Volume 44 — Barbour's New York Supreme Court Reports

The complaint showed that, on the 23d May, 1862, the plaintiffs commenced an action in this court against Smith M. Coope and Fisher, and on that day Mr. Justice Barnard granted an order for the arrest of the defendants Coope and Fisher, holding them to bail in the sum of $500; that, on the 18th day of June, 1862, the sheriff, under such order, arrested the defendant Coope; that, on the 10th day of July, 1862, Coope, with the defendants in this action, became bail to the…

APPEAL by the defendant, Thomas Auld, from a judgment of foreclosure and sale, rendered at a special term.The cause has been twice tried. The facts, as they appeared on the former trial are stated in the report of the case on appeal to the general term, where a new trial was granted, 37th Barbour’s Rep. 587.

THIS action is brought to establish the title of the plaintiffs to guano on an uninhabited island in the Pacific ocean. This island was discovered in September, 1842, by Captain George B. Netcher. He gave the island the name of How-land’s island. He discovered on the island large quantities of guano, and took possession of it in the name of the United States. Nothing more was done by him in regard to the island, except landing upon it and fishing on its shores, at that time.

THIS action was brought to recover the value of a quantity of jewelry, watches, gold and silver bullion, &c. taken from the plaintiff while a guest at the defendant’s hotel, in the city of Hew York.

<p>APPEAL from an order directing the deposit of books of the defendant, for the inspection of the plaintiff.</p>

Sawyer and others, as indorsees, against Thomas Chambers, Morris J. Earl, and Robert S. Buchanan, defendants, as indorsers. The issue came on for trial before Hon. Wm. J. Bacon and a jury, on the 26th day of June, 1861. Upon such trial the plaintiffs read as evidence in their behalf a promissory note, of which the following is a copy : “Office of the U. S. Vulcanized ) G-utta Percha Éelting and Packing Co. ) $6000. New York, Sept. 9, 1858.

In October, 1858, the corporation passed a resolution for paving Eighth Avenue, from Hudson-street to Forty-second-street, with Belgian pavement. At the same time an ordinance was adopted directing the work to be done, that the Eighth Avenue Bailroad Company pay one-third of the expense thereof, the property owners one-third of the expense, and the city treasury the remainder.

By written agreement, dated the 14th of April, 1853, John La Farge agreed with Anthony E. Hitchings, that the latter should furnish all the materials and put into the La Farge Hotel and Metropolitan Hall then being built in Broadway near Amity street, the steam boilers, and steam engine pumps, hot water tanks, and all apparatus and other necessary fixtures and appurtenances for warming the rooms, halls, entrances, drying rooms, water,'&c. of the La Farge Hotel and…

Motion by the plaintiff to compel two of the defendants to discover books, &e., and Cross-motion, to strike out a portion of the plaintiff’s moving affidavits.

The action was upon a promissory note, made by Ferguson and indorsed by Ladd.

THE plaintiff was the holder of five bonds of the Milwaukee and Mississippi Rail Road Company.

The action was brought by the plaintiff to recover of the defendants an amount claimed under an alleged agreement between the parties to the action respecting work, labor and materials to be done and furnished by the plaintiff, in moving or shifting the track of the road of the defendant. One item of the agreement was to the effect, that the plaintiff would relay the paving stones between the tracks of the rail road.

HIS action was brought to set aside a judgment in favor of William L. Shardlow, and three assignments of property and accounts made to him by Shardlow & Kirk, at different times, on the ground that they were fraudulent, or made to hinder and delay creditors. Upon the trial it appeared that the firm were indebted to Shardlow to an amount equal to the judgment.

THIS action was brought to recover the amount of a promissory note purchased by the plaintiffs at a discount of eleven per cent per annum. The note was signed with the him name of S. H. & C. W. Foster, was drawn by S. H. Foster, one of the firm, for his own use, was not entered on the books of the company, and had nothing to do with the business of the firm.

THIS case was made and submitted under the 372d section of the code, without action. The claim was by a policeman, against the board of police, to recover from them his share of the moneys presented by the embassadors from Japan to the police force of the cities of Washington, Baltimore, Philadelphia and Hew York, to be distributed between them.

mHE plaintiff recovered a judgment, before a justice of the A. jDeace, for §51.25 damages and costs, for the refusal of the defendant to deliver a quantity of butter to him, of the value of over §100, pursuant to an oral contract for the purchase of the same by the plaintiff, of the defendant; the butter being worth more at the time when the defendant was to deliver it to the plaintiff than it was at the time the contract was made.

ÁWRIT of habeas corpus was issued herein to the defendant, to produce the body of Samuel Starkweather, the son of the relator, alleged to be detained improperly by the defendant. It appeared that the son was under seventeen years of age, and had been fraudulently enlisted.

A PEEAL.from an order made at a special term allowing a ii demurrer to the 6th defense in the defendant's answer, in each case. Each action was brought upon premium notes given to the Columbian Insurance Company.

EMURRER to answer. The complaint was in debt upon a recognizance dated August 24, 1864, in the penal sum of $500, conditioned that one Yan Patten should personally appear at the then next court of oyer and terminer of Montgomery county, to he held in September, 1864, to answer to an indictment for bigamy.

THE plaintiffs brought this action before a justice of the peace, in August, 1864, for trespasses on their lands situated in the town of Otsego. The summons was personally served on the defendant, but he did not appear before the justice. The plaintiff Armstrong was the only witness sworn on the trial.

<p>The legislature had the power, notwithstanding the constitution of 1846 abolished the office of supreme court commissioner, to authorize county judges to do all the acts under such constitution that could be performed by supreme court commissioners, in letting to bail persons charged with crime prior to the adoption of that constitution.</p> <p>And when the legislature enacted that county judges, when not holding court, may do whatever acts judges of the court of common pleas, being of the degree of counsellors of the supreme court and acting as supreme court commissioners, could do on the 12th of May, 1847, they conferred the power on county judges to let to bail persons charged with crime, whether indicted or not, in all cases where a justice of the supreme court can let to bail.</p> <p>And county judges, though not counsellors of the supreme court, may now do whatever acts supreme court commissioners might perform, prior to the constitution of 1846.</p> <p>Hence they are authorized to let criminals to bail, though the latter are indicted for crimes not cognizable by the courts of sessions of their respective counties.</p> <p>And the certificate of acknowledgment of a county judge is entitled to be read in evidence, or recorded, in another county, without being authenticated by the clerk of the county of which the officer is judge; whether such judge is or is not of the degree of counsellor at law.</p> <p>Where a person charged with crime -is confined in a county jail, the county judge of another county is authorized to take the acknowledgment of the execution of a recognizance by the prisoner’s sureties, within the latter county, in order that the recognizance may be sent to and acknowledged by the prisoner, and he be let to bail.</p> <p>As the statute only requires that recognizances in criminal cases, not taken in open court, “shall be in writing, and shall be subscribed by the parties to be bound thereby,” it is only necessary that the criminal should appear before the judge, to confer jurisdiction upon such judge to let him to bail. This is all the statute requires.</p> <p>The judge has authority to accept of individuals as sureties in the recognizance, though they do not personally appear before him.</p> <p>The better practice, however, is for the judge to require the person desiring to be let to bail to bring his sureties before him; and a judge would bo justified in refusing to let a person to bail whose sureties do not personally come before him. Per Baicoii, J.</p> <p>Where an acknowledgment of the recognizance is upon it at the time the recognizance is presented to the judge who lets the prisoner to bail, which acknowledgment was taken before another judge, the judge letting to bail will be deemed to have approved of such acknowledgmentand his approval of what has been done is equivalent to a precedent authority.</p> <p>"Where a recognizance had upon it this indorsement, “ Filed Feb’y 25, 1863,’’ not signed by an), one; Held that the presumption was that the paper was filed in the office of the clerk of the county where the prisoner was let to bail; and upon that assumption, it became a record.</p>

STILLMAN PERKINS sued Almon Perkins in a justice’s court, and recovered $25 damages for making, as was claimed, the latter’s just proportion of a division fence, on a line between lands owned by the parties, which adjoined. The plaintiff’s land was cleared and improved. That of the defendant, adjoining, had been used as a sugar bush and in taking wood from it, and “ an acre or more,” had been cleared.

The action was brought to redeem real estate. The following facts were found by the referee, viz: That in March, 1853, the plaintiff was the owner in fee of the piece of land described in the complaint, containing fifty-two forty-hundredths acres, subject to a mortgage thereon, executed by said plaintiff to Martin Grover, which said mortgage was being foreclosed by advertisement, and was to be sold by virtue of a power of sale in said mortgage, on the 16th day of March, 1853…

THE relator is a stockholder in the E-irst National Bank of Waverly, N. Y. The capital stock of the hank consists wholly of United States bonds,'issued under the act of congress, passed February 25,1862. The defendants assessed the relator for the shares owned by him of the capital stock of the hank. They declined to strike said assessment from the roll, claiming that the property is taxable under the laws of the state, passed in March, 1865.

<p>APPEAL from a judgment entered upon the report of a referee. The action was brought to recover damages' of the defendants for the non-performance of the parol agreement mentioned in the opinion of the court. The answer of the defendants was a general denial of the allegations of the complaint. The referee found as conclusions of law: First. That the first contract amounted to a sale, and not a bailment, and the title of the ten sheep vested in the defendants, on delivery. Second. That the second contract was void, because, 1st. It was not a sale of any sheep in esse; 2d. It was a contract for a sale of forty sheep, at the expiration of four years from the time of making it. It was an agreement of which no note or memorandum in writing was made, and which by its terms was not to be performed within one year from the making thereof; 3d. It rested exclusively in words, without delivery, or any equivalent act, performed or capable of being performed. And he ordered judgment in favor of W. W. Wheeler, the only defendant who appeared and defended, against the plaintiff, for costs. From the judgment so entered the plaintiff appealed. "</p>

The action was brought to set aside and have declared void a deed, executed by Susan C. Matthews to Stephen S. Viele, conveying certain premises therein described, situated in Yates county. In September, 1859, the said Susan C. Matthews was the owner of the premises in question, and conveyed them to one Julia A. Card, and at the same time took back from the said Julia A. a mortgage upon the same premises, conditioned to pay $800 in one year from date.

The defendant was indicted for selling strong or spirituous liquors in his tavern on Sunday, he being at the time a tavern and hotel keeper, and licensed by law to sell liquor. The indictment charged that the offence was committed on the 18 th day of January 1863, and on other days and times, being Sundays.

The action was brought to recover damages for a personal injury, sustained by the plaintiff in consequence of the negligence of the defendant, in leaving the opening to his coal cellar uncovered. The complaint was entitled “Jacob Grantman, by-John Grantman his guardian, agt. George Thrall,” but it contained no allegation that the plaintiff was an infant, or that John Grantman had been appointed his guardian.

The complaint alledged that the plaintiff, on the 29th day of May, 1861, was the owner of a certain promissory note; that on that day he employed the defendant to collect the same; and that the defendant did collect it, but had failed to pay over the proceeds, although often requested to do so.

The action was brought to recover the value of work done, and materials furnished in the months of November and December, 1863, in the repairing of the public roads in the city of New York. The defendants put in an answer, the material facts of which are set forth in the opinion below. The plaintiff demurred to the second defense, on the ground that it did not state facts sufficient to constitute a defense.

The action was brought to recovery a penalty of #50, under the following section of the revised statutes: “If any person shall take down or deface any notice of a sale of real or personal property, put up by any sheriff previous to the day of sale therein specified, unless upon satisfaction of the execution by virtue of which notice shall have been given, or upon consent of the party suing out such execution, and of the defendant therein, such person shall forfeit fifty…

ACTION to recover the possession of a stock of hardware goods. The plaintiffs made title to the goods by a purchase thereof from Barnard Horsdreller and Joseph Galen, assignees of J ohn B. Galen, in an assignment made for the benefit of creditors.

OTION by the plaintiff for a neiv trial, on a case and exceptions ordered to be heard at a general term, in the first instance. The action was brought for the recovery of dower. The plaintiff proved that she was married to Clark Smith, at the city of New York, on the 12th day of March, 1834; that Smith afterwards became seised of the premises in question; and that he died before the commencement of this suit.

<p>APPEAL from a judgment entered upon the report of a referee. The relief prayed for, in the complaint, was that the defendant might convey the premises therein described, to the plaintiff; or, in case of his inability to do so, that he pay damages to the amount of $500, with costs. The following facts were found by the referee viz: That on the 14th day of November, 1855, J. D. Tallman conveyed to Perry Weed, by deed executed by himself and wife, certain real estate in the town of Castile, county of Wyoming, New York, about six acres, on which there was a dwelling house, saw mill, and water power, and Weed executed a mortgage to Tallman to secure $300 of the purchase money, and went into possession of the premises. In March, 1856, Weed conveyed the same premises to Wm. M. Wallace, subject to the mortgage still held by Tallman, on which no payments had been made, and Wallace went into possession. In March, 1859, Wallace conveyed to plaintiff a part of the premises, embracing about one and one half acres, on which is the saw mill, and let him into possession. Before conveying to the plaintiff, Wallace had paid $254.50 on the Weed mortgage, leaving the balance unpaid, and the plaintiff in his purchase of Wallace assumed the payment of the sum unpaid on the mortgage, in part payment of his purchase, and in further payment gave Wallace two' promissory notes of $50 each, payable in cash,. and one of $50, payable in sawing. In October, 1858, the defendant obtained a judgment in the supreme court, against Wallace, and had the same docketed in Wyoming coúnty, for $527.69 damages and costs, which has not been paid, and the defendant is the owner of the notes given by the plaintiff to Wallace as above. The $50 note payable in sawing has been paid, in part, if not in full; but ' the two cash notes have not been paid. The plaintiff failed to pay the mortgage assumed by him, and in January, 1861, it was placed in H. Chalker’s hands, he being an attorney of this court, for foreclosure, by the holder, Tallman. Chalker immediately commenced proceedings for foreclosure in the supreme court; and a judgment of foreclosure was obtained in April, 1861, the amount then due being $105.61, and costs of foreclosure, $60.20. ■ Before the foreclosure the plaintiff saw Chalker, and the latter agreed in case the premises were sold on the mortgage, to purchase and take title, and give the plaintiff the right to redeem or have title to the whole premises on paying the sum they should be bid off at, with interest and all costs. The plaintiff agreed to this, and the premises were thus sold. At the sale, which took place June 20, 1861, the plaintiff was present, and the agreement with Chalker was renewed; Chalker saying he would purchase the land and convey to the plaintiff, or the first man who would pay him his bid, interest and costs. Chalker purchased the premises for $180.75 and took the title. After the sale the agreement between him and the plaintiff was reaffirmed, though it was never reduced to writing but always stood in parol. The plaintiff continued in possession of the land he purchased of Wallace, and on -the 30th of November, 1861, Chalker gave him a paper writing, saying:</p> <p>“ Philander L. Merithew has permission to take possession of the house and place recently occupied by Wm. M. Wallace at St. Helena, and which are 'part of the premises I bid off on forclosure, and to keep possession and rent the same.”</p> <p>This paper was signed by Chalker. The plaintiff took. possession of this part of the premises immediately on receiving this paper. After the purchase by Chalker, the plaintiff paid him various sums to apply on the judgment of forelosure, until the sum unpaid of principal, interest and costs, was on the 9th of December, 1861, reduced to $108.25. The defendant herein was not made' a party to the foreclosure, and on the 9th day of December, 1861, he called on Chalker and stated that his judgment was still a lien on the premises, and proposed to purchase the land. Chalker told him of his agreement with the plaintiff, and that he was in possession and had paid him money since the sale on his bid, and stated to the defendant that the sum still unpaid was $108.25; this sum the defendant proposed to pay to Chalker and take a contract for a deed of the premises, and' he did then pay to Chalker $108, and Chalker gave him a writing in these words:</p> <p>“Received of Lansing Andrews pay in full for the St. Helena property, which I am to deed to him or his appointee, on request. Andrews is to give Merithew thirty days to redeem the property provided he goes directly to repairing his part of .dam, or secures the pay therefor, and also provided that within the 30 days Merithew secures the Wallace note of $100 and interest, and also secures the Wallace note of $50 or thereabouts and which is part paid and is payable in sawing. If Merithew performs the above he is to have a deed from Andrews for his part of the property. Dated Doc. 9, 1861. (Signed,) -H. Chalker."</p> <p>(Indorsed) “Lansing Andrews, or his agent, is entitled to the possession of the house Wallace recently occupied, and which Merithew has lately taken possession of.</p> <p>December, 9, 1861. (Signed,) H. Chalker."</p> <p>This paper was delivered to the defendant. At the same time Chalker wrote and delivered to the defendant, to send to Merithew, a writing as follows:</p> <p>“ M. Merithew: Mr. Andrews has paid me the balance on that property ($108,) and agrees that you have 30 days to pay that amount and interest to him, and also, to pay, -or secure the Wallace note Of $100 and interest, and to pay or secure the Wallace $50 payable in sawing, and which is part paid, and if you go right about repairing your part' of the dam, and do the above, Andrews will deed to. you the part of the property you were to have. Decide what you will do, and let'Wallace know. (Signed,) H. Chalked.</p> <p>. Nunda, December 9,1861.”</p> <p>Subsequent to this and before December 24,1861, Chalker conveyed the entire property to the defendant absolutely. On the 24th of December, 1861, the plaintiff tendered to the defendant $109 in gold and silver, and demanded of him a deed of the entire' premises. The defendant refused, to convey. the entire property, but offered to, convey by quit-claim deed the portion purchased'by the plaintiff of Wallace, if the plaintiff would ¡oerform the conditions imposed upon him by Chalker in his contract with the defendant. This the plaintiff refused to do, and gave the defendant notice that the money tendered would be deposited with Chalker for.him. The plaintiff immediately deposited the money with Chalker for the defendant and Chalker informed the defendant of the fact. The money has since remained in Chalker’s hands on deposit. The referee’s conclusions of law were that in the negotiations between Chalker and the defendant for a sale óf the land, the notice to the latter of the plaintiff’s rights and equities under his agreement with Chalker were merged in and confined to the written agreement made by Chalker, and that the referee could not look beyond that instrument • for such notice; and that the defendant’s liabilities to the plaintiff under his agreement with Chalker are limited to and defined by that instrument. That the contract between Chalker and the plaintiff, which is sought to be enforced in this' 'action, differs very much from that made by Chalker with the defendant in respect to what the plaintiff was to have, and the terms and conditions upon which be was to have it. That the liabilities assumed by Ohalker in his contract with the plaintiff, are broader and different from those assumed by the defendant with Ohalker; that the defendant did not take upon himself all the liabilities of Ohalker and can not be compelled to perform them in this action. And as a further conclusion of law, he found that the contract between Ohalker and the plaintiff, being for the sale of lands and not reduced to writing, was void by the statute of frauds, and could not be enforced in this action. He therefore reported that the plaintiff was not entitled to the relief he asked, against the defendant in this action, and that the defendant must have judgment.</p> <p>Judgment being entered, upon the report, the plaintiff appealed.</p>

nnHE evidence in this cause shows that the plaintiff, as one _L of the constables of Erie county, on the 17th of June, 1859, had an execution which had been issued to him upon a judgment recovered before a justice of the peace of the town of Elm a, against the property of Louis Bracletal.

THIS was an action to recover the possession of real estate. The complaint alleged that the plaintiff, on the thirteenth day of April, 1860, was and still is the owner in fee of the whole of lot No. 42 in the Atwater and Andrews tract, in the city of Rochester.

11 HIS is an action to recover the proceeds of a promissory . note. The plaintiff had been appointed receiver of the property, &c., of Worden, Cole & Grior, in five different actions. His appointment had been perfected and he had entered upon his duties as such, prior to April 8, 1861.

ACTION for the recovery of dower. The defense was that the plaintiff’s husband purchased the premises in question, during the coverture and gave back a mortgage to secure the purchase money; that such mortgage was foreclosed, and upon a sale in the foreclosure suit the premises were purchased by Charles and Thomas Brady, under whom the defendant derived his title.

On the 16th day of December, 1864, the defendant, Joseph H. Suggett, sold and conveyed to the plaintiffs and the defendant Whalin the undivided one eighth of the undivided one fifth of a farm of one hundred and thirty acres of land in Pennsylvania. Doyle paid $500, and the other two grantees $250 each. The plaintiffs at the time of taking the conveyance supposed that Suggett held the fee.

In the year 1861, the defendant, John Mitchell, was arrested, upon the application of the overseers of the poor, of the town of Wolcott, Wayne county, charged with being the father of a bastard child, born of one Mary Kittiker, and which was chargeable to the town of Wolcott.

THE object of this action was to set aside a sheriff’s deed of certain lands in the city of Rochester, which were sold by the sheriff of Monroe, upon execution against the defendant Peter Arndt, and also several later deeds, under which the several defendants, other than Peter Arndt, hold or have held parts of the property so sold by the sheriff, or some interest therein.

ON the 16th of December, 1857, William H. Cheney executed to the plaintiff a chattel mortgage upon the property described in the schedule annexed to it.. Cheney resided at Eochester, and the chattel mortgage was filed in Monroe county clerk’s office on the 23rd February, 1858. The mortgage was given to secure notes which Cheney had given the plaintiff, for borrowed money.

<p>Where a husband, who was married prior to the married woman’s acts of 1848 and 1849, was indebted to his wife in the sum of $1000 for money arising from the sale of her separate real estate, which sum she had, previous to those acts, lent to him, he agreeing to keep it for her and treat it as her separate property, and repay it to her with interest; Held that equity would hold him to be her trustee for that amount, and allow him to pay her the same, upon his becoming insolvent, in the same manner that he might pay an3' other creditor. J. 0. Smith, J. dissented.</p> <p>But that to authorize him to prefer his wife, as a creditor, it was necessary that the mone)' in his hands should be held and regarded, as between them, at and from the time of its receipt by him, as a loan from her; that he should be deemed to be in fact a debtor to her for the same; and that they should have constantly and intentional!)' treated the sum in his hands as her separate property.</p> <p>Held, also, that the husband was not obliged to insist on his marital lights to his wife’s personal property and dioses in action ; and that if he did not assert such rights, but expressly agreed with her not to do so, and acted upon this agreement, equity ivould allow him to pay her any money she might have temporarily lent him, under such circumstances.</p>

OBACE B. CLAFLBST and others, composing the firm of Claflin, Mellen & Co., recovered a judgment against Samuel M. Welch, in the supreme court, on the 11th day of October, 1861, for $390.89 ; execution was issued and returned unsatisfied, and the plaintiff commenced an action on the 28th day of January, 1863, against Welch and his voluntary assignees, Bradner and Van Derlip, to set aside the assignment and satisfy the judgment out of the assigned property.

APPEAL by the -plaintiffs from an order made at a special term, allowing a demurrer to the complaint. Held: and appropriating it to a different purpose.

THIS was an action brought upon a promissory note, for $102.77, dated December 6, 1860, made by William A. Hash, and payable to the order of himself, nine months after date, with interest; which note was indorsed by him and delivered to one John Walmsley, who subsequently, for value received, sold and delivered the same to the plaintiff, James Walmsley.

OB the 24th of July, 1861, the plaintiff brought an action against one Marratt, in this court, and caused him to he arrested under the provisions of title 7, ch. 1 of the code. The defendants became hail for him, and he was discharged. On the 16th January, 1862, -judgment in that action was rendered in favor of the plaintiff, and these defendants became chargeable as his bail.

ON the 7th day of February, 1859, Allen Ayrault (the defendant’s testator) commenced an action in this court against the above named Ellery Gr. Williams and others, to recover the amount of a promissory note made by them, payable to his order, for the sum of $6000, dated July 5, 1854. The persons thus sued set up, by answer, that the note was void for usury; detailing with particularity the facts constituting it.

The plaintiff was sheriff of Steuben county from 1856 to 1859. The defendant, E. Howard Ames, was one of his deputies, and the defendants, Ambrose Ames and A. H. Stone, were his sureties in the bond given by the deputy to the sheriff on receiving his appointment.

APPEAL-from a judgment rendered at a special term. On tire 26th day of June, 1858, the plaintiff was the owner of certain real estate situated in the town of Alexander, in the county of Genesee, described in the complaint, and on that day made and delivered his bond to the defendant William 0.

CEETIOEAEI to the county judge of Steuben county. On the 28th day of May, 1861, Michael Eightenburgh duly recovered a judgment against Alfred J. Gilbert, in an action brought before J. S. Eobinson, Esq. a justice of the peace, for $101.88 damages and costs. On the 14th day of June, 1861, the said Eightenburgh duly recovered a judgment against Peter Eease in another action, before the same justice of the peace, for $90.13 damages and costs.

<p>APPEAL from a judgment entered upon the report of a referee. The complaint alleged, the making of an agreement in writing between the parties, dated January 13,1859, which recited that the defendant had sold to the plaintiff his farm, situated in Lyons for the price of $3000, to be paid as follows: $138 down; $862, with interest, on the 1st of April, 1859; $500 in two years from April 1, 1859, with interest on all sums unpaid; and to pay a certain mortgage of $700 then on the farm, &c. and the balance, $800, in three equal annual payments, with annual interest on the whole sum due at each payment; the first of said payments to be made April 1, 1862. The defendant was to give a warranty deed on the 1st day of April, 1859, or as soon as the said $862 and interest should be paid, to be signed by himself and wife. The complaint then alleged that in accordance with said agreement the plaintiff, on the day of the date thereof, paid to the defendant $138, the first payment mentioned therein; and that on the 1st of April, 1859, the plaintiff tendered to the defendant the sum of $862, the second payment mentioned in the agreement, and offered to pay or secure the balance of the payments in accordance with the agreement; at the same time demanding a conveyance of the farm, free of all incumbrance, by a good and sufficient warranty deed; that the defendant neglected and refused to perform the agreement, on his part; and that he gould not convey a good and perfect title in fee to said farm, free of all incumbrance, but on the contrary the same was subject to various defects, to wit, to certain mortgages [which are mentioned and described in the referee’s findings of facts,] and a notice of lis pendens [also mentioned in said findings of facts, below.] The complaint then alleged a breach of the agreement by the defendant, and claimed to the amount . of $138 and interest.</p> <p>The answer was a general denial of the allegations of the complaint; alleged performance by the defendant; and set up by way of counterclaim the making of the agreement by the plaintiff to purchase the premises; the execution of a good and sufficient deed by the defendant and his wife, to the plaintiff; a tender thereof to the plaintiff; the demand of the sum of $862 from him; and the plaintiff’s refusal to accept such deed or pay the installment of $862 and interest.</p> <p>The referee found the following facts: That on the 13th day of January, 1859, the defendant, being the owner in fee of the premises described in the complaint, made and entered into the agreement set forth in the complaint, under the hands and seals of the parties. That on the 2d or 3d of April, 1859; the parties met, at Lyons, for the purpose of mutually pérv forming the contract. That the plaintiff then found recorded in the clerk’s office of Wayne county, a mortgage of the premises agreed to be sold and conveyed,, executed by the defendant Dennis and wife to Eliza Bronson, guardian of Catharine Woolsey, dated January 28, 1856, recorded January 29, and conditioned for the payment of $700 and interest. Also, a mortgage of the same premises, dated January 28, 1856, recorded March 15, 1856, and conditioned for the payment of $700 and interest. Also, a mortgage of the same premises, dated January 28, 1856, recorded April 24, 1856, and conditioned for the payment of $700 and interest. That the plaintiff informed the defendant that he had found these matters of record, and the defendant alleged that he had given but one such mortgage. The performance of the contract was then postponed one week, when the parties again came to Lyons for the purpose of performance, and the plaintiff having made further search at the county clerk’s office, found on file there a notice of pendency of an action in the supreme court, wherein one Joseph D. Dennis was plaintiff, and the defendant Frederick A. Dennis, and his wife, were defendants, filed April 26, 1858, in which notice was given that said action was brought for the purpose (among other things) of having the deed under which the defendant claimed title to a part of the premises aforesaid, declared fraudulent and void, as against the plaintiff in that action as a creditor of the grantor in such deed. That the plaintiff informed the defendant of this notice of Us pendens. That the plaintiff was on the same day informed by the agent of the mortgagor, and through whom the loan was made, that there was in fact but one mortgage on the premises, and that by reason of errors in names, in the first two mortgages that appeared of record, they had never been accepted by the mortgagee. And the referee found that this information was in fact true. And that on the same day the defendant tendered to the plaintiff a deed of the premises described in the contract, which deed was dated April 1, 1859, and acknowledged on the 5th day of April, 1859, and contained the following covenant: “And the said Frederick A. Dennis doth hereby covenant and agree to and with the said party of the second part, his heirs and assigns, that the premises thus conveyed, in the quiet and peaceable possession of the said party of the second part, his heirs and assigns, he will forever warrant and defend against any person whomsoever, lawfully claiming the same, or any part thereof.” The referee also found that at this time, the aforesaid action, in which the said notice of Us pendens was filed, was still pending, upon an issue which had been made by the answer of the defendant therein. That the plaintiff herein refused to accept the aforesaid deed as a performance on the part of the defendant, by reason of the two records of mortgages, and of said notice of Us pendens, and thereupon removed from the premises, but was prepared to perform/ and offered to perform said contract, if the defendant would convéy the premises discharged of the said recorded mortgages and notice of lis pendens; which the defendant did not and could not do. That the plaintiff paid to the defendant, on said contract, on the 15th day of January, 1859, $138,'and on the same day he paid $14 for interest on the $700 mortgage mentioned in the contract, which sums, with interest, amounted to $198.11, which had been demanded of the defendant.</p> <p>The referee's conclusions of law were that the defendant was not in a condition to perform the contract on his part, at the time fixed for its performance, or at the time to which performance was postponed; and that for that reason the deed tendered by him was not a warranty deed of the farm, within the meaning of the contract. The referee accordingly reported that the plaintiff was entitled to judgment against the defendant, for $198.11 and costs. The defendant appealed from the judgment.</p>

<p>APPEAL from a judgment entered on the report of a referee.</p>

THIS was an action for an assault and battery brought by the above named respondent, as plaintiff, against the appellant, as defendant. The battery in the complaint is alleged to have taken place on the third day of December, I860,- at the town of Saugerties, Ulster county. The answer was a general denial, and it is also alleged that the plaintiff was the wife of the defendant, and that at the time of the occurence the parties were living together as husband and wife.

<p>APPEAL from an order of Justice Peckham, made at a special term, refusing the appointment of commissioners to admeasure dower, upon the ground that a partition suit to which the applicant, Achsah Sipperly, was a party had been previously commenced, for the partition of the same premises in which dower is claimed in the complaint; in which suit it is admitted that the petitioner is entitled to dower; and in which complaint it is also averred and admitted that the parties to the partition suit derived then title to the premises mediately or immediately, from John Sipperly, the former husband of the said Achsah. Sipperly.</p>

THIS was an action of replevin, brought by the plaintiff against the defendant, as sheriff, for flour, feed, grain, &c. levied upon by him under and by virtue of an execution against Stephen Abbey, the husband of the plaintiff. The cause was tried at the Ulster circuit, in January, 1863, before Justice Gould and a jury, and the plaintiff was non-suited. It came here upon a case made under an order that it be heard in the first instance at a general term.

'IjTOTION for a new trial. This was an action brought by _JJL the plaintiff, Stephen Hyatt, against the defendants, the trustees of the village of Eondout, to recover for injuries, which the plaintiff alleges he had sustained, whilst traveling with a horse and wagon from Wilbur to Eondout, in consequence of the road being out of repair, such road being within the limits of the village of Eondout. The answer was simply a general denial.

The action was brought to foreclose a mortgage executed by the defendants John B. Howell and wife to Isaac Picard, on the 9th day of July, 1859, for $4000 and interest, upon premises situated in Chili, Monroe county. The mortgage, and the bond accompanying the same, were on the same day assigned by the mortgagee to the plaintiff, at a discount of $900.

The plaintiff is the receiver appointed in supplementary proceedings before the county judge of Monroe county, instituted by Henry Davis, to obtain payment of a judgment recovered in'that court in September, 1846, against Eufus Childs, after an execution had been issued on said judgment, and returned unsatisfied. In February 1860, Davis applied to the supreme court for leave to issue an execution upon the judgment.

THIS action was brought for the wrongful conversion by the defendant of a large number of pieces of gold coin, amounting to $497, on or about the 31st of October, 1861. The answer denied the conversion, and alleged that the plaintiff, on the day above mentioned was indebted to the defendant on two promissory notes, one amounting to $71, and the other amounting to $426, and that this money was paid and indorsed upon the said notes.

APPEAL by the plaintiff from a judgment in favor of the defendants, rendered on the 27th of June, 1864, by-direction of Justice Lott, on a trial had before him in Suffolk county, without a jury, in October, 1863. .

<p>G., a member of a copartnership firm, made a check in the name of the firm, payable to H. or bearer, for the purpose of paying an account due from the firm to H., but instead of delivering and using the check for that purpose, G. retained it in his possession, and paid H.’s account by an account for a smaller amount which he held, individually, against H. and by payment of the balance in cash. He subsequently transferred the check to the plaintiff to pay a debt which he owed him. Held that as the facts showed the check was drawn to pay a partnership debt, in good faith, and it had passed into the plaintiff’s hand for a valuable consideration, an action would lie, upon it, against the firm.</p>

Upon the trial before the justice the plaintiff recovered damages to the amount of $187.50. The defendant appealed to the county court, and the cause was there retried, and the plaintiff was nonsuited upon the ground that there was no evidence given of negligence on the part of the defendant. A motion was made to set aside the nonsuit, and a new trial was ordered: The defendant appealed from that order, to the general term of the supreme court.

THIS was an appeal by the defendant from a judgment of the Columbia county court, where the plaintiff recovered a verdict for $63.75, in an action originally commenced in a justice’s court. The action ivas for the conversion of some corn alleged to belong to the plaintiff. The corn was raised in 1861, on the farm of the plaintiff, by one Houghtaling, who occupied the said farm under an agreement made and entered into between him and Tanner, dated March 28, 1861.

<p>ACTION to recover the possession of real estate. The plaintiffs claimed title to the premises in question as heirs at law of Nathan Scribner, deceased. The action was tried at the Monroe circuit, before the court without a jury. It was" admitted that Nathan Scribner became the owner of the premises, by a deed from Charles Close to him, dated October 1,1842; and that the plaintiffs are his heirs at law. It was further admitted that on the 19th of October, 1841, by a decree of the court of chancery, Scribner was adjudged to be an habitual drunkard; that Samuel Miller was appointed committee of his person and estate; that by an order of the supreme court, made on the 16th of July 1849, the said Miller was authorized and directed to sell and convey the premises in question; that the object of the sale was to obtain means to erect a house on other lands of Scribner for a dwelling for himself and his family, the committee having no other means. The order of sale stated the object of the sale to be to make improvements on the other real estate of Scribner; and authorized Miller, as such committee, to make the sale upon the payment in hand of a part of the purchase money, and the execution to him of a bond and mortgage for the balance, and directed him to use the moneys received on the sale, for the purpose of making such improvements. That in pursuance of said order Miller did sell and convey the premises in question to Philo Carpenter, upon certain terms and conditions. That he made a report of such sale, which was confirmed by the court, and the court directed Miller to execute a deed of the premises to Carpenter, on his complying with the terms of the sale. That Carpenter thereupon went into possession, and complied with the terms of the sale, but before Miller had executed a deed he was, by a .decree of the county court of Monroe county, made in 1852, removed from his trust, and William Wood was appointed committee, in his place, who executed a deed to Carpenter’s wife, professedly in pursuance of said order confirming the sale. Nathan Scribner died in 1853.</p> <p>The above facts were found by the judge; and as conclusions of law he found that the proceedings in the county court of Monroe county were void; that the conveyance executed by the committee appointed by that court passed no title ; and that the plaintiffs were the owners of the premises described in the complaint, in fee, and were entitled to recover the possession thereof, and also the sum of $125 agreed upon by the parties as damages for the use of the premises while the defendant unlawfully witheld the possession. The defendant excepted to the conclusions of law, and appealed from the judgment.</p>

Stephen G-. Austin is the receiver of the Commercial Bank of Buffalo, and as such procured, in 1844, the appointment of three referees, to whom the matters in controversy between Austin, as receiver, and Rawdon & Groesbeck should be referred, pursuant to the statute. The referees heard the proofs and allegations of the parties, and made their report, January 1, 1845, whereby they found due to the receiver, from Eawdon & Groesbeck, $4017.95.

EMURRER. by the plaintiff to the return of the defendant to a writ of alternative mandamus issued to compel the defendant to draw his warrant on the treasurer, for the payment to the superintendent of the Albany pier, of the sum of $5087.78, with interest from 1st January, 1850, being the supposed amount of canal tolls accruing during the year 1849 for that part of the canal included in the Albany Basin.

<p>APPEAL from a judgment entered upon a dismissal of the complaint, upon the opening of the cause by counsel. The plaintiffs and defendants were tenants in common of about 2200 acres of land in Great Yalley, Cattaraugus county. The lands were purchased by the parties on account of the pine and other timber upon them, and for lumbering purposes ; and their principal value consisted in the timber growing upon them. The lands were unimproved. The defendants, at different times, entered upon the lands and cut and removed large quantities of timber and converted the same to their own use; and the allegation of the complaint, and of the counsel, was that they committed great waste and damage to the land; and $10,000 damages were claimed. It was conceded, in the opening, that the timber cut and removed by the defendants was of suitable age and size to be cut and marketed. The court nonsuited the plaintiffs, and they excepted.</p>

APPEAL by the defendant from a judgment entered at a special term, after a trial by jury. The action was brought against the defendant, as surviving partner of the firm of E. E. Conklin • & Company, to recover money lent to the firm. The plaintiff had a verdict and judgment.

<p>Commissioners of highways are authorized to employ counsel in the preparation and trial of an indictment against an individual for obstructing a public highway, and to render other legal services in relation to matters connected with the control and management of highways. Such authority is incident to their official character.</p> <p>A contract of that nature, made by commissioners of highways with an attorney may be enforced against their successors in office.</p> <p>If a commissioner of highways advances the money, out of his own pocket, to pay the claim of an attorney whom he and his associates have employed to render services for the town, in respect to highways, and takes an assignment of the claim to himself, individually, he may maintain an action thereon against his successor in the office of commissioner of highways.</p> <p>It is well established that in order to reverse proceedings of a justice’s court, proper objections must be there taken. Every reasonable intendment will be indulged in support of a judgment of that court.</p>

<p>In construing a grant, natural objects control courses and distances, when they conflict.</p> <p>In case of such a conflict, courts, in the absence of all evidence to the contrary, must adopt and apply the rule of construction that all grants or conveyances are supposed to be made with reference to an actual view of the premises by the parties thereto.</p> <p>And they will infer that the parties by actually traversing the line in accordance with the monuments which were fixed, or by some other means equally satisfactory, acquired a knowledge of the line sought to be established by the grant.</p> <p>Thus, where the parties to a deed designated one object well defined, viz: “ the Shawangunk hills,” and located one of the lines upon the top of those hills, and “ upon- the highest part of the steep rooks, as the said rocks range,” &c.; Held that the court was not at liberty to conjecture that they intended to establish the boundary upon a lower elevation, upon the side of the said hills.</p>

<p>COMMON law certiorari, directed to the court of sessions of Albany county.</p>

THIS is an appeal from a judgment-entered upon the report of a referee, in favor of the plaintiff, for $217.84. The action was brought by the plaintiff against the defendants as common carriers, to recover the value of a quantity of clothing taken from a trunk of the plaintiff while upon the defendants' boat, on a passage from Albany to Hew York.

<p>APPEAL from a judgment of the Otsego county court. The action was brought in a justice’s court, to recover the value of a cow, alleged to have been wrongfully taken "by the defendant and converted to his own use. The answer alleged that the defendant took the cow into his custody and possession by virtue of an act entitled “An act to prevent animals from running at large in the public highway/’ passed April 23,1862 ; and that he followed the directions prescribed by the act. It also alleged “ that the cow was stolen or taken-from the custody and possession of the defendant in the night time, by some person or persons unknown to the defendant, and without the assent or connivance or procurement of the defendantand that after diligent search tire defendant was unable to find her, or ascertain who had taken her away.</p> <p>It appeared on the trial, that the defendant, May 17,1864, found the cow in his door yard, in the town of New Lisbon, and took her into his custody, under the act of 1862 ; that he immediately notified one of the commissioners of highways of the town, who on the same day issued six notices, and caused them to be posted up in the town, "of which the following is a copy:</p> <p>“Notice. Taken up byWm. B. Nearing, one deep red cow, about ten-years old, blind in the left eye, which I shall expose at public sale on the premises of the said Nearing, the 3d day of June, at one o’clock p. m., unless redeemed previous to the day of sale. Dated New Lisbon, May 17, 1864, (signed) A. Harris, Com’r.” The defendant also testified in his own behalf, as follows : “ The cow was not present on the 3d of June. She was taken away on the 27th of May, without my knowledge or consent. She was in the stanchion as usual when I left her. Next morning I found the stall empty, but could not say whether the door was fastened or not. I have not seen her since. The commissioner said he would sell the cow he had advertised, and referred the people to the description in the notice.”</p> <p>Cross-examined. “ Sometimes my son took care of her; he put her up the night she was stolen. She was put up every night. I don’t know whether she was fastened on the night of the 27th. I don’t know whether the door was fastenecl. The door fastened hy a slide on the inside; a pin went through the slide, and moved in a “slot” in the door. I had taken out the pin, and a part of the time the place was filled up. The commissioner had his sale at my house. I have not looked for the cow myself. I thought others could do it better.”</p> <p>Orin B. Nearing, sworn, testified: “I am a son of the defendant. I took care of the cow the night she was stolen; put her in the stanchion and drove the pin in. The door was fastened with a slide on the inside, with a pin in the slide, working in a “slot.” The pin was taken out, and the place filled up. I moved the slide with my knife, inserted between the edge of the door and the door post.”</p> <p>It also appeared that the commissioner sold the cow on the 3d of June, to the defendant for $1.88, he being the highest bidder at the sale. That the cow was demanded of the defendant on behalf of the plaintiff, and that she was worth $25.</p> <p>The plaintiff insisted: 1st. That the act of 1862 was unconstitutional and void. 2d. That the notice was insufficient, and the proceedings irregular under the act. 3d. That the defendant had not used the requisite care and diligence, and was liable for the escape or loss of the property. The justice rendered a judgment in favor of the plaintiff for $25 and costs. The Otsego county court, on appeal, reversed the judgment, and the plaintiff brought an appeal to this court.</p>

mHIS action was to recover the amount of two promissory JL notes made by the defendants to their own order in October and ¡November, 1853, and falling due on 6th October, 1854. The notes were given for premium on a jiolicy of insurance on a vessel of the defendants. The answer avers that the cause of action accrued more than six years before the commencement of the action.

<p>Where a testator, being too weak to subscribe his name, at the encl of his will, two marks were made, in the proper place, opposite a seal, with a pen held in the fingers of the testator, and his hand guided by another, which marks he declared if. to be his wish should be understood to be his signature; Seld that this was a valid subscription of the will, by the testator, within the meaning of the statute.</p>

THE plaintiff sues the defendants to recover from them damages alleged to have been sustained by him in consequence of false representations as to the condition of the Webster Eire Insurance Company.

THIS is an appeal by the defendant from a judgment rendered in this cause in favor of the plaintiff for $4840.83, damages and costs. The action Avas commenced by the service of a summons on the 14th of August, 1862. The complaint Avas served October 18, 1862, and the ansAver December 13, 1862.

<p>APPEAL from a judgment of a county court, affirming the judgment of a justice of the peace rendered in favor of the plaintiff and against the defendant, on the 12th day of February, 1862, for $35 damages, and $5 costs. The question raised, so far as material, -appears in the opinion.</p>

The action was brought by the plaintiff, against her brother, the defendant, to recover the amount of a promissory note, dated April 2, 1856, whereby the defendant promised to pay to the . plaintiff $484.66 with interest, three years after date. The execution of the note 'was admitted by the defendant, in his answer. The only defense interposed was that of usury.

The complaint alleged, 1. That on the 26th of February, 1862, the plaintiff sold and delivered to the defendant a machine, called a cracker machine, for which he agreed to pay the sum of $200, and that he had neglected and refused to pay the same. 2.

The action was brought in a justice’s court, to recover damages for a breach of warranty upon the sale of a quantity of wool, and a verdict was there recovered against the defendant. The defendant appealed to the county court, where the case was retried. The wool was bought by the plaintiff's agent, of the defendant, who testified that the wool was in two or three sacks sewed up so that he could not see it, and from fifty to one hundred pounds of it tied up in blankets.

PPEAL from a judgment in favor of the plaintiff, rendered upon the report of a referee. The action was upon a guaranty made hy the defendants to the plaintiff, on the 8th of February, 1861, by which they agreed to be liable in a sum not exceeding $1000 that one E. M. Parker, of the city of New York, should account to the plaintiff for the proceeds of paper sent him by the plaintiff, within one year, to be sold on commission.

The action was brought to recover the sum of $100 subscribed by the defendant and several others, to a paper in these words: “Whereas an appeal has been made from the order of the commissioners of highways of the town of Clinton, opening a certain highway, upon the petition of Yolkert P. Dow and others.

THE plaintiff, who was a gas fitter, in 1862, put into the defendant’s store in the city of Troy, then in process of construction, gas pipes and fixtures to the amount including his labor, of $146.19, to recover which he brought his action, in a justice’s court. The cause was tried before the justice, and a jury, and a A^erdict rendered in favor of the plaintiff The defendant appealed to the county court, where á new trial was had.

THIS action was 'brought to obtain a construction of the. will of George Lovett, late of the city of Hew York, deceased. He died in the city of Hew. York on the 5th of January, 1864, leaving his daughters, Augusta Gillender, wife of Bccles Gillender, and Mary Kingsland, wife of Ambrose 0. Kingsland, Ms only heirs at law, and entitled to his personal estate in case of intestacy.

THIS was an action brought by the plaintiff against the defendant for damages occasioned by reason of the defendant having seduced the daughter of the plaintiff, whereby she became pregnant and was delivered of a male child on the 14th of June, 1863. The plaintiff is a married woman, hut has for more than nine years last past lived separate and apart from her husband, who left her about nine years before the trial, during which time, she had not heard from him directly.

THIS action was first brought in a justice’s court, to recover a penalty of five dollars for obstructing a highway in the town of Worcester in the county of Otsego. The defense there interposed was that there was no highway where the obstruction was placed; and that the land where the plaintiff alleged there was a highway was the private property of Greorge Clark, and that the defendant acted as his agent in putting the alleged obstruction on the land.

rpHIS action was brought upon a written agreement, exeJL cuted by the defendants to the plaintiff. It was referred to Hon. Moses Taggart, and tried before him, and he reported in favor of the plaintiff. 'From the judgment entered upon his report, the present appeal was brought by the defendant Bodman Clark.

THIS is an appeal by the defendants from a judgment rendered in favor of the plaintiff in an action to recover the possession of real estate, with damages for the withholding thereof. The cause was tried at the Ulster circuit in January, 1865, and the premises were situated in that county. The judgment was for the plaintiff, to recover the possession of the premises with $150 damages, besides the costs of the action.

THIS was an action brought to recoyef damages for an alleged breach of warranty in the sale of a span of horses, and was tried before Justice Peckham and a jury, at the Sullivan circuit, in October, 1864. The jury found a verdict for the plaintiff.

The defendant was incorporated in May, 1864, under the “Act to authorize the formation of corporations for the ■ erection of buildings,” passed April 5, 1853. (Laws of 1853, ch. 117.) The attorney general, on leave granted, instituted this action to obtain judgment of ouster and dissolution against the defendant, on three grounds: 1. On account of the exercise of privileges and franchises not granted. 2. On account of the non-exercise of privileges and franchises granted. 3.

THIS action was brought to recover for four years’ rent of a store situate in Canton, St. Lawrence county, leased by the plaintiff to the defendants; and for goods sold and delivered to, and work and labor done by the plaintiff for the defendants.

THIS action was commenced in 1863, against the defendants, Joseph Blair and Patrick McFarlan, as joint makers, and Archibald McFarlan and David Blair, as joint indorsers of two promissory notes dated on the 1st day of March 1861, one for $500, and the other for $2000,- payable to the order of the said indorsers at the Farmers’ Bank of Amsterdam.

IN October, 1862, the plaintiff, as • master of a canal boat called the Mankato, received at St. Johns, Ganada East, from one Theodore Arpiñe, 5749 39-48 bushels of barley, consigned to the defendant in New York; for which he gave two bills of lading, one for 4000 and the other for 1748 39-48 bushels. The one for 4000 bushels was in this form : “St. Johns, Oct. 18, 1862. Shipped by G-eo.