Volume 43 — Barbour's New York Supreme Court Reports

APPEAL by the defendants, from a judgment entered upon the decision of one of the justices of this court, at the Albany circuit, in favor of the plaintiffs, on the 14th of March, 1863, for $15,531.65. On the 24th of December, 1855, the commissioners of the canal fund resolved to loan, and did loan, in the nature of a deposit, from premiums received on loans, to the Bank of Corning, the sum of $25,000, at an interest of five per cent.

THIS action was brought for the purpose of enforcing an equitable lien which the plaintiff claimed, for the unpaid purchase money of certain lands in Grreene county. On the 18th of September, 1860, the plaintiff conveyed to the defendant, The Manhattan Ice Company, said real estate, owned by him, for the consideration of $2000. It is alleged in the complaint, and the proof shows, and it was found by the referee, that this consideration was never paid.

The action was brought to recover damages for an alleged breach of a contract made and entered into between the plaintiff and the defendants on the 15th day of March, 1856, by which the plaintiff agreed, for a certain sum to be paid him, to do all the carpenter’s work upon a school house to be erected in the ninth ward of the city of Albany, and to furnish and use all the requisite materials necessary to be furnished, &c. The contract contained.a covenant, which was as…

mHIS was an appeal by the defendants from a judgment JL entered upon the report of a referee in favor of the plaintiff, for the sum of $2052.28. The action was brought to recover the balance due for a quantity of hay sold and delivered by the plaintiff to the defendants. The first contract was dated October 17, 1861, and was for the delivery of 1000 tons, at $10 per ton.

This action was brought for an alleged assault and battery, committed by the defendant Maria Hill upon Anna German, deceased, of whom the plaintiff is executor. The plaintiff claimed a prescriptive right to use the well on the premises of the defendant Augustus Hill, and while attempting to remove boards nailed upon the top of the curb, the defendant Maria Hill wrenched an axe out of her hands and assaulted her.

The action was brought to recover for work, labor and services alleged to have been rendered by one James McGrath for the defendants.

THE plaintiffs obtained a verdict in this action, under the act of the 13th of April, 1855,(a) “to provide for compensating parties whose property may be destroyed in consequence of mobs or riots.” The property destroyed was a grain elevator of great value, situate at the Atlantic dock, upon the Brooklyn side of Hew York bay, on the night of the 15th of July, 1863, during the prevalence of the Hew York riots. Judgment was entered upon the verdict, and the defendants appealed.

THE plaintiff in the first of the above causes recovered a judgment for costs against William Mackey, who was plaintiff in the other suit. She sold and assigned her judgment for costs to'the defendants in the second suit, on the first of March, i860.

LIZA H. HICKS RIELEN, who was the daughter of Samuel Hicks, deceased, died in the year 1855, leaving her husband surviving, but no descendants. During her last illness, and shortly before her death, she made a will, which was duly admitted to probate in 1857. This instrument was drawn by the attending physician, Dr. Cheeseman.

Merritt, administrator &c. of Eliza Hicks Bieben with the will annexed. Samuel Hicks, father of the testatrix, died in the city of Hew York in 1837. He devised to his executors a house, &c. on Broadway in trust, among other things, to receive the rents and profits thereof, and pay the same over to her as received, during her natural life. He also bequeathed to his executors $100,000 to be invested and the income paid over to the testatrix during her life.

THIS is an action brought by J. G. Willet, late sheriff of Hew York, against Stewart, as principal, and Perry and Bean, as sureties, upon a bond given by Stewart upon his appointment by the plaintiff as deputy sheriff; his term of office commencing January 1st, 1856, and ending December 31st, 1858; the plaintiff’s term of office continuing the same length of time. Willet having died, the action was continued in the name of his administrator.

The action was brought to recover damages for the breach of a contract made between the plaintiffs and the defendant, as receiver of the Erie rail road company, for the transportation by the latter, over the road, of a quantity of cattle and hogs. The agreement was as follows: “New York and Erie rail road, Dunkirk station, Oct. 31, 1861.

CEETIOEAEI to remove proceedings for the discharge of an insolvent debtor. Sutherland, J. The certiorari in this case brings up for review only questions of jurisdiction, of regularity, and of law. (Morewood v. Hollister, 2 Seld. 309.) The only question presented by the return appears to be one of jurisdiction.

The legislature passed, on the 17th day of April, 1860, an act constituting certain persons, therein particularly described, a board of commissioners to locate and erect, in the city of Hew York, a suitaMe building to be used as a court house, &c. (Laius of 1860, p. 1003.) The commission was organized'in May, 1860.

<p>An affidavit of the service of a summons, under the statute relative to “ Summary proceedings to recover the possession of land,” which alleges a service upon an under tenant, on the demised premises, and that the tenant was absent from his last and usual residence, without stating that such residence was upon the demised premises, is insufficient.</p> <p>A demand of the rent claimed to be due, made of an under tenant, who is described in the affidavit as a person in possession of the demised premises, is not sufficient to give the justice jurisdiction.</p> <p>The demand must be made of the tenant, or three days’ notice requiring payment, or the possession of the premises, must be served in the manner specified in the statute for the service of the summons.</p>

CONTROVERSY submitted by the-parties, without suit, upon the following state of facts: On and before the 1st day of July, 1854, William D. Waddington and two other persons were jointly and severally indebted to George L. Schuyler, trustee, &c. in the sum of $10,000; and it was then mutually agreed between the said Waddington and the said Schuyler, that he, the said Schuyler, should release the said Waddington from his joint liability, and accept from-him, in liquidation of…

The case originated in an order of reference entered upon an agreement, dated November 4th, 1862, (approved by the surrogate,) to refer to Philo T. Buggies, Esq. a matter in controversy,' arising out of a claim presented to the defendant, as administrator of Maria J. Boerum, deceased, under the provisions of 2 R. S. 88, § 36.

<p>THIS action was tried at a special term before a justice of this court, who, at the close of the plaintiff’s testimony, dismissed the complaint. From the judgment thereon entered the plaintiff appealed. The complaint sets forth, that the defendant Joaquin Baralt, in behalf of himself and others, defendants in this action, in the year 1860 proposed to the plaintiff to organize a steamship company, to carry freight and passengers between Hew York and Cuba; that for the purpose of carrying out the project, it was agreed that the plaintiff should, in his own name, contract with the firm of Boardman, Holbrook <k Co. for the building of a steamship by them ; that the company should thereupon be organized, and the steamship, when completed, should be conveyed to the company. That in pursuance thereof, the plaintiff, on the 15th of September, 1861, made the contract with Board-man, Holbrook & Co. for building the ship, which was to cost $120,000. That Boardman, Holbrook & Co. made a sub-contract with Jeremiah Simonson to build the hull of the ship, for the sum of $51,000, the performance of which sub-contract by Boardman, Holbrook & Co. the plaintiff guarantied. That in pursuance of the foregoing,, the plaintiff and Baralt, Boardman, Holbrook and others organized “The Hew York and St. Jago Steamship Company,” by filing, on 1st of October, 1860, a certificate under the general law for incorporating steamship companies; that to complete the organization of this company, a subscription list of the stock of said company was subscribed by the plaintiff, by the firm of Valiente & Co., (composed of the said defendant Baralt and the two defendants Valiente,) the said firm of Boardman, Holbrook & Co., and by the said Baralt as attorney for numerous other parties residing in Cuba; a copy of the subscription list was annexed, by which it appeared that Boardman, Holbrook & Co. subscribed for $20,000 of the stock; Valiente & Co. $30,000; W. H. Dyckman, the plaintiff, $13,000; that all the subscribers excepting the plaintiff and Boardman, Holbrook & Co. resided in Cuba. That during the building of the steamship the plaintiff received from the firm of Valiente & Co. various - remittances of money, for themselves and the other subscribers, on account of their subscriptions, all of which the plaintiff paid over to Boardman, Holbrook & Co., on account of the contract for building the ship; that the plaintiff paid to Boardman, Holbrook & Co., of his own money, $3250 on account of the plaintiff’s subscription to the stock in said company, and his interest as part owner in said ship; that the plaintiff has also disbursed and paid out in and about the construction of the ship, and in and about the affairs of the company, $1348.95; that hy virtue of such payment the plaintiff is part owner in said ship, and entitled to an interest proportioned to the amount of these payments. That the plaintiff has contributed to the capital of the company less than the amount of his said subscription, which has been assented to by Baralt and the other subscribers. That the ship is now completed, and called the Santiago de Guia; that some amount is due and unpaid, both to Boardman, Holbrook & Co. and to Simonson, on account of the building contract. That the defendants in this action have united together to frustrate the plan on which the ship was built, and to deprive the plaintiff of his rights, and they refuse to recognize the Hew York and St. Jago Steamship Company. That Baralt and the firm of Boardman, Holbrook & Go., claiming ownership in the whole ship, on the 15th June, 1861, mortgaged the same to the defendant Juan C. de Mier, to secure $35,000, alleged to have been loaned by De Mier to Baralt. That the defendants have caused the ship to be registered in the name of “The Cuba and Hew York Steamship Company,” a new company which the defendants have organized, and to which they conveyed, or caused to be conveyed, the ship. That this company are about to issue stock to Baralt and his confederates, to the exclusion of the plaintiff, for the value of the ship. That the ship is worth much more than her cost. That the defendants De Mier, Baralt and Boardman are about to remove the ship to Cuba. The complaint prays that an account may be taken of the cost of the ship, and of the various contributions thereto; that the plaintiff's rights may be ascertained and declared; that the ship may be conveyed to the company first organized; or, that the ship may be sold, and its proceeds distributed. And also prays for other and further relief. The defendants in this action consist, (1.) Of the subscribers to the stock of the corporation organized by the plaintiff including Baralt and Boardman, Holbrook & Co. (2.) Juan C. De Mier, the said mortgagee of the ship. (3.) The Cuba and Hew York Steamship Com-pony, which is the new company organized by the defendants. (4.) One Joseph Belknap, connected with the organization of the last company. All the subscribers to the first company, “The New York and St. Jago Steamship Company,” excepting Boardman, Holbrook & Co., put in a joint answer, sworn to by Baralt, in which they deny that the plaintiff paid Boardman, Holbrook & Co. $3500 on account of his subscription to the stock, but they say the plaintiff has always claimed to be a creditor of the ship, and her owners, for this sum, and the said sum of $1348.95. They deny that the plaintiff is a part owner of the ship, or entitled to an interest in it. They deny that Baralt, or any one, assented to a diminution of the plaintiff's subscription, but that the plaintiff violated his agreement in that respect. They deny that there is any thing due to Simonson. They put in issue the payment to Boardman, Holbrook & Co. by the plaintiff of all sums received by him from Valiente & Co. and others. They deny that they have united together to frustrate the original plan, but say that the plaintiff has, and that he has refused to pay over any part of his subscription, claiming that the moneys advanced by him constitute a debt due by the owners of the ship, and he has thereby compelled the defendants to organize the new company, which company now holds the title to the ship, and is the true and lawful owner thereof. Boardman and Holbrook put in a joint answer, exactly like the foregoing. These two answers put in issue but two facts, viz., whether the plaintiff had paid over all the moneys received from Valiente & Co., and whether the plaintiff's diminution to his subscription was assented to. All other substantial facts in the complaint are admitted by this answer. The defendant De Mier put in an answer admitting the mortgage executed to him; that the defendants have caused the ship to be registered in the name of, and conveyed to the Cuba and New York Steamship Company. He admits that he, Baralt, and Boardman are about to remove the ship to Cuba; he denies that stock in the new company has been issued to Baralt and his confederates; he denies that any thing is due to Simonson; that the plaintiff has, or ever had, any interest in the ship and stock of the company, and denies any knowledge or information, &c. of other matters in the complaint. The Cuba and New York Steamship Company put in an answer, averring that they are sole owners of the ship, and that the ship, on the day of the commencement of this action, was about to sail for Cuba; and their answer then puts in issue the rest of the complaint. Joseph Belknap put .in an answer, averring that his name was used in the organization of the new company, and that he made oath to some paper connected with the same; and his answer then put in issue the rest of the complaint. On the trial, the plaintiff proved that a large number of individuals in Cuba (all of whom are defendants in this action) on the 6th of June, 1860, executed an agreement, or articles of copartnership, with each other, and a power of attorney to the defendant Baralt, for the purpose of “forming a company” in New York to “furnish a steamer” to “establish steam communication between New York and Cuba,” with a capital of $100,000, in transferable shares of $1000 each," to be increased to a larger sum if the majority of the partners should agree to it. The agreement and power provides for the time of payment of installments of the shares, the amount of subscriptions to be taken in Cuba and in New York respectively, the appointment, powers, duties, and compensation of agents of the company, which agents are to be the consignees of the vessel. .The 8th clause provides that these agents “will keep separate accounts of the company’s business, and the books containing them will at all times be exhibited to any partner desiring it.” The 11th clause provides for an annual distribution of the net profit of the enterprise, and for a reserved fund. The 12th clause provides for building additional vessels, by the application of the reserved fund, and the issue of new shares. The 14th clause provides that the duration of the company shall be nine years, which may be prolonged by the unanimous vote of two-thirds of the capital subscribed. The 16th clause authorizes Baralt, with the agent he may select, to place the company in activity. Baralt presented himself in Hew York to the plaintiff, with this written agreement and power, in June, 1860, and entered into negotiations with him to carry out this project. Boardman, Holbrook & Co. took part in these negotiations, and Baralt, in them, acted for himself, his partners, and his constituents, under the power. Thereupon the plaintiff entered into an agreement with Boardman, Holbrook. & Co., dated the 15th day of September, 1860, for the building of a steamship by the latter, for the sum of $122,000. The agreement provided that a trial trip should be successfully made before delivery; that the expenses and risks, and marine insurance of the trial trip, should be for the account of Boardman, Holbrook & Co., and that the ship was to be insured on account of Boardman, Holbrook & Co. It further provided that the payments, under a sub-contract with the builders of the hull, should be guaranteed by the plaintiff, who should make these payments direct to the builders of the hull. At the same time Boardman, Holbrook & Co. entered into a contract with the plaintiff, agreeing, in consideration of the said contract for building the ship, and of the sum of $2000 paid ly the plaintiffto take an interest in the ship to the amount of $20,000, in the cost of said ship, for which amount Boardman, Holbrook & Co. agreed to subscribe for stock in a company to be organized, or to be interested in a partnership for that purpose, if it should be deemed best to establish such partnership, the amount of the $20,000 to be deducted ratably from the several installments payable under their contract for building the ship. They also agreed that the plaintiff should be the agent of the ship, for the city of Hew York, upon the terms agreed on between the plaintiff and the other owners or stockholders of said ship. They also agreed to make a deduction of 2-|- pei cent from the price of the ship, to be allowed as a commission to the plaintiff, and to be by him allowed to the owners of the ship. Whereupon Boardman, Holbrook & Co. contracted with J. Simonson to build the hull for $51,000, and the plaintiff, in pursuance of his covenant with Boardman, Holbrook & Co., guaranteed the payment of the $51,000. At first it was the intention of the parties in Cuba that this should be a partnership enterprise, and it was the intention of the parties in Hew York that it should be either a partnership enterprise, or else an interest in stock of a corporation, which corporation should be the sole owner of the ship. The latter intention prevailed, and in pursuance of the said previous regulations, and about the same time with the contract for the building of the ship, the parties agreed to form a company, and they did form a company, in October, 1860, under the general laws of this state, by filing a certificate of incorporation, subscribing to the stock, and appointment of officers. The certificate of incorporation, dated October 1, 1860, was subscribed by the plaintiff, Baralt, Boardman, Holbrook and others, and appointed directors, among them the defendant Boardman and the plaintiff. The capital of this company was $120,000, and its objects the same as those expressed in the said articles of copartnership. The subscription list' to the stock of the company was subscribed by the plaintiff for 13 shares for $1000 each; by Valiente & Co. for 30 shares for $1000 each; by Boardman, Holbrook & Co. for 20 shares for $1000 each; by Joaquin Baralt for 57 shares for $1000 each, as attorney for the persons who subscribed the articles of copartnership in Cuba, and as attorney for Felix Frerer, Antonia Colas, and Manuel de La Torre. The plaintiff was appointed agent of the company in October, 1860. The Cuban subscribers paid their subscriptions through the Cuban house of Valiente & Co., who remitted to the plaintiff, who paid the remittances to the builders of the ship. Boardman, Holbrook & Co. paid their subscriptions by deducting their quota from the cost of the ship. The plaintiff, on signing his contract above mentioned with Boardman, Holbrook & Co. paid the $2000, being the same sum mentioned in one of the contracts, “on account of contract for building" the ship. The plaintiff considered-this payment as made on account of his subscription to the capital stock. On the 1st of November, 1860, the first installment of 25 per cent on the stock was payable to the builders of the ship, amounting to the sum of $25,112.50. On the 1st of November, 1860, the plaintiff paid to the builders of the ship $23,112.50, making, with the $2000, the exact amount due on that day, $25,112.50. These two payments were made up of the amount of ¿ of the plaintiff’s subscription of $13,000 to the stock, viz., $3250 paid with the plaintiff’s own money, an additional sum of $138.97 of the plaintiff’s own money, and all the money theretofore received by the plaintiff from the Cuban subscribers. The plaintiff intended all these payments of his own money as a payment on account “of the subscription made" by him “to the stock of the ship." Besides this, the plaintiff had, with the approval of Baralt, made various disbursements for the ship, and the first company, amounting to over a thousand dollars. The plaintiff intended that these also should go against the subscriptions made by him to the stock of the ship. These various payments made bj the plaintiff, and some subsequent payments made by the plaintiff to the builder, after crediting all the remittances received from the other subscribers to the stock, amounted, with interest to January 1st, 1861, to the sum of $4598.95. In January, 1861, the plaintiff informed Baralt, then in New York, that it was doubtful if the plaintiff would continue the payment of his whole subscription of $13,000 to the stock. He at the same time made a similar statement to Boardman. Baralt expressed the opinion that he could arrange the difficulty on his return to Cuba. On his return to Cuba, Baralt wrote to the plaintiff, “On being informed of the deficiency which results in the capital from your not being able to continue in the payment of the $9000 remaining of your shares, some of the principal stockholders present took said shares, with which our common capital is completed, and a difficulty obviated which seemed so great in Hew York.” Baralt subsequently made a like oral declaration to the plaintiff. In June, 1861, Baralt asked the plaintiff for an account of the moneys he had contributed, and the plaintiff gave Baralt the account already referred to. In June, 1861, Baralt told the plaintiff, as a reason for the formation of a new company, that as he, Baralt, and others, had not been able up to that time to pay the builders of the ship in- full, by paying their quota of subscription, a loan upon the vessel was necessary; that the party making the loan would, of necessity, in order to secure himself, become president of the new company. Baralt also told the plaintiff that he wanted liberty of action, in regard to the, formation of the second company. The plaintiff replied to Baralt, that if he would do what was right, he, the plaintiff, would put no obstacle in his way; telling him at the same time, that the balance shown by the account he had given Baralt, $4598.95, due December 31, 1860, must be considered to represent the plaintiff’s interest in the ship. In the plaintiff’s conversation with Baralt, and the others interested in the ship, he always made the payment of the balance a condition of his relinquishing all interest in the ship. In J une, 1861, Baralt for the first time objected to the plaintiff being interested in the ship. On the 15th day of J une, 1861, the defendant Baralt executed to the defendant De Mier a mortgage on six-seventh parts of the ship, to secure the payment of $35,000 in ninety days, reciting in the mortgage that the ship had never been registered or enrolled, and that Boardznan, Holbrook & Oo. owned the other seventh part of the ship. On the' 11th day of July, 1861, the defendants organized the second company, The Hew York and Cuba Steamship Company,” with a capital of $180,000. On the 11th day of July, 1861, the directors of this new company, including the defendants De Mier, Boardman, Valiente and others, held the first meeting of the board of directors, and appointed the defendant De Mier president of the new company, and resolved that the ship he accepted as the full amount of the capital stock of the company, $180,000. The board of directors never transacted any other business. This new company was formed without the assent of the plaintiff. On the 13th of July, 1861, Simonson, the builder of the hull, gave a builder’s certificate, stating that he had built the ship for account of the new company, the Cuba and New York Steamship Company. On the 17th day of July, 1861, the defendant De Mier, as president of the new company, took out a register for the ship, he, De Mier, making oath that the stockholders of said company were the only owners of the ship. The answers admit that the ship had been conveyed to the new company; that the plaintiff’s advances have never been paid; and that he has been excluded from all interest in the ship; and claim that the new company is sole owner of the ship. The plaintiff offered to show that the ship had been sold without his knowledge or consent, but the court excluded the testimony. The counsel for the plaintiff offered to prove the amount the subscribers to the stock, other than the plaintiff, were in arrears at different times, but the court excluded the testimony. The counsel for the plaintiff offered to prove that the defendant Baralt and his confederates had sold the ship to the United States government, but the court excluded the testimony. The plaintiff’s counsel offered to prove that the defendant De Mier had sold the ship for $200,000, had received the proceeds of sale, had paid a part of these proceeds to Baralt, a part to Boardman, Holbrook & Co., and had kept the rest himself, but the court excluded the testimony. On the foregoing testimony, the court being of the opinion that the plaintiff was not entitled to any relief in this action, the plaintiff offered to show, by reading in evidence the deposition of the defendant Baralt, taken on behalf of the defendants, that the said Baralt agreed to pay the plaintiff the amount of his account, if the plaintiff would consent to relinquish his agency and interest in the ship, and consent to the new arrangement by which the plaintiff was excluded from any interest in the ship, and that the plaintiff complied with these conditions; but the court refused to receive the evidence. The plaintiff then moved to amend the complaint so as to make it conform to the proof thus offered, which motion the court denied. The court then dismissed the complaint, on the grounds that the plaintiff being a part owner of the ship, an action would not lie against his co-owners, as no conversion or destruction of the vessel had been proved; that the owners of said ship were tenants in common, and no act had been alleged or proven that would entitle the plaintiff to the equitable interposition of the court. To all these adverse rulings the plaintiff excepted.</p>

<p>APPEAL from a judgment rendered at a special term settling the construction of a marriage settlement éxecuted previous to a contemplated marriage between Miss Charlotte E. Ogden and-— Lawrence, and declaring, the rights of the parties, under the same. The subject of the deed of settlement was wholly personal property. By the deed of settlement, Mrs. Lawrence was to have the income for life, with a certain power of appointment by will or otherwise, in the event of her death before her husband, and in the absence of any appointment, then the property was to go to her issue then living, and the children of such as might be deceased, per stirpes and not per capita, and, in default of such issue, “to the next of kin of the party of the first part,” Charlotte E. Ogden, afterwards Mrs. Lawrence. Mrs. Lawrence died before her liushand, without issue and without' having made any appointment. At the- time of the execution of the settlement, Mrs. Lawrence had neither father, mother, nephews or nieces, hut she had two sisters, Sarah Goelet and Grace W. Ogden, and one brother, Jonathan Ogden. The two sisters survived Mrs. Lawrence, but the brother died before she did, leaving three children, the defendants, Jonathan -Ogden, Charlotte W. Kernochan and Grace W. Kernochan. The question was, whether these children of the deceased brother were entitled to share in the distribution of the fund. The court below held, as a conclusion of law, that the two sisters of Mrs. Lawrence were alone entitled to the fund, and that the children of the deceased brother took nothing. From this judgment the defendants, Jonathan Ogden, Charlotte W. Kernochan and Grace W. Kernochan, (their husbands joining,) appealed.</p>

CERTIORARI, to remove summary proceedings taken before a justice of the district court in the city of Hew York, to recover the possession of lands. The affidavit upon which the proceedings were instituted was as follows: “City and county of Hew York, ss.

The complaint was filed by the five children of Thomas Martin, deceased, against his executors, Andrew Martin and Peter Lynch, to obtain a judicial construction of the will of the deceased, particularly the fourth section.

<p>To render a seizure of property under process effectual, it must be accompanied by possession. The sheriff must not only seize, but he must take the property attached into his custody. In case of neglect to perform his duty in this respect, the sheriff is subjected to personal responsibility.</p> <p>Upon an attachment being issued against one or more members of a firm, the sheriff must proceed to serve it upon the interest of the defendants in the attachment in property owned by them jointly with others, in the same manner that he is required to do under an execution.</p> <p>The decision in Goll v. Hinton (8 Alb. Pr. Lep. 120) approved.</p> <p>A sheriff is not responsible for such acts as the law requires him to perform. He could not execute the commands of process, either in the case of an execution or an attachment, without taking the manual possession of the property which he is required to seize.</p> <p>An action will not lie against a sheriff, as a wrongdoer, by all the members of a firm, a part of whom are the defendants in an attachment, on the ground that upon such attachment he has seized and taken into his custody property belonging to the plaintiffs collectively, as a partnership.</p> <p>Counts for detaining the plaintiffs’ property, and for wrongfully and negligently injuring it while in the defendant’s possession as sheriff, may be joined in the same complaint, where they arise out of the same transaction. If they do not, the defendant’s remedy is to demur; and if he fails to do so, he waives the objection.</p> <p>Inasmuch as the law requires the sheriff, upon an attachment, to take the property into his custody, the spirit of section 207, sub. 4, of the code must be considered to forbid the use of the provisional remedy for the' claim and delivery of personal property in such a case, notwithstanding the attachment upon which the property was taken was not against the plaintiffs, literally, but only against some of them.</p>

<p>Motion for an injunction.</p> <p>This action was brought by Robert L. Taylor, Richard D. Lathrop, Charles L. Anthony, and Joseph Stuart, against Benjamin H. Hutton, Oliver D. E. Grant, David Dows, Freeman Clarke, William H. Webb, William Whitewright, Jr., and The Fourth Rational Bank of Rew York, to restrain the threatened removal of George Opdyke from the presidency of the bank. The facts are fully stated in the opinion; a preliminary injunction had been granted, and the present motion was for its continuance till judgment.</p>

COMMON law certiorari issued by the supreme court on the application of Bobert West, directed to the county judge of Columbia county, to remove into this court proceedings before referees who were appointed by the county judge of Columbia .county in relation to laying out a private road through the lands of said West, upon the application of McGfurn and for his benefit.

ACTION upon a guaranty made by the defendant of payment of a promissory note for $200, made by O. K. Klinck, dated February. 13, 1861, payable sixty days after the date, and transferred to the plaintiff; also upon an indorsement by the defendant of a note for $175, made by O. K. Klinck, payable to the order of the defendant, and indorsed to the plaintiff. Defense, as to the note of $200, of payment, and an offer of judgment for the amount of the other note, with costs.

GIDEON PAYNE, late of Farmington, Ontario county, New York, died on or about the 23d of November, 1848, leaving a last will and testament, duly admitted to probate by the surrogate of Ontario county, by which he gave to his three grandsons, the plaintiff being one, the sum of'$600, to be paid to them by his executors equally, as they should respectively arrive at the age of twenty-one years.

OTIObT for a new trial, upon a case and exceptions ordered to be heard in the first instance at a general term. The action was brought to recover the amount of several calls upon a subscription for the erection of an “institution of learning,” to which it was alleged the defendant had subscribed $100.

THIS is an action brought for the recovery of damages alleged to have occurred to .certain merchandise, through the negligence of the defendant as a common carrier, on or about the first day of February, 1857. The property in question, and the claim for damage thereto, was assigned by the vendee, Milliman, to these plaintiffs, before the commencement of this action. The action came on to be tried at the Monroe circuit, in April, 1864, before his honor J ames 0.

RETURN being made to the writ of certiorari issued in this action, and a motion being made by the respondent to quash such writ, the argument upon the return and the motion to quash were brought and heard together. The facts of the case sufficiently appear in the opinion of the court.

MOTION to dissolve an injunction upon the complaint and affidavits. Held: a resolution was adopted in pursuance of chapter 8 Of the laws passed at the session of 1864, by which the treasurer of Livingston county was authorized to issue the bonds of said county to each supervisor who might call for them, to pay not exceeding $300 to each recruit that should be mustered into the service of the United States…

APPEAL by the plaintiff from two judgments rendered against him in favor .of the defendants, separately and severally, for costs. The action was brought to recover the possession of one undivided tenth part of 100 acres of land situated in Chenango county. The defendants interposed separate answers by different attorneys.

THIS suit was commenced in a justice’s court, to recover damages for injuries alleged to have been done hy the defendant to the plaintiffs’ colt, hy misfeasance in driving him into the defendant’s yard, and hy carelessness, &c. It resulted in a judgment for the plaintiffs for $140 damages and costs. The defendant appealed to the county court, where the suit was again tried and resulted in a verdict for the plaintiffs for $58.

This was an action brought by Robert J$ Livingston against Jane A. Painter, administratrix, &c., and one Boyes, to obtain the specific performance of an agreement. The plaintiff alleged an agreement between one Hamilton, the assignor of the plaintiff, and defendant Painter, who was the owner of a second mortgage of a leasehold (No. 84 Leonard-street), which mortgage was made by one Seabury Lawrence to one John Sniffen and others, to secnre the payment of §12,340.

THIS was an action for the price of goods sold, amounting in value to $3465.75. There were two causes of action alleged in the complaint. First. For the price of seven hales of eight-pound blankets and of one bale of seven-pound blankets. Second. For the price of five bales of seven-pound blankets. On the second cause of action, the plaintiffs recovered.

During the pendency of the action of Smith against The New York Consolidated Stage Company, a motion was .made in the Supreme Court, as stated in our report of that case, Ante, 423, on behalf of The New York Consolidated Stage Company for a writ of prohibition restraining the Court of Common Pleas from proceeding with the action, Such a writ was issued but was subsequently quashed at special term. From the order quashing the writ the company appealed.

OH the 24th of March, 1861, the plaintiff’s vessel was caught upon the northerly end of the pier at the foot of west Thirtieth street, Hew York, by an obstruction under water, and she thereby became a total loss.

APPEAL by the plaintiffs from a judgment entered upon the report of a referee. The plaintiffs recovered judgment against the defendants Andrew S. Stone, Samuel Bates, Charles A. Lord and Edwin Lord, for the sum of $56,337.04, but failed to recover against the other defendants. The principal questions arising in this action are between the plaintiffs composing the firm of Gribson, Hankey & Co., and the defendants composing the firm of Stone &*Co. and their creditors.

<p>CASE heard upon exceptions taken at the trial and ordered to be heard, in the first instance, at the general term.</p>

ON the 3d day of August, 1864, the defendants passed a resolution authorizing, among other things, the issuing of county bonds to each supervisor of the county who should call for them, to pay a bounty not exceeding $300, to each recruit that should be mustered into the service of the United States to the credit of their respective towns, and declaring that “in the payment of said bonds, the board of supervisors assess such sums on the towns respectively in proportion to the…

THIS was an action upon a promissory note. The complaint alleges the making of the note by the defendant, payable to the order of David O’Hearn, and its indorsement for value received to the plaintiff. These allegations are not denied in the answer.

THIS was a motion for a new trial, on a bill of exceptions ordered to be heard at the general term in the first instance. The action was brought against the defendant to recover $70 paid to him as an executor of the will of John Roy, deceased. The will appropriated the interest of $2000 to the testator’s widow, and appointed the parties to this suit executors.

THIS was a motion to set aside the writ of prohibition issued in this case, forbidding the mayor’s court of Albany to proceed to hear the argument on a motion, or to set aside the judgment entered in that court upon the report of a referee. The writ was granted by Justice Peckham without a particular examination, on the assumed ground that the mayor’s court had no power to grant such a motion.

THIS is an action by the surety on a $350 note to recover $100 paid thereon by his principal, which the payee omitted to credit, but sued the maker and surety, recovered judgment for the full amount (the suit not being defended,) issued execution thereon, and this plaintiff, the surety, paid the judgment and then brought this action to recover, back the $100. The principal in the note also assigned the' same claim to the plaintiff.

THIS action was brought against the defendants for an alleged illegal arrest and imprisonment of the plaintiff. The defendant Murray justified as United States marshal for the southern district of Hew York, under the “lawful order” of the president of the United States, and the defendant Buckley as his deputy.

THE complaint alleged that the defendant owed the plaintiffs $90.30 with interest from the 28th day of December, 1860, on an account for goods sold and delivered to him, and for moneys paid out by them at the defendant’s request.

The plaintiff, as assignee of her son Joseph S. Armstrong, claimed to recover the balance of an account for goods sold and delivered to the defendants. The complaint alleged that Joseph S. Armstrong, for value received, sold and assigned the demand to the plaintiff.

THE plaintiff in this action claims to recover damages sustained by him in consequence of a malicious prosecution of him by the defendant in the court of common pleas in Kent county, Canada. On or about the 2d of December, 1857, the defendant commenced a suit against the plaintiff by copias, on which he was arrested and confined in jail in Kent county in Canada, for the period of about eighteen months.

THIS action was'brought upon a policy of insurance issued by the defendant, by which it insured the plaintiff against loss and damage by fire, to the amount of one thousand dollars, upon their stock of flour, mill-feed and grain, contained. in a mill occupied by them, near Attica in Wyoming county. The mill, with all its' contents, was destroyed by fire on the 19th of April, 1863.

OH the 20th of January, 1863, the plaintiffs commenced an action, in the supreme court, against Francis Herrick. An attachment was issued, on the same day, to the defendant in this action, as sheriff of the county of Steuben, and delivered to him. One Wetmore, a deputy of the defendant, thereupon seized property to a sufficient amount to satisfy the attachment, and had the same inventoried and appraised as required by statute.

THE action is against Lester Bradner and Lewis W. Carroll makers, as copartners under the firm name of Bradner & Carroll, and the other defendants as acceptors, as copartners under the firm name of Lowrey, Strang & Co. of a draft of $17,000, dated February 6, 1862, payable ninety days after date, to the order of D. Lowrey, indorsed by him, accepted by the drawees and discounted by the plaintiff.

THIS action was brought by the plaintiff, as receiver of Benjamin Butler, a judgment debtor, to set aside as fraudulent a general assignment of his property, made by him to Gallery & Bassett, in trust for the benefit of creditors.

ACTION upon a policy of insurance. On the 18th day of April, .1860, John Englehardt procured from the defendant a policy of insurance upon his stock of watches, clocks, jewelry and tools to the amount of §900, and upon his fixtures, show cases and furniture, to the' amount of $100. There was another policy upon the same goods, for $1000, issued at the same time by the Security Insurance Company.

<p>New Tbial.—Landlord and Tenant.—Damage by Fall of unsafe Building.—Chabge.</p> <p>The owner of land with an unsafe building upon it may be held liable for injuries done by the failing of the building to the property of an occupant of adjoining land, notwithstanding the former had leased the premises to another person, reserving rent but covenanting to repair.</p> <p>It seems, that he would be liable without any covenant to repair.*</p> <p>It makes no difference that the covenant to repair was qualified as being for the purposes of a hotel.</p> <p>Under a lease providing that the tenant shall not sublet without written consent of the lessor, a person who is in actual occupation as a sub-tenant of the lessee with oral consent of the lessor, is'not a wrong-doer; and he may recover against the lessor for damages done to his property by the fall of such unsafe, building upon the premises.</p>

This action was brought by Elizabeth River against David H. River. The substance of the complaint is stated in the opinion. An answer was interposed denying all of the allegations of the complaint, except the will and the relations of the parties.

IN March, 1861, Bichard Dubois, of Ulster county, New York, died, leaving among other children Sarah E. Sands, the respondent, and three grandchildren, Ann Eliza, Mary Ellen and John D., the children of his aforesaid daughter, and leaving a will which was admitted to probate by the surrogate of the county of Ulster, September 22, 1862, bequeathing to said grandchildren the sum of $1800, to be paid to them or the survivor or survivors on their marrying, or arriving at the age…

THIS appeal is from an order of the surrogate of the county of Rensselaer, appointing the respondent, Catharine Mattice, administratrix, &c., with the will annexed, of Joseph C. Mattice, deceased. Joseph C. Mattice made his last will and testament on the 27th day of January, 1853, and therein appointed his wife Dorcas sole executrix thereof, and guardian of his children. She died in October, 1857.

THIS is an application to this court to obtain construction of the last will and testament of Amos Tyler, deceased, and direction as to its execution; which application is made pursuant to § 372 of the code. The will was executed on the 10th day of September, 1853, and the testator therein appointed Paul M. Tyler and Sylvester Mapes executors thereof.

THIS is an appeal from the decree of the surrogate’s court of the county of Albany, made ¡November 10, 1863, by Hon. George Wolford, then being county judge of said county, and acting as surrogate in the particular case, the surrogate being disqualified by reason of relationship to the parties.

The action was brought against the defendants to recover the balance of an account for liquors, alleged to have been sold and delivered by the plaintiffs to the defendants between the 29th of March and the second day of December, 1862. The defendant Eli Barton, jun. alone defended, claiming that he was not a partner of Hiland H. Barton, and that the liquors were sold to Hiland H. Barton alone. The cause was referred to Hugh W. McClellan, Esq. as sole referee.

THE plaintiff sued the defendant and one Thomas Stewart, to recover the sum of $188.46, and alleged in the complaint, in substance, that on the 18th day of January, 1862, said Thomas Stewart was appointed its agent at Amsterdam, “for the purpose of effecting insurance upon property at Amsterdam and in the vicinity thereof, and receiving the premiums for such insurance,” &c.; and that to secure the return of such payments to the plaintiff (after deducting certain allowances…

THIS was an action, brought on the equity side of the court, for the purpose of having certain deeds, alleged to have been executed for the purpose of defrauding creditors, declared void, and to have certain lands held in the name of Angeline Cordell, wife of the- defendant John P. Cordell, adjudged to be in fact the property of John P. Cordell, and liable to be sold for the payment of his debts.

THIS action was brought to recover from the defendant the sum of $210.50, with interest from the 1st of April, 1858. The plaintiff proved the following facts: In November, 1857, the plaintiff made his promissory note payable three months after date, to the order of one Oostigan, for $200. This note was in part for $75, legal services rendered to the plaintiff by Oostigan, and in part for the accommodation of Oostigan.

THE question in this case arises upon a verdict for the plaintiff subject to the opinion of the court at a general term, directed by Mr. Justice Hogeboom, at the Albany circuit, in November, 1863. The cause was first tried before •Justice Harris, who held that the plaintiff was not entitled to the value of the land above the contract price,.but only to reimbursement of the amount paid. The judgment was reversed on appeal.

<p>MOTION for a new trial, by the plaintiff, upon exceptions ordered to be heard in the first instance at general term. This action was brought to recover possession of a canal boat, called the “ O. H. Smith,” seized by the sheriff of Onondaga county upon an execution in favor of the defendant Sweet against Sylvester Jones. One of the questions litigated upon the trial related to the validity of the mortgage (given by Jones to George Merry) as against creditors. Another question involved the validity of an insolvent discharge, granted to Jones by the special judge of Onondaga county under the two-third act. Both of these questions were decided against the plaintiff by the judge upon the trial, who directed a verdict for the defendants. The general term denied the motion for a new trial, upon both grounds; but we confine the report of the case to the questions arising upon the insolvent discharge. The facts are sufficiently stated in the opinion of the court.</p>

THE plaintiffs owned Ho. 31 Beekman street, Hew York. On May 11, 1853, they leased the same for ten years to James Conner, who made extensive improvements on the building. By his lease, Conner agreed to pay the plaintiffs the necessary premium to maintain an insurance for them of $5000. It was subsequently arranged between the plaintiffs and Conner, on his application, that he should keep an insurance of $5000 on the premises for the plaintiffs.

HIS action was brought for damages resulting from the destruction, by a mob, composed for the most part, of soldiers, on the 7th day of December, 1862, of a building and contents belonging to the plaintiff. The property was situated at Bast New. York, in the county of Kings. The action is founded on the act of the legislature, entitled “ An act to provide for compensating parties whose property may be destroyed in consequence of mobs or riots,” passed April 13, 1855.

THE corporate authorities of the village of Yonkers graded, curbed and guttered a street along the plaintiff’s land. The point of discharge from the gutters was upon the plaintiff’s land.

THE certiorari in this case was brought under section 20 of the act of April, 14, 1859, in relation to taxes and assessments in the city of Hew York, (Lotos of 1859, chap, 302.) The relator is a hanking corporation or association, whose capital stock is $4,000,000.

<p>APPEAL from an order made at a special term, granting an injunction and directing the appointment of a receiver. The facts appear in the opinion.</p>

THIS action was brought to set aside an assignment for the benefit of creditors, upon the ground that only two of the three partners, comprising the firm, actually executed the same, without the assent of the third. Other points were raised upon the trial which were not presented on this argument. The defendants relied on the defense that the partner who did not sign the instrument had, before its execution, absconded from the city.

QN the -lst of May, 1815, Michael Varían leased to the 'trustees of the Methodist Episcopal Church two lots in the city, of New York, for the term of forty years, for the annual rent of one hundred dollars, payable quarterly, the lessees covenanting to pay and discharge all such taxes and assessments, “both ordinary and extraordinary,” as shall or may, during the said term hereby granted, be charged, assessed or imposed upon the said demised premises.

OASE agreed upon and submitted under sec. 372 of the code of procedure. John Mara, the testator, late of the city and county of New York, having made his last will and testament, died on the 28th day of March, 1858, leaving Catharine Mara, his widow, and his only child a boy, now about eleven years of age, residing with his mother. The said will contained these provisions: “First.

IQ) ICHARD SALTONSTALL, the assignor of the plainjLlb tiff, was employed by the defendant, through an agent, as broker, to negotiate the sale of a mortgage for $5,000, represented to be a “1st mortgage.” It was agreed that he was to receive $200, and the interest on the mortgage from 1st May to 11th June, this sum to cover his brokerage and all the expenses of searching the title, &c. The arrangement was afterwards fully ratified by the defendant himself.

The action was brought by the plaintiff, as executor of Sarah B. James, deceased, to recover for work, labor and services done and performed, and materials furnished by the plaintiff’s testator. The referee reported in favoi of the defendant, and the plaintiff appealed.

rpHIS was an action under the statute (Laios of 1847, JL ju. 575, ch. 450,) to recover for the death of Mrs. Knight, the plaintiff's intestate, occasioned by the negligence of the defendant’s employees, upon its cars, in November, 1859. The facts of the case are substantially as follows : On the 14ih of November, 1859, Mrs. Knight, in company with her father, started from Eutland, Vermont, on their way west.

The assessors alleged in their return that they were duly elected assessors of the town of Milo, in the county of Yates, for the year 1864, and qualified as such. That before proceeding to make the assessment in said town, they divided the town into three assessment districts, assigning one of said districts to each.

<p>A paroi partition between tenants in common, accompanied by actual possession in accordance therewith, will bind the parties and those claiming through or from them.</p> <p>And where, after such a partition ha.s been made, the parties take separate possession of their respective portions, and one of them contracts with a mechanic to erect a dwelling house on his part, which is built, accordingly, the interest of the party so contracting is of such a nature as to make it the subject of a lien under the mechanics’ lien law, although the title to the whole lot is in the co-tenant.</p> <p>But the co-tenant, who is not a party to the contract with the mechanic, and who has no interest in the work done, is not liable under the contract; nor is his share of the property subject to the builder’s lien.</p>

mHE defendants are the stockholders in the Second Ffation-L al Bank of Utica, a corporation duly organized under the act of congress, approved 25th February, 1863, entitled, “An act to provide a national currency, secured by a pledge of United States stocks, and to provide for the circulation and redemption thereof.” The bank is located and doing business in the first ward of said city.

THE complaint contains two counts: The first is for an assault and^ battery committed on the 22d day of January, 1863; and the second for wrongfully and maliciously imprisoning and assaulting, &c. the plaintiff the same day.

THIS action was brought to recover the balance of a judgment against Eobert L. Dill and Elijah Weston, entered up in the supreme court on their confession, January 19, 1850, for $984.78 in favor of Eobinson & Brunson; and which the plaintiff claimed by virtue of a general assignment made by Eobinson & Brunson to him in December, 1859. The complaint admitted payment of $491.64 October 7,1853.

<p>APPEAL from a judgment entered upon the report of a referee. The action was brought to recover the sum of $2000, for money had and received by the defendant for the plaintiff's use. The facts are briefly these: Sometime prior to June, 1857, the plaintiff delivered to the bank for collection a note for $2000, owned by him and made by Grrosvenor, the cashier of the bank. During the whole month of June, he had a large amount of money, amounting to several thousand dollars, on deposit in the bank, upon which the bank had agreed to pay him interest. On the first day- of June he wrote to Grrosvenor, as cashier, from La Crosse, enclosing a check for $2000 on the bank, requesting G-. to send him two drafts on New York of $1000 each; and in the same letter he also requested him to send him three drafts, amounting to $2000, and indorse the amount on the said note made by him, the cashier, and then in the bank. On the 9th day of June, Grosvenor, as cashier, enclosed in a letter to the plaintiff the two drafts on New Y ark, of $1000 each, and in the same letter said he would endeavor to comply with the plaintiff’s wish in regard to the note. On the 23d of June, without having had any further communications with, or directions from the plaintiff, he wrote a letter as cashier, enclosing the three drafts which were asked for in the plaintiff’s letter of June 1st, and said that he sent them at the request and by the direction of the plaintiff. The plaintiff negotiated the draft, and obtained the money upon them, and immediately invested the money in land, and gave the land to his daughter. The plaintiff supposed that the $2000 sent in the three drafts had actually been applied upon his note, until on the I2th of August, when he met Grosvenor at Utica. He then learned from him that instead of doing as he had requested, G. had drawn the drafts as cashier, and charged the amount to him, Reynolds, upon the boobs of the bank and had not applied the amount upon the note. The plaintiff then repudiated the transaction and Grosvenor agreed to rectify the charge on the books of the bank; and the plaintiff has ever since claimed that the $2000 should apply upon the note and not be charged to him in account. On the 23d of June, Grosvenor had more than $2000 to his credit in the bank, and could have paid this $2000 from his own money on that day, but with the knowledge of the president of the bank, pretending to comply with the request contained in the letter of June 1st, he drew the three drafts as cashier and' charged the amount, without any authority, or voucher, to the account of the plaintiff. The bank never demanded the $2000 back from the plaintiff, but refused to pay him $2000 of his deposit, for which this action was brought.</p> <p>The referee reported in favor of the plaintiff, for the amount claimed.</p>

<p>APPEAL from a judgment entered upon the report and decision of a referee. The action was to recover a compensation for work, labor and services. The plaintiff, in March, 1851, commenced working for the defendant, on his farm, under an agreement for eight months, at $13 a month, the defendant to board the plaintiff At the expiration of the eight months, the plaintiff continued work until March, 1852, for his board ; when a further agreement was made for the next eight months, at $12 a month and hoard. The plaintiff continued to labor for the defendant, and was boarded, until about March 1, 1861, without any further or other agreement between the parties. The referee found that such labor and services were worth $160 a year, besides the hoarding of the plaintiff. The referee ascertained the amount paid to the plaintiff between March 1852 and March 1861 in the way of wearing apparel and spending money during the six years next prior to the commencement of this action, and struck a balance in favor of the plaintiff He found that the wages were due at the end of each year, and after applying the value of the wearing apparel, and spending money, he allowed interest on the balance, to the date of the report. He applied the statute of limitations to all wages that he-* came due more than six years prior to the commencement of the action.</p> <p>In Hov. 1853, the plaintiff married the daughter of the defendant, who was then residing with her father, as a member of his family. She continued to reside with her father and rendered services for him as she had previously been accustomed to render them, and the defendant furnished her and her two children, issues of the marriage, with food and clothing ; there being no agreement or understanding touching the services of the daughter and the food and clothing of herself and the children.</p> <p>■ The referee decided that the plaintiff was not entitled to any thing for the services of his wife, and that the defendant was not entitled to anything for the food and clothing of the plaintiff’s wife and children. He decided that the plaintiff was entitled to recover $160 a year, less the value of his clothing and spending money, and an item of twenty dollars paid for his use, and to be allowed interest on balances ; and he limited the recovery to six years. The defendant excepted to some of the findings of fact, and some of the conclusions of law.</p>

ACTION to redeem personal property mortgaged by the plaintiff to the defendant. The mortgage, was executed April 12, 1842, to secure the payment of a note of the same date, for $515.77, payable one day after date.

OTIQN for a new trial, on exceptions. The action is ejectment, for a farm of about eighty acres in Hamburgh, Erie county. In July, 1842, Henry Parker recovered a judgment in the recorder’s court of the city of Buffalo, against the defendant and others, upon which an execution was issued to collect $83.86 and interest.

<p>Revival by Supplemental Complaint.</p> <p>The filing of a supplemental complaint for the purpose of reviving an action after the expiration of a year from the death of a party, is a matter of right.</p> <p>A motion for leave to file such a supplemental complaint is unnecessary, and should be denied, leaving the applicant to file it as he may be advised.</p>

There were two mortgages executed by John E. Schroeder upon the same premises ; one given to Eoss, under which Mallory claimed, which was recorded June 8th, 1861; and one to Stevens, under which Freeman, the plaintiff, claimed which was recorded two days later. The time of the actual delivery of neither of these mortgages was proven. The court decided that Mallory was entitled to a priority in payment out of the suplus moneys, and Freeman appealed.

ACTION upon a promissory note, against the indorsers. Upon the trial the plaintiff proved the execution of the note and the interest, and rested.

<p>Evidence held sufficient to warrant the setting aside of a will on the ground of mental delusion in the testator, in respect to the natural objects of his bounty.</p>

HIS case came up on exceptions taken at the trial, and there directed by the justice to be heard at the general term in the first instance. The action was brought to recover for a breach of warranty as to the quality of hogs sold by the defendant to the plaintiff. The defendant put in issue every allegation of the complaint, but no new matter of defense was interposed by the answer.

THIS action was brought by the plaintiffs as judgment creditors of the defendants, Edward Stone, William F. Kortright and James G. Littlewood, composing the firm of E. Stone & Go., after execution returned unsatisfied, to set aside a sale and transfer of the stock in trade of the firm to the other defendants, Edward F. Stone and John H. Hall, as being made to hinder, delay and defraud creditors.

This was an action brought to foreclose a mortgage, made by the defendants, Samuel S. Bowman and Sarah his wife, as collateral security to a bond given by Samuel S. Bowman and Felix A. Finn, who were partners, under the firm of Samuel S. Bowman & Co. The bond was given to the plaintiffs for having discounted notes which were held and indorsed by Bowman & Co. Bowman and his wife, subsequent to making the mortgage, conveyed the premises to the defendant Callaghan, subject to…

THIS action was brought by the plaintiff, as executor of Lurana Cotes deceased, to recover demands claimed to be due to the testatrix from the defendant. The defendant alleged in his answer, and claimed on the trial, that the indebtedness was discharged by the testatrix, by the 7th clause of her will. On the trial the court ordered a verdict, for the defendant. Exceptions were taken, which were ordered to be heard in .the first instance at a general term.