Volume 43 — New York Reports

Ebbob to the General Term of the Supreme Court in the second district, to review an affirmance of a conviction of the plaintiff in error, at the Rockland Oyer and Terminer in October, 1869, for the nrarder of Joachim Fnerter.

Ebbob to the Supreme Court at General Term in the first judicial district to review an affirmance of a conviction of the plaintiffs in error for grand larceny in the General Sessions of the city of ETew York. The defendants were policemen, tried and convicted of larceny perpetrated upon George W. Wells, in the city of New York, on the 6th of December, 1869. Evidence was given on the trial strongly tending to show the guilt of the prisoners.

This is an appeal from an order of the General Term of the late eighth judicial district of the Supreme Court in affirming an order of a Special Term, held in Erie county, directing that a ¡peremptory mandamus issue to the appellants. The facts of the case are these: In the year 1868, there was passed by the legislature of the State, the annual act, making appropriations for certain expenses of government, and for supplying deficiencies in former appropriations.

On the 20th of February, 1855, one Edward A. Walsh was the owner of a piece of real, estate in the city of Hew York. On or about that day he gave a bond and mortgage upon it to one Whitehead to secure the payment of $3,596.

<p>Error to the General Term of the Supreme Court in the first judicial department, to bring up for review the reversal by that court of a conviction (on the 27th of November, 1869) of the defendant in error, of grand larceny, in the court of General Sessions for the city and county of New York, Bed-ford, city judge, presiding.</p> <p>The charge was for stealing money from the pockets of one Smith, while the latter was iu bed with two women of the town, at a house in Howard street, Hew York.</p> <p>The money was taken by some one entering the room, while he was in bed with the two women.</p> <p>The pocket-book and money were carried inside the vest; the pocket-book and money were there, when he met the girls.</p> <p>A part of the money lost was found on the prisoner.</p> <p>The prisoner was arrested in a room adjoining the one where the robbery was committed, and the sum of $380 was found on him, of which a part was identified as complainant’s.</p> <p>There was a door opening from the room where defendant was arrested to the room where the larceny was committed, and also a hole through the partition which came to the top of the lounge, so that the room where the prosecutor was, when lighted, could be seen in every part.</p> <p>The defendant in error was indicted at an Oyer and Terminer held on the first Monday of October, 1869. The indictment was sent to the General Sessions, where on the 9th of Hovember, 1869, the prisoner was arraigned and pleaded not guilty. He was put upon his trial on the 26th of Hovember, 1869.</p> <p>While impanneling the jury, one McDowell was called as a juror, and was challenged to the favor by the prisoner; McDowell stated before the triers that he had formed an opinion as to the character of the prisoner, that he had heard something which biassed him as to his character; that his general opinion was that prisoner’s character was bad.</p> <p>The prisoner’s counsel thereupon asked the court to charge the triers, as a matter of law, that the witness having stated that he had formed a bad opinion of the prisoner’s general character, he is incompetent as a juror. The court declined so to charge, and the defendant’s counsel excepted. The triers found McDowell indifferent, and he was sworn and served as a juror.</p> <p>Before the jury were sworn, the prisoners counsel applied to the court to permit the prisoner to interpose “ a special plea, that the grand jury by whom the indictment was found in the Court of Oyer and Terminer presided over by Mr. Justice Ihgeaham, and convened on the first Monday of October, 1869, was an illegally constituted grand jury and tribunal, as, at the time the grand jury preferred and found the indictment, a grand jury previously duly impanneled according to the law and the statute in such case made and provided was then in session at the Court of Oyer and Terminer then in session, presided over by Mr. Justice Cabdozo.”</p> <p>The plea was overruled on the ground it was too late, the prisoner already having pleaded not guilty. Exception was taken to the ruling.</p> <p>At the close of the trial, and after the jury had brought in a verdict of guilty, and the prisoner was brought up for sentence, he made a motion in arrest of judgment, stating as ground thereof, the facts as to the grand jury set up in his special plea. The motion was denied and exception taken. All these exceptions appeared in the bill of exceptions.</p> <p>The General Term granted a new trial on the ground of error, as to the juror, McDowell. (Ihgbaham, J., dissenting.)</p> <p>on the question of challenge to the favor, cited Smith v. Floyd (2 Park., 663); 22 N. Y., 151; 21 N. Y., 134; 2 Abb., 368; 18 Barb., 522; 2 Barb., 216; 4 Den., 935. That the special plea was too late, the plea of not guilty having already been made, he cited 1 Colby’s Cr. Law, 285 ; McMillan v. State (8 Sme. & Mar., 587); People v. Benjamin (2 Park., 201); People v. Griffin (2 Barb., 427). There was no proof of the truth of the special plea by affidavit or otherwise. (1 Colby’s Cr. Law, 271; 2 R. S., 731, § 75.)</p> <p>cited, on the question of challenge, People v. Bodine (1 Den., 308); Freeman v. People (4 Den., 9). That there could not be two grand juries sitting at the same time for the same county, attending courts of the same jurisdiction, he cited Dalton, C., 185 ; Burns, Tit. Sessions; Lambard, Lib. 4, C. 5; Terms de Ley., 293; Wood’s Inst. Tit. Oyer and Terminer; Burns Inst., same title; Jacob’s Law Dict., same title; 20 N. Y., 544; Hawk., P. C., East, P. C.; Bacon’s Ab., Titles, “Juries,” “ Sessions,” “Gaol Delivery,” “ Oyer and Terminer” and “ Indictment.”</p>

<p>Appeal from an order of the General Term of the Supreme Court in the sixth judicial district, reversing a judgment for the plaintiff entered upon the report of a referee, and ordering a new trial.</p> <p>The action was ejectment, and the answer set up a claim for specific performance of a contract to give the premises in controversy.</p> <p>The defendants are husband and wife, and the defendant, James W. Freeman, is a son of the plaintiff, Samuel Freeman. Soon after their marriage they moved to a small lot in the village of Smithville, in the county of Chenango. While residing there, and in February, 1860, the plaintiff purchased •a place for them, situate in the town of Taylor, in the county of Cortland. This is the land described in the complaint. The premises contained forty acres of land, then all woodland, except about six acres. The defendants went into the possession of the premises in 1860, and cleared about twenty acres thereon, built an addition to the house, fenced the land, and made other improvements on the premises in question, and continued to occupy the same till April, 1866, at which time James W. Freeman left his wife, Julia Ann, and his family in possession of the premises, and went to reside with his father.</p> <p>In August, 1866, this action was commenced by the plaintiff to recover possession of the premises, Julia Ann being in possession. Before the commencement of the suit, the plaintiff had served notice upon her to quit. James "W. Freeman did not defend the action. The action was tried before a referee who made a report in favor of the plaintiff. He found as facts, that the plaintiff himself put the defendants in possession ; that before doing so, he told them that the premises should be theirs as long as they lived, and that he afterward said to them that “ he had bought the place for a home for them and gave it to them,” and that the improvements were subsequently made by them. The defendant, Julia A. Freeman, appealed to the General Term of the Supreme Court, where the judgment of the referee was reversed, and a new trial granted (reported 51 Barb., 306), and from this order granting a new trial, the plaintiff has appealed to this court.</p> <p>that the agreement to give is not one of the agreements within the meaning of the statute (2 R. S., 135, § 10), as in a gift there is no such thing as “partial performance” on the part of the donee, within the meaning of that term as used in courts of equity, cited 6 Barb., 98; 6 Paige, 293; Fentiman v. Smith(4 East., 109); The King v. Inhabitants of Horndon (4 M. & Gr., 562); Hewlins v. Shipman (5 B. & C., 221); Wood v. leadbeter (13 M. & W., 838); Byran v. Whestler (8 B. & C., 288); Cocker v. Cooper (1 Cr. Mees. & R., 418); Bird v. Higginson (4 Nev. & Man., 505); Cook v. Stearns (11 Mass., 536); Hayes v. Richardson (1 Gill & Johns., 336); Prince v. Case,(10 Conn., 375); Munford v. Whitney (15 Wend., 380); Miller v. Auburn & Syracuse R. R. Co. (6 Hill, 61); Brown v. Woodworth (5 Barb., 551).</p> <p>That chancery will never decree specific performance of a mere voluntary agreement, he cited Willard’s Equity Jurisprudence, page 263; Story Eq., §§433, 706a, 750, 769, 706, 706a, 793a, 983, 677, 987, 1040 ; 1 Cow., 711; 4 John. Ch., 500; Willard on Real Estate, 544; 11 Pet., 229.</p> <p>cited 1 Binney, 378; 2 Casey, 519; 6 Watts, 309; Hugus v. Walker (12 Penn. St., 174); King v. Thompson (9 Peters, 205); 24 Vermont, 560; 3 Gill, 138; 3 Maryland Ch., 119; 4 Maryland, 311; 6 Barbour, 106; 14 Johnson, 15, 35; 3 Sandf. Ch., 279, 284; 4 Comst., 410.</p>

This is an appeal from an order made by the General Term of the third judicial district, affirming an order made by Mr. Justice Miller, at Special Term, discharging an apprentice on habeas corpus. On the 8th of July, 1869, Mr. Justice Miller, on the petition of the relator, issued a habeas corpus, directed to the appellant, requiring him to produce the body of Marion S. D. Barbour before the justice on the 15th day of July then instant.

Heubt Hogeboom, referee. This action was commenced the 21st day of January, 1858, and was brought to recover the amount of two promissory notes, one dated September 5th, 1844, for $2,5T8.11, payable one year from date, the other dated January, 1845, for $2,000, and also payable one year from date.

The action was upon a bond given by William C. More and the defendants, Steele and Mills, dated September 12th, 1866, under and by virtue of an act of the legislature of the State of Hew York, passed April 24th, 1862, entitled “ An act to provide for the collection of demands against ships and vessels.

The prosecutor arrived in Mew York from California, having a draft for $2,500 in “ gold coin,” upon a banking house in that city, upon which he desired to procure the money.

On or about the 6th day of October, 1865, defendant, John G. Perzel, as general partner, and Herman A. Schleicher as special partner, entered into and formed a limited })artnersliip in the business of manufacturing woolen goods, in the city and county of Hew York, under the name of “ John G. Perzel.” The proper certificate, dated October 6th, 1865, was filed in the office of the county clerk of Hew York county, and other proceedings were then had by the partners, in the…

Henry Hogeboom, referee, for $19,281.59. On March 27th, 1866, at the opening of navigation in the Hudson river, the plaintiff’s boats (being the steamer McDonald and a tow of barges and canal boats) left Albany on a falling tide and grounded on the east side of the channel, about one mile and a half below the city.

22 upon a trial at circuit. The action was for the recovery of damages for an alleged breach of contract, in not delivering a balance of 2,231 barrels of cement, claimed in the complaint to have been due to the plaintiff.

<p>Appeal from a judgment of the late G-eneral Term of the Supreme Court in the second district, affirming a judgment for the plaintiff upon a verdict.</p> <p>The action was upon a promissory note made by Wm. H. Horton, May 3d, 1865, payable to Miles Knickerbocker or bearer, for the sum of $400, one year from date, with interest at six per cent. It was indorsed by the defendant to Samuel Horton, before its delivery to Knickerbocker, and then delivered by thehnaker in payment of a debt.</p> <p>Subsequently by an arrangement between Knickerbocker and Henry Sheldon, the note was transferred to the latter.</p> <p>On the 19th of April, 1866, and a few days before the maturity of the nofp, Henry Sheldon being about to enter into an arrangement by which his title to the note would be transferred to the plaintiff, with the knowledge of the latter went to the defendant, Samuel Horton, when, as Sheldon testified, the following conversation took place.</p> <p>“ I told him William (the maker) wanted this (the note) to remain another year. I asked if he was willing, and he said he was willing to let it remain; and he took the note and looked it over and said it was a good note.”</p> <p>Henry, after this interview, transferred the note to the plaintiff.</p> <p>This conversation was denied by the defendant, who swore that nothing took place at the interview, except with reference to his signature.</p> <p>It did not appear in the case whether William- had, in fact, made any request for time, or whether any time had been given him.</p> <p>The plaintiff placed the note in a bank for safe keeping soon after he obtained it. Mo demand was made or notice given until the 3d of May, 1867, when he personally demanded payment of the maker, and also of the defendant, notifying him that he had failed to get payment of William.</p> <p>The court left to the jury to decide whether the account of Henry Sheldon of the interview on the 19th of April, or that of the defendant was worthy of- belief, charging them that, if they found that of Henry to be true, then the plaintiff was entitled to the verdict.</p> <p>The counsel for the defendant raised the legal question as to the effect of the omission of protest and notice by motion to nonsuit, to direct a verdict and by exception to1 the charge.</p> <p>The jury found for the plaintiff.</p> <p>on the sufficiency of the alleged waiver of demand and notice, cited Oswego Bk. v. Kromer (Hill & D. Supp., 122); De Groot v. Blake (Anth. N. P., 299); Keeler v. Bartine (12 Wend., 110); Jackson v. Richards (2 Cai., 343); Buckley v. Bentley (42 Barb., 646); Coghlan v. Dinsmore (9 Bosw., 453); Union Bk. v. Magruder (7 Pet., 287, Story, J.); Bruce v. Lytle (13 Barb., 163); Spencer v. Harvey (17 Wend., 489.)</p> <p>upon the same question, cited Edw. on Bills, 633; John. Ca., 99; 10 Wendell, 504; 13 Barb., 163; 4 Campbell, 285; 17 Wend., 489; 4 E. D. Smith, 458.</p> <p>That by such waiver, the contingent Eahility was changed to an absolute one, he cited (18 East, 430; 17 Johns., 176; 18 id., 327; 3 Carrington & Payne, 456); Harrington v. Dorr (3 Robertson, 275.)</p>

<p>B., by will, after the payment of his debts, gave to his executor all his estate, in trust for the following uses and purposes: to pay and apply the whole net income to the use and support of his mother and his wife (the defendant), share and share alike, during the life of his mother, permitting them to occupy his farm during her life; and upon her death, to pay two specified legacies. He also directs the executor to invest a certain sum, and apply the income to the support of certain legatees. By the fifth clause, he gave “ all the rest, residue and remainder of his said estate to his beloved wife, Jane Rhead, and to her heirs and assigns forever, which was to be accepted and received in lieu of dower and right of dower; and he hereby authorized and empowered, his said executor to sell and convey his real estate at any time after the death of his said mother, and to pay over the proceeds thereof to his said wife.</p> <p>EM, that the power to sell, given to the executor, was legal and valid, as a power in trust, and not inconsistent with or repugnant to the residuary deyise.</p> <p>An order, procured by a party against whom judgment is ordered, directing the successful party to enter such judgment, so that an appeal may be taken, is proper and in accordance with regular practice.</p>

This was an action of ejectment to recover an undivided one-sixth part of lot ISTo. seven, containing 150 acres in the liortright patent, alleged to have been conveyed in 1789, by John Kortright to David Mcllwain, by a lease in fee, reserving an annual rent in perpetuity, of sixpence sterling per acre, and the right of reentry, in case any rent remained due for the space of three months, but reserving no such right upon the happening of any other event, or the breach of any…

Justice Beady and a jury. The case shows the following facts : On the 28th day of September, 1865, the plaintiff’s assignor shipped by the defendant two cases of merchandise on a bill of lading' that contained this provision : “ And in consideration that this company has reduced the price of such transportation below its local rates, the shipper and owner does hereby release the Erie railway company * * from liability * * from damage or loss to any article from or by fire or…

<p>The act of 1864 (chap. 8, § 32), giving the boards of supervisors of counties power to raise money for the payment of bounties to volunteers into the military and naval service of tlie United States, is not to be construed as retroactive; and such boards, therefore, have no authority to raise money for the payment of any sum hy way of hounty, to persons who, previously to the passage of that act, had volunteered into the United States military or naval service.</p>

The Rensselaer and Saratoga Railroad Company in August, 1870, presented their petition to the court to have the lands in question condemned, alleging that they required them for the purpose of operating their road and doing business thereon in order to receive and ship coal, iron, lumber and other articles and kinds of freight, and for necessary buildings, depots, freight houses, switches, tenements, slips and conveniences for a certain anticipated increase of business…

The action was for an accounting, and the payment to the plaintiff of his -share of the profits realized hy the defendant on a certain contract with the town of Oswegatchie, St. Lawrence county, for the collection of the taxes assessed upon that town. By an act of the legislature passed March 9th, 1866 (Sess.

<p>Appeal from an order of the General Term of the Supreme Court, in the fifth judicial district, granting a new trial on a verdict and exceptions directed to he heard in the first instance at the General Term.</p> <p>This action was brought for an assault and battery alleged to have been committed by the defendants upon the plaintiff1.</p> <p>In 1803, Thadeus M. Wood and George Hall, deeded certain lands on Onondaga Hill to the supervisors of Onondaga county and their successors in office, so long as they should continue to use them for court-house purposes, and with a condition that when they should cease and neglect to use and occupy the same for such public purposes, the land should revert to said Wood and Hall and their heirs forever.</p> <p>In 1829 the county ceased to use the lands for court-house purposes. Some years after' this, the citizens of Onondaga Hill commenced using the clerk’s office erected on said land for a school-house. The clerk’s office was consumed by fire, and in the year 1841 the school district erected a schoolhouse on said land and occupied it for a common school.</p> <p>Thadeus M. Wood died in 1836, and George Hall some years since; said Wood leaving eight children including Mrs. King, the plaintiff, and said Hall leaving four children.</p> <p>In the year I860, the supervisors of the county by resolution abandoned all claim to the land in question. Soon thereafter Mrs. King, having acquired by deed some additional interest of one or more of the heirs of Thadeus M. Wood, commenced an action of ejectment against the trustees of school district Ho. 6, to recover the possession of said land. The action was first tried before H011. Leboy Mobgan, and a judgment was obtained by Mrs. King; a second trial was had with the same result. Shortly after this, the trustees held a meeting, and by resolution abandoned the land in question as a site for a school-house. Some negotiations were then had between the trustees and Mrs. King, by which the trustees were permitted to remain in possession for the time being. Between this and the 1st of April, 1867, the trustees obtained an act of the legislature legalizing the then location of the school-house and confirming the same, and authorizing the trustees to acquire title to the land on which it stood. They then purchased from George Hall, one of the heirs, his interest in the premises. Having obtained this interest the trustees then claimed to be tenants in common with Mrs. ~Kmg and the other claimants; and on demand, made by her in her own behalf, and all the other heirs of Wood, the trustees refused to give her possession, claiming to occupy as tenants in common with her.</p> <p>After this refusal Mrs. King, on the morning of May 13, 1867, when the school-house was locked up and unoccupied, got in through the window, took off the locks and put them on so as to fasten the doors on the inside. She then commenced to occupy it, stayed there through the day, took her meals there and received her friends there. The trustees, on the evening of the same day on which Mrs. King had taken possession of the school-house, went to the school-house, broke open the door forcibly, and Mrs. King refusing to' leave the premises, two of the trustees, one of whom was the defendant, who took hold of her and put her out.</p> <p>Mrs. King commenced this action for assault and battery, and obtained a verdict at the circuit for fifty dollars. Exceptions were taken, and were ordered to be heard in the first •instance at the General Term, where a new trial was granted</p> <p>This appeal was taken from the order of the General Term granting a new trial. The plaintiff has been substituted in place of Mrs. King, who died pendente lite.</p> <p>that Mrs. King had legal right of possession, cited Taunton v. Costar (Tenn. R., 431); Turner v. Meymott (1 Bingham, 158); Butcher v. Butcher (7 B. & Cress., 499); Edwin v. Olmstead (7 Cowen, 329); Wilde v. Cautillon (1 Johns. Case, 123); Hyatt v. Wood (4 John., 150); Parsons v. Brown (15 Barb., 590); Sager v. Harpending (49 Barb., 175). That she had right to take possession and maintain it, he cited Withard v. Cothcut (4 Mann. & Granger, 573); Murray v. Hale (7 Com. Bench, 455); Coke on Littleton, 321, 322, 323; 2 Blackstone Com., 186; 4 Kent, 368: Wait v. Richardson (33 Vermont, 194); Edwin v. Olmstead (7 Cowen, 239). That trespass will lie when there is an ouster, 33 Vermont, 191; Booth v. Adams (11 Vermont, 156); Munford v. Brown (1 Wend., 52); Fairdaw v. Thackleton (5 Burrows, 2607, 2608). He also, cited Catloris v. Cowper (4 Taunt., 547); Hyatt v. Wood (4 John., 150); Parsons v. Brown (15 Barb., 590); Sage v. Harpending (49 Barb., 175); 1 Bing., 158; 9 Durnford & East, 431; 18 John., 350; 9 Wend., 36; 13 John., 444; 17 Wend., 437; 7 Wend., 181; 6 Howard, 437.</p>

The plaintiff sued to recover an alleged balance of account for goods sold and delivered, amounting to $357.75. The defendants set up as a defence, that the plaintiff had received the note of ITomer Bice & Co., in full payment and discharge of the debt. This fact was found by the jury, the court leaving it to them as the only question for them.

The defendants are sued as drawers of a bill of exchange for $5,000, alleged in the complaint to have been drawn by ' them at Savannah, Georgia, under the firm name of Wilder, Wheaton & Co., payable in Mew York, and protested for non-acceptance. The hill was drawn by John F. Wheaton, in the name of the firm of Wilder, Wheaton & Co., on the 23d of August, 1861, at Savannah, where Wheaton then resided.

This action was brotight to recover the unpaid balance of the price of a bill of goods sold by the plaintiffs to the defendants. The defendants set up a defence of payment by a draft for $2,968.69, drawn by them on James K. Place & Co., of New York, to the order of the plaintiffs.

Error from the Supreme Court, in the fourth judicial district, where the judgment of the Saratoga County Sessions, convicting the plaintiff in error of burglary, was affirmed.. It appeared on the trial that on the night of the 21st of October, 1867, the jewelry store of one West was broken open and; robbed of watches and jewelry to the amount of some $2,000.

This action is brought to recover certain moneys paid for taxes unlawfully levied and collected. The plaintiff is a banking association under the laws of ¡New York. The complaint contains four counts and causes of action: 1st. That in 1859 plaintiff had invested $103,000 in United States stocks or bonds. Evidence of the fact was presented to the commissioners of assessments, and exemption from taxation claimed for this property.

Oowen, referee. Bates, Gibbs and Kimball in the years 1856 and 1857 were partners in the commission and produce business at Troy, H. Y., in connection with the firm of Livermore & Griffin, of the city of Hew York.

<p>When a lender stipulates for a contingent benefit beyond the legal rate of interest and has the right in any event to demand the repayment of the principal sum with the legal interest thereon, the contract is in violation of the statute prohibiting usmy, and is void.</p> <p>A fact found by the court below upon conflicting evidence is notreviewable here.</p> <p>In an action brought to have securities given to secure a usurious loan declared void, the offer of the plaintiffs in then complaint to pay the principal sum with lawful interest, must be accepted by the defendant, if at all, before judgment, and cannot be enforced by motion on the part of defendant, or after judgment has been entered against him in the action. Quere. Whether even upon the offer, the court could have required compliance with it. Allen, J.</p>

<p>When the plaintiff is to transport a cargo to be delivered to him by the defendant from Bochester to New York, by way of the canal, and the plaintiff’s boat, being frozen up in the canal on its passage, is injured by measures taken by the defendant to preserve the cargo.—Held, in the action brought by the plaintiff against defendant for the injuries so done to his vessel, that evidence of a counter claim, existing in favor of defendant against plaintiff, for damages occasioned to the cargo, by the alleged improper delay of the plaintiff in prosecuting his voyage, was admissible, and that its rejection was error, there being conflicting evidence as to whether there had been such improper delay.</p> <p>When evidence has been improperly rejected and the judgment is sought to be sustained on the ground that the facts established by the verdict, show that the evidence, if admitted, would not have changed the result, it must appear that such is necessarily the effect of the verdict; not that the jury might, but that they must have found as claimed.</p>

This action was brought to recover the amount of two installments of capital stock subscribed for in the plaintiff’s company, a corporation existing under the laws of the State of Connecticut. The defence interposed arose out of the following facts: On the 15th day of October, 1855, the complaint in this action was served, on the 9th day of January, 1865, the answer was put in and on the 14th day of January, 1865, the reply was served.

• Appeal from the decision of the General Term of the Supreme Court in the fourth judicial district, affirming the judgment entered upon the report of a referee in favor of the plaintiff. On September 11th, 1866, the defendants, who resided at Whitehall, in the State of Rew York, contracted with William Pillar, at Montreal, Canada, for the purchase of certain lumber to be delivered at Dickinson’s Landing in Canada.

<p>A request to charge which is erroneous in part as embracing too much, is entirely ineffectual.</p>

fourth judicial district, affirming the' judgment entered upon a referee’s report. Held: that neither Anthony Furness, nor the heirs of Thomas, were entitled to specific performance; that Anthony Furness was not entitled to restitution of the money paid, but that the heirs were, and granted costs to plaintiff, and all- the defendants except Anthony Furness, against James Patterson.

This is an action brought for the foreclosure of a mortgage made and delivered to the plaintiff by the defendants, John W. Hatfield and wife. The venue was laid in Queens county, and the case was on the calendar in that county in October, 1867. The court, for its own convenience, adjourned the cause to a Special Term of the Supreme Court, to he held at Brooklyn, in the county of Kings.

By chapter 826 of the Laws of 1866 (page 1849), commissioners were to be appointed to widen and improve Union street in the city of Brooklyn. The powers of the commissioners are found in section three (3) of the act, as follows: “Section 3.

This action was brought to recover damages for breach of a contract, claimed to have been entered into by the defendant with the plaintiff, for the construction of a pair of boilers for the steamboat Mary Powell, on the 11th day of September, 1865. The answer sets up, that the contract was made with the defendant and one John L. Hasbrouck jointly, and that Hasbrouck is a necessary party.

This is an appeal from a judgment of the General Term of the Supreme Court in the first judicial district, affirming a judgment for the defendant entered upon the report of a referee. This action was brought to recover damages on an alleged contract of the defendant to carry and transport a quantity of railroad iron from blew York to Chicago for the plaintiffs,. The only evidence of the contract were the letters quoted in the opinion of the court.

This is an appeal from the judgment of the Supreme Court, of the first district, rendered on the submission of a controversy without action. The facts sufficiently appear from the opinion of the court. insisted that the obligation of a surety is to be strictly construed. (Gates v. McKee, 3 Ker., 232; 21 How.

In the year 1865, the defendant agreed with the plaintiff to pay him $400 per sheet for town or city maps, to be furnished by him on the order of the defendant, payable on the delivery of each sheet of any map so ordered. Under this agreement, the plaintiff made and furnished to the defendant six sheets of the city of Albany, and three of the city of Buffalo, and had partially made a fourth of the city of Buffalo when he was notified by the defendant to stop work.

<p>Appeal from a judgment of the General Term of the Supreme Court in the first judicial district, affirming a judgment of the Special Term dismissing the complaint.</p> <p>The object of the action was to procure a judicial construction, annulling as illegal and void, the bequest made by-James H. Boosevelt, deceased, of his residuary personal estate, which James 0. Boosevelt Brown, the plaintiff’s testator, who was sole next of kin of said Boosevelt, ratified and confirmed by deed in his lifetime, and by his last will and testament. The will, after disposing of the real estate, contains a hequest to his executors of $100,000 in trust, to receive the profits thereof, and apply the same to the use of his nephew, James O. Brown, during his life, and upon his death to his issue, if living, and if none, then to pay the same to the residuary legatees in trust for a hospital endowment ; and also, a hequest of all the rest and residue of his personal estate, lapsed legacies, and estate not well disposed of, to the presidents, for the time being, of five certain charitable institutions, and four individuals named by him in his will, and “ the survivor and survivors of them for the establishment, in the city of New York, of an hospital for the reception and relief of sick and diseased persons, and for its permanent endowment.”</p> <p>Such institution was to be managed and conducted by the nine trustees thus provided, and provision was made for filling vacancies in the board of trustees. The will also directed his trustees to apply to the legislature of the State for proper acts to incorporate, secure, and peipetuate the hospital, and in case the legislature failed to grant the same, to convey the fund to the United States. The contingent bequest to the United States was accompanied with expressions recommending that that government pass laws to carry out the trust. The clause of the will containing these provisions will be found stated in the opinion of the court. The testator died November 30th, 1843, leaving as his heir-at-law his nephew, James C. E. Brown, who died January 20th, 1864, and the plaintiff is his executor.</p> <p>The act of incorporation was passed by the legislature February 2d, 1864, and was accepted by the trustees.</p> <p>insisted that the trustees could not take the legal estate, or hold any interest in the property, legal or equitable ; that the trust was void on account of the uncertainty of the corporate donee; that it was void as within the statute of perpetuities; he also argued at great length, to show that the system of charitable uses had never been in force in this State, referring to and incorporating his argument in Bascom v. Albertson (34 N. Y., 584); Levy v. Levy (33 N. Y., 97).</p> <p>insisted that the hospital was to be managed and created only by means of a corporation to be created by law; that it was not within the statute of perpetuities. (Cadell v. Palmer, 1 Cl. & Finelly, 372, 421, 422; 16 W., 114; 23 N. Y., 71, 9th clause; 28 B., 141 to 148; 24 N. Y., 12; 1 Hilton, 494; 23 N. Y., 375.) That the bequest to the corporation to be created was good. (34 N. Y., 596 to 598; 4 Wheaton, 693; 9 Peter’s U. S., 315 to 317; 3 Peter’s U. S., 115; 24 N. Y., 651; 33 N. Y., 113 to 119; Ambler, 550; 3 Vesey Qr., 714.)</p> <p>argued in favor of the existence of charitable uses in this State.</p>

This action was brought to recover for baggage of the plaintiff lost by the defendant. The defendant was the president of Dodd’s express, a joint stock company, doing business in the city of New York and its vicinity. On the 17th of October, 1866, the plaintiff was a passenger on a train of cars, which was proceeding to New York on the New Jersey Central railroad.

The plaintiff brought replevin for a horse and truck alleged to belong to the plaintiff, and to have been taken from him by defendant. The defendant alleged that he took the property, as sheriff, in virtue of an execution against the TJ. S. Rubber Company, and that the property in question at the time belonged to the company.

The trial was before Justice Morgan without a jury. The facts in this case sufficiently appear in the opinion of the court. that an express promise can only revive a precedent good consideration. (3 Bos. & Pull., note, 249; Smith v. Ware, 13 Johns., 258.) That a penalty implies a prohibition.

Action on policy of insurance to recover loss by fire. The insurance was upon a stock of dry goods, groceries, provisions, hardware, boots, and generally upon such goods and merchandise as are kept in a country store. The policy was dated April 22d, 1864, and the loss was on the Ith day of August, the same year, and all the property insured was destroyed. The plaintiffs commenced business in April, 1863, and the business was carried on and managed by the plaintiff, Carney.

The action was upon a policy of insurance of $10,000 upon the life of Gookin Baker, issued upon his application, for the sole and separate use and benefit of his wife, the present plaintiff, and reciting an agreement by him to pay the annual premium on a day named, and the payment of the first annual premium.

This is an appeal by defendant from a judgment of the General Term of the sixth district affirming the judgment entered upon decision rendered at the Delaware Special Term. This action was brought to cancel certain certificates of sale, claimed to operate as a cloud upon plaintiff’s title to the rents reserved upon certain lands in the town of Stamford, 27.

This is an appeal from an order of the General Term, in the sixth judicial district, denying a new trial, also from a ¡judgment for the plaintiff, entered on then1 direction upon a verdict. This action was brought to recover the amount of a promissory note made by the defendant and indorsed by the payee and W. H. Shankland, for whom it was discounted by the plaintiff; the amount being placed to his (Shankland’s) credit.

<p>'Where, by a "will, shares or interests in real or personal estate, to be ascertained by a division or sale, are given, the estate or interest of each devisee or legatee in the property to be divided or converted is a vested interest before the conversion or division, and takes effect in actual enjoyment, as soon as the time appointed for the division or sale arrives.</p> <p>Limitations over, to take effect in case of the death of any such devisee or legatee prior to the division, refer to the time appointed for the division, arid not to the period of its completion, unless the language of the will clearly and unequivocally expresses an intention that the vesting of the estates or interests of the donees shall be postponed until such completion.</p> <p>If such intention is clearly and unequivocally expressed, effect must be given to it. But such intention will not be imputed to the testator, if it can be avoided.</p> <p>A general devise to executors in trust vests no estate in them, except for such of the declared purposes as require that the title be vested in them.</p> <p>The testator devised and bequeathed all his residuary real and personal estate to his executors in trust, to receive the income and to apply it according to the directions of the will, during the life of the testator’s widow; upon her death, to sell certain lots, and cause the residue of the estate to be appraised by three appraisers, one of whom should be chosen by the surrogate of the city of New York; to divide the whole into twelve equal parts; to convey, transfer and pay over to the testator’s son W., in fee simple, to whom he gave, devised and bequeathed the same, or, in case of his death to Ms then living lawful issue, three of said parts; to convey, etc., to the testator’s son E., in fee simple, and he gave, devised and bequeathed the same to him, or, in case of his death prior to the time of such distribution,, to his then living lawful issue three other of said parts; to retain and hold as trustees under said will, and he gave, devised and bequeathed the same to them accordingly, two other of saicl-parts in trust, to invest, lease, etc., -and receive the income, etc., and apply it to the use of his daughter M., during her life, with remainders over after her decease. He created like trusts as to two other shares of two-twelfths each, for the benefit of his two daughters O. and F. respectively.</p> <p>He directed that the shares of each of the sons and daughters should include certain real estate, specifically described, at its appraised value; that in case of the decease of either of his said sons prior to such division, leaving no lawful issue living at the time of such division, the surviving son, or in case of his death, his lawful issue then living, should take the share of the deceased son; and that, in case of the death of either of the daughters previous to the time of distribution, the trustees should retain her share upon certain trusts for her issue.</p> <p>Reid,—that the estate of the trustees under the general residuary devise would terminate upon the death of the widow. That the trust to receive the rents, etc., would cease with the trust to apply them. That the trust to sell vested no estate in the trustees. That the trusts to appraise, divide and convey were unauthorized as trusts, but could be executed as powers. That upon the death of the widow the devises to the sons and trustees for the daughters respectively, would immediately take effect in actual enjoyment.</p> <p>That the trusts to sell, appraise and divide did not suspend the power of alienation of the real estate or the absolute ownership of the personal property, but that from the time of the death of the widow and pending the division, the sons, and the trustees for the daughters, would be entitled to the possession and enjoyment, as tenants in common, of the undivided property subject to the power of sale and division.</p> <p>That the limitations in case of death of sons or daughters, “ prior to the time of such distribution,” or “ prior to such division,” or “ previous to the time of distribution,” referred to the time appointed for the division, viz., the death of the widow.</p> <p>That the sons, or them issue then living, would take the shares which were given absolutely, and the daughters, or their issue then living, would take the beneficial interest in the shares given in trust.</p> <p>A remainder in fee in real estate, to take effect after the expiration of two lives in being, at the testator’s death, may be created in favor of a person not in being at that time; and in such a case a further contingent remainder in favor of a person not in being at the creation of the estate may be limited, to take effect in the event that the person to whom the remainder is first limited shall die under the age of twenty-one years.</p> <p>A trust to accumulate the rents and profits during the minority of the first of such remainder-man in fee, and for his benefit, is valid. The power of alienation of real estate may lawfully be suspended for the term of a minority after the expiration of two lives in being, by means of a contingent remainder, to take effect in the event of the death of the first remainder-man in fee during his minority. But the absolute ownership of personal estate cannot be suspended beyond two lives in being. An accumulation for the benefit of an unborn child, to commence after his birth and to terminate with his minority, is lawful, provided, in case of real estate, that the accumulation also commences within the time permitted for the vesting of future estates; and in case of personal property, that it commences within the time allowed for the suspension of absolute ownership. If the estate limited to the infant is contingent, an accumulation of the income during his minority cannot be said to be for his benefit. But a devise of lands to an infant when he shall become of age, with remainder over, if he die under age, creates a vested estate in the infant, defeasible by condition subsequent, and this is a sufficient title to sustain an accumulation during the minority of such infant, as being for his benfit</p> <p>The testator created trusts of real and personal property, to receive the income and apply it during the life of his widow, and, upon her death, to divide the property into shares; and as to the share of each daughter, to receive the income, and apply it to her use during her life, and after her death to divide her part into as many shares as there should be children of such daughter living at the time of her death, and to retain one of such shares for each of said children, and accumulate the net income thereof during his or her minority, and, on his or her arriving at age, to pay the same over to him or her, with its accumulations, with contingent limitations over of the shares of any of such children who might die during minority.</p> <p>Held,—that these contingent remainders and the trusts for accumulation, were valid as to the real estate and void as to the personalty. That the failure, as to the personalty, of these trusts for accumulation during the minority of the testator’s grandchildren, and of the contingent limitations over in case of their death in infancy, did not invalidate the other dispositions of the will. That the effect of declaring- them void would be to vest the personalty absolutely in the children of each daughter on the death of their mother. That a void trust, which is separable from other valid trusts, may be cut off, where the trust thus defeated is independent of the other dispositions of the will and subordinate to them, and not an essential part of the general scheme.</p> <p>The testator directed that during the lifetime of his widow, a portion of the income be distributed by the trustees to his widow and five children, and that the rest be accumulated to swell his residuary estate. Held,—that, except as to this accumulation, the trust was valid. That a trust to apply rents, etc., to the use of more than two beneficiaries is valid, if it is limited in its duration to the life of one of them. That the direction for accumulation being void, the portion of the income directed to he accumulated became immediately payable to the persons presumptively entitled to the next eventual estates in the corpus or principal That, the widow being still living, these were the sons, in their own right, and the daughters, through their trustees, and the issue of one of the daughters who had died. That such issue were also entitled to the portion of the income payable, under the will, to them mother during the lifetime of the testator’s widow. That they took it as income, not legally disposed of, accruing from the share in which they presumptively had the next eventual estate. The husband of the deceased daughter, and administrator of her estate, was properly required to give security before receiving the arrears of accumulations and income due to his wife at the time of her decease, he being a resident of Connecticut, and she having been domiciled there at the time of her decease, and the husband being, by the laws of that State, entitled only to a life estate in her personal property.</p> <p>The testator made a bequest of $5,000, which he directed paid to the treasurer, for the time being, of Tale College, accompanied with a request that the trustees of the college invest it and accumulate the income until the principal and interest should amount to $30,000, and thereafter apply so much of the interest, when required to do so, as would educate continuously one person who should hear the testator’s paternal name, and he a lineal descendant of his, in all their courses, collegiate and scientific. The college being authorized by its charter to take, this bequest was sustained as a valid bequest of $5,000 to the college; and the questions whether the request created a trust, and whether, if it did, such trust was legal, were left to the courts of Connecticut, where the fund was to he administered. (Chubch, Ch. J., dissented as to the bequest to Tale College.)</p>

This action was brought in the Superior Court in the city of Buffalo, to foreclose a mortgage on property within the city of Buffalo, given by Orlando Allen and wife to Abby G-. Williams, June 29, 1859. The mortgage contained a clause to the effect that the mortgagor should keep the buildings on the mortgaged premises insured, and the policies assigned to the mortgagee, which insurance was effected as hereafter stated.

20 and costs, for alleged damages done to lot No. 122, on the Albany pier.

The action is upon a promissory note, made by Benjamin F. Felton, which came to the plaintiffs, as assignees of Edward S. Rich, under an assignment for the benefit of creditors. Rich was a private banker at Buffalo, and discounted the note in shit for the defendants’ firm of “ Felton and Butler,” and the amount, less the discount, was placed to the credit of the defendants.

Action by the plaintiff, as one of the heirs-at-law and next of kin of Benjamin Chamberlain, deceased, in his own right, and for his own benefit, as well as for the benefit and in behalf of the other heirs-at-law and next of kin of the deceased, against the executors and the devisees and legatees, claiming under the will of the deceased, for a judicial construction of the will, -and to avoid certain parts and provisions thereof, and for a distribution of the estate, real and…

The action was ejectment. It appeared that the plaintiff, a married woman, had a title to the premises through a conveyance from the trustees of Union College, dated March L9th, 1864.

Appeal by the defendant from a judgment of the late General Term of the Supreme Court in the third district, affirming a judgment for the plaintiff upon the report of Justice Ingalls, as referee. The action was by the plaintiff, a hank doing business in the city of Troy, to recover a sum of money alleged to have been paid by it, under a mistake of fact, to the defendant, a bank in the city of New York.

This order was granted on the sworn petition of the three persons appointed commissioners under the first section of the act, the Cayuga Lake Railroad Company, and two other tax-payers of the town.

The plaintiff held a mortgage dated in 1856 upon Ho. 41 Wilson street, in the city of Brooklyn, to secure the sum of $1,800. He commenced a foreclosure of this in 1866, the present action, and proceeding to judgment the property was sold, and there was a surplus of $4,659.68.

<p>Strict foreclosures are not ordinarily decreed in this State, except against judgment creditors or persons similarly situated, not made parties to a previous foreclosure and sale of the premises, who claim a right to redeem.</p> <p>Strict foreclosure is generally regarded in a court of equity as a severe remedy, and where a party insists upon the forfeiture, he must show that the decree clearly gives it to him.</p> <p>In the strict foreclosure implied in the dismissal of a complaint to redeem on default of payment, absolute title does not pass, and the forfeiture is not complete, notwithstanding the entering of a decree that the party be foreclosed unless within a time named he pay the sum fixed, until a final order is granted and put upon the record, upon proof of non-payment within the time, actually dismissing the complaint.</p> <p>"W". and E., having obtained from T., the owner of a twenty years’ term in certain real property, an assignment thereof absolute in form, but in fact as security for a loan, and the owner having subsequently made a general assignment for the benefit of creditors to R.,' R. commenced an action against W. and E. to have the transfer of the term to them declared a mere security for the loan, and to be allowed to redeem. W. and E. denied that the assignment to them was merely a security; but after litigation it was declared such; R. was held entitled to redeem, and it was adjudged that upon payment by him of a sum named in the decree within two months from the date thereof, W. and E. were to reassign the said term to him, but on default of such payment his complaint to be and from thenceforth to stand dismissed.</p> <p>R. failed (by collusion, as was alleged) to pay within the time, and subsequently assented to the assignment of the lease and all their other rights by W. and E. to the defendant.</p> <p>The plaintiff having been thereafter appointed receiver of the original owner, T., in supplementary proceedings, brought this action against the defendant, making T., R. and "W. & E. parties with him, alleging fraud and collusion between R. and the defendant, and praying that he might be allowed to redeem, and the lease be reassigned to him, and that the defendant account for the rents and profits,—Held, that the plaintiff was a competent party to bring the action and, it appearing that no final order at -the expiration of the two months had been entered, upon proof of nonpayment, actually dismissing the complaint in R.’s suit, that the original decree therein was no bar.</p>

The action was to recover the sum of about $600, the amount of the subscriptions of various persons, paid over to the defendant when treasurer ,of the plaintiff, under the following circumstances: The plaintiff was a religious corporation in the city of New York.

The plaintiffs’ complaint was as follows: The plaintiffs by this complaint state, that at the time of the making and delivery of the agreement hereinafter mentioned, the plaintiffs composed the mercantile firm of Horace B. Claflin & Co., in said agreement mentioned.

This action was brought by the plaintiffs’ surviving executors of the will of Hannah Bostwick, late of Lowville, H. Y., deceased, to obtain a construction of certain provisions thereof. Hannah Bostwick died September 13, 1866, leaving a will and two codicils. The only provisions of the will in controversy in this action are the 17th, 18th and 20th items.

Action in the City Court of Brooklyn, by the plaintiff as administratrix of her husband, Henry Eckert, deceased, to recover damages for the death of the intestate, caused as alleged by the negligence of the defendant, its servants and agents, in the conduct and running of a train of cars over its road.

Ebjror to the late General Term of the Supreme Court in the fifth district, to review the reversal by that court of a conviction of the defendant in error of grand larceny, at the Jefferson County Sessions, on the 15th September, 18G9. The prisoner was-charged with stealing from the prosecutor, Adams, a government bond for $500. The bond was in a bureau drawer, in the house of Adams, and was taken while ho was out of the house milking the cow.

Appeal by the defendant from a judgment of the late General Term of the Supreme Court, in the sixth judicial district, affirming an affirmance by the Delaware County Court of a judgment for the plaintiffs in justices’ court, in the town of Walton, in that county. The defendant obtained leave of the General Term to bring this appeal.

The action was brought by the plaintiff as representative of Lueilla DTorthrup, deceased, to recover $5,000, the amount of an insurance against accident issued to Mrs. Morthrup by the defendant on the 30th of December, 1868.

Appeal by the executor from the judgment of the Supreme Court, in the second department, reversing the decree of the surrogate of Kings county npon the accounting and remitting the proceedings to the surrogate for a rehearing. The testator died in 1858, leaving real property in the city of Brooklyn, encumbered by mortgage, and no personal assets.

The cause was tried at the Rensselaer circuit, in June, 1869. Plaintiff obtained a verdict for $5,000, upon which judgment was entered and affirmed at General Term. Defendant moved for a nonsuit at the close of plaintiff’s case, and also at the conclusion of the proofs. The plaintiff sued to recover damages, because of the death of George Van Santvoord, alleged to have been caused by the negligence of defendant, on the 6th day of March, 1863.

Charles Andrews, referee. This action was brought by plaintiffs against the defendants, executors of one Waggoner, for an accounting in respect to certain property, transferred by one Wart to Waggoner, in trust to pay debts owing by Wart to the plaintiffs and to Waggoner, amounting to over $6,000. The property so transferred consisted of four notes of $1,500 each to the aggregate amount of $6,000, and a chattel mortgage on certain personal property to secure the notes.

The action was commenced May 30th, 1868, seven years and five months after the draft matured. The statute of limitations is pleaded by the defendant, Alfred S. Cook.

The plaintiff brought his action in the Superior Court of the city of New York, against the defendants, as innkeepers, to recover the value of property lost by him while a guest at their inn.

Appeal by the plaintiff from a judgment of the Supreme Court rendered at a General Term in the fourth district, affirming a judgment ordered by Mr. Justice Bocees, at Special Term on a trial before… Held: as is alleged, that the estate of George Green became a fee-simple, absolute upon the death of Maria Green in his lifetime, the limitation over to her being only in case she survived him.

This is an action to recover the sum of $1,000, balance of the purchase-money of a sale by the plaintiff’s intestate, Peter dagger, of his interest in a certain farm situate in the county of Rensselaer, occupied by the defendant. It appeared that previous to 1838, Stephen Van Rensselaer had leased or granted the premises in question to Peter W. Witbeck, reserving certain perpetual rents, and the right of re-entry for non-payment.

The action was brought upon a bond given to discharge a vessel from an attachment issued in pursuance of the “ act to provide for the collection of demands against ships and vessels,” passed April 24, 1862. The claim of the attaching creditor was for wharfage of the vessel at the port of Hew York. It is admitted by the pleadings that she was a sea-going or ocean-bound vessel.

Appeal by the defendant, Freeman, from a judgment of the General Term of the Supreme Court, in the first district, in favor of the plaintiff, rendered on the verdict of a jury.

The referee found: 1. That Arnold B. Watson, prior to the 1st day of January, 1860, was an individual hanker under the general banking act of 1838, and carrying on business as a bank of discount, deposit and circulation, and the usual business of banking, under the name of the Un adilla Bank, at Unadilla, in the county of Otsego, and State of New York. 2.

This action was originally brought against James Taylor and James H. Wood, executors of Charles A. Williamson, deceased. Taylor died pending the action, and his administrators and his heirs-at-law were made parties defendants, by supplemental complaint. The defendant, Wood, did not answer*. The action was tried at the June Special Term, in 1867, in Steuben county, by a judge without a jury.

<p>Appeal from an order of the late General Term of the Supreme Court, in the first judicial district, reversing a judgment for the plaintiff upon the verdict of a jury, and granting a new trial.</p> <p>The cause was tried before Hr. Justice Sutherland and a jury, January, 1867, and a verdict rendered for the plaintiff for $23,786, the value of a gold cheek for $10,000 claimed to have been delivered by the plaintiffs to the defendants on the 21st day of January, 1865. The facts are sufficiently stated in the opinion of the court.</p> <p>upon the point that there was a valid delivery of the check, cited Lamb v. Lathrop (13 Wend., 95); Wyman v. Winslow (2 Fairf., 398); Case v. Green (5 Watts, 262); and by way of analogy in common carriers’ cases, Backman v. Levi (3 Campb., 414); Packard v. Getman (6 Cow., 757); 2 Kent, 604, 605; Gibson v. Culver (17 Wend., 305); Bank v. Champlain Trans. Co. (16 Verm., 62); 18 id., 131; 23 id., 176; Merriam v. Hartford R. R. Co. (20 Conn., 354); Hotchkiss v. Artizans' Bank (2 Keyes, 564).</p>

<p>Arpead from a judgment of the G-eneral Term-of the Common Pleas of the city of Hew York, affirming a judgment foi the plaintiff, on the report of a referee.</p> <p>In 1862, the defendant and one Barnhart were the owners of a mill property in Ohio, and were manufacturing and shipping flour for sale, under the firm name of Barnhart & France, and were in embarrassed circumstances. An arrangement was then made with the plaintiff by which he agreed to furnish $3,000 as capital, and to indorse the business paper of Barnhart & France t'o the amount of $10,000 to $15,000, for which he was to be secured by a mortgage of the mill property, and an assignment of the insurance policies, and was to receive one-third of the profits, and, as is claimed, bear one-third of the loss. This arrangement went into effect in February, 1863, and continued until June, 1863, when Barn-hart & France failed. A new arrangement was then made by which Howard leased the mill and agreed to operate it, retaining one-third of the profits to his own use and appropriating the other two-thirds to the payment of the debts of Barnhart & France, for which theo plaintiff was liable as “ indorser, acceptor and security.” The mill was carried on under this arrangement until it was destroyed by fire in August, 1865. Pursuant to the arrangement first made in April, 1863, the mill premises were insured in three several companies for $10,000 in the aggregate, $5,000 of which was in the Home Insurance Company, and the policies, with the consent of the insurers, were assigned to the plaintiff by Barnhart & France as collateral security, as their indorser of current business paper. The policies were renewed from year to year, the receipts upon the policy of the Home Insurance Company stating the payments to have been made by the plaintiff as assignee of B. and F.</p> <p>At the time of the receipt of the loss from the Home Insurance Company the plaintiff had received $1,980 upon the policy of the Buckeye insurance, and on the 26th of October, 1865, after the commencement of this action, he received, from the underwriters of the third policy, $3,000.</p> <p>In 1862, the defendant removed to Hew York, and remained in business in that city up to the trial, and was the consignee for sale of flour manufactured by the plaintiff, who drew upon Mm as occasion required in the business of the mill, the drafts being provided for either by shipments of flour or by other means furnished by the plaintiff.</p> <p>On the 25th of September, 1865, a draft was outstanding and not yet due for $1,500, payable in Hew York, drawn by the plaintiff upon and accepted by the defendant. After the destruction of the insured property by fire, the plaintiff inclosed to the defendant, at Hew York, the policy for $5,000, of the Home Insurance Company, and the assignment, together with a receipt signed by himself for the loss, to be delivered to the insurers on payment by them; and annexed to the receipt on the same paper was a direction, signed by the plaintiff, to the insurance company to pay “ out of the above, to Hr. France, fifteen hundred dollars, to lift a draft drawn by myself.”</p> <p>The defendant tore off this direction, and on the 25th September, 1865, presented the policy, assignment and plaintiff’s receipt to the insurance company, and received $4,962.60 for the loss. He refused to pay the accepted draft of the plaintiff, and advised him that he had sent the proceeds of the policy to Barnhart. He, in fact, inclosed a check on a bank in Jersey City to Barnhart, payable to the order of Barnhart & France, for the amount. The check coming to the possession of the plaintiff, payment was stopped by the defendant. This action was brought to recover the moneys received by the defendant from the Home Insurance Company. The action was tried by a referee, who gave judgment for the plaintiff, and tMs appeal is from the judgment of the Common Pleas of the city of Hew York, affirming that judgment.</p>

The complaint was for the recovery of a large quantity of grain belonging to plaintiffs, received for transportation over the Rorthern railroad, which was burned in the Ogdensburgh depot, and for which the complaint alleged the defendants were liable as common carriers. The following are the fifth and sixth answers of the defendants, which were demurred to by the plaintiffs : “ 5th.