proposed to erect a depot in the vicinity, a witness, who owned land adjoining that to be taken, and who had testified that he had some knowledge of the eflect upon the value of land of the location of a railroad depot near to it, was asked, and against the landowner’s objections and exceptions allowed to answer, the following question: “ What, in your opinion, will be the effect of the proposed improvement upon the land proposed to he taken in these proceedings upon the adjoining lands? ” He answered, “ My judgment is that the value of the remaining portion would be advanced. ”</p> <p>Held, that the admission of the testimony was an error, under the provisions of the statute prohibiting the commissioners in fixing the amount of the compensation from making “any allowance or deduction on account of any real or supposed benefits which the parties interested may derive from the construction of the proposed railroad, or the construction of the proposed improvement connected with such road, for which such real estate may be taken.”</p> <p>That the error in admitting the evidence was not cured by the insertion in the commissioners’ report of the statement, that in fixing the amount of such compensation they did not make any allowance or deduction on account of any real or supposed benefit which the owner or persons.interested might derive from the construction of the road.</p> <p>Matter of New York, Lackawanna, and Western Railway Oom/pany (29 Hun, 1) followed.</p>

<p>General assignment— the assignee acquires title to the property, on its execution cm3 delivery — 1877, chap. 466.</p> <p>On September thirteenth a general assignment for the benefit of creditors was made, executed, acknowledged and delivered to the plaintiff, the assignee, who, on that day, signed the assignment and acknowledged his execution of the same in acceptance of the trust. Thereafter, and on September fifteenth, the assignment was duly recorded. The plaintiff took possession of the goods on September fourteenth. On the same day an attachment was procured by creditors of the assignor, under which a levy was made the next day, and prior to the time of recording the assignment, upon goods in the possession of the plaintiff, which were subsequently sold under a judgment recovered in the action in which the attachment was issued.</p> <p>Held,, that the title to the goods vested in the assignee upon the execution and delivery of the assignment, and that the title of the assignee thereto was prior to that acquired under the attachment. ■</p> <p>Warner v. Jafrary (96 N. Y., 248) followed; Bennie v. Gaige' (24 Hun, 128) overruled.</p>

<p>Deed from, a husband to a wife is void at law — when it will,not be sustained in eguity.</p> <p>On September 13, 1862, Abel Easterbrooks, for the nominal consideration of one dollar, executed,and delivered to his wife a deed of certain premises, which was duly recorded. January 15, 1S65, the wife died. January 30, 1865, Easterbrooks conveyed the premises to his daughter, under whom the defendants claim. The plaintiff, an illegitimate son of the deceased wife, brought this action in ejectment to recover the possession of the land.</p> <p>Held, that it could not be maintained as an action at law, because the wife could not receive a conveyance of real estate from her husband.</p> <p>That it could not be maintained as a suit in equity, because the facts disclosed were not such as to call for the interposition of a court of equity.</p>

<p>Commissions — right of a trustee, removed during the continuance of the trust, to commissions upon thepn'incvpal.</p> <p>The person named as executor and trustee in a will having refused to serve, the surrogate appointed one Baker to act as administrator with the will annexed and as a substitute trustee. Subsequently the letters so issued to Baker were revoked on account of his failure to provide new sureties on his bond in the place of those who had been released upon their application. Upon the accounting Baker was allowed commissions upon the estimated value of the real estate left by the testator.</p> <p>Meld, that this was error.</p> <p>Matter of Allen (á9 Hun, 7) followed.</p>

<p>Husband and wife — the creditors of the Husband cannot compel the wife to pay for services rendered to her by the husband.</p> <p>A receiver, appointed in proceedings supplementary to execution, cannot maintain an action against the debtor’s wife to recover the value of services rendered by the husband in carrying on the separate business of the wife, 'where such services were rendered without any express agreement on the part of the wife to pay him therefor.</p> <p>Kvngman v. Hranh (33 Hun, 471) distinguished.</p>

<p>Practice — when a new trial may he had in a County Court on appeal from ajusttce’s judgment — ■ Code of Civil Procedure, sea. 3068.</p> <p>In an action of replevin brought in a Justice’s Court the complaint alleged that the property was of the value of $150, and the answer admitted it to be of the value of $130. The justice rendered a judgment that the plaintiff retain the property and recover eight dollars and forty-eight cents costs, but he failed to fix the value of the property. Upon an appeal taken by the defendant to the County Court:</p> <p>jgeld, that he was entitled to a new trial, under section 3068 of the Code of Civil Procedure; that in the absence of any finding by the justice as to the value of the property it might be determined by the pleadings.</p> <p>Mei'rül v. Pattison (44 How., 289) followed.</p>

<p>Appeal from an interlocutory judgment of the Monroe Special Term, overruling a demurrer to the plaintiffs complaint.</p>

The action was brought to obtain a construction upon the will of Cornelius Ten Broeck. The will gave to his wife all the real estate of the testator, consisting of two farms, for her use and benefit during her natural life, a legacy of $500 to be paid out of his notes and mortgages to Jane L. Hayford, and also contained the further provisions set forth in full in the following opinion.

Appeal by Caroline Pierce and Laura C. K. Pomeroy, the owners of the fee, and the Buffalo Transportation and Warehouse Company, lessees, from the report and appraisal of commissioners appointed to appraise lands, and also from an order of the Special Term of Erie county, denying the motion of the owners of the fee and lessees to set aside the report.

<p>Appeal from a decree of tlie Surrogate’s .Court of Dutcbess county, directing the, executors of Matthew Yassar, J r., to pay over to the petitioner a legacy bequeathed to it by the said Yassar in his will.</p>

The plaintiff, as trustee of an express trust, sued in replevin to recover trust securities, or the value thereof, wrongfully withheld from him by the defendants. The trust is constituted by a deed under seal, and two writings therein referred to, dated and delivered by the settler to the trustee, March é, 1871. The trust securities were delivered to the trustee, simultaneously with the three trust instruments, more particularly described in the following opinion.

Controversy submitted upon an agreed statement of facts. The plaintiff sought to recover a share of his father’s estate which he claimed was given to him by his will. The will and a codicil thereto, dated respectively November 5, 1849, and April 13, 1853, were duly proved and admitted to probate by the surrogate of the county of New York on October 19, 1854.

<p>Appeal from an order, made at a Special Term, dismissing a writ of habeas corpus heretofore granted herein.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the submission of this action, without process, upon an agreed statement of facts.</p>

Jesse S. Hulse died May 15,1844, léaving a last will, dated January 17, 1844, which was admitted to probate by the surrogate of Orange county August 20, 1844.

This is an action by a taxpayer of the town of Newtown, Queens county, to restrain the defendant, who is the county treasurer, of Queens county, from charging up against the town and paying to himself, without audit or allowance- by any competent body or board, certain fees allowed to him by statute, for striking off to the town at the annual tax sale such lots as are not bidden for by actual purchasers.

<p>Damages occasioned by the act of a dog — when the owner is not liable therefor</p> <p>While the defendant’s dog was following her along the street it ran into aa adjoining yard and there seized and killed the plaintiffs dog.</p> <p>Held, that as the act of the defendant’s dog was not attributable to any active or .passive volition on the part of the defendant, she was not liable for.the damages thereby occasioned to the plaintiff.</p>

<p>Appeal from an order, made at a Special Term, directing that the action be continued by one Isaac Schlichter as plaintiff in the place and stead of Bather Hock, deceased.</p>

<p>Receivers of a corporation — in what district the application for the appointment mast he made — 1883, chap. 378 — to what receivers it applies. '</p> <p>Tn this action, brought to foreclose a mortgage given by the defendant, a railroad company, to the plaintiff, as a trustee for bondholders, a receiver of the property covered by the mortgage was appointed upon an application made, upon notice, at a Special Term of the Supreme Court held at Newburgh, in Orange county, in the second judicial district. The principal office of the defendant corporation being located in the first judicial district, it was claimed that the order appointing the receiver was void as violating the provisions of chapter 378 of 1883, which requires every application for the appointment of a receiver of a corporation to be made at a Special Term held in the judicial district in which the principal business office of the corporation was located at the time of the commencement of the action.</p> <p>Held, that the objection to the order could not be sustained.</p> <p>The act of 1883 relates only to statutory receivers appointed to wind up corporations and distribute their assets, not to receivers appointed, in actions for the foreclosure of a mortgage, to hold the property and receive the profits thereof until the entry of the final judgment.</p>

The action was brought to recover damages result'ng to the plaintiff from the alleged negligence and malpractice of a dentist, an officer of the defendant. Upon the trial the cross-examination of the plaintiff disclosed the fact that the plaintiff was a minor at the time she commenced the action, and did not attain her majority until some months thereafter. No prior knowledge of this fact upon the part of the defendant was shown.

<p>Practice in Justices’ Court — when the plaintiff cannot recover without proving his claim — 1881, cha/p. 414— Code of Civil Proced/wre, sec. 2891.</p> <p>In this action, which was commenced in a justice’s court by the service of a summons and a verified complaint, as provided by chapter 414 of 1881, a demurrer interposed by the defendant was overruled with leave to him to answer. The defendant having failed to answer, judgment was entered for the plaintiff for the full amount claimed in the complaint, without any proof thereof being furnished</p> <p>Meld,, that this was error; that the act of 1881 only authorizes the entry of a judgment without proof, 'when the defendant fails to answer or demur. When he does either, section 2891 of the Code of Civil Procedure becomes applicable and prevents the plaintiff from recovering without proving his case.</p>

<p>Appeal from a judgment in favor of the defendant, entered upon an order dismissing the complaint made at the circuit.</p>

<p>Negligence — liability of a city to one injured by reason of the dmg&rous plan of construction of a street.</p> <p>While the plaintiff was being driven by a friend along Linden street, in the city of Yonkers, the horse became frightened at an approaching bicycle, started aside, became unmanageable, and finally crossed the sidewalk and went’ over an embankment, some twelve feet high, carrying the wagon and the plaintiff with him. Linden street was a public highway and had been constructed some ten years before in accordance with plans and specifications adopted by the common council of the city, under the authority conferred upon it by its charter. The plans did not provide for any railing along the embankment where the horse went over and no railing had ever been put there. The carriage-way of the street was about thirty feet wide, and the street had a sidewalk on each side ten feet wide.</p> <p>In an action brought by the plaintiff to recover damages for the injuries he had sustained:</p> <p>Held, that a verdict in his favor would be sustained. (Pratt, J., dissenting.)</p>

Several grounds for the demurrers wei’e alleged therein, but the only one considered in the court below, and upon this appeal, was as to whether or not the facts alleged constituted a cause of action.

The defendants, a railroad corporation, used and occupied a railroad track in the town of Hempstead, Queens county, for railroad purposes between a place called Pearsalls and Long Beach, in the aforesaid county. The track crossed several navigable streams of water, over which were erected as 'many draw-bridges.

<p>General assignment — defeats vn the certificate of acknowledgment — when the certificate • wül he sustained.</p> <p>This action was brought to set aside a general assignment for the benefit of creditors made by the defendant Clinton Smith to his brother John. Immediately under the attestation clause and the signatures and seals of the parties followed a certificate of acknowledgment as follows:</p> <p>On this 21st day of February, 1882, before me personally appeared Clinton H. Smith and John Q-. Smith, of the city of New York, to me personally known to be the individuals described in and who executed the same, and who acknowledged to me that they had executed the same, for the purposes therein mentioned.”</p> <p>.Upon the trial the defendants offered, but were not allowed, to prove by the commissioner who signed the certificate that the acknowledgment was in fact made in due form at the time stated. The assignment had been duly recorded. ,</p> <p>Held, that the evidence should have been received as it showed that the defendants had in fact ‘complied with all the requirements of t'he statute, and thereby eliminated from the case all questions as to their intent not to comply with them.</p> <p>That, construing the certificate in accordance with the rule which requires the court to so read all such official acts as, if possible, to make them effective to preserve the rights of the parties, it satisfied the requirements of the act and rendered the assignment a valid and complete instrument.</p>

<p>Appeal from an order of the Special Term directing the payment of costs and counsel fees to the plaintiff’s attorney.</p>

<p>Appeal from a judgment in favor of the plaintiff, entered upon the trial of tbis action at a Special Term.</p>

In May, 1884, the plaintiff, a foreign corporation, obtained, in this court, a warrant of attachment against the property of the defendant, also a foreign corporation, upon the ground, as stated in the warrant, “ that the defendant is a foreign corporation.” For some time prior to the granting of the warrant, the plaintiff had kept its bank account with the defendant, at the city of Pittsburgh, in the State of Pennsylvania, where both corporations carried on business.

<p>Appeal from an order, made at a Special Term, vacating an attachment.</p>

<p>Appeal from an order of the Special Term denying a motion to vacate an attachment.</p>

<p>Will — when an absolute gift to persons named, is not converted into a trust by an expression of the testator’s wishes as to the disposition to be made of'the funds.</p> <p>In an action to procure a judicial construction of a will it appeared from the evidence, and the will itself, that the testator was a man of a charitable and i benevolent disposition; that he fully understood the nature of trusts and the proper modes of creating them, and the distinction between gifts in trust and such as were intended to be personal or direct and not charged with any trust. Numerous trusts were created by the will, and it contained various devises and bequests to his executors in their official capacity, or as trustees for purposes indicated, which showed that he fully understood the distinction between them as persons and as executors or trustees.</p> <p>One clause of his will was in these words: “ I do give and bequeath to my son Bobert Willets, my friends William H. Macy and Charles Q-riffen, and my nephews John T. Willets and Bobert B. Willets and Edward B. Willets, and my son-in-law Edward Merritt, the survivors and survivor of them, the sum of one hundred thousand dollars, relying upon them to dispose of the sa,me for the benefit of such charitable and benevolent and educational purposes as they shall judge will most promote the comfort and improve the condition of the poor; or in case any of my descendants should become poor and needy, then to apply in whole or in part to such descendants.”</p> <p>Held, that this was an absolute gift to the persons named, free from all legal trusts or conditions, and that it operated as a valid, effective bequest of the amount named to them individually. .</p> <p>That the words of survivorship related to the time of the death of the testator.</p>

<p>Diability of a stockholder — when released by a cancellation of his stock — a corporation can only be dissolved by a formal judgment —form of demurrer.</p> <p>In an action by a creditor of an insolvent manufacturing corporation to enforce the individual liability of the defendant, a stockholder therein, the- latter set ,up as a second defense that as to twenty-five shares of the stock held by him they had been issued by the oificers of the company as a stock dividend pursuant to a resolution of the board of directors, under the pretense that the company had earned surplus profits; that in fact the company had not earned any surplus profits; that thereafter, and before the plaintiff’s debt was created, the board of directors passed a resolution rescinding the former resolution directing the increase of the stock and the stock dividend, thereby annulling the certificate for said shares, which the defendant had been and was ready to surrender to the court. ,</p> <p>Held, that this was a good defense as to the said twenty-five shares.</p> <p>For a third defense the defendant alleged that more than four years prior to the commencement of this action the property of the company had been sequestrated and a receiver thereof appointed, in an action brought in the Supreme Court, and the officers and agents of the company had been restrained from all interference with its stock, property or effects; that since that time it had not elected officers or transacted business and that its property had been distributed among its creditors by the receiver, and that these facts were equivalent to a dissolution of the corporation so as to entitle the defendant to the benefits of the statutory provision terminating the liabilities of stockholders two years after they ceased to be such.</p> <p>Held, that the facts alleged did not show a dissolution of the corporation; that it could only be dissolved by the judgment to that effect of a court of competent jurisdiction.</p> <p>Kincaid v. Dwindle (59 N. Y., 548) followed.</p> <p>The plaintiff demurred “to the second and third defenses set up in the defendant’s answer herein for the reason, appearing on the face thereof, that neither of the said alleged defenses stated facts sufficient to constitute a defense to this action.” The court below overruled the 'demurrer as to both of the defenses.</p> <p>Meld, that as the demurrer was good as to one defense and bad as to the other, it should be sustained as to one and overruled as to the other, and that neither party should have costs below or on this appeal. (Brady, J.; dissenting.)</p>

■ Motion by the petitioner to set aside the report of commissioners, and for the appointment of other commissioners, or such other or further relief as to the court may seem just.

<p>Appeal from a judgment in favor of the plaintiff recovered on-a trial at Special Term, and from an order directing an additional allowance of costs..</p>

The action was brought by the receiver of the firm of Grant & Ward against James D. Fish, one of the partners thereof, and against his assignee for the benefit of creditors, and against Julien T. Davies as the assignee of the firm.

<p>Practice — ti'ial of a specific question by a ju/ry in an equitable action — when an order granting or refusing'a new trial in,-is a/ppealable — Oode of Oml Procedure, sea. 1347, sub. 3; sea. 1003.</p> <p>Subdivision 2 of section 1347 of thb Code of Civil Procedure, provides that appeals may be taken to the General Term of the Supreme Court from an order granting or refusing a new trial, “except that where specific questions of fact, arising upon the issues in an action triable by the court, have been tried by a jury, pursuant to an order for that purpose as prescribed in section 971 of this act, an appeal cannot be taken from an order granting or refusing a new trial upon the merits."</p> <p>Held, that the prohibition against appealing from an order “upon the merits ” was intended to limit and restrict the consideration of the effect of the evidence to the jury and to the court before which an application, to set aside the verdict and for a new trial might be made under the provisions of section 1003 of the said Code.</p> <p>That it was not designed to extend beyond a review of the effect of the evidence bearing upon the issue tried.</p> <p>That the exception was not intended to prevent the review, by appeal, of rulings ' made by the justice presiding at the trial before the jury, by which proper evidence was rejected, or improper evidence received, or unsound rules applied to the consideration of the evidence in the submission of the case to the jury.</p> <p>That where such erroneous rulings have been made, and the verdict in part influenced by them has been, made the basis of the final recovery, a new trial should be ordered, despite the provisions of section 1003 .of the said Code, declaring that “an error in the admission or exclusion of evidence, or in any other ruling or direction of the judge upon the trial, may, in the discretion of the court which reviews it, be disregarded if that court is of opinion that substantial justice does not require that a new trial should be granted.”</p> <p>Matter of Smith (95 N. Y., 516) followed.</p> <p>Where such erroneous rulings have been made by the justice presiding at the’ trial before the jury of the specific questions referred to them, and it appears from the decision of the justice before whom the issues in the action were tried at Special Term, and from the judgment entered thereon, that the findings of the jury upon the questions submitted to them were considered by him in arriving at his decision, the judgment will be reversed.</p>

<p>Appeal from a judgment, recovered on a trial before the court dismissing the plaintiff’s complaint in an action brought upon a decree rendered against the defendant in an action brought in chancery, in the Province of Ontario, Canada; the bill of complaint and notice in which action were served upon the defendant at his residence, in the village of Westfield, in the State of New York.</p>

<p>Appeal from a judgment in favor of the plaintiffs, entered on the verdict of a jury directed by the court.</p>

Case submitted upon an agreed statement of facts-for the determination of a controversy, without action, pursuant to section 1279 of the Code of Civil Procedure. ■

<p>Contempt— the refusal of a witness to answer questions may be punished either criminally or civilly— Code of Civil Procedure, sea. 8, sub. 5; sec. 14, sub. 5; seo. 2285 — length of the confinement —form of the commitment.</p> <p>The contumacious and unlawful refusal of a person who has been sworn as a witness, to answer any legal and proper interrogatory, may be punished criminally as á violation of subdivision 5 of section 8 of the Code of Civil Procedure, or civilly as a violation of subdivision 5 of section 14 thereof.</p> <p>The relator having been sworn as a witness in a proceeding pending in the Surrogate’s Court of New York, and having refused to answer certain questions put to her was committed to the county jail for a criminal contempt. The commitment, after reciting that the relator had been convicted by the Surrogate’s Court of contempt for a contumacious and unlawful refusal to answer certain legal and proper interrogatories propounded to her as a witness, directed that “she stand there committed, there to remain, charged with the said contempt as aforesaid, until she shall make answer to such legal and proper interrogatories as shall be propounded to her as a witness in this cause. ”</p> <p>Held, that the commitment was invalid; that the confinement should have been limited to the time when the witness was willing to answer the questions which had been actually propounded to her, and for a refusal to answer which she had been convicted of contempt.</p> <p>Although it is not necessary that the questions which the witness has refused to answer should be set out in hose verba in the commitment, yet it is the better practice to so set them out.</p>

The action was brought to recover the value of goods sold by plaintiff to the defendant. The complaint contained two counts : First. That the goods” were obtained by the defendant by means of fraud and misrepresentation. Secondly. That the goods were obtained by the defendant with the preconceived and fraudulent intent not to pay for the same, and that there had been a conversion of such goods by defendant.

The facts in the six above entitled cases are the same. The plaintiffs, wbo are the same in each case, beld six bonds secured by six mortgages upon real estate in the city of New York. Two of the bonds and mortgages were made by Michael Brennan, the defendant in the two Brennan cases, and the remaining four bonds and mortgages were made by Bernard Spaulding, the defendant in the four Spaulding cases. The defendant Jones assumed the payment of all these bonds and mortgages.

The action was brought to recover the possession of a soda-water apparatus which had been delivered by the plaintiff to one Bell in June, 1876.

<p>OontROTeRst submitted upon an agreed statement of facts under section 1279 of the Code of Civil Procedure.</p>

<p>Sale of personal property — when the title passes to a consignee on delivery of it to a ea/rrier —attaching creditor cannot defend by showing title in a stranger.</p> <p>In 1880 one Day, wiio was engaged in carrying on business in Indiana, became so embarrassed as to be unable to continue in business. On November sixth he packed the goods sought to be recovered in this action in packages, addressed to the plaintiffs at New York, and delivered them to a railroad company, which gave him a bill of lading therefor by which it agreed to deliver the goods to the plaintiffs at New York. On November 8,1880, Day posted a letter to the plaintiffs, which contained a bill of sale of the goods executed on November sixth, together with the bill of lading, and directed the plaintiffs to apply the value of the goods as set forth in the invoice upon his indebtedness to them. The next day Day made a general assignment. The plaintiffs received the letter on the tenth and notified the agents of the company in New York of their claim and right to the goods. On November thirteenth the goods were seized by the defendant under an attachment issued in an action brought against Day.</p> <p>In an action, brought by the plaintiffs to recover the possession of the goods:</p> <p>Held, that they were entitled to recover.</p> <p>That even if the title acquired by the assignee was superior to that of the plaintiffs, the defendant could not set up the assignee’s title as he did not claim under it.</p> <p>It seems, that the plaintiffs’ title was good even as against the assignee. (Daniels, J.)</p>

<p>Referee’s report — when set aside "because of Mas and prejudice upon the part of the referee — what will excuse delay in maleing the motion.</p> <p>This was an application to set aside the report of a referee upon the ground that he had become biased or improperly influenced against the defendant before the final decision of the action. It appeared that the referee, from time to time as the trial proceeded, importuned the defendant to aid him in securing an appointment to an office from the governor, and believed that the defendant could by earnestly exerting himself secure it for him; that these importunities continued to be addressed or suggested after the submission of the case and until near the time of its decision; and there'was reasonable cause to believe that the prejudice was occasioned by the failure of the defendant to answer the last letter from the referee, which was written shortly before the oase was decided.</p> <p>Held, that the report should be set aside.</p> <p>The report was made on May 11,1880. The motion to set aside the report was made in February, 1884. It was shown by the affidavits that the defendant had intended to appeal from the judgment, and was therefore compelled to have a case made and settled by the referee; that both the defendant and his counsel deemed it injudicious and dangerous to institute proceedings to set aside the report until the case had been settled, and that this application was made as soon as it could be after such settlement had been made.</p> <p>Held, that these facts furnished a sufficient excuse for the delay.</p>

This action was brought to recover damages for an alleged libel. The plaintiff is a charitable corporation which is supported by an. income derived from the city of New York and contributions of persons charitably disposed.

After a judgment in favor of the defendant had been entered upon the trial of this action the costs were paid by the plaintiffs. Subsequently, the defendant having died, the plaintiffs procured his executrix to be substituted in his place, and appealed to the General Term from the judgment against them. The General Term first affirmed the judgment and then ordered a reargument.

<p>Appeal from a judgment in favor of the defendant, entered upon an order dismissing J;he plaintiff’s complaint at the circuit.</p>

<p>Bond indemnifying a sheriff for making a levy — construction of its conditions — effect upon the sureties of a judgment recovered against the shmiff by his consent.</p> <p>This action was brought against the sureties upon an undertaking given, to indemnify the sheriff when making a levy under an execution upon property alleged to belong to the judgment debtor named therein. The undertaking was conditioned that if the obligors should well and truly save, keep and bear harmless and indemnify the said William O. Conner, and all persons aiding and assisting him in the premises from all harm, let, trouble, damage, liability, costs, counsel fees, expenses, suits, actions, judgments, etc., that should arise or be brought against him for or by reason of the levy, or of any sale made thereunder of any property which lie should judge belonged to the judgment debtor, then the obligation to be void, else to remain in full force and virtue. After the property had been seized a judgment for the value thereof was recovered by the true owner against the sheriff.</p> <p>5eld, that as the defendants had entered into an absolute agreement to protect the sheriff against any judgment that might be recovered, they were concluded by the judgment which had been recovered against him although they had no notice of the action.</p> <p>That it was not necessary for the sheriff to show that he had paid the judgment which had been so recovered.</p> <p>Johnson v. Gilbert (9 Hun, 469) followed; Thomas v. Hubbell (15 N. Y,, 405), distinguished.</p> <p>That in the absence of any charge of collusion or fraud, the effect of the judgment so recovered was not impaired by reason of the fact that it was entered by consent given in open court.</p>

<p>Appeal from a judgment recovered on a trial at the Special Term.</p>

<p>Appeal from a judgment of the Court of General Sessions, entered upon the verdict of a jury convicting the defendant of a violation of section 6 of chapter 202 of the Laws of 1884, entitled u An act to prevent deception in the sales of dairy products.”</p>

<p>Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict had been directed in favor of the plaintiff.</p>

' Appeal from an order made at a Special Term vacating an attachment. One of the affidavits upon which the attachment was-granted, read as follows : “ William Gribbon, being duly sworn, says he is the agent of the plaintiffs herein (who reside in Great Britain), and deponent has sole charge of their business in the city of New Tort.

The action was brought by eight stockholders of the Oregon Steam Navigation Company, in behalf of themselves and all other .stockholders similarly situated and who might come in and contribute to the expense thereof, to set aside acts and transfers done or made by the said company as corrupt and fraudulent as to the stockholders. All of the plaintiffs, except Giffin, were non-residents of this State and resided in Pennsylvania.

<p>Covenant — damages— measure of:</p> <p>April 20, 1871, the plaintiffs entered into an agreement with the defendants, who were then already partners in business, by which a limited partnership was formed. The plaintiffs contributed the sum of $30,000 upon the assurance of the defendants that their assets then exceeded their liabilities by the sum of $10,510.61, and upon their agreement to themselves pay and discharge all the existing indebtedness of the old firm. They did not do this, hut used the money furnished by the plaintiffs, for that purpose. In April, 1872, the plaintiffs extended the partnership to July 1, 1875. October 21, 1872, the firm became insolvent, made a general assignment, compromised with their creditors and procured a release from them. Subsequently, the plaintiffs having-discovered the use to which the defendants had put the capital contributed by them,.brought this action to recover damages for a breach of the agreement made with them.</p> <p>Held, that as it appeared that all theylebts of the old firm had been paid or discharged no damages could he recovered because of the failure of the defendants to pay them from their own funds.</p> <p>That as it did not appear that the misappropriation of the plaintiffs’ capital was the cause of the firm's failure, such failure did not justify the recovery by the plaintiffs from the defendants of the amount of capital they had contributed as damages for the breach of their ag-reement.</p>

Appeal by the defendant from a judgment, entered upo'n the trial of the action in the County Court of Erie county, without a jury. The action was brought upon an alleged contract with defendant, and upon a quantum, meruit, to recover for services rendered in sprinkling one of its streets.

Motion by the plaintiff for a new trial on exceptions taken at the 'Ontario circuit, and ordered to be beard at the General Term in thé first instance. The action was in ejectment to recover one undivided fifth part of •certain premises. William Jenkins died intestate in September, 1863, seized of the entire premises, leaving the plaintiff and four •others bis beirs-at-law.

The appellants, Elizabeth Hart and George S. Hart, had an estate in the premises. The appellant, Frank L. Hart, a minor son and heir apparent of the latter, is about fifteen years of age and has no general guardian. Richard E. Windsor was a tenant for years. The minor appeared by a guardian ad litem, duly appointed, and the other parties appeared by attorneys. One of the commissioners (Welch) appointed was not a freeholder at that time.

<p> Might of a mortgagee to pay taxes to preserve his lien. </p> <p>The owner of an undivided half interest in real estate is not under any obligation to one to whom he has mortgaged his said one-half interest to pay the whole tax levied upon the premises, but is only bound to pay one-half thereof, and in case the mortgagee pay the whole of the tax in order to preserve his lien, he will only be allowed to recover one-half of the amount so paid from the proceeds of the sale arising upon a foreclosure of his mortgage.</p>

<p>Slander — privileged communication— what is — when actual malice must he proved — an unsustained justification is not evidence of malice.</p> <p>Communications made in good faith and in a proper manner to a school commissioner by a resident of the district, charging the woman then teaching in the district with being unchaste and using profane and obscene language, are privileged.</p> <p>The presumption is that the person making such a communication is acting in good faith, and the burden of proving that he acted with actual malice- rests upon the party seeking to hold him liable for slander.</p> <p>The falsity of the charge is not of itself sufficient to raise an inference of malice.</p> <p>The allegation of the truth of the charge in the answer, by way of justification, is not evidence of a malicious intent even though the charge he foitnd to be untrue.</p>

Motion by the defendant for a new trial on exceptions taken at Cayuga Circuit, and ordered to be heard in the first instance at the General Term; also from an order denying a motion for a new trial made upon che ground of newly discovered evidence.

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

<p>Appeal from sc judgment in favor of the plaintiff, entered upon a verdict rendered in the Chautauqua County Court.</p>

<p>Assessment — when the enforcement thereof will not he enjoined.</p> <p>This action was brought to restrain the enforcement of an assessment imposed upon land of the plaintiff for the benefit to be derived by it from the co.nstruction of a sewer. The proceedings, which had resulted in the imposition of the assessment, were in all respects regular. The error complained of was that while the plaintiff’s pi-emises had a frontage of but seventy-five fifty one-hundredths feet, they were described in the assessment as having a frontage of ninety-seven eighty-three one-hundredths feet. The error was the result of a mistake and not of fraud. The plaintiff’s lot was irregular in shape, being narrower in the rear than in the front, and it appeared that the assessment upon it was at a less rate per foot, assuming it to be assessed ■ upon its true frontage, than the rate at which other lots fronting on the street were assessed.</p> <p>Held, that as the statute did not make the validity of the assessment depend upon the accuracy of the description of the lots assessed, and as it did not appear from the face of the roll that the assessors- were influenced in imposing the assessment upon the plaintiff’s lot by the error in its description, that the action could not he maintained.</p>

The action was one of ejectment. In 1855, Leander S. Ketchum, being the owner of certain premises, made a mortgage of them to one Briggs to secure the payment of $2,100, which was then recorded.

Motion by the plaintiffs for a new trial on exceptions taken at the Monroe Circuit, and ordered to be heard in first instance' at General Term. This action was commenced by the present plaintiffs Shale and' Minges and one Joseph Schantz, who were partners engaged in the business of ffianufacturing and selling furniture and cabinet-ware at the city of Rochester in the firm name of Schantz, Minges- & Shale.

Appeal by Earl Pierce from an order of the Niagara County Court, approving of the second assessment made by the commissioners appointed to drain certain lands, on the 2éth day of January, 1883. . These proceedings were instituted under the general drainage acts, chapter 888, Laws of 1869, and chapter 608, Laws of 1881.

The appellants were lessees of the property taken. The unexpired term, at the time of the appraisal, was two years and eight months; the whole term being for five years. The entire premises were tallen ; the owner of the fee had conveyed his interest to the railroad company, and the appellants were awarded the gross sum of $6,500 as the market value of their leasehold estate. The lessees were lithographers and used the premises for the purpose of carrying on that business.

The recovery was for $526.60 damages. The action was brought to recover the unpaid purchase-money for lands sold by the plaintiff to the defendant. The contract between the parties was made on the 12th day of May, 1882, the entire purchase-price .being $2,000, and the recovery was for a balance thereof remaining unpaid.

' The plaintiff and defendant, with eight others, made and signed an agreement in writing, under their hands and seals, of which the following is a copy: Eor value received from and paid to each other, we, the undersigned stockholders of the Genesee Yalley Canal Railroad Company, mutually agree with the other, and to all, that we will not sell, assign, set over, pledge .or give power of attorney to vote, or agree to sell, assign, transfer, set over, pledge or give power of…

16 on deposit in the appellant’s name,- with Lattimer & Winton, private bankers, whose place of business is in the village of Addison, New York, or in default thereof to be adjudged guilty of contempt, and that a precept of commitment issue. The certificate of deposit, pientioned in the following opinion, was in the following form: “ Deposited by Alanson Fanoher in the Addison Bank : Addison, Mary 31, 1884. Bills. Dollars. Cents.

<p>Appeal from a judgment, entered upon a verdict in the plaintiffs’ favor, and from an order denying a motion for a new trial, made on a case containing exceptions.</p>

<p>Motion for a new trial, on exceptions ordered to be beard in the first instance at the General Term, after a verdict rendered in favor of t'be plaintiff.</p>